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State can cut subsidy to Scouts, court rules

Fri., March 10, 2006

SAN FRANCISCO – California may refuse to provide subsidies to the Boy Scouts of America and other nonprofit groups that fail to comply with government antidiscrimination policies, the California Supreme Court ruled unanimously Thursday.

The court’s decision gives California cities and government agencies the ability to impose antidiscrimination conditions on any group that receives a public benefit. The ruling was one of several across the country in which courts have permitted government agencies to exclude the Boy Scouts from programs because the Scouts bar gay and atheist boys.

In a ruling written by Justice Kathryn Mickle Werdegar, the court upheld a decision by the city of Berkeley to end a decades-long tradition of providing a free berth at a city marina to the Sea Scouts, an affiliate of the Boy Scouts.

The Sea Scouts argued it had never discriminated and complained the city was violating its First Amendment rights to free speech and association. But the court said the group’s refusal to pledge to comply with the city’s antidiscrimination policy justified Berkeley’s action.

“A government entity may constitutionally require a recipient of funding or subsidy to provide written, unambiguous assurances of compliance” with an antidiscrimination policy, Werdegar wrote.

The case attracted widespread interest. Groups weighing in the litigation on behalf of the Sea Scouts included the Church of Jesus Christ of Latter-day Saints, the National Catholic Committee on Scouting and the National Club Association.

Supporting Berkeley were the California League of Cities and California Association of Counties, the Anti-Defamation League, the Lawyers’ Committee for Civil Rights and three foundations of the American Civil Liberties Union.

Berkeley City Attorney Manuela Albuquerque called Thursday’s ruling an important civil rights victory that was likely to have impact beyond California.

“The court is saying, ‘You may discriminate all you want, but you may not do it on the public’s dime,’ ” Albuquerque said.

A spokesman for Boy Scouts of America said the group was “dismayed” by the decision, and a lawyer for one of the Sea Scouts called the ruling “a license to discriminate.”

“Carried to its logical extreme, any city government or public agency could start excluding the Boy Scouts or any group that was not ideologically correct in the eyes of City Hall,” said Harold Johnson, a lawyer with the Pacific Legal Foundation, a conservative, nonprofit legal group that represented one of the Sea Scouts.


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