Here we go again in the Peoples' Republic of Berkeley

[eisely 13]

City and Scouts square off over gay rights

By David Scharfenberg Daily Planet Staff (11-21-02)

 

 

Lawyers for the city of Berkeley and leaders of the Berkeley Sea Scouts will square off in a San Francisco courthouse today over gay rights and berths at the Berkeley Marina.

 

The Sea Scouts organization, affiliated with the Boy Scouts of America, paid nothing to dock its boats at the Marina for more than 50 years, until the city began charging the group a fee in 1998 because it failed to disown the Boy Scouts anti-gay policies.

 

Sea Scouts leaders filed suit against the city in 1999, alleging a violation of the groups free speech rights. But the Alameda County Superior Court rejected the claim in June 2001 and turned down a similar, amended complaint five months later.

 

Superior Court Judge James Richman ruled, at the time, that public entities may condition public subsidies...upon the recipients compliance with state and local laws that prohibit discriminatory membership policies.

 

The plaintiffs have appealed Richmans decision and both sides will make arguments today in the California Court of Appeal in San Francisco.

 

Harold Johnson, a lawyer with the conservative Pacific Legal Foundation arguing on behalf of the Sea Scouts, said the group submitted a letter to the city in 1998 stating that it would abide by Berkeleys non-discrimination policy.

 

Deputy City Attorney Laura McKinney called the argument extremely disingenuous. She said the Sea Scouts April 8, 1998 letter stated that the group would not discriminate on the basis of factors like race and gender, but excluded sexual orientation a category included in the Berkeley anti-discrimination ordinance.

 

The letter also stated that the Sea Scouts never inquire about members sexual orientation.

 

 

But McKinney said a dont ask, dont tell policy is in violation of the city ordinance.

 

Johnson also said the city wanted the Sea Scouts to lobby the Boy Scouts to change its anti-gay policies, in effect compelling a specific kind of speech.

 

Johnson said Berkeley cannot require the group to be proselytizers and crusaders for a certain city-appointed message.

 

McKinney dismissed the charge. She said the Waterfront Commission, an advisory group to the City Council, recommended that the Sea Scouts keep the free berths and suggested that the group engage in a dialogue with the Boy Scouts about their anti-gay policies.

 

She said the recommendations of the Waterfront Commission do not amount to the actions of the city government which rejected the call for free berths and suggested that requesting dialogue is not the same thing as compelling speech.

 

McKinney said nothing is a sure bet in the courts, but expressed confidence in a victory.

 

I do feel our case is very strong, she said.

 

McKinney expects a decision from the appellate court within 60 days.

 

The Sea Scouts currently dock one boat in the Marina for $516 per month, according to the city.

 

 

[Rooster7 11]

eisely,

 

You do seem to derive some sort of sick pleasure in initiating these threads...Kinda like the kid who throws the banana peal out on a busy sidewalk or a firecracker in the girls bathroom.

 

[OldGreyEagle 5]

Eisley, thank-you for your efforts. I am glad you keep us up to date on these matters.

 

OGE

Matt 7:1-5

[evmori 11]

I'm glad I don't live in California!

 

Isn't the City of Berkley discriminating by revoking the Sea Scout free docking privledges?

 

Ed Mori

Scoutmaster

Troop 1

1 Peter 4:10

[slontwovvy 10]

Not in their eyes.

[NativeTexan 10]

I love the topic title! Kinda says it all...

[RobK 10]

Ed Mori asks:

Isn't the City of Berkeley discriminating by revoking the Sea Scout free docking privledges?

 

If Berkeley is allowing other private organizations free docking, then they are discriminating. If they don't allow anyone else free docking, then they aren't. One way or the other, the city has no buisness making free docking conditional on BSA's membership policies.

[eisely 13]

If I am not mistaken, there is yet more to this story than I have had time to relate. My facts are fuzzy because some of this history predates the time that we moved to this area.

 

Apparently the scouts provided free rip rap (large rocks) from a quarry on land owned by the scouts for the construction of the breakwater that shelters the Berkeley marina decades ago. The deal was that the scouts would have free access to the marina in perpetuity in exchange. I believe this was litigated initially on a breach of contract claim, and some judge tore up the original agreement.

 

I do know that there is an urban scout camp in El Cerrito north of Berkeley where there is an old quarry. This camp is called Camp Herms and still owned and operated by the Mount Diable Silverado Council. It no longer functions as a full residential summer camp, but we do a lot of training events there and it is used for cub day camps. Local units also meet there. I suppose this is the site from which the rock was extracted originally.

[littlebillie 10]

My stance on the gay issue is - I hope - clear. The BSA should be persuaded to allow responsible, mature gays into leadership positions. I said persuaded, not forced. That's an important point. No pedophiles or sex criminals of any kind, btw, gay or straight.

 

Ok, got my plank in there - now for a response.

 

RobK defines the discrimination thing succinctly. And I have to agree that, say, if the GSUSA is there, then the BSA has the right to be there as well. The Girl Scouts position is a lot more similar to the BSA position than a lot of folks believe.

 

 

BUT if there is/was in fact a contract, in perpetuity, etc., as eisely believes, then the marina privileges haven't been provided "free of charge". I'll be interested in hearing WHY some judge tore up the contract, AND if the BSA will at least be paid for the rip rap provided if the city of Berkely decides they no longer wish to abide by the terms of said contract...

 

If the Scouts indeed paid for this - even if just in rock - then the actions of the City are reprehensible.

 

I'd also like to point out that if the Federal Goevernment recognizes "don't ask don't tell" and if the GSUSA treats religion that way as well, then it really should be good enough for Berkeley AND the BSA.

[berkshirescouter 11]

Since the Judge tossed out the contract could the Council say the rocks are theirs and they want them back.

[frankj 10]

I am glad Eisely has time to post this kind of stuff from around the country. It still amazes me how many municipal bodies are so ready to tee off on the Scouts. For the sake of the Scouts, I hope they got the rocking-for-docking agreement IN WRITING way back when.

[berkshirescouter 11]

This just in.

 

Court says Berkeley may end free berthing for scouts

 

The Associated Press

 

 

A group affiliated with the Boy Scouts of America lost its legal bid Monday to continue to get free berthing at Berkeley Marina.

 

The city of Berkeley halted free berthing for the Sea Scouts in 1998 because of the scout's membership and leadership policies against gays. The scouts sued Berkeley and the San Francisco-based 1st District Court of Appeal said the scouts did not have a case.

 

Berkeley has provided free berthing for about six decades after the scouts permitted Berkeley to use rocks from a Boy Scout camp for fill in the marina.

 

The city stopped free access after it passed a 1997 ordinance forbidding the city from subsidizing groups that discriminate.

 

The scouts maintained that Berkeley's move, among other things, infringed on their free association rights and their rights of speech.

 

The court said the scouts, regardless of whether they get free berthing, can continue, under the First Amendment, to discriminate against gays. That notion has been upheld by the U.S. Supreme Court.

 

"Berkeley's actions have not required appellants to stop discriminating," the court said.

 

The appeals panel said Berkeley, in turn, is not discriminating against the scouts. The court said Berkeley is allowing the scouts to berth at the city marina, but is now charging $516 per month.

 

The case is Evans v. Berkeley, A097187.

 

 

 

 

Last modified: November 25. 2002 7:07PM

 

 

[NativeTexan 10]

Well... That does it. I'm removing the City of Berkeley from my Christmas card list.