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California Supreme Court Okays Berkeley’s Discrimination Against Boy Scout Affiliate (Sea Scouts)
Pacific Legal Foundation ^ | March 9, 2006 | Pacific Legal Foundation

Posted on 03/09/2006 9:56:37 PM PST by freedomdefender

San Francisco,CA; March 09, 2006: The California Supreme Court today ruled against the Berkeley Sea Scouts in Evans v. Berkeley, and upheld the City of Berkeley’s discriminatory campaign to force the local nonprofit youth group to end its lifelong affiliation with the Boy Scouts of America.

"The California Supreme Court’s decision today unfortunately has given the green light to activist city officials to discriminate against groups they disagree with politically," said Pacific Legal Foundation attorney Harold Johnson, co-counsel in the case. Johnson also represents Sea Scout Tonatiuh Alvarez, one of the plaintiffs and petitioners before the state Supreme Court.

"The decision turns the First Amendment on its head," said Johnson. "Berkeley can declare itself a nuclear free zone, but it can’t declare itself a First Amendment free zone. This decision licenses Berkeley to treat people as second-class citizens if they don’t sign a loyalty oath to the ruling ideology of Berkeley City Hall."

"The bottom line is that Berkeley officials are punishing the kids that participate in the Sea Scouts to make a political statement, and that’s a real tragedy," Johnson said.

"This isn’t the first time the California Supreme Court has failed to adequately protect First Amendment rights, but it’s always disappointing when a court gives its seal of approval to government discrimination and government abridgment of the freedom of association," said PLF's Johnson.

For 50 years, the Sea Scouts have taught Bay Area kids to sail, and learn carpentry and plumbing by working on the Scouts’ ship in the Berkeley Marina. Like other local nonprofits, Berkeley allowed the group to berth at the marina for free. But in 1998, Berkeley officials demanded the group sever its affiliation with the Boy Scouts. Berkeley officials were retaliating against the Boy Scouts because of the group’s traditional values and membership policies--even though the those policies are protected by the First Amendment, according to the United States Supreme Court.

When the Sea Scouts declined to end their lifelong relationship with the Boy Scouts, Berkeley ended a half-century tradition of granting the Sea Scouts a free berth and began charging the group a $500 a month fee.

As a result, the retired high school teacher who is skipper of the Sea Scouts’ ship must pay the fee out of his pocket. Before the fee was imposed, he covered the membership and activities costs for teenagers from low-income neighborhoods, something he can no longer afford to do. So while many minority, low-income Sea Scouts members have had to drop out of the popular youth program, free berthing is still being allowed for other groups, including the Berkeley Yacht Club, the Cal Sailing Club, and the Nautilus Institute.

PLF argued that Berkeley’s fee amounts to a fine for exercising First Amendment freedoms, specifically the Sea Scouts’ right to associate with the Boy Scouts of America. Under both the state and federal constitutions, government may not punish individuals or private organizations for exercising their First Amendment rights. But that is precisely what Berkeley is doing to the Sea Scouts by singling them out for exclusion from the city’s program that allows free use of the marina for nonprofits.

As Justice Roger Traynor of the California Supreme Court wrote in a famous freedom-of- expression case (Danskin v. San Diego Unified School District (1946)), once government creates a program or facility for the public, "it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable."

About Pacific Legal Foundation Pacific Legal Foundation is a nonprofit, public interest legal organization that litigates nationwide in defense of individual rights and limited government. PLF has supported the Boy Scouts’ First Amendment rights in a number of high profile cases.


TOPICS: Constitution/Conservatism
KEYWORDS: atheistagenda; boyscouts; bsa; bsalist; scouts; seascouts

1 posted on 03/09/2006 9:56:41 PM PST by freedomdefender
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To: freedomdefender
Berkeley is denying the Sea Scouts' their Equal Protection rights by charging them a fee that isn't charged to other non-profit organizations at its Marina. It is violating their First Amendment rights because it imposes that selective fee on the Sea Scouts because of their exercise of fee association and free speech rights by belonging to the Boy Scouts.

Berkeley is charging them a fee because they are Boy Scouts and Boy Scouts aren't politically correct. Other nonprofits get free use, so this is discrimination based on ideology. Unfair. Unconstitutional. Unfreakin unbelievable that the Cal SUpreme Court would say this is OK.

2 posted on 03/09/2006 10:02:47 PM PST by freedomdefender
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To: freedomdefender

Guess it takes a constitutional amendment for the boy scouts to be treated decently.

So how about it


3 posted on 03/09/2006 10:03:03 PM PST by Mount Athos
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To: freedomdefender
So where's the ACLU on this issue?
4 posted on 03/09/2006 10:06:07 PM PST by Rabble (Just When is John F sKerry going to release his USNR military records ?)
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To: freedomdefender

The sauce for a goose is the sauce for a gander. Per USSC, there is no inherent right to the taxpayer money, be it federal funds for the universities or a rent subsidy at the marina. Those who do not like the attached strings should not take the money, and then they could exercise their Constitutional rights to their hearts' content.


5 posted on 03/09/2006 10:10:20 PM PST by GSlob
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To: freedomdefender

http://www.freerepublic.com/focus/f-news/1593336/posts
already posted here.


6 posted on 03/09/2006 10:11:53 PM PST by jokar (for it is by grace, http://www.gbible.org)
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To: Rabble
"So where's the ACLU on this issue?"

The ACLU will only get involved in cases that further the Queer agenda.
7 posted on 03/09/2006 10:12:57 PM PST by Beagle8U (An "Earth First" kinda guy ( when we finish logging here, we'll start on the other planets.)
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To: GSlob
there is no inherent right to the taxpayer money, """"

That's true, but when government opens a program or offers a benefit, it can't pick and choose recipients based on their viewpoints. The US SUpreme Court has made that clear -- but that's what Berkeley is doing by shutting the Scouts out of a program that other nonprofits are allowed into. It's as if Berkeley charged Republicans more to use a city swimming pool than Democrats. Are you saying that would be constitutional, because "there is no inherent right to taxpayer money"? The US Supreme Court would disagree with you -- and I won't be surprised if they state their disagreement with the California Court on the Scout issue.

8 posted on 03/09/2006 10:30:14 PM PST by freedomdefender
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To: jokar
already posted here."""

Not really. The article you cite is from the San Fran Comical, and takes a liberal slant - suggesting that the Scouts were arguing they deserved a "subsidy." As the article that I posted notes, what was at issue, instead, is whether Berkeley can treat the Scouts UNEQUALLY -- WITH DISCRIMINATION -- because Berkeley doesn't like their traditional viewpoint.

This isn't about a "Right to a subsidy" -- as the Chronicle implies -- its' about a right EQUAL TREATMENT, and a right to NOT BE DISCRIMINATED AGAINST BECAUSE OF ONE'S CONSTITUTIONALLY PROTECTED VIEWPOINTS.

9 posted on 03/09/2006 10:33:10 PM PST by freedomdefender
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To: Rabble
So where's the ACLU on this issue?

They're fighting the Boy Scouts in case after case.

10 posted on 03/09/2006 10:34:03 PM PST by freedomdefender
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To: freedomdefender

Well, are they being overcharged for that berth? Or are they assessed the market rent? And as for "can't pick and choose" - I disagree. I read that USSC decision and understood it completely differently from your interpretation.


11 posted on 03/09/2006 10:34:34 PM PST by GSlob
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To: freedomdefender

The good old USA isn't nearly as good as it once was.

Do you ever wonder what the Lord thinks of what we've done to this once great blessing He entrusted to us? I do and then I shudder.


12 posted on 03/09/2006 10:38:19 PM PST by Frwy
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To: GSlob

The scouts helped build the damn marina. This isn't a "gimmee."


13 posted on 03/09/2006 10:40:47 PM PST by JCEccles
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To: GSlob

Beyond that, the SCOTUS decision has NO relevance to this case. You're building assumption castles in thin air.


14 posted on 03/09/2006 10:46:16 PM PST by JCEccles
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To: GSlob
Well, are they being overcharged for that berth? Or are they assessed the market rent?

They're being charged a high monthly fee, while other nonprofits are not charged any fee. It's rank discrimination, based on ideology. Look up "viewpoint discrimination" in a law hornbook. The US SUpreme Court has said again and again that government can't withhold access to a public benefit based on someone's constitutionally protected viewpoint. The law school/military case wasn't about that -- the Court decided that case based on Congress's military powers under the Constitution. You need to become familiar with more Supreme Court cases - such as the Karen Findley case, the Rosenberger case, the Legal Services case, all of which say that government benefits can't be withheld simply because government doesn't like an applicant's viewpoint.

I'll ask you again: Do you think it would be constitutional for Berkeley to charge Republicans, but not Democrats, to use its Marina or its swimming pools? THat's what they're doing in the Sea Scout case - - they're charging the Sea Scouts, while not charging other nonprofits whose views are more "acceptable" to city hall.

15 posted on 03/09/2006 10:47:16 PM PST by freedomdefender
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To: Frwy
Two years from now, when the Bush Supreme Court reverses this nonsense, hope we remember just how good GWB was.
16 posted on 03/09/2006 10:53:28 PM PST by bybybill (If the Rats win, we are doomed)
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To: bybybill

I so want to believe as you do. I'm just holding my breath until I see good results.


17 posted on 03/09/2006 11:02:23 PM PST by Frwy
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To: Frwy
Amazin, GWB has reshaped the Supreme Court, check out the ruling on military recruiting at Universities, but thats not enough for the Bush haters that post here. Five years from now, bet we all will want a President like GWB
18 posted on 03/09/2006 11:12:49 PM PST by bybybill (If the Rats win, we are doomed)
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To: freedomdefender
"The bottom line is that Berkeley officials are punishing the kids that participate in the Sea Scouts to make a political statement, and that’s a real tragedy," Johnson said.

It's a disgrace, but it's no surprise. It's California.
(Personally, though, I don't really think that places like Berkeley and San Fransicko are proper places to take children into anyway.)

19 posted on 03/09/2006 11:16:12 PM PST by Lancey Howard
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To: freedomdefender

Before the fee was imposed, he covered the membership and activities costs for teenagers from low-income neighborhoods, something he can no longer afford to do. So while many minority, low-income Sea Scouts members have had to drop out of the popular youth program,


And I thought libs were "for the children."


20 posted on 03/09/2006 11:19:40 PM PST by peggybac (Tolerance is the virtue of believing in nothing)
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To: Frwy
For 50 years, the Sea Scouts have taught Bay Area kids to sail, and learn carpentry and plumbing by working on the Scouts’ ship in the Berkeley Marina. Like other local nonprofits, Berkeley allowed the group to berth at the marina for free. But in 1998, Berkeley officials demanded the group sever its affiliation with the Boy Scouts. Berkeley officials were retaliating against the Boy Scouts because of the group’s traditional values and membership policies--even though the those policies are protected by the First Amendment, according to the United States Supreme Court.


Is this ideology entirely about gayness ? Why can't inclusion minded types form an alternative group which includes all ?

They could exclude me and my kids,

and we could focus on more important things
21 posted on 03/09/2006 11:22:31 PM PST by daku (Islam , a religion of peace ... Liar liar, France on fire)
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To: daku

What was previously abnormal behavior is now become the religion of our government. Humanism and Socialism have become the state religion that the Constitution tried to prohibit.


22 posted on 03/09/2006 11:38:47 PM PST by Ingtar (Understanding is a three-edged sword : your side, my side, and the truth in between ." -- Kosh)
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To: bybybill

Five years from now, we'll be much closer to being part of Mexico. The Supreme Court will be largely irrelevant to the tidal wave of illegal immigration being ignored by this President. This is a human wave of millions of lawbreakers so what do they care about the musings of a Supreme Court?


23 posted on 03/09/2006 11:51:56 PM PST by NoControllingLegalAuthority
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To: albertp; Allosaurs_r_us; Abram; AlexandriaDuke; Americanwolf; Annie03; Baby Bear; bassmaner; ...
Libertarian ping.To be added or removed from my ping list freepmail me or post a message here
24 posted on 03/09/2006 11:52:33 PM PST by freepatriot32 (Holding you head high & voting Libertarian is better then holding your nose and voting republican)
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To: freedomdefender

No doubt the Sea Scouts berth will be occupied by the Thea Thcouts. They fags want want access to your young boys, and they won't be denied.


25 posted on 03/10/2006 12:24:24 AM PST by Rightwing Conspiratr1
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To: Beagle8U

AND the Jihaddists, AND the Communists, AND the criminals, AND the atheists, AND the pedophiles, AND the abortionists, etc. etc.

The ACLU is a pox on the face of America and should be actively baknrupted in countersuits,

Further, groups and individuals who contribute to this obscenity should be unmasked and exposed to public view.


26 posted on 03/10/2006 3:00:29 AM PST by ZULU (Non nobis, non nobis, Domine, sed nomini tuo da gloriam. God, guts, and guns made America great.)
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To: Frwy

Mexifornia what can we say.


27 posted on 03/10/2006 4:36:14 AM PST by Vaduz (and just think how clean the cities would become again.)
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To: GSlob
You still haven't answered me. If Berkeley charged Republicans to use its Marina, but let Democrats in free, would that be constitutional? Under your "logic" -- that nobody has a "right to taxpayer dollars" so government can pick and choose who gets them -- I fear that Berkeley would be free to charge Republicans but not Democrats.

However, the Constitution, as interpreted by the US Supreme Court, says differently: Government can't withhold access to govt programs or benefits based on somebody's viewpoint. So charging the Sea Scouts, while giving free entry to other nonprofits that are deemed politically correct -- is unconstitutional. Just as it would be illegal to charge Republicans but let Democrats and Greens in free.

28 posted on 03/10/2006 6:06:02 AM PST by freedomdefender
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To: freedomdefender
The Sea Scouts would have been safe from the scorn of the California Supreme Court if they were made up of queers, anti-war activists or ecko-freaks.

Why has such a beautiful state been taken over by flakes?
29 posted on 03/10/2006 7:26:58 AM PST by R.W.Ratikal
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To: Rightwing Conspiratr1
"No doubt the Sea Scouts berth will be occupied by the Thea Thcouts. "

Is that a Spanish group?
30 posted on 03/10/2006 8:04:04 AM PST by ndt
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To: freedomdefender

Work hard to pin this and all other destruction of America on the democRATS.


31 posted on 03/10/2006 10:23:49 AM PST by noblejones (Ben Stein for President, 2008.)
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To: SandRat


32 posted on 03/13/2006 9:38:50 PM PST by Coleus (Roe v. Wade and Endangered Species Act both passed in 1973, Murder Babies/save trees, birds, algae)
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