Court rules against Boy Scouts again

WASHINGTON — Six years after the Supreme Court ruled that the Boy Scouts could ban gay leaders, the group is fighting and losing legal battles with state and local governments over its discriminatory policies.

The latest setback came Monday when the high court without comment refused to take a case out of Berkeley, Calif., in which a Scouts sailing group lost free use of a public marina because the Boy Scouts bar atheists and gays.

The action let stand a unanimous California Supreme Court ruling that the city of Berkeley may treat the Berkeley Sea Scouts differently from other nonprofit organizations because of the Scouts' membership policies. The Sea Scouts are a branch of the Boy Scouts.

Two years ago, the court similarly rejected a Boy Scouts appeal of a case from Connecticut, where officials dropped the group from a list of charities that receive donations from state employees through a payroll-deduction plan.

And in Philadelphia, the city is threatening to evict a Boy Scout council from the group's publicly owned headquarters or make the group pay rent unless it changes its policy on gays.

Despite the string of legal setbacks, lawyers for the Scouts said they believe the Supreme Court ultimately will decide that governments are improperly denying benefits that they make available to similar organizations.

"The issue of governments seeking to punish organizations for exercising their First Amendment rights is a recurring one. There will be other opportunities for the Supreme Court to affirm First Amendment protections for organizations dealing with government agencies," George Davidson, the longtime attorney for the Scouts, said in a statement.

Duke University law professor Erwin Chemerinsky agreed that the justices probably have not had their last say on the Boy Scouts and may be waiting until lower courts disagree on the issue. "This is about when governments can impose requirements for getting government benefits," he said.

In 2000, the court ruled that the Scouts have the right to ban openly homosexual scout leaders, a decision that rested on First Amendment rights.

Even so, the California Supreme Court said in March that local governments are under no obligation to extend benefits to organizations that discriminate.

Berkeley, home of free-speech protests since the 1960s, adopted a nondiscrimination policy on the use of its marina in 1997 and revoked the Sea Scouts' subsidy a year later.

City officials had told the group that it could retain its berthing subsidy if it broke ties with the Boy Scouts or disavowed the policy against gays and atheists, but the Sea Scouts refused.