Sea Scouts petition case of discrimination by Berkeley to the California Supreme Court

A legal brawl between the Sea Scouts and the Berkeley City Council may soon head to the California Supreme Court this year, taking the five-year fray to the state’s highest judicial authority. For six decades, the Berkeley Sea Scouts, a subsidiary group of Boy Scouts of America that trains children in seamanship, were allowed to dock their boats in the city’s marina free of charge. That changed in 1998, when the Berkeley City Council voted to withhold docking fee waivers from the organization because of the Boy Scouts policy forbidding open homosexuals from holding leadership positions.

Berkeley officials maintained that such policies were discriminatory and excluded members of the city’s population, prompting them to remove the fee waivers. The First District Court of Appeal in San Francisco upheld that decision in November.

But the fight over fee waivers may soon see its conclusion, as attorneys for the Berkeley Sea Scouts petitioned the state Supreme Court last month to review the council’s decision. Currently, the city subsidizes berthing for non-profit organizations that follow and complete the procedures of the city’s Waterfront Commission, which prohibits discriminatory policies.

“(I was) very concerned that the city was using its tax payer’s money to contribute city facilities to organizations that were not open to all residents of the city,” said former Councilwoman Diane Wooley Bauer, and former vice chair of the city’s Waterfront Commission.

Councilman Kriss Worthington, who supported the removal of the fee waivers, said the matter was a “technical issue.”

“The city is in a technical legal position where we cannot give free things to a group discriminating,” he said. “Other people have pushed the issue and the city council and the city felt obligated to enforce the law.”

If Boy Scouts of America reverses its policy regarding publicly open homosexuals, Worthington said he would support the reinstatement of the docking fee waivers.

But Sea Scout officials maintain the decision is unfair because, they say, they do not share their parent organization’s policy of turning away individuals on account of sexual orientation.

“We believe that sexual orientation is a private matter, and we do not ask either adults or youths to divulge this information at any time,” the court petition stated.

The petition stated the Sea Scouts have been named “discriminators by association” and that “equal protection principles offer protection from arbitrary government treatment (that) Berkeley has meted out to the Sea Scouts.”

The Sea Scouts now pay the nearly $500 per month charge to use each dock, increasing its yearly expenditures by approximately $22,000.

As a result, Berkeley Sea Scout participants must pay an additional $7 annual fee.

The additional fee has forced poorer participants out of the organization, said Harold Johnson of the Pacific Legal Foundation, an attorney for the Sea Scouts.

“By singling out the Sea Scouts for financial punishment-by slapping them with what amounts to a fine merely because they're associated with the Boy Scouts of America-Berkeley officials apparently feel smug and righteous, thinking they're making some kind of ideological statement,” Johnson said. “But all they're really doing is hurting some innocent kids for whom the Sea Scouts offer opportunities for friendship and sailing fun, and a chance to learn carpentry, plumbing and other practical skills while working on the Sea Scout ship.”

But the Berkeley Sea Scouts have been able to raise sufficient funds from donors to match the increase in cost, and the organization has been able to use its money more efficiently since the revocation of the docking fee waivers, said Sea Scout Skipper Loren Byer.

“It hasn’t had any impact,” Byer said. “I don’t know about other Sea Scout ships, but we do our own fundraising and when we spend money on something we think about what we’re going to spend on, like boat maintenance or uniforms.”

The city council will take time at a meeting in the next few weeks to “honor local scouts who are actively fighting against the discriminatory policies,” Worthington said.

“We want to support and encourage people within scouts who are fighting for equality and anti-discrimination,” he said.

But the council and Berkeley as a whole have a history of not exactly welcoming the Boy Scouts with open arms.

In the summer of 2001, Worthington threatened to lead protests against a group of visiting Japanese scouts were they to meet in Berkeley City Hall with the mayor as planned. The threat erupted into a large controversy that forced the mayor to move the official welcome ceremony to a private location amid protests of the Boy Scout policy.

The Berkeley Board of Education just last fall amended an anti-discrimination policy that was in violation of President Bush’s recent “No Child Left Behind Act.” It ended a decade of excluding the Boy Scouts from use of school facilities because of their policy against openly gay leaders. The President’s act requires schools to make school buildings open to the Boy Scouts for their activities. Had the school board continued to enforce the old policy, millions in federal funding could have been withheld.

Six decades ago, however, relations between the group and the city were amiable. No cost berthing for the Sea Scouts began in 1945, a half-decade after the Mt. Diablo Council of the Boy Scouts of America assisted the City of Berkeley with the construction of the marina by providing 80,000 tons of rock from a local scout camp.

In return, the Sea Scouts, because they had and continued to provide a “valuable service” to the city over the years, were allowed to continue their no cost berthing at the city’s marina, according to the court filing.

Now the fate of the scouts’ relations with the city may well rest in the hands of California’s top judges.

Sailing nonprofit docked for Boy Scout link
By Chris Jolma
THE WASHINGTON TIMES

A tiny nonprofit group that teaches boys the basics of seamanship is being penalized by Berkeley, Calif., for its affiliation with the Boy Scouts of America.
Until now, the Sea Scouts have enjoyed free berthing rights at Berkeley's public marina, as have several other nonprofit groups. But the city has a 5-year-old policy forbidding it to subsidize certain groups, including those that discriminate against homosexuals.
Berkeley decided the policy would require the Sea Scouts to pay for their slip at the marina. The Sea Scouts sued, citing a Supreme Court decision two years ago that the Boy Scouts had the right to bar homosexual Scout leaders.
On Nov. 25, a California appeals court ruled that the city could enforce its policy by charging the Sea Scouts $516 a month even though the Sea Scouts did not forbid homosexual leaders. Because the city was not levying such a fee on other groups using its marina, the Sea Scouts charged Berkeley with viewpoint discrimination.
"Basically, it's a hate crime against the Berkeley Sea Scouts as far as I can see," said John Gordon, the attorney for the Sea Scouts. "They hate the Boy Scouts so much that they didn't bother to check and see if the Berkeley Sea Scouts had done anything wrong."
Mr. Gordon filed a petition for a rehearing with the appellate court because the city made "a number of misstatements of fact" he said, including the assertion that the Sea Scouts did not agree to comply in the future with the nondiscrimination policy.
"That's absolutely false," he said. "They agreed to comply specifically with both the 1997 resolution as well as the Berkeley municipal code, both of which expressly forbid sexual-orientation discrimination."
The Berkeley City Council originally commended the participants in the Sea Scout program for being nondiscriminatory, and for "providing an enormous benefit to the community," Mr. Gordon said.
Their affiliation with the Boy Scouts, he said, was the reason the group was denied the free berthing privileges it had for decades for its 85-foot-long ship, which sleeps 40 persons. A Berkeley City Council member agreed with this assessment.
"It's not a question of the Sea Scouts as an individual people or as a group," Councilman Kriss Worthington said. "It's the Sea Scouts' affiliation with the discriminatory Boy Scouts of America. If the Sea Scouts were separate and not a part of a discriminatory group, then they would be sitting pretty."
Wayne Besen, a spokesman for the homosexual-rights group Human Rights Campaign, said the court made a good decision.
"The Sea Scouts are not entitled to a handout while they continue to discriminate and hurt their own members," he said. "This sends a strong message that they can choose their membership, but there are ramifications for discrimination and bigotry."
Meanwhile, the Berkeley Sea Scouts' chapter leader, Eugene Evans, has had to slash other activities to pay for the berth. The Sea Scouts is a volunteer organization with 150,000 members nationwide, and a small budget compared with the Boy Scouts, which has 3.3 million members.
Mr. Evans is a high school teacher and a Vietnam veteran who charges each boy a $7 membership fee. "This guy is an unsung hero," Mr. Gordon said. "He's been participating in this program since 1957, when he was 13 years old."
In the Sea Scouts' case, the appellate court cited as precedent a Supreme Court case involving Bob Jones University, which lost its tax-exempt status for barring interracial dating.
"But that's a fundamentally different factual situation," said Harold Johnson of the Pacific Legal Foundation, who has filed a friend-of-the-court brief siding with the Sea Scouts. "The U.S. Supreme Court noted in that ruling opposition to racial discrimination is a fundamental national policy. We've got a situation here that doesn't fall within that rubric. Issues of sexual orientation have not been addressed the same way.
"We're not claiming that there's a constitutional obligation for Berkeley to let anybody use the facilities free of charge." he said. "But once they make the decision, they're going to open it up to community-based nonprofits, then we cannot single out any one organization and punish it with a fee because they don't like that group's traditional beliefs."

LOUISVILLE, Ky. (BP)--A social researcher who has studied sexual behavior for 24 years believes the Boy Scouts of America (BSA) has sound reasons for maintaining its prohibition against gay scoutmasters. A homosexual cannot automatically be considered a child molester, said Judith Reisman, president of the Institute for Media Education in suburban Louisville, Ky.

But with 17-24 percent of boys being abused by age 18, nearly as many as the 25 percent of girls, there is cause for concern, she said. Since heterosexuals outnumber the homosexual population about 44 to 1, as a group the incidence of homosexuals molesting children is up to 40 times greater than heterosexuals, she said.

"You're looking at a much higher rate of abuse," said Reisman, a former university research professor who recently completed a study titled, "Crafting Gay Children." "The Department of Justice just released data and the rate of abuse are off the charts."

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