Boy Scouts suffer setback over 'gay,' atheist policy

Boy Scouts suffer setback over 'gay,' atheist policy
'About when governments can impose requirements for getting government benefits'

Justices won't hear Berkeley case

Six years after the Supreme Court ruled the Boy Scouts could ban gay leaders, the group is fighting and losing legal battles with state and local governments over its discriminatory policies.

The latest setback came Monday when the high court without comment refused to take a case out of Berkeley in which a Scout sailing group lost free use of a public marina because the Boy Scouts bar atheists and gays.

The action let stand a unanimous California Supreme Court ruling that Berkeley can treat the Berkeley Sea Scouts differently from other nonprofit organizations because of the Scouts' membership policies.

Two years ago, the court similarly rejected a Boy Scouts appeal of a case from Connecticut, where officials dropped the group from a list of charities that receive donations from state employees through a payroll deduction plan.

And in Philadelphia, the city is threatening to evict a Boy Scout council from the group's publicly owned headquarters or make it pay rent unless it changes its policy on gays.

On a separate matter, federal judges in two other court cases that are being appealed have ruled that government aid to the group is unconstitutional because the Boy Scouts of America requires members to swear an oath of duty to God.

Despite the string of legal setbacks, lawyers for the Scouts said they believe the Supreme Court ultimately will decide that governments are improperly denying benefits that they make available to similar organizations.

''The issue of governments seeking to punish organizations for exercising their First Amendment rights is a recurring one. There will be other opportunities for the Supreme Court to affirm First Amendment protections for organizations dealing with government agencies,'' George Davidson, the longtime attorney for the Scouts, said in a statement.

Duke University law professor Erwin Chemerinsky agreed that the justices probably have not had their last say on the Boy Scouts and may be waiting until lower courts disagree on the issue.

''This is about when governments can impose requirements for getting government benefits,'' Chemerinsky said.

In 2000, the court ruled that the Scouts have the right to ban openly homosexual Scout leaders, a decision that rested on First Amendment rights.

''The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill,'' then-Chief Justice William H. Rehnquist wrote for the court in a 5-4 decision.

Even so, the California Supreme Court said in March that local governments are under no obligation to extend benefits to organizations that discriminate.

Berkeley, home of free speech protests since the 1960s, adopted a nondiscrimination policy on the use of its marina in 1997 and revoked the Sea Scouts' subsidy a year later.

The Sea Scouts are a branch of the Boy Scouts that teaches sailing and seamanship. City officials had told the group that it could retain its berthing subsidy if it broke ties with the Boy Scouts or disavowed the policy against gays and atheists, but the Sea Scouts refused.

Eugene Evans, who leads the Sea Scouts, has been paying $500 a month to berth one boat at the Berkeley Marina. The group removed two other boats because it could not afford the rent. The group has about 40 members, down from as many as 100 before the subsidy was removed.

Berkeley had allowed the Scouts free use of the marina since the 1930s, said Evans.

The Sea Scouts said they were singled out because Berkeley's elected officials disapprove of the Boy Scouts' membership policies. The case is Evans v. city of Berkeley, 06-40.