Boy Scouts Say They're Like KKK Youth

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Boy Scouts Say They're Like KKK Youth

by David Kravits, Associated Press

Posted: January 11, 2006 - 12:01 am ET

(San Francisco, California) The California Supreme Court grappled Tuesday with whether the city of Berkeley violated the First Amendment rights of a group of young sailors connected to the Boy Scouts of America.

Berkeley, celebrated in the 1960s as the home of the Free Speech Movement, revoked free berthing that the Berkeley Sea Scouts received for five decades at the Berkeley Marina. The city targeted the group in 1998 because the Boy Scouts bar atheist and gay members, and such conduct ran contrary to the city's 1997 policy of providing free berthing only to nonprofits without policies of membership discrimination.

The case challenges the legality of removing or withholding public subsidies from groups whose ideals run counter to the government's. During an hour of oral arguments, some of the justices thought out loud about the case's implications.

Justice Marvin Baxter wondered who else could get free subsidies at the marina if the scouts were correct.

"What you're saying is the youth KKK group ... is under equal footing?" Baxter asked Sea Scouts attorney Jonathan Gordon while referring to the Ku Klux Klan.

"Yes. That's correct," Gordon responded.

The justices did not rule, but will within 90 days under court procedure.

City officials told the Sea Scouts that the group could retain its berthing subsidy, valued at about $500 monthly, if it either broke from the Boy Scouts or disavowed the policy against gays and atheists. "They're compelling speech," Gordon said.

The Sea Scouts contend the group was unfairly singled out because the city did not make the same demands on the two other nonprofits receiving the subsidized berthing privileges at the city-owned Berkeley Marina, the Cal Sailing Club and the Berkeley Yacht Club.

The Sea Scouts, which teaches sailing, carpentry and plumbing, never disavowed the Boy Scouts' membership policy and said it wouldn't break from the Boy Scouts.

The city withheld the subsidy and was sued by the Sea Scouts, which alleged its free speech and freedom of association rights had been violated in light of a 2000 decision by the U.S. Supreme Court that said the scouts' membership policies were legal.

Lower courts ruled against the Sea Scouts, which has about 40 members and had as many as 100 before the subsidy was removed. A San Francisco appeals court said Berkeley could use public subsidies to further a public agenda.

Manuela Albuquerque, Berkeley's city attorney, told the justices, "We don't want to use our money to fund discriminatory policies."

Justice Joyce Kennard noted the tension between the city's policy and the scouts' policy. As her voice snickered, she said the Sea Scouts' concern was, "Well, we are being punished." In a similar tone, Kennard also wondered whether Berkeley targeted the scouts "because we don't like them."

The Sea Scouts berth one boat at the Berkeley Marina, where the group now pays a $500 monthly fee. The group removed two others because it could not afford the rent, Johnson said.

Berkeley's attorney, Albuquerque, pointed out that the U.S. Supreme Court in 1984 said the Department of Education could withhold funding to schools that discriminate on the basis of gender, and ruled the year before that Bob Jones University could be stripped of its "charitable" tax status because of its admission policy barring black students.

Gordon said the Berkeley Sea Scouts does not discriminate, despite its affiliation with the Boy Scouts.

Justice Carlos Moreno asked whether the club would admit an openly gay person. Gordon said it would not.

"If the Boy Scouts came down on us, we would have to exclude him," Gordon said.

In court papers, Gordon reminded the justices that in 1967 they overturned a Los Angeles County ordinance that required prospective municipal employees to take an oath repudiating groups that advocated overthrowing the state and federal governments. He also noted that the U.S. Supreme Court in 1972 also said a local chapter of the Students for Democratic Society could not be barred from using a Connecticut college's campus facilities because it was affiliated with what the university deemed a national group "likely to cause violent acts of disruption."

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