California Supreme Court Upholds Antidiscrimination Pledge For Receipt of Subsidy

Yesterday, the California Supreme Court in Evans v. City of Berkeley (March 9, 2006), upheld the right of Berkeley to suspend the Sea Scouts' (an affiliate of the Boy Scouts) free use of a berth in the city's marina after the scout group refused to confirm that it would not discriminate against gays or atheists. The Court held that the denial did not violate the Scout group's right of free expression or association, or their right to equal treatment. The Court said: "[A] government entity may constitutionally require a recipient of funding or subsidy to provide written, unambiguous assurances of compliance with a generally applicable nondiscrimination policy." The Sea Scout group in fact did not, at least presently, discriminate on the basis of sexual orientation or religion. However, it refused to clearly confirm this in writing because that would violate policies that the Boy Scouts of America required. The Court said: "We are aware of no authority for the extraordinary proposition that government infringes on associational rights by offering one group a financial benefit that, if accepted, could lead another group to sever its association with the recipient."[Thanks to Marty Lederman via Religionlaw listserv for the information.]