Court rules Berkeley can withdraw Scouts' rent subsidy

The state Supreme Court, in a victory for gay-rights advocates, ruled unanimously today that Berkeley could withdraw a rent subsidy to a Boy Scouts affiliate at the city marina because of the scouts' no-gays-allowed policy.

Although the U.S. Supreme Court ruled in 2000 that the Boy Scouts had a constitutional right to exclude gays, Berkeley is not required to provide funding to an organization that violates the city's antidiscrimination policy, the state justices said.

Cities can require recipients of public money to "provide written, unambiguous assurances of compliances with a generally applicable nondiscrimination policy,'' Justice Kathryn Mickle Werdegar said in her opinion for the court.

The case involved the Sea Scouts, a nonprofit organization that teaches sailing and maritime skills to teenagers. The Boy Scouts affiliate used space at the Berkeley Marina without charge from the 1930s until 1998, when the City Council eliminated rent subsidies at the marina for nonprofits that discriminated on the basis of sexual orientation, religion or various other categories.

When the organization, after consultation with the Boy Scouts, refused to promise that it would admit gays as members or leaders, the city began charging $500 a month in rent.

The Sea Scouts and individual members sued in 1999, saying the fee was an unconstitutional punishment for free speech and association. Lower courts ruled in the city's favor.

"Berkeley reasonably concluded the Sea Scouts did not and could not provide satisfactory assurances because of their required adherence to (the Boy Scouts') discriminatory policies,'' Werdegar wrote.

By enforcing its rules for organizations receiving city funds, Berkeley is not requiring the Sea Scouts to change their policies and is not preventing the organization from expressing its views or punishing them for dissenting, Werdegar said.

She cited U.S. Supreme Court rulings allowing the government to attach strings to federal dollars, including a 1991 decision upholding a ban on abortion counseling by doctors who received federal family planning funds.

The Sea Scouts have contended they have never discriminated, but they have refused to disavow the policies of the Boy Scouts, their parent organization, who exclude atheists as well as gays. The organization can appeal today's ruling to the U.S. Supreme Court.

Among those taking part in the 7-0 ruling was Justice Carol Corrigan. It was her first major case since Gov. Arnold Schwarzenegger appointed her to the court in December.