Thursday, March 16, 2006

Tolerance in Matters of Conscience?

Two worrisome recent developments caught my eye and leave me wondering whether tolerance is in trouble in this country.

The Berkeley Sea Scouts Case

To begin with, in a case named Evans v. City of Berkeley, the California Supreme Court held that the city of Berkeley did not violate the rights of the Sea Scouts, an affiliate of the Boy Scouts of America (BSA), when the city stopped allowing the Sea Scouts free use of berths in the Berkeley marina. The change was based on the BSA's policy against gays serving as adult Scout leaders. The L.A. Times story is here. The text of the Court's opinion is here.

Update: I did not describe the court's holding well in my first post on this matter; here is what the opinion actually said:

[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.


In short, Berkeley adopted a policy that in order to qualify for subsidized (or free) access to the marina's berths, any organization must affirm that it adheres to a non-discrimination policy, including discrimination based on sexual orientation. The Sea Scouts affirmed their adherence to the policy, but said in a letter to the city, "We believe that sexual orientation is a private matter, and we do not ask either adults or youths to divulge this information at any time." In other words, the policy was "don't ask, don't tell."

Notably, the Court's opinion acknowledges that
Ethnic diversity is a hallmark of the Sea Scouts, and many youth participants
are economically disadvantaged. Girls as well as boys participate, and the
Sea Scouts have never actually discriminated against anyone on the basis of
sexual orientation or religion.
But all that was not good enough for Berkeley, because the Sea Scouts were chartered by the Boy Scouts of America, which has a policy against gays serving as adult leaders. In other words, the Sea Scouts in Berkeley did nothing offensive to gays or any other minority group. Their offense as that of being affiliated with the Boy Scouts of America. (I've blogged here about why I think the Scouts are a favorite target of left-leaning civil liberties groups.)

The Supreme Court's ruling was unanimous and is similar to a federal court ruling in San Diego, upholding a challenge to that city's long-standing policy of granting favorable leases and other subsidies to the Boy Scouts of America. (I posted about that controversy here and here.)

Catholic Charities: A Matter of Conscience, but Not Politically Correct

Then there is this story about Harvard Law School students seeking to shame a distinguished Boston-based law firm, Ropes and Gray, out of representing a client. The law firm had been advising Boston's Catholic Charities, which runs an adoption service. Catholic Charities wanted to avoid placing babies with same-sex couples. The Globe reports on the reaction by gay and lesbian law students at Harvard:

Lambda [is] the school's group for gay, lesbian, bisexual, and transgender students. A Lambda representative wound up meeting with Ropes's managing partner and others at the firm and expressing the students' unhappiness.

Two weeks ago, Ropes said it would no longer do legal work to assist the bishops in their efforts to stop gay adoptions, and last week Catholic Charities said it would end its adoption program because it could not reconcile church doctrine, which holds that gay adoptions are ''gravely immoral," with state antidiscrimination laws.

Presumably, the Lambda group threatened Ropes & Gray with embarrassment if it did not cease its representation of Catholic Charities:

To publicize that many students viewed Ropes's work for Catholic Charities as anti-gay, Lambda members discussed staging protest rallies when Ropes arrived on campus this fall to recruit new associates, stationing themselves outside interview rooms to tell entering students about the firm's work for Catholic Charities, or signing up for interview slots and using the time to voice their dismay.
''The words 'boycott-slash-picket' were thrown around," said Peter Renn, a third-year student and Lambda board member who said he had wanted to shame Ropes into ending its work on behalf of Catholic Charities and warn the firm that the issue could hurt recruiting at Harvard.
It is troubling to me that because of its position in a matter of conscience, an organization like the Boy Scouts can be denied benefits available to other groups simply because it adopts a view on a particular issue that is not acceptable to some.

As a lawyer, I find it repugnant and downright un-American that anyone would bring economic and public relations pressure on a law firm to cause it to stop representing a client because that client takes a position, again on a matter of conscience, that is unpopular or politically incorrect. How would liberals react if similar pressure were successfully brought against a law firm that wanted to take on death penalty appeals on a pro bono basis?

I am not talking about the legal merits of this debate; that's a subject for another post. I'm simply saying that tolerance for opposing religious and moral views in this country is in decline. That's bad for our society and it needs to stop.

Update: I failed to post links in my first paragraph above because Blogger was undergoing maintenance and I couldn't put them in at first. My apologies!

Commenter worldcitizen responds to the Berkely portion of my post:

The city never "denied access" to anyone. They simply started charging the
normal fee. The Scouts want to continue to be treated like some sort of public
service, when many of us--including the leaders in Berkeley, apparently--don't
believe they qualify because they discriminate on the basis of sexual
orientation and religion. I'll believe you're a person of principle on this
issue only when I see you also demanding freebies for a group with a "No Jews"
policy. Not before.

As I said above, I do not want to get into the legal merits of the Berkeley case. Frankly, the California Supreme Court ruling may well be legally correct. But just because the City of Berkeley can impose their views on the Sea Scouts, and thus make a statement about the Sea Scouts' chartering organization, the BSA, doesn't mean they should do so.

I'm not talking about law, I'm talking about tolerance. The Boy Scouts have adopted a moral position that gays may not be adult Scout leaders (and the Scout policy, again, is essentially a "don't ask, don't tell" policy anyway, just like the military's). I think reasonable people of good will can see the difference between that policy and a "No Jews" policy. The former is a matter of conscience based on widely-held religious and moral beliefs and should be tolerated; the latter is a matter of bigotry based on ethnicity/national origin and should be opposed and attacked. Any effort to equate the two is intellectually and morally obtuse.

1 Comments:

Anonymous worldcitizen said...

I notice you don't post a link to the Berkeley Marina story. Is that because you want to make a false claim?

The city never "denied access" to anyone. They simply started charging the normal fee. The Scouts want to continue to be treated like some sort of public service, when many of us--including the leaders in Berkeley, apparently--don't believe they qualify because they discriminate on the basis of sexual orientation and religion. I'll believe you're a person of principle on this issue only when I see you also demanding freebies for a group with a "No Jews" policy. Not before. 

Posted by worldcitgizen

Thursday, March 16, 2006 1:48:00 PM  

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