Scouts in Court to Reclaim Free Berth

A case alleging that the city of Berkeley infringed on First Amendment rights by taking away a free marina berth from a local ocean-going division of the Boy Scouts of America was heard by the California Supreme Court last week.

The Berkeley Sea Scouts were given an ultimatum by city officials in 1998 to disavow the Boy Scouts' policy of excluding homosexuals and atheists. When the Scouts refused, the group lost their free berthing privileges at the Berkeley Marina, which they had enjoyed for over 50 years.

"The Sea Scouts have never discriminated against anybody...they've been an inclusive organization," said co-counsel for the Sea Scouts Harold Johnson in an e-mail. "They are however an affiliate of the Boy Scouts of America."

The court heard the case last Tuesday, and a decision is expected by early April.

The Sea Scouts, who learn carpentry, sailing and plumbing, have enjoyed over 50 years of free berthing privileges at the Marina. The Sea Scouts say that as a result of the city's action, their fleet and membership has reduced in size and the skipper now pays the $500 berthing fee from his pocket.

Johnson said the city's actions were illegal because the city grants public subsidies to only those organizations which agrees with its policies.

"Berkeley, by demanding that the Sea Scouts write a pledge that would essentially disavow and disown the Boy Scouts of America, is requiring a loyalty oath as the price for admission to a city-sponsored program," Johnson said. "The First Amendment doesn't permit such government arm-twisting to enforce ideological group-think."

Berkeley City Attorney Manuela Albuquerque said the city has not violated the First Amendment rights of the Berkeley Sea Scouts.

"We understand you have the First Amendment right to belong to discriminatory clubs," she said. "Our position is simply that you do not have the right to finance private discriminatory clubs on the taxpayer's dime."

Both the Cal Sailing Club and the Berkeley Yacht Club continue to receive free berths as non-profit organizations.

The Sea Scout's parent organization Boy Scouts of America has come under fire in recent years for banning openly gay or atheist members. A U.S. Supreme Court case in 2000 said the scouts have a right to discriminate because they are a private organization.

In 1997 the city council passed a resolution that granted free berths only to those community organizations that act in accordance with the city's non-discrimination policies. The resolution effectively ended the decades of berthing free waivers the Sea Scouts had been receiving from the city.

The Sea Scouts first filed their case against the city of Berkeley immediately following the city council's resolution in 1997. A San Francisco appeals court ruled in 2002 the Sea Scouts had no case in a pre-trial hearing, but the Supreme Court decided to take up the case when it was appealed.

A similar controversy erupted in 2001 when a rally stopped then-Mayor Shirley Dean from meeting publicly with a group of Japanese Boy and Girl Scouts.

Albuquerque said that the city not only has the right but is obligated to fund only those groups whose policies coincide with the city's.

"The very nature of government is to decide what is good public policy," Albuquerque said. "If the government is not allowed to decide what to fund, what is the point of electing anyone in the first place?"

A correction to this article can be found here.

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