Supreme Court Turns Away Scouts Appeal

Times Staff Writer

In a setback for the Boy Scouts, the Supreme Court turned away a free-speech challenge to a Berkeley policy that denies city-subsidized dock space to a Scouting group because it excludes gays and atheists.

The court’s action lets stand rulings in California and elsewhere that have said cities, schools and colleges may deny public benefits to groups that refuse to comply with broad nondiscrimination rules involving religion and sex orientation.

Some conservative groups had joined the challenge to the Berkeley policy, saying that advocates of “traditional moral values” are being subjected to discrimination across the country by “politically correct” government officials.

The court’s action sets no legal precedent, however, and the justices could well take up the issue in the future.


Six years ago, the high court came to the aid of the Boy Scouts of America when it ruled that a state cannot force a private group, such as the Scouts, to include openly gay men if doing so would violate its professed code of conduct. In that case, James Dale, a former scoutmaster, had sued the group after he was excluded upon acknowledging he was gay.

The New Jersey courts said the Scouts must abide by the state’s anti-discrimination law.

The Supreme Court disagreed in a 5-4 decision in the case of Boys Scouts vs. Dale.

But in the wake of the Scouts’ victory, some cities and school districts refused to permit Scouting groups to use their facilities on the same basis as they allowed other nonprofit organizations.

Lawyers for the Scouts then went back to court to challenge this exclusion as unconstitutional discrimination. So far, however, they have been rebuffed.

Harold Johnson, an attorney for the Pacific Legal Foundation, which presented the appeal, said he was disappointed the court refused to hear the case.

“We are confident that, eventually, the court will take a case addressing the underlying issues, because there are too many examples of government discrimination against Scouting and other belief-based organizations to ignore,” he said in a statement.

For many years, Berkeley had given a rent-free berth in its marina to nonprofit community service organizations, including the Sea Scouts. An affiliate of the Boy Scouts, the group teaches sailing and seamanship to teenagers.


But the Berkeley City Council adopted a new policy that required groups that wanted a free berth to agree in writing that they would not discriminate against persons based on, among other factors, their race, religion, ethnicity or sexual orientation. The Scouts did not sign the agreement because Boy Scouts policy excludes gays and atheists.

Eugene Evans, an adult leader of the Sea Scouts, agreed to pay $500 a month to maintain the berth in the Berkeley marina, but he also led a lawsuit that challenged the policy as violating the group’s rights to freedom of speech and the equal protection of the laws. He argued the Scouts were being treated as “second-class citizens” because their views on religion and homosexuality were disfavored by the government.

He lost decisively in the California courts.

In March, the California Supreme Court upheld Berkeley’s policy in a unanimous ruling. “Berkeley had not attempted to muzzle anyone’s speech,” said the state high court. “A government entity may constitutionally require a recipient of funding or subsidy to provide written, unambiguous assurances of compliance with a generally applicable nondiscrimination policy.”


The Scouts hoped for a more sympathetic hearing from the Supreme Court. The Pacific Legal Foundation, which is based in Sacramento, said the California ruling “sets an ominous precedent” for Scouting groups. Former Atty. Gen. Edwin M. Meese III, U.S. Rep. Dan Lungren (R-Gold River) and other conservative lawyers backed the appeal and noted that some Christian groups have been denied recognition or funding on college campuses because they too exclude gays and atheists.

“Millions of Americans who believe in traditional moral and religious values are looking to this court to uphold the constitutional rights and equal treatment under the law,” they said in a friend-of-the-court brief.

But in a one-line order, the court refused to hear the case of Evans vs. City of Berkeley.

Lawyers for Berkeley had argued that since Evans had appealed on his own, he did not truly speak for the Sea Scouts. Although the justices gave no explanation for refusing to hear the case, this could have figured in the decision.


Evans and the scouting group declined to comment on Monday.