- The Washington Times - Monday, December 16, 2002

A tiny nonprofit group that teaches boys the basics of seamanship is being penalized by Berkeley, Calif., for its affiliation with the Boy Scouts of America.
Until now, the Sea Scouts have enjoyed free berthing rights at Berkeley's public marina, as have several other nonprofit groups. But the city has a 5-year-old policy forbidding it to subsidize certain groups, including those that discriminate against homosexuals.
Berkeley decided the policy would require the Sea Scouts to pay for their slip at the marina. The Sea Scouts sued, citing a Supreme Court decision two years ago that the Boy Scouts had the right to bar homosexual Scout leaders.
On Nov. 25, a California appeals court ruled that the city could enforce its policy by charging the Sea Scouts $516 a month even though the Sea Scouts did not forbid homosexual leaders. Because the city was not levying such a fee on other groups using its marina, the Sea Scouts charged Berkeley with viewpoint discrimination.
"Basically, it's a hate crime against the Berkeley Sea Scouts as far as I can see," said John Gordon, the attorney for the Sea Scouts. "They hate the Boy Scouts so much that they didn't bother to check and see if the Berkeley Sea Scouts had done anything wrong."
Mr. Gordon filed a petition for a rehearing with the appellate court because the city made "a number of misstatements of fact" he said, including the assertion that the Sea Scouts did not agree to comply in the future with the nondiscrimination policy.
"That's absolutely false," he said. "They agreed to comply specifically with both the 1997 resolution as well as the Berkeley municipal code, both of which expressly forbid sexual-orientation discrimination."
The Berkeley City Council originally commended the participants in the Sea Scout program for being nondiscriminatory, and for "providing an enormous benefit to the community," Mr. Gordon said.
Their affiliation with the Boy Scouts, he said, was the reason the group was denied the free berthing privileges it had for decades for its 85-foot-long ship, which sleeps 40 persons. A Berkeley City Council member agreed with this assessment.
"It's not a question of the Sea Scouts as an individual people or as a group," Councilman Kriss Worthington said. "It's the Sea Scouts' affiliation with the discriminatory Boy Scouts of America. If the Sea Scouts were separate and not a part of a discriminatory group, then they would be sitting pretty."
Wayne Besen, a spokesman for the homosexual-rights group Human Rights Campaign, said the court made a good decision.
"The Sea Scouts are not entitled to a handout while they continue to discriminate and hurt their own members," he said. "This sends a strong message that they can choose their membership, but there are ramifications for discrimination and bigotry."
Meanwhile, the Berkeley Sea Scouts' chapter leader, Eugene Evans, has had to slash other activities to pay for the berth. The Sea Scouts is a volunteer organization with 150,000 members nationwide, and a small budget compared with the Boy Scouts, which has 3.3 million members.
Mr. Evans is a high school teacher and a Vietnam veteran who charges each boy a $7 membership fee. "This guy is an unsung hero," Mr. Gordon said. "He's been participating in this program since 1957, when he was 13 years old."
In the Sea Scouts' case, the appellate court cited as precedent a Supreme Court case involving Bob Jones University, which lost its tax-exempt status for barring interracial dating.
"But that's a fundamentally different factual situation," said Harold Johnson of the Pacific Legal Foundation, who has filed a friend-of-the-court brief siding with the Sea Scouts. "The U.S. Supreme Court noted in that ruling opposition to racial discrimination is a fundamental national policy. We've got a situation here that doesn't fall within that rubric. Issues of sexual orientation have not been addressed the same way.
"We're not claiming that there's a constitutional obligation for Berkeley to let anybody use the facilities free of charge." he said. "But once they make the decision, they're going to open it up to community-based nonprofits, then we cannot single out any one organization and punish it with a fee because they don't like that group's traditional beliefs."

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