Justices reject Boy Scout case

Court refuses to review policy that denied space because group excludes gays, atheists

October 17, 2006|By David G. Savage | David G. Savage,LOS ANGELES TIMES

WASHINGTON -- In a setback for the Boy Scouts, the Supreme Court turned away a free-speech challenge to a policy in Berkeley, Calif., that denied 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 non-discrimination 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 that 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 Boy Scouts v. Dale.

But after 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.

Harold E. Johnson, an attorney for the Pacific Legal Foundation, which presented the appeal, said he was disappointed that the court refused to hear the case.

"We are confident that, eventually, the court will take a case addressing the underlying issues, because there are too many examples of government discrimination against scouting and other belief-based organizations to ignore," he said.

After court losses at the state level, the scouts had hoped for a more sympathetic hearing from the Supreme Court. The Pacific Legal Foundation, which is based in Sacramento, said the California ruling "sets an ominous precedent" for scouting groups. Former Attorney General Edwin W. Meese III, Rep. Dan Lungren, a California Republican, and other conservative lawyers backed the appeal and pointed out that some Christian groups have been denied recognition or funding on college campuses because they too exclude gays and atheists.

"Millions of Americans who believe in traditional moral and religious values are looking to this Court to uphold the constitutional rights and equal treatment under the law," they said in friend-of-the-court brief.

But in a one-line order, the court refused to hear the case of Evans v. City of Berkeley.

Lawyers for Berkeley had argued that since a member had appealed on his own, he did not truly speak for the sea scouts group. Although the justices gave no explanation for refusing to hear the case, this could have figured in the decision.

David G. Savage writes for the Los Angeles Times.

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