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July 19, 2006

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Charlie Hinkle

The Seventh Circuit decision is at odds with recent decisions of the Second Circuit and the California Supreme Court. Just this year, in Evans v. City of Berkeley, 40 Cal Rptr 3d 205, 129 P3d 394 (Cal 2006), the California Supreme Court held that the City of Berkeley did not violate any rights of the Boy Scouts when it rescinded its long-standing permission for the Scouts to use a city-owned marina, free of charge. The City took that action because of the Scouts' discrimination against gay people, in violation of a city ordinance. (The Seventh Circuit's suggestion that the Christian Legal Society does not discriminate against gay people is absurd.)

In Evans, the California court held that “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.” Id. at 211. Such a requirement does not violate any constitutional right of the Scouts, because “the Sea Scouts were required neither to espouse nor to denounce any particular viewpoint nor to form or break any association or affiliation, but only to assure Berkeley of their adherence to the city’s policies in connection with subsidized use of Berkeley’s facilities.” Id. at 212.

The Second Circuit reached a similar conclusion in Boy Scouts of America v. Wyman, 335 F3d 80 (2d Cir 2003), cert den 541 US 903 (2004). A state entity denied the application of a local BSA chapter to participate in the state’s workplace charitable contribution campaign, “based on a ruling by the Connecticut Commission on Human Rights and Opportunities that the Boy Scouts of America’s policy of excluding homosexuals from membership and employment positions meant that the local chapter’s participation in the campaign would contravene state law.” Id. at 83. BSA sued, contending that the state’s ruling violated its First Amendment rights. The Second Circuit rejected the contention, holding that the purpose of the law in question was “to discourage harmful conduct and not to suppress expressive association” and that the law was “viewpoint neutral.” Id. at 95.

Accord Barnes-Wallace v. Boy Scouts of America, 275 F Supp 2d 1259, 1288 (SD Cal 2003) (“The government’s decision to exclude organizations with discriminatory membership policies is viewpoint neutral when the purpose for the decision is to protect persons from the effects of discrimination and not to exact a price for the organization’s protected expression”).

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