Exclusive City Policy Attacks Civil Rights

[Hunt 11]

I think this is a difficult case, which probably belongs in the Supreme Court. You can't simply say that it's not an equal access case because the city has these other criteria a group has to meet in order to get access. It seems to me that a city shouldn't be able to circumvent equal access by crafting criteria that exclude groups with views they don't like. The tough question for the courts will be whether enforcing the city's antidiscrimination policy on a non-profit is more like a procedural rule that is clearly acceptable (i.e., the city will only give free berthing to non-profits with adequate liability insurance), or if it is more like an improper requirement based on viewpoint (i.e., the city will only give free berthing to non-profits with charters that reflect Christian values). In the Dale case, the Supreme Court held that New Jersey's non-discrimination law couldn't be enforced against the Boy Scouts because it violated the BSA's rights of expressive association. It remains to be seen whether the Court will follow a similar line of reasoning in an equal access setting.