The Berkeley Marina is a veritable mess of masts, or perhaps a mass of masts, depending on how religiously the owners boat. It is a substantial indulgence to dock one’s craft at the marina, and the city of Berkeley raised the fee by 8 percent in August. And in a town where traditional faith is not fondly regarded, boating may as well be a religion.

But boating is a useful thing, too, and so are the Boy Scouts of America, who recognize God and teach moral principles. As the sun sets over the San Francisco hills across the bay and a thousand boats bob in the harbor, I notice that the boats in Berkeley range from small, old hippie sorts to a few wooden houseboats and the big ferry Empress Hornblower. The Sea Scouts, an affiliate of the Boy Scouts of America, have a boat there, too.

A sign on the locked gates to the dockway reads: “Marina Crime Watch. We immediately report SUSPICIOUS ACTIVITY to our law enforcement agencies.” Among suspicious activities: Sea Scouting.

For about six decades, the Sea Scouts were allowed to moor boats at the Berkeley Marina without cost. By 1998, the Scouts kept three boats at the docks to facilitate their thriving program. That year, the city of Berkeley told the Scouts that they failed to comply with the city’s anti-discrimination policy; the Scouts were to remove their boats from the marina, admit atheists and homosexuals, or pay the $500 per-boat rent. Today the Scouts can only afford a single boat.

A local leader of the Sea Scouts, Eugene Evans, represented by the Pacific Legal Foundation, challenged the decision of the city as a violation of the Boy Scouts’ right of association under the First Amendment. The case made its way to the California Supreme Court, where earlier this year the city’s choice to impose a fee based on the private membership policies of the Scouts was upheld. Mr. Evans continued his appeal at the U.S. Supreme Court, supported in a friend-of-the-court brief by the Boy Scouts of America. On Oct. 16, the nation’s high court rejected hearing the case, deferring to the decision of the California Supreme Court.

But there are good reasons for the Boy Scouts of America to remain an active part of the public square.

That the Scouts have carefully defined membership policies has no immediate consequence on the city of Berkeley; that they perform thousands of hours of volunteer service and teach the meaning of self-government has tremendous benefits for the community. It is the reason why Berkeley gave the Scouts free docking in the first place: because they contribute to the well-being of the community in extraordinary ways.

The city of Berkeley need not endorse the Sea Scouts’ membership policies when giving them free berthing at the marina, but it is in the interest of the entire community to keep the partnership between city government and an outstanding youth civic group. More importantly, it is in the interest of the First Amendment to avoid public discrimination against the policies of a private organization.

As the U.S. Supreme Court ruled in 2000, the Boy Scouts and other private organizations have the right to limit their membership to those they choose.

The Scouts remain a private organization, just as other nonprofit groups to whom the Berkeley Marina awards free docking are private. It would not be unjust for the city of Berkeley to tell the Scouts to pay rent if it were a uniform policy, if the same policy were enforced for all nonprofit groups who have free docking at the marina (even so, it would be bad policy). But in this case, the city’s decision was based on the internal policies, protected under the First Amendment, of one private organization.

It is unfortunate that the U.S. Supreme Court has failed to accept writ of certiorari in the Berkeley marina case. For now, the state Supreme Court’s ruling will stand. The right of private groups to establish their own membership policies without government penalization is frighteningly insecure, and the condition of civic relations between public and private spheres has been interminably damaged.

Get Hans’ treatise on the Boy Scouts’ culture battle, “Get Off My Honor! The Assault on the Boy Scouts of America”

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