What irony contained in the denial of a petition for certiorari today by the Supreme Court:

On a day when the Court granted no new cases, the Justices also declined to review a claim that it is unconstitutional for a city government to deny a Boy Scout unit equal access to public services because of the Scouts’ policies against homosexual or atheist members. The case was Evans v. City of Berkeley (06-40).

Berkeley’s City Council barred a Sea Scout “ship” (troop) from free access to berths in a city-run marina because of Scouting’s membership policies; these violate the city’s anti-discrimination laws, the City Council found. The Boy Scouts of America, joining a Sea Scout leader in asking the Court to hear the case, said the case presented “a recurring First Amendment issue of national importance.”

The national Scouting organization contended that government officials at many levels “are excluding religious and other groups from access to programs on account of their religious or moral values and their efforts to maintain their distinctive identities.”

In upholding the action against the Sea Scouts, the California Supreme Court said: “A government that requires aid recipients to conform their actions to its laws does not thereby
enforce adherence to the philosophy or values behind those laws.” (In other words, Rumsfeld v. FAIR can be used both by bigots and those who oppose them. Also, I see no First Amendment problem for another reason: the laws prohibiting the Scouts from using the facilities are laws of general applicability that apply to both “religious” organizations (which the Scouts decided they were in 2000) and non-religious ones alike. Religion qua religion is not singled out for differential treatment. This case is not like the cases decided in the ’80’s and ’90’s that said once a government allowed non-religious groups access to its property, it had to let religious groups have the equal access; here, the government is denying access to certain non-religious groups through application of a law not targeted at religion; its denying the access to religious groups is thus not singling those groups out. Neutral laws of general applicability that don’t single out religous groups deliberately for differential treatment, the Court said in Oregon v. Smith, are constitutional).

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