Evans v. City of Berkeley

For many years, the City of Berkeley gave free berthing space in its marina to the Sea Scouts and other nonprofit groups that provide recreational opportunities to the people of Berkeley. The rent charged to other boaters for mooring rights is approximately $20,000 a year. The Sea Scouts is a nonprofit organization that teaches sailing and related skills to youth, and is affiliated with and chartered by the Boy Scouts of America (BSA). In 1997, the City adopted a resolution stating that the "Berkeley Marina advocates and practices equal opportunity in terms of access to its berthing facilities," and that city-funded activities by private organizations must be available to all residents regardless of race, sex, national origin, religion or lack thereof, or sexual orientation. The Berkeley municipal code also prevents the City from discriminating on the basis of religion or sexual orientation in the provision of all city services.

In 1998, the City told the Sea Scouts that it could no longer berth their boats for free unless they expressly agreed not to discriminate against gay people and atheists. The Sea Scouts declined to do so, saying that it would lose their BSA charter if it were to enter into any such explicit nondiscrimination agreement. After the City terminated the Sea Scouts' free berth space, the Sea Scouts sued the City, claiming that it had violated their First Amendment and equal protection rights. The trial court dismissed the action, and plaintiffs appealed. The First Appellate district affirmed. Evans v. City of Berkeley, 104 Cal. App. 4th 1 (2002). The appellate court (after affirming the dismissal of contract and other common-law claims) held that the City did not violate the plaintiffs' First Amendment or equal protection rights.

Together with ACLU Foundation of Southern California and ACLU Foundation of San Diego & Imperial Counties, the ACLU Foundation of Northern California filed an amicus brief earlier this month. The brief argues that the appellate decision strikes the correct balance between the City's interest in preventing discrimination in City-subsidized programs and activities, and private organizations' First Amendment rights of "expressive association."