California Supreme Court Ignores Constitutional Rights
of Berkeley Sea Scouts
L-R: Associate Justice Janice R. Brown*, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carlos R. Moreno. *On January 4, 2006, Justice Carol A. Corrigan was confirmed as an Associate Justice of the California Supreme Court, filling the vacancy created by the resignation of Associate Justice Janice Rogers Brown in June 2005.
IRVING, TX, March 9, -- Boy Scouts of America is dismayed by the decision of the California Supreme Court in the Berkeley Sea Scouts lawsuit against the City of Berkeley. The Court chose to ignore United States Supreme Court precedent and denied the Sea Scouts its First Amendment rights of free speech and association.
For 60 years, Berkeley permitted the Sea Scouts to berth their boat for free in the Berkeley Marina. The City even developed a policy allowing nonprofit organizations that provide community service to receive free berthing in the marina. In 1998, however, Berkeley singled out the Sea Scouts from other nonprofit groups and raised their berthing fees because the Scouts adhere to Boy Scouts of America's constitutionally-protected membership policies.
The City of Berkeley made the Scouts choose between giving up their rights or paying berthing rates applicable to wealthy yacht owners. No other nonprofit was required to make that choice. That is discrimination against Scouting. The Sea Scouts argued before the California Supreme Court that the City violated their First Amendment rights to freedom of speech and association, as well as their civil rights under state and federal law, by imposing fees not charged to other nonprofits to punish the Sea Scouts for Boy Scouts' speech.
Sea Scouts had argued it was being discriminated against by Berkeley by being refused the right to berth its boat at the city’s marina at the same rates as other nonprofits.
Boy Scouts of America was not a party to the case but filed a friend of the court brief supporting the Sea Scouts.
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Here is the press release from the Pacific Legal Foundation
CA Supreme Court Okays Berkeley’s Discrimination
against Boy Scout Affiliate
Court Upholds Campaign to Force Popular Youth Group to Comply with
City of Berkeley’s Liberal Politics
San Francisco, CA; March 9, 2006: The California Supreme Court today ruled against the Berkeley Sea Scouts in Evans v. Berkeley, and upheld the City of Berkeley’s discriminatory campaign to force the local nonprofit youth group to end its lifelong affiliation with the Boy Scouts of America.
"The California Supreme Court’s decision today unfortunately has given the green light to activist city officials to discriminate against groups they disagree with politically," said Pacific Legal Foundation attorney Harold Johnson, co-counsel in the case. Johnson also represents Sea Scout Tonatiuh Alvarez, one of the plaintiffs and petitioners before the state Supreme Court.
"The decision turns the First Amendment on its head," said Johnson. "Berkeley can declare itself a nuclear free zone, but it can’t declare itself a First Amendment free zone. This decision licenses Berkeley to treat people as second class citizens if they don’t sign a loyalty oath to the ruling ideology of Berkeley City Hall."
"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.
"This isn’t the first time the California Supreme Court has failed to adequately protect First Amendment rights, but it's always disappointing when a court gives its seal of approval to government discrimination and government abridgment of the freedom of association," said PLF's Johnson.
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 group’s traditional values and membership policies --- even though those policies are protected by the First Amendment, according to the U.S. Supreme Court.
When the Sea Scouts declined to end their lifelong relationship with the Boy Scouts, Berkeley ended a half-century tradition of granting the Sea Scouts a free berth and began charging the group a $500 a month fee.
As a result, the retired high school teacher who is skipper of the Sea Scouts’ ship must pay the fee out of his pocket. Before the fee was imposed, he covered the membership and activities costs for teenagers from low-income neighborhoods, something he can no longer afford to do. So while many minority, low-income Sea Scouts members have had to drop out of the popular youth program, free berthing is still being allowed for other groups, including the Berkeley Yacht Club, the Cal Sailing Club, and the Nautilus Institute.
PLF argued that Berkeley’s fee amounts to a fine for exercising First Amendment freedoms, specifically the Sea Scouts’ right to associate with the Boy Scouts of America. Under both the state and federal constitutions, government may not punish individuals or private organizations for exercising their First Amendment rights. But that is precisely what Berkeley is doing to the Sea Scouts by singling them out for exclusion from the city’s program that allows free use of the marina for nonprofits.
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."
About Pacific Legal Foundation
The Sacramento-based Pacific Legal Foundation is a nonprofit, public interest legal organization that litigates nationwide in defense of individual rights and limited government. PLF has supported the Boy Scouts’ First Amendment rights in a number of high profile cases. More information about PLF is available at www.pacificlegal.org.
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