Lawyers spar over subsidy for Sea Scouts

SAN FRANCISCO -- Berkeley violated the Sea Scouts' rights by demanding that they disavow the Boy Scouts of America's constitutionally protected exclusion of gays and atheists, an attorney told the state Supreme Court on Tuesday.

But the city's attorney countered that Berkeley taxpayers should not be forced to subsidize a private organization that refuses to abide by the city's anti-discrimination laws.

The state Court of Appeal in 2002 ruled the Sea Scouts -- which teach sailing and related skills -- had no case against Berkeley, which revoked the Scouts' free-berthing privilege in 1998 because of the group's affiliation with the national organization.

The city had let the Sea Scouts use city-owned berths free of charge for decades but adopted an ordinance in 1997 banning subsidies for groups that discri-

minate. Since refusing to disavow the BSA's policy, the Sea Scouts have hadto pay for their berth.

The state's highest court will decide the matter within 90 days.

The Sea Scouts are being "punished for something they haven't done simply because they're associated with someone the city of Berkeley doesn't like," said Attorney Jonathan Gordon of Pleasant Hill, arguing for the plaintiffs. "There hasn't been a single instance of discrimination."

But Associate Justice Kathryn Werdegar pressed Gordon on whether the city has right to extract a written promise that no such discrimination will occur. Gordon said it does not, citing a 2000 U.S. Supreme Court decision that found the Boy Scouts of America has a right as a private organization to direct its own internal affairs and limit its membership.

The Sea Scouts and the Boy Scouts of America cannot be forced to relinquish a constitutional right in order to receive a public benefit, Gordon contended.

Questioned by Associate Justice Carlos Moreno, Gordon acknowledged that although gays and atheists have been Sea Scouts under a sort of "don't ask, don't tell" policy, any youth or leaders known to be gay or atheist would not be permitted, as required by the national policy.

Berkeley City Attorney Manuela Albuquerque argued that the Sea Scouts are putting a "gloss" on the city's decision to charge rent for a marina berth by calling it punishment.

Associate Justice Marvin Baxter asked why a jury should not hear and decide the facts of this case; so far, a Superior Court judge and the Court of Appeal have merely granted Berkeley's request that the case be dismissed. Albuquerque replied the lower courts were correct in finding the city was within its rights as a matter of law.

"The government has simply chosen not to fund this type of activity," she said, adding that if the city does not have the discretion to decide to whom it will and will not give subsidies, "we might as well start doling out money in the budget on a first- come, first-served basis."

Questioned by Baxter during his rebuttal, Gordon acknowledged that under legal precedents, it is "unfortunate but correct" that the city would no more be able to deny a Ku Klux Klan youth group a free berth at the marina than it can the Sea Scouts.

Outside the courthouse, Gordon refused to speculate how the justices might rule: "I don't guess. 'We're hopeful,' is all I can say."

But Albuquerque said she believes the court understands the issues, and she is "hoping no court will require that taxpayers have to finance private discriminatory policies."

Associate Justice Ming Chin was absent from Tuesday's arguments but will participate in deciding the case after reviewing a videotape and transcript.

And this case was the first heard by Associate Justice Carol Corrigan of Oakland, who was confirmed and sworn in just last week.

She asked no questions during the arguments.

Contact Josh Richman at jrichman@angnewspapers.com.

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