Refusal to Subsidize Scouting Is Upheld

California may refuse to provide subsidies to the Boy Scouts of America and other nonprofit groups that fail to comply with government antidiscrimination policies, the California Supreme Court ruled unanimously Thursday.

The state high court’s decision gives cities and government agencies the ability to impose antidiscrimination conditions on any group that receives a public benefit. The ruling was one of a handful across the country in which courts have permitted government agencies to exclude the Boy Scouts from programs because the Scouts bar gays and atheists.

In a ruling written by Justice Kathryn Mickle Werdegar, the court upheld a decision by the city of Berkeley to end a decades-long tradition of providing free berthing at a city marina to the Sea Scouts, an affiliate of the Boy Scouts.

The Sea Scouts argued that it had never discriminated and complained that the city was violating its 1st Amendment rights to free speech and association.

But the court said the group’s refusal to pledge to comply with the city’s antidiscrimination policy justified Berkeley’s action.

“A government entity may constitutionally require a recipient of funding or subsidy to provide written, unambiguous assurances of compliance” with an antidiscrimination policy, Werdegar wrote. The requirement does not violate free speech rights because “to condition a public benefit on assurances of nondiscrimination is not to compel advocacy of a viewpoint,” the court said.

The case attracted widespread interest. Groups weighing in the litigation on behalf of the Sea Scouts included the Church of Jesus Christ of Latter-day Saints, the National Catholic Committee on Scouting and the National Club Assn.

Supporting Berkeley were the League of California Cities and California Assn. of Counties, the Anti-Defamation League, the Lawyers’ Committee for Civil Rights and three foundations of the American Civil Liberties Union.

Berkeley City Atty. Manuela Albuquerque called Thursday’s ruling an important civil rights victory that was likely to have impact beyond California.

“The court is saying, ‘You may discriminate all you want, but you may not do it on the public’s dime,’ ” Albuquerque said.

Antidiscrimination policies are widespread in California cities, but Berkeley’s was the only one she knew of that has been challenged in court, she said.

A spokesman for the Boy Scouts of America said the group was dismayed by the decision, and a lawyer for one of the Sea Scouts called the ruling “a license to discriminate.”

“Carried to its logical extreme, any city government or public agency could start excluding the Boy Scouts or any group that was not ideologically correct in the eyes of City Hall,” said Harold Johnson, a lawyer with the Pacific Legal Foundation, a conservative, nonprofit legal group that represented one of the Sea Scouts.

Thursday’s decision was one of a few court rulings across the country giving governments the right to exclude Boy Scouts on the basis of its ban of gays and atheists. A decision on a dispute over whether the Boy Scouts can receive a subsidized lease of public land from the city of San Diego is pending in the U.S. 9th Circuit Court of Appeals.

Jon Davidson, legal director of Lambda Legal, a gay rights group, compared Thursday’s ruling with “an old parental maxim: ‘If I pay the bill, I get to make the rules.’ ”

The case against Berkeley was brought by 14 youths and adults who participate in the Berkeley Sea Scouts, which teaches seamanship and other maritime skills to teenagers who pay no more than $7 a year to participate. The group is ethnically diverse and includes youngsters from poverty-stricken homes, the state high court noted.

Berkeley began giving the Scouts free berthing at its marina in the late 1930s.

When other groups began clamoring for free berths several decades later, the city decided to establish a set of policies to determine eligibility.

One of those policies required a commitment not to discriminate.

The Sea Scouts assured the city that it had never discriminated and negotiated with the Boy Scouts to determine whether it could provide Berkeley with the necessary reassurance.

But the Boy Scouts told the Berkeley group: “You can’t say you don’t discriminate based on sexual orientation,” the court said.

The City Council voted to end the Scouts’ subsidy in 1998 when the group failed to provide formal assurance of compliance with the city’s antidiscrimination policy. Since then, a skipper for the Sea Scouts has paid the monthly berthing fee of about $500 for the group’s vessel.

In rejecting the Scouts’ constitutional challenge, the state high court observed that Berkeley did not require the group to agree with the views behind the city’s antidiscrimination policy.

“A government that requires aid recipients to conform their actions to its laws does not thereby enforce adherence to the philosophy or values behind those laws,” Werdegar wrote.

Berkeley also did not demand that the Sea Scouts discontinue its relationship with the Boy Scouts, Werdegar observed.

If the Boy Scouts decides to cut ties with a group that promises to comply with a government antidiscrimination policy, “the decision to sever the association would be Boy Scouts of America’s, not the government’s,” Werdegar wrote.