Are the Boy Scouts Victims of Discrimination?

David Savage at today's Los Angeles Times reports that the U.S. Supreme Court has rejected an appeal by the Boy Scouts of America to review a California decision allowing the City of Berkeley to deny the organization publicly-financed dock space at a local marina:

In a setback for the Boy Scouts, the Supreme Court turned away a free-speech challenge to a Berkeley policy that denies city-subsidized dock space to a Scouting group because it excludes gays and atheists.

The court's action lets stand rulings in California and elsewhere that have said cities, schools and colleges may deny public benefits to groups that refuse to comply with broad nondiscrimination rules involving religion and sex orientation.

Some conservative groups had joined the challenge to the Berkeley policy, saying that advocates of "traditional moral values" are being subjected to discrimination across the country by "politically correct" government officials.

The court's action sets no legal precedent, however, and the justices could well take up the issue in the future.

Six years ago, the high court came to the aid of the Boy Scouts of America when it ruled that a state cannot force a private group, such as the Scouts, to include openly gay men if doing so would violate its professed code of conduct. In that case, James Dale, a former scoutmaster, had sued the group after he was excluded upon acknowledging he was gay.

The New Jersey courts said the Scouts must abide by the state's anti-discrimination law.

The Supreme Court disagreed in a 5-4 decision in the case of Boys Scouts vs. Dale.

But in the wake of the Scouts' victory, some cities and school districts refused to permit Scouting groups to use their facilities on the same basis as they allowed other nonprofit organizations.

Lawyers for the Scouts then went back to court to challenge this exclusion as unconstitutional discrimination. So far, however, they have been rebuffed.

Read the whole piece. Note that the case originates in Berkeley, a liberal bastion in the United States, and thus there are national "culture war" implications in play here. As the story notes:

For many years, Berkeley had given a rent-free berth in its marina to nonprofit community service organizations, including the Sea Scouts. An affiliate of the Boy Scouts, the group teaches sailing and seamanship to teenagers.

But the Berkeley City Council adopted a new policy that required groups that wanted a free berth to agree in writing that they would not discriminate against persons based on, among other factors, their race, religion, ethnicity or sexual orientation. The Scouts did not sign the agreement because Boy Scouts policy excludes gays and atheists.

Eugene Evans, an adult leader of the Sea Scouts, agreed to pay $500 a month to maintain the berth in the Berkeley marina, but he also led a lawsuit that challenged the policy as violating the group's rights to freedom of speech and the equal protection of the laws. He argued the Scouts were being treated as "second-class citizens" because their views on religion and homosexuality were disfavored by the government.

I discuss the 2000 decision, Boy Scouts v. Dale, in my classes. In that case the Court argued that the Boy Scouts had a First Amendment right to freedom of association, and thus could exclude individuals or groups whose values were deemed contrary to those of the organization.

The Berkeley case is a tough one. The Boy Scouts are being penalized by the City Council for their policy of excluding gays. I'm inclined to agree with the Scouts that city policy violates their constitutional rights. The Boy Scouts are a private organization. In civil rights law, private businesses are compelled to provide public accomodations for racial minorities -- for example, blacks seeking hotel lodgings during the Jim Crow era -- through the interpretation of the Commerce Clause of Art. I, Sec. 8 of the Constitution. The reasoning is that hotel accomodations and the like can be regulated under Congress's authority to regulate interstate commerce.

Is the Berkeley marina of significant economic importance to be a candidate for regulation under the Commerce Clause? Does the Berkeley public accomodations law go too far, impinging on legitimate group rights to associate freely? Should the Boy Scouts be forced to accept certain members to comply with a politically correct local ordinance?

With the exception of marriage, gays should be afforded equal opportunity in all realms of public life (including military service). I'm bothered though by the whiff of majority tyranny evident in Berkeley's policy on the city-financed boating docks. Besides, as I've noted before, I doubt that we can place the struggle for gay rights (with its push for gay marriage) on the same moral plane as the great African American freedom struggle, which is unique in American history.