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The California Supreme Court agreed Wednesday to tackle the thorny issue of discriminatory groups by granting review in a case in which Berkeley denied a scouting group free mooring at its marina because of the organization’s anti-gay policies. Only four justices — Joyce Kennard, Marvin Baxter, Ming Chin and Janice Rogers Brown — voted for review, giving the case the bare minimum necessary to get on the high court’s calendar. In other action, the court denied review in a case that reinstates a college baseball player’s negligence suit against the University of Southern California, the Pacific-10 Conference and the National Collegiate Athletic Association over their use of an allegedly dangerous bat. In the discrimination case, Evans v. City of Berkeley, S112621, San Francisco’s First District Court of Appeal affirmed a ruling that upheld Berkeley’s refusal to subsidize the activities of private groups that discriminate because of race, sex, national origin, religion or lack thereof and sexual orientation. The Sea Scouts, an affiliate of the Boy Scouts of America, had moored their boats for free at the Berkeley Marina for decades, but the city in 1998 ended that relationship unless the Sea Scouts abandoned policies preventing gays or atheists from belonging to the group. The Sea Scouts argued, among other things, that the city’s action violated the group’s First Amendment rights. The Pacific Legal Foundation and the Pacific Justice Institute filed amicus curiae briefs in support of the Scouts. The appeal court disagreed. “Berkeley has not attempted to muzzle anyone’s speech, and Berkeley has not ordered appellants to cease discriminating or associating as they please,” Justice Lawrence Stevens wrote for the court. “Berkeley has only prevented appellants from enjoying a certain city subsidy, free rent, unless appellants’ program is open to all residents without regard to the barriers created by the types of invidious discrimination Berkeley seeks to discourage.” In the baseball case, Sanchez v. Hillerrich & Bradsby Co., S113205, Los Angeles’ Second District held in December that Andrew Sanchez, a pitcher for California State University-Northridge, could sue for negligence for being hit with a ball coming off a new Air Attack 2 aluminum bat, which increased the ball’s speed. The appeal court said the defendants had a duty not to increase the risks already inherent in sports.

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