Calif. Supreme Court on Subsidizing Discrimination

The California Supreme Court ruled unanimously yesterday that the city of Berkeley could refuse to give a rent subsidy to a Boy Scouts project because they discriminate against gays and atheists. Berkeley had a policy of giving space at the city marina rent-free to non-profit groups, but they required that they agree not to discriminate; the Sea Scouts, associated with the Boy Scouts of America, would not agree to that condition so the city said they would have to pay for their slip. The group sued, claiming that the policy violated their right of free speech and association.

The ruling seems rather obvious to me. Yes, you have the right to free association, but that does not mean the government has to subsidize that association. Indeed, I would argue that it is unconstitutional for the government to subsidize such discrimination and the courts have largely agreed. They could appeal the case to the US Supreme Court, but I think it's unlikely that they would get a different result.

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Then why is it that the SCOTUS recently upheld the US military's discrimination against gays, by preventing college campuses which wanted to refuse them the ability to recruit?

I'm just curious about the way these two rulings (though I know one is from the CA Supreme Court) relate....

The SCOTUS did not uphold the Military's discrimination against gays (which is, IIANM, in the UCMJ by an act of Congress,) they upheld the law passed by Congress which witheld federal funding to those schools that did not grant Military recruiters the same access it gives other recruiters, irrespective of the active discrimination against gays by the Military. The ruling in that instance was that the schools did not have a right to federal funding. The ruling in this case is that the Sea Scouts do not have a right special exemptions.

Colleen Keating wrote:

Then why is it that the SCOTUS recently upheld the US military's discrimination against gays, by preventing college campuses which wanted to refuse them the ability to recruit?

From a legal standpoint, these are very different issues. College campuses can refuse to allow the military on campus to recruit, but only if they give up Federal funding (which, of course, they won't do). The legal question was whether the Solomon amendment violated the rights of law schools; there was no legitimate right they could assert that would justify overturning that statute.

In the Berkeley case, the local government had a policy not to subsidize any non-profit that discriminated. The Sea Scouts were the plaintiffs, so they had to show that this policy violated their constitutional rights somehow. But there again, they could not articulate a legitimate right that was being violated and for much the same reason - they are free to do as they please, but the government may legitimately refuse to subsidize their actions.

Now, there is a legitimate argument to be made that the Solomon amendment, and the military's policy of discrimination in general, is a violation of the equal protection clause (a much stronger case against the latter than the former). But that argument has never won in court.

Ed Brayton wrote:

"But that argument has never won in court."

Why is this? An argument, for example, that marriage be held only between a man and a woman, can justifiably be argued as a discrimination against the sex of a partner, which the government in endorsing through its exclusion of a particular person's choice of gender of partner. I can understand how bias against a gay man for a job might not technically violate the equal protection clause, but not in regards to such statutes that might reflect on the gender of a particular entity, such as the ban on gay marriage.

By Jaime Headden (not verified) on 11 Mar 2006 #permalink

Jaime Headden wrote:

Why is this? An argument, for example, that marriage be held only between a man and a woman, can justifiably be argued as a discrimination against the sex of a partner, which the government in endorsing through its exclusion of a particular person's choice of gender of partner. I can understand how bias against a gay man for a job might not technically violate the equal protection clause, but not in regards to such statutes that might reflect on the gender of a particular entity, such as the ban on gay marriage.

I think the prohibition on gay marriage is a violation of the equal protection clause, but the courts have not (yet) agreed. Asking why the courts have not agreed with a particular argument is a difficult question to answer. To be honest, I'm not really up on the cases that have been brought before the courts regarding the military's expulsion policy for gay soldiers. I don't think the Supreme Court has ever taken a case on that issue, but I might be wrong. In order to answer your question, one would have to look at the cases that have been brought to this point and see what arguments were made and accepted by the courts.