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Berkeley Persecutes the Boy Scouts By: Harold Johnson
FrontPageMagazine.com | Wednesday, July 12, 2006

Pacific Legal Foundation announced today that it has appealed to the United States Supreme Court to review and reverse the California Supreme Court’s decision allowing the City of Berkeley to discriminate against the Berkeley Sea Scouts, because of their affiliation with the Boy Scouts of America.

Berkeley operates a program for community-oriented nonprofit organizations that allows them free use of the Berkeley Marina. However, Berkeley prohibits the Berkeley Sea Scouts from participating in this program, because the Sea Scouts are affiliated with the Boy Scouts of America and Berkeley officials hold ideological objections to the values and membership policies of the Boy Scouts of America. Berkeley has never identified a single exclusionary act by the Sea Scouts; it is barring them from the program for nonprofits solely because of their ties with the Boy Scouts.

In a March decision, the California Supreme Court upheld Berkeley’s policy of denying the Sea Scouts access to the berthing program for nonprofits.

Representing the skipper of the Berkeley Sea Scout program, Pacific Legal Foundation attorneys have appealed the California Supreme Court’s ruling to the United States Supreme Court.

"Berkeley is penalizing the Sea Scouts for exercising their First Amendment right of association in ways that city officials don’t like," said PLF attorney, Harold Johnson, co-counsel in the case. "May government punish you, or fine you, or subject you to second class treatment if you don’t pass a politically correct litmus test? That’s the question raised by this case. It’s a question that deserves to be heard by the United States Supreme Court."

The Berkeley Sea Scouts is a multi-ethnic group whose members come from all economic backgrounds. Berkeley’s exclusion of the Sea Scouts has imposed financial hardships on the organization. The monthly berth fee of more than $500 that the Sea Scouts must pay has led to cutbacks in programs and less financial assistance available for kids from poor families.

"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.

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 BSA’s traditional values and membership policies—even though those policies are protected by the First Amendment, according to the United States Supreme Court.

When the Sea Scouts declined to sign a statement of policy that would have had the effect of ending their lifelong relationship with the Boy Scouts, Berkeley halted its half-century tradition of granting the Sea Scouts a free berth and began charging the group a $500 a month fee.

As things stand, while some minority, low-income Sea Scouts members have had to drop out of the popular youth program because its finances are strapped, free berthing has been allowed for other groups, including the Berkeley Yacht Club, the Cal Sailing Club, and the Nautilus Institute.

PLF attorneys argued to the state Supreme Court that Berkeley’s fee amounts to fining the Sea Scouts for exercising First Amendment freedoms, specifically the Sea Scouts’ right to associate with the Boy Scouts of America. 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."

"Although enunciated in a state court case, the principle voiced by Traynor is consistent with the United States Supreme Court’s cases defending First Amendment rights," said PLF’s Johnson. "For this reason, we hope that the High Court will accept the case and right the wrong being done to the Berkeley Sea Scouts."

About Pacific Legal Foundation

Pacific Legal Foundation is the oldest and largest public interest legal organization dedicated to property rights, balanced environmental policy, and limited government.

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Harold Johnson is an attorney with the Pacific Legal Foundation.

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