In 1997, Berkeley ended a long tradition of giving the Sea Scouts a free berth at the city marina after the youth group, which teaches boys seamanship, refused to formally repudiate the anti-gay policies of its parent organization.
During a court hearing on the Sea Scouts' challenge to Berkeley's policy, Justice Carlos Moreno asked whether the Sea Scouts would admit openly gay members.
Jonathan Gordon, an attorney for the Berkeley chapter, said it has had gay members in the past.
But "if the Boy Scouts came down on us, we would have to exclude that person," Gordon admitted.
The Sea Scouts contend that Berkeley has violated its 1st Amendment right of freedom of association.
"Getting on a boat is an exercise of 1st Amendment rights?" Chief Justice Ronald M. George asked skeptically.
Justice Joyce L. Kennard called the case "very difficult" and questioned whether the Berkeley policy was punitive.
Justice Marvin Baxter suggested that the scouts might deserve a trial on their lawsuit. The case came to the state high court on an appeal of a pretrial ruling, and Berkeley wants the court to throw out the lawsuit.
The dispute between Berkeley and the Sea Scouts, which will be decided within 90 days, is one of several cases around the nation that has pitted the Boy Scouts against government anti-discrimination laws.
A similar dispute over whether San Diego may lease parkland to the Boy Scouts is pending in the U.S. 9th Circuit Court of Appeals.
During Tuesday's hearing, Baxter asked the Sea Scouts' lawyer how the Berkeley City Council should handle requests from multiple youth groups for free berthing. Other nonprofit groups, including the Berkeley Yacht Club and the Cal Sailing Club, already have free berthing privileges.
Would a Ku Klux Klan youth group be on "equal footing for the free berths?" Baxter asked.
Gordon, the lawyer for the Sea Scouts' skipper, Eugene Evans, said the Klan would be on equal footing.
"The 1st Amendment protects all speech, even that which we hate," Gordon said.
Evans has been paying the $500 monthly berthing fee for the scouts' vessel since the city began enforcing its anti-discrimination policy. The scouts contend that cost has kept Evans from covering membership and participation costs for low-income teenagers.
The Pacific Legal Foundation, a conservative, nonprofit public interest law firm that is helping to represent the scouts, argues that Berkeley is punishing individuals for exercising free speech rights in violation of both the state and federal constitutions.
"The Sea Scouts are a very valuable community program that happens to be one of the most ethnically and culturally diverse groups at the marina, so it's a tragedy that Berkeley has chosen to punish these kids to make an ideological statement," said Harold Johnson, the foundation lawyer, in a written statement about the case.
Berkeley City Atty. Manuela Albuquerque said the city's policy was aimed at the Boy Scouts, and the Sea Scouts could have retained the free berth if the group disassociated itself from the Boy Scouts' stance on gay membership.
The Sea Scouts "are the Boy Scouts of America," she said.
Both the California Supreme Court and the U.S. Supreme Court have upheld the right of the Boy Scouts to exclude gays. The U.S. Supreme Court, however, has let stand an anti-discrimination law in Connecticut that excluded the Boy Scouts from a charitable, payroll deduction program for state workers.
Berkeley prevailed in its case before a state appeals court in 2002, but four of the state Supreme Court's seven justices voted to hear an appeal. Justices Baxter, Kennard, Janice Rogers Brown and Ming W. Chin supported review.
Chin, who is recovering from a minor medical procedure, did not attend Tuesday's arguments. Brown, a conservative, has since left the court, and Justice Carol Corrigan, a moderate Republican, has taken her place. Corrigan, attending her first oral argument for the state high court, did not comment during the hearing.