A few years back, the U.S. Supreme Court issued a ruling in the case Boy Scouts of America v. Dale, 99-699. (FindLaw had better get up to speed with its citations.) You'll recall that, in that case, respondent Dale was fired as a boy scout troop leader when the Boy Scouts discovered that he was gay. The Boy Scouts are a Christian organization (and, indeed, one of their largest single supporters is -- ta da! -- the Mormons!) and, of course, homosexuality is inconsistent with Christianity.

Dale sued the Boy Scouts, alleging discrimination. The Boy Scouts' defense was that forcing them to admit homosexuals was a violation of their "freedom of expressive association," a First Amendment doctrine which holds that groups should be permitted to discriminate in their membership if admitting particular members would go against the mission of that group. Or, as Chief Justice Rehnquist wrote:

The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms "morally straight" and "clean," and that the organization does not want to promote homosexual conduct as a legitimate form of behavior. The Court gives deference to the Boy Scouts' assertions regarding the nature of its expression, see, Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 123-124. The Court then inquires whether Dale's presence as an assistant scoutmaster would significantly burden the expression of those viewpoints. Dale, by his own admission, is one of a group of gay Scouts who have become community leaders and are open and honest about their sexual orientation. His presence as an assistant scoutmaster would interfere with the Scouts' choice not to propound a point of view contrary to its beliefs.

This is not a doctrine invented out of whole cloth by the justices; it's been around for a while, and it makes sense: if you're forced to accept members whose existence in your organization dilutes the organization's mission, then the government has placed an "undue burden" on your ability to express yourself through your choice of membership.

A lot of homosexual rights groups didn't like this decision. I disagreed with them, and I still do: the court's opinion in Dale was correct, given the implications for freedom of expressive association if they had decided the other way.

Well, now it's time for just desserts. The U.S. Supreme Court refused to grant a writ of certiorari -- which means they refused to hear the case -- to the Sea Scouts, an offshoot of the Boy Scouts. Eugene Evans v. City of Berkeley -- that's right, our very own Berkeley! -- pitted the Sea Scouts against the intractable neo-hippie liberalism of Berkeley, California. The city of Berkeley permits nonprofit organizations to moor boats at the Berkeley Marina for free -- as long as they do not discriminate against any race, religion, ethnicity, et cetera et cetera. The Sea Scouts, as an offshoot of the Boy Scouts, must necessarily discriminate in both religion and sexual orientation. As such, the city of Berkeley took away their free mooring status and started charging them $500.

This time, it was the Sea Scouts who alleged discrimination -- that the city of Berkeley was restricting their freedoms of speech and expressive association. The trial court and the state Court of Appeals both ruled in favor of the city. The California Supreme Court affirmed the decision.

In the Sea Scouts' defense, they have never discriminated against anyone based on religion or sexual orientation. However, when requested by the city attorney to provide a written statement that they wouldn't do so in the future, the group would only state that they considered sexual orientation to be "a private matter." The Sea Scouts later told the city attorney that they did not explicitly condemn such discrimination "due to fear of losing their charter from the Boy Scouts.” The court's ultimate decision:

We agree with Berkeley and the Court of Appeal 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. We further agree Berkeley reasonably concluded the Sea Scouts did not and could not provide satisfactory assurances because of their required adherence to BSA’s discriminatory policies.

The California Supreme Court suggested that the state not funding a particular group is not equal to the state barring the speech of that group. "The [U.S. Supreme Court] has generally approved, against First Amendment challenges, programs of governmental financial assistance that limit the expressive activities for which the funds may be used," said the California Supreme Court.

Now it is the Boy Scouts' turn to be upset. Maybe if they didn't hate The Gays so much, the Sea Scouts -- which are guilty only of being affiliated with the Boy Scouts -- might have a free berth in the Berkeley Marina.