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City Manager's Office
Press Contact: Manuela Albuquerque, City Attorney, (510) 981-6950

Berkeley requirement of non-discrimination in programs not a violation of freedom of speech or association

Berkeley, California (Friday, March 10, 2006) - Today the California Supreme Court issued a unanimous opinion upholding the City of Berkeley’s requirement that groups receiving free berths at the Berkeley Marina provide written assurances that they will not discriminate against the participants in these subsidized programs.  The ruling came in a case brought by individual participants in a Boy Scouts of America sponsored sea scouting program whose free berthing subsidy was terminated because of the Boy Scouts’ discriminatory policies against atheists and on the basis of sexual orientation.

The Court’s decision makes it clear that such non-discrimination conditions on publicly subsidized programs – imposed by many other local governments  and the State of California - are not a violation of free speech or freedom of association rights.  The California Supreme Court’s opinion is the first appellate opinion to undertake an extensive scholarly analysis of the First Amendment’s application to government subsidized programs containing non-discrimination conditions.  It will not only result in validating other such conditions imposed by  the State and local governments throughout California, but will likely provide analytical guidance to state and federal courts throughout the country.  City Attorney Manuela Albuquerque, who argued the case before the California Supreme Court hailed the Court’s decision today as a watershed in the advancement of civil rights.


The controversy began in 1998 after the City terminated a free berthing subsidy to the Boy Scouts of America (“BSA”) for its Berkeley sea scouting program due to its discriminatory membership policies against atheists and on the basis of sexual orientation.  Because the Berkeley sea scouting program is sponsored by the Mount Diablo Silverado Council of the Boy Scouts of America, it was unable to provide the City with written assurances that it would not discriminate on the basis of sexual orientation or against atheists.  Instead, the Berkeley sea scouting program had a “don’t ask, don’t tell” membership policy with regard to sexual orientation and agreed only not to discriminate on the basis of religious preference but did not agree to allow atheists. When the subsidy was terminated, the sea scouting program paid the berth rental fee and berthed one of its vessels, the Farallon, at the Marina.  A local scout leader and some participants in the sea scouting program then sued claiming hundreds of thousands of dollars in damages resulting from the City’s termination of its berthing subsidy.  The trial court and the Court of Appeal rejected this argument.


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