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Clashes between the Boy Scouts asserting a right to bar gays and municipalities enforcing nondiscrimination ordinances have cropped up in more and more courts around the country. The latest constitutional wrangle comes in two California cases. The state Supreme Court will hear arguments on Jan. 10 in a dispute over Berkeley’s decision to end a subsidy for use of a city marina by Sea Scouts, a Boy Scouts affiliate. The 9th U.S. Circuit Court of Appeals will hear the second, a federal case brought by the American Civil Liberties Union in February over renewal of San Diego’s 50-year lease of a city campground to the Boy Scouts. The two cases arise against the backdrop of the U.S. Supreme Court decision in 2000 allowing the scouts to refuse to hire a gay scout leader. Boy Scouts of America v. Dale, 530 U.S. 640 (2000). The court followed last year by letting stand a Connecticut anti-discrimination law that scratched Scouts from a list of charities that could solicit state employees for payroll deductions. Several groups have weighed in on both sides of the Berkeley dispute. California Attorney General Bill Lockyer expressed concern that the case could result “in a holding that governments are constitutionally mandated to subsidize private programs that engage in discrimination.” An ‘easy’ decision? A California state appellate court sided with Berkeley in 2002, rejecting the Sea Scouts’ claim that the city was attempting to muzzle their free speech and rights of association, Evans v. Berkeley, No. S112621. “This should be an easy decision for the court,” said Lawrence Levine, a University of the Pacific McGeorge School of Law professor who specializes in sexual orientation law. The U.S. Supreme Court has already decided that the Scouts are allowed to discriminate, but there are consequences to discriminating. “That is all the Berkeley case is about. It is extremely hard to imagine that the court would conclude Berkeley doesn’t have the right to do what it’s done,” Levine said. “There’s another way to phrase that,” countered Harold Johnson, Pacific Legal Foundation attorney representing one of the Sea Scouts. “It is an unconstitutional condition on free speech” imposed by the city in exchange for the scouts’ right to use the marina. The Sea Scouts have used the city marina for 60 years on the same basis as other nonprofit groups-free berthing rights-while for-profit groups pay. In 1998, Berkeley started charging the Sea Scouts $500 a month. Although the Sea Scouts insist that they don’t discriminate, their affiliation with the Boy Scouts of America prompted Berkeley to end the free access. “Berkeley has never alleged any specific discrimination. They are trying to get at the Boy Scouts vicariously by punishing the Sea Scouts,” Johnson said. Berkeley City Attorney Manuela Albuquerque declined to comment on the case before arguments. Her court papers point to Supreme Court precedent that allows Congress to attach reasonable conditions on federal financial assistance. Berkeley is committed to eradication of discrimination, and thus prohibits discrimination in activities funded by the city, she stated. The Boy Scouts’ attorney, George A. Davidson of Hughes Hubbard & Reed in New York, said Berkeley is saying it has the right to impose a cost for the exercise of its First Amendment right. “Berkeley is discriminating on the basis of viewpoint,” which he said is improper. “They are saying if we like your thoughts you can use [the marina] for free, if not you have to pay the commercial rate,” said Davidson, who filed an amicus brief in the case. Next month, the 9th Circuit will hear a suit by a lesbian couple and an atheist couple suing San Diego and the Boy Scouts over a 50-year lease to a Balboa Park campground, Barnes-Wallace v. Boy Scouts of America, No. 00-CV-1726. If the California Supreme Court gives its views first, that may influence the 9th Circuit, Davidson said. California’s arguments have the added twist of being the first appearance of Justice Carol Corrigan, a 57-year-old Republican, who succeeds Justice Janice Rogers Brown, the court’s most conservative member. Brown left for the U.S. Circuit Court for the District of Columbia. Corrigan, whose pro forma confirmation is set for Jan. 4, has a reputation as a moderate who will pull the court to the center, with the departure of Brown.

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