Posted on 07/17/2006 11:43:32 AM PDT by DBeers
What if a city charged Democrats, but not Republicans, to swim at the municipal plunge? What if it let the National Rifle Association use public meeting rooms without cost, but made the ACLU pay for the privilege?
These hypothetical situations might sound strained, but are they so different from the double standard that the city of Berkeley practices at its marina? A city program allows nonprofit organizations free use of the Berkeley Marina. However, one group-the Berkeley Sea Scouts-is excluded. The disqualification is for ideological reasons: The Sea Scouts are affiliated with the Boy Scouts of America, and Berkeley officials have trouble with the Boy Scouts' traditional values. Specifically, Berkeley objects to scout membership rules that require commitment to God (in a generalized, nonsectarian way), and living morally "straight," which the scouts interpret as forswearing sex outside of marriage, including homosexual activity.
It happens that the Berkeley Sea Scouts have often been praised by city officials for offering a valuable program for kids from all economic backgrounds, and the city has never identified a single instance of exclusion by the group.
No matter. The Sea Scouts refuse to break the ties of sentiment, gratitude and tradition that bind them to the Boy Scouts of America, and for that offense they must pay: The city insists on treating them differently-less equally, you might say-than other nonprofits.
Because they don't pass Berkeley's ideological litmus test, the Sea Scouts are hit with a monthly charge of more than $500 to berth their ship, the Farallon-a fee not imposed on other nonprofits. Unfortunately, the California Supreme Court gave approval to this biased policy in a ruling this past March. The justices said Berkeley is within its rights to condition access to city programs in concurrence with city antidiscrimination rules.
The trouble with this decision-and the reason why an appeal was filed this month with the U.S. Supreme Court-is that it gives short shrift to core values of the First and Fourteenth Amendments. The Sea Scouts' choice to affiliate with the Boy Scouts of America is an exercise of speech and association rights. Berkeley's duty not to punish or discriminate against the Sea Scouts for utilizing their constitutional rights is imposed by the Equal Protection Clause.
Our state's Supremes failed to heed a famous pro-pluralism precedent by one of their celebrated predecessors, Chief Justice Roger Traynor. In the 1946 case of Danskin v. San Diego Unified School District, the court considered a rule that forced people to disavow any subversive or illegal organizations if they wanted to use a school auditorium. Traynor voided this regulation with memorable eloquence; once government offers a facility or benefit, he wrote," it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable." Traynor's California ruling laid groundwork for later U.S. Supreme Court decisions defending free thought, free speech and equal access.
As important as the legal issues in this case are, the human element is even more compelling. For more than half a century, the Sea Scouts have taught Bay Area kids sailing, carpentry and plumbing, and offered opportunities for friendship and fun. For most of those years, Berkeley recognized the scouts' community contribution by letting them berth free. Who has been hurt by the change in policy and the discriminatory fee that began eight years ago? More than anybody, the kids. Sea Scout funds have been diverted to pay the fee, so there's less money to help scouts who can't afford to participate. More than a few kids from low-income backgrounds have had to drop out. What a tragedy-especially considering that the Sea Scouts have been, arguably, the most multiracial group operating at the Marina.
Diversity, tolerance, pluralism. These aren't just vague ideals that might be nice to see practiced in the public square. For government bodies such as the city of Berkeley, they are constitutional obligations. Public officials can't subject people to second-class treatment because they vote "wrong," or think "wrong," or choose to associate on principles that Berkeley City Hall considers politically incorrect. Government can't demand loyalty oaths and can't enforce group-think. Or at least not if bedrock First Amendment principles still apply. So don't be surprised if the U.S. Supreme Court takes this case, gives Berkeley a brush up on the Constitution, and rights the wrong that has been done to the Sea Scouts.
More open minded acceptance and tolerance from the American left.
If there was a "Young al Quada" group they probably wouldn't charge them.
So don't be surprised if the U.S. Supreme Court takes this case, gives Berkeley a brush up on the Constitution, and rights the wrong that has been done to the Sea Scouts.
FYI - related: 'Disrobed': How Conservatives Can Take Back the Courts
In Mark W. Smith's new book, Disrobed: The New Battle Plan to Break the Left's Stranglehold on the Courts, he advocates a radical new plan for conservatives to take back the courts. After working with Mark on the research for Disrobed, I spoke with him about the reaction the book has received from conservatives and whether they will embrace lawsuits as lawmaking and conservative judicial activism.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.