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Berkeley v. Boy Scouts

Posted By Hans Zeiger On 03/16/2006 @ 1:00 am In Commentary | Comments Disabled

Two California court decisions were handed down last Thursday. First, a state appeals court ruled that there is no right of public urination in the city of Berkeley. Second, the California Supreme Court ruled there is no right of the Boy Scouts of America to enjoy access to Berkeley’s public marina.

In the first decision, following the suit of a cocaine-using public urinator against the city, the judge wrote, “Urination on or near a busy commercial street interferes with the comfortable enjoyment of both life and property.” The second decision may be summarized in a similar fashion. The court’s endorsement of Berkeley’s discrimination against the Boy Scouts is as if to say, “The Boy Scouts of America interferes with the comfortable enjoyment of both life and property.”

Of course, the Boy Scouts of America are one of the great assets to life and property in our nation. The nation’s premier youth organization contributes millions of volunteer hours and Eagle Scout projects to our nation’s communities, teaches valuable life skills, promotes lifesaving and patriotism and environmental stewardship, provides experiences for the cultivation of manhood, encourages academic excellence, promotes “duty to God” and moral straightness. For the latter items, the California Supreme Court upheld the choice of the city of Berkeley to discriminate against the Boy Scouts.

Particularly, it is the Sea Scouts who, beginning in the 1930s, were given free access by the city of Berkeley marina to berth Scout-owned boats. For 60 years, this arrangement continued. In 1998, the Berkeley City Council demanded that the local Sea Scouts admit homosexuals and atheists as members and leaders, or forswear their ties to the Boy Scouts of America, or lose the $500 per dock subsidy that enabled the Scouts to keep three boats in the marina.

Unable to compromise the Scout Oath, the Sea Scouts lost the dock subsidy. And unable to pay the fee, the Sea Scouts have reduced their marina fleet to one boat. The Scouts sued, and now they have lost at the California Supreme Court.

It remains an issue of equal access. Two other nonprofit organizations continue to have free berthing at the Berkeley Marina: the Cal Sailing Club and the Berkeley Yacht Club. For holding by character, the Boy Scouts are excluded.

More than an issue of equal access, it is an issue of liberty.

“A general dissolution of principles and manners will more surely overthrow the liberties of America than the whole force of the common enemy,” Samuel Adams wrote to James Warren in 1779. “While the people are virtuous they cannot be subdued; but when once they lose their virtue then will be ready to surrender their liberties to the first external or internal invader.”

Berkeley, in many respects, is a greater threat to liberty than bin Laden. Bin Laden languishes in a foreign hole. Berkeley thrives before the high court of our largest state. And they have cut off the Boy Scouts.

Terrorists have not cut off the Boy Scouts, but if the terrorists are to be destroyed, it will require Boy Scouts. That is the sort of character that will fight for liberty, and the sort that will maintain it.

From Berkeley we cannot expect such character. And thus from Berkeley we cannot expect such liberty. There is a difference between genuine liberty and the license celebrated in Berkeley by the public urinators and the hippie professors at the University of California.

Genuine liberty rests upon self-government, upon the “principles and manners” mentioned by Sam Adams. And nowhere have those principles and manners been better expressed than in the Scout Oath: “On my honor, I will do my best to do my duty to God and my country, and to obey the Scout Law, to help other people at all times, to keep myself physically strong, mentally awake, and morally straight.”

That is why Berkeley and its partners in the American Civil Liberties Union rejected the Scouts, and that is why, if liberty is destroyed, it will come of the violent divorce between principles and manners (the Boy Scouts) and the public square. Because if we tolerate the disconnection between self-government and civil government, we will find ourselves slaves.

The public urinator is a slave. He knows not the Scout Oath.

But the Scout holds within the capacity to be a free citizen. For marginalizing the Scouts, Berkeley and its sympathizers on the California Supreme Court do a disservice to the cause of human liberty.


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