Posted on 10/17/2006 7:11:14 AM PDT by presidio9
Six years after the Supreme Court ruled the Boy Scouts could ban gay leaders, the group is fighting and losing legal battles with state and local governments over its discriminatory policies.
The latest setback came Monday when the high court without comment refused to take a case out of Berkeley, Calif., in which a Scouts sailing group lost free use of a public marina because the Boy Scouts bar atheists and gays.
The action let stand a unanimous California Supreme Court ruling that the city of Berkeley may treat the Berkeley Sea Scouts differently from other nonprofit organizations because of the Scouts' membership policies.
Two years ago, the court similarly rejected a Boy Scouts appeal of a case from Connecticut, where officials dropped the group from a list of charities that receive donations from state employees through a payroll deduction plan.
And in Philadelphia, the city is threatening to evict a Boy Scout council from the group's publicly owned headquarters or make the group pay rent unless it changes its policy on gays.
On a separate matter, federal judges in two other court cases that are being appealed have ruled that government aid to the group is unconstitutional because the Boy Scouts of America requires members to swear an oath of duty to God.
Despite the string of legal setbacks, lawyers for the Scouts said they believe the Supreme Court ultimately will decide that governments are improperly denying benefits that they make available to similar organizations.
"The issue of governments seeking to punish organizations for exercising their First Amendment rights is a recurring one. There will be other opportunities for the Supreme Court to affirm First Amendment protections for organizations dealing with government agencies," George Davidson, the longtime attorney for the Scouts, said in a statement.
Duke University law professor Erwin Chemerinsky agreed that the justices probably have not had their last say on the Boy Scouts and may be waiting until lower courts disagree on the issue.
"This is about when governments can impose requirements for getting government benefits," Chemerinsky said.
In 2000, the court ruled that the Scouts have the right to ban openly homosexual scout leaders, a decision that rested on First Amendment rights.
"The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill," then-Chief Justice William H. Rehnquist wrote for the court in a 5-4 decision.
Even so, the California Supreme Court said in March that local governments are under no obligation to extend benefits to organizations that discriminate.
Berkeley, home of free speech protests since the 1960s, adopted a nondiscrimination policy on the use of its marina in 1997 and revoked the Sea Scouts' subsidy a year later.
The Sea Scouts are a branch of the Boy Scouts. They teach sailing, carpentry and plumbing. City officials had told the group that it could retain its berthing subsidy if it broke ties with the Boy Scouts or disavowed the policy against gays and atheists, but the Sea Scouts refused.
Eugene Evans, who leads the Sea Scouts, has been paying $500 a month to berth one boat at the Berkeley Marina. The group removed two other boats because it could not afford the rent. The group has about 40 members, down from as many as 100 before the subsidy was removed.
Berkeley had allowed the Scouts free use of the marina since the 1930s, according to Evans.
The Sea Scouts said they were singled out because Berkeley's elected officials disapprove of the Boy Scouts' membership policies.
The case is Evans v. City of Berkeley, 06-40.
As long as that rule applies to all private groups.
GS can have a male leader as long as there is a female assistant leader. It works. I have a male asst GS leader and he is great- a very involved dad.
Have you got any idea how many cub/Boy Scout dens and packs are being led by women?
"Girl Scouts" has not "been lost".
Its just that it has become a lot more locally-led and therefore we can detach ourselves from the liberals in the national organization.
We still pledge "to serve God and our Country". If some lib atheist doesnt want their kid to say that, they don't. The rest of us go on.
>>Have you got any idea how many cub/Boy Scout dens and packs are being led by women?
Tons of Cub Scout dens, since dirt. Less common in BS, but still there, would be my guess.
Still, despite a few high-profile cases, adult women getting sexually involved with early teen/preteen boys is pretty rare. Men are the ones to worry about.
I don't see any of these things as "legal setbacks"... evidence of perverted local governments who think dillusionally that fags around boys doesn't equal sexual abuse far too often.... but I wouldn't say they are legal setbacks.
I think it speaks volumes about the moral clarity lacking in these places.
Just like not all muslims are terrorists, nearly all terrorists are muslims.. same is true for pedophiles and predators when it comes to boys. Not all fags are predatory pedophiles, but nearly all predatory pedophiles are fags. May not be PC, but its the truth, and its a truth the Scouts will refuse pretend not to exist.
If city councilman likes his prostate tickled by another mans genitalia so be it, but he and his buddies won't be in scouts.
They will never accept self destructive, mentally ill, abhorent behavior as morrally exceptable.
acceptable.. damn..long night.
Some clarification: by scout mothers. Just like the great majority of male scout leaders are fathers of a scout in the unit.
We left a church denomination because, even though the congregation wasn't too apostate, the top (national) leadership was. For us, association counts. Can we agree the national GS leadership has gone left?
You certainly may.
Now - you are free to righteously walk away from Girl Scouting because of "association" and find another similar values-based organization that teaches your daughter it is good to serve God and country, to help other people, to be a sister to every other Girl Scout and to enjoy camping.
95 years and still singing!
I've always thought of it as your having (and exercising) the right to exclude people from your organization for whatever reason you wish to you want to exclude them for, gives others the right to exclude you from using facilities, standing on the very same right that you stood on to justify your right to exclude.
The governments in question recognized the value of the scouts and entered into contracts to ensure their continued role as a beneficial force in their localities.
The governments in question are violating their contracts.
These lawsuits aren't whining lawsuits about "gimmie this" and "gimmie that". They are about contract violations. ALL OF THESE RULINGS AGAINST THE BOY SCOUTS OF AMERICA ARE WRONG.
The Boy Scouts of America have not changed. The governments have changed. These changes in no way obviate them from meeting their contractual obligations.
If the American Nazi Party can hold a parade which isn't illegal, but is unpopular, where's the difference?
I believe you're being somewhat disingenuous with that argument. Of course the Boy Scouts are "discriminating" by excluding homosexuals. Dale simply ruled that the First Amendment protected the right of the Boy Scouts to engage in that particular form of discrimination. Nothing in this decision is inconsistent with that ruling: the Boy Scouts have the freedom to associate, but the state is under no obligation to grant them preferred status if they engage in certain types of discrimination.
The Boy Scouts made their bed when they decided to fight this battle, and now they have to lie in it.
They weren't given a "perpetual lease". They were granted permission via a resolution which stated:
[T]hat said berth and mooring facilities shall be used by the Boy Scouts of America in accordance with all rules and regulations established by the City of Berkeley relative to the Berkeley Yacht Harbor, and said *permission* herein granted is subject to revocation by a 30 day written notice. (emphasis mine)
It is unfortunate that the record on appeal did not put the question squarely on the necessary facts so the Court would be compelled to take the case.
John / Billybob
Nobody's keeping the Scouts off the property. The city is only refusing to grant the Scouts a *subsidy*. The Scouts are still allowed to use the property as long as they pay to do so.
No, sir, I do not miss that point at all. I am quite familiar with unconstitutional conditions doctrine, and I know that it would not control the present case. The doctrine is an inconsistent mess, (particularly after FAIR*) and it is extremely unlikely that the Court would even consider applying it to a freedom of association case like this.
As I said earlier: this isn't a surprise to anyone. The Boy Scouts had to decide if it was more important to retain their right to exclude homosexuals, or more important to retain their many government benefits. They chose the former. Now the government is treating them just as it would treat any other organization that does not abide by their nondiscrimination policies.
Tell me, why do you think the Boy Scouts deserve preferential treatment in these matters? You may feel they are an excellent organization, and you may be right, but that does not by itself elevate them above the state's nondiscrimination requirements.
*During which, as I recall, you took a very strict spending clause position, emphasizing the right of the government to spend its money according to its own preferences.
How about: "Dude, don't be so gay!"
The Boy Scouts refuse to allow homosexuals as members or leaders because they are homosexual. That is the definition of discrimination, but as a private organization they do have the legal right to discriminate. That's what the Dale decision said and nobody is disputing that right.
But in accordance with California law, Berkley is exercising it's right to refuse to subsidize any organization, public or private, that discriminates. That is their right under the Constitution. And unless the Boy Scouts can show that they themselves were unfairly discriminated against by the Berkley council then the case stays where it belongs, as a state matter. If the people of Berkley disagree with the court decision then they can change the law. Not that that's going to happen, of course.
From what I've heard this was more of a hand-shake agreement between the city and the scouts. There was no legal contract, just an understanding. Unfortunately if Berkley decides to void that understanding then there isn't a lot the scouts can do legally.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.