SCOUTS IN THE FIRING LINE AGAIN

On one side of the case, there's Berkeley - bastion of diversity and, some would argue, political correctness. On the other side, there's the Boy Scouts - champion of many good values but not the inclusion of gay or atheist members. The two squared off Tuesday before the California Supreme Court on the narrow issue of Berkeley's withdrawal of free berthing for Scouting ships at the city marina. But there's also a broader debate under way, and it's being argued in courts across the country: Can the Scouts' restrictive, though legal, membership rules be used to disqualify the organization from receiving government subsidies?

The financial stakes for the Boy Scouts are high as a variety of government benefits they've traditionally enjoyed are put to the test - free use of school facilities, payroll deduction contributions from government employees, sponsorship of the Boy Scout Jamboree and Scout troops on military bases. California Justice Marvin Baxter put the issue this way during Tuesday's oral arguments: If the Scouts had to be treated the same as all other organizations competing for Berkeley's subsidies, wouldn't the Ku Klux Klan have to be placed on equal footing?

"That's unfortunate, but it's correct," answered Jonathan Gordon, who argued the case for the Sea Scouts, a Boy Scouts of America program that had free berthing privileges at the Berkeley marina for six decades, until 1998. Other nonprofit groups continue to use the marina without charge.

Several justices had tough questions for City Attorney Manuela Albuquerque. Was Berkeley's real motive to punish the Scouts for winning an earlier case, they asked, rather than to implement the city's nondiscrimination policies? In 1998, the California Supreme Court ruled that the organization had a right under the First Amendment to bar a gay Scout leader - who happened to be from Berkeley. Albuquerque answered that the city wasn't trying to regulate the Boy Scouts, but merely was refusing to fund the group's activities. In other words, said Chief Justice Ronald George, attempting to restate Albuquerque's position, "getting on a boat" is not an exercise of the First Amendment. George wrote the unanimous opinion in 1998.

Direct legal attacks on the Boy Scouts' anti-gay and anti-atheist membership policies suffered a decisive defeat two years later. The U.S. Supreme Court ruled then that the First Amendment would be violated by forcing the New Jersey Boy Scouts to accept a gay leader. The new round of cases is complicated by other precedents, though, and they stand for conflicting principles. They include a 1984 decision in which the high court ruled that government financial aid could be made contingent on a nondiscrimination pledge - in that case a college's pledge to comply with the federal ban on sex discrimination in education.

In the new round of Boy Scout cases, federal courts have split over whether diversity or freedom of association is the main issue. The U.S. Supreme Court turned down a chance to rule in 2004, declining to review a decision by the 2nd U.S. Circuit Court of Appeals that Connecticut could exclude the Boy Scouts from a state employee charitable giving campaign. In another case, a federal judge in San Diego ruled in 2003 that leasing city park space to the Boy Scouts amounted to unconstitutional support for a religious organization, citing the Scouts' anti-atheist membership policy. That case will be heard by the 9th Circuit next month. The U.S. Department of Justice has filed a brief supporting the Scouts in San Diego. So have the states of Texas, Alabama, Kansas, Oklahoma, South Dakota and Virginia. The states note that allowing the organization to build and operate facilities on public land has been an inexpensive way for governments to provide recreation for their youth.

Those on the other side of the San Diego case include California Attorney General Bill Lockyer, who also filed a brief in the Berkeley dispute. Several California statutes make the receipt of state funds conditional upon agreement not to discriminate, Lockyer notes. His brief warns that those laws could be subject to legal attacks if Berkeley loses.

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INTELLIGENT DESIGN UNDER LEGAL ATTACK

Atheists take a position on religious issues. How come the other side of the debate is banned?

A rural high school teaching a religion-based alternative to evolution was sued by a group of parents who said the class should be stopped because it violates the U.S. Constitution. Frazier Mountain High School in Lebec violated the separation of church and state while attempting to legitimize the theory of "intelligent design" in a philosophy course taught by a minister's wife, according to the U.S. District Court suit filed by parents of 13 students. "The course was designed to advance religious theories on the origins of life, including creationism and its offshoot, 'intelligent design,'" the suit said. "Because the teacher has no scientific training, students are not provided with any critical analysis of this presentation."

The suit was filed by Americans United for Separation of Church and State, which successfully blocked Dover, Pa., schools last month from using science courses to advance the theory that living things are so complex they must have been designed by a higher being. Similar battles are being fought in Georgia and Kansas over the controversial subject.

The suit filed on behalf of 11 parents against the El Tejon Unified School District names its superintendent, the course teacher and school board members as defendants. Superintendent John Wight, who did not return a phone call for comment, said last week that the class, "Philosophy of Design," was not being taught as science and was an opportunity for students to debate the controversial issue.

Defendant Kitty Jo Nelson, one of two school board trustees who opposed the class, said the costs of the lawsuit would ultimately deprive students. The regional school draws about 500 students from tiny communities to Lebec, a town of 1,285 straddling the Tehachapi mountains between the agricultural Central Valley and Los Angeles 75 miles to the south. "I'm extremely disappointed and saddened," she said. Phone messages left at district offices for other trustees were not returned.

The five-member school board was divided when it learned about the class last month and discovered three guest lecturers were scheduled to speak in support of intelligent design, but none in favor of evolution. One pro-evolution speaker listed on the syllabus declined to participate because he disagreed with the class topic, and another - Nobel laureate Francis Crick, who co-discovered the structure of DNA - had died more than a year earlier. An initial description sent to parents in December said the course would examine "evolution as a theory and will discuss the scientific, biological, and Biblical aspects that suggest why Darwin's philosophy is not rock solid."

Teacher Sharon Lemburg, who is married to an Assembly of God pastor, could not be reached by phone for comment. The El Tejon district's Board of Trustees approved the course 3-2 with a revised syllabus in a Jan. 1 special session, during which board members had to vote up or down on the entire winter session curriculum. Fifteen students were enrolled when classes started two days later, with a less scientific and more philosophical class plan that relied solely on videos, not guest speakers.

Still, the Washington, D.C.-based group said that with only one exception the course "relies exclusively on videos that advocate religious perspectives and present religious theories as scientific ones." "This is clearly intended to introduce religion into a public school," said Barry Lynn, executive director of Americans United for Separation of Church and State. The lawsuit seeks a temporary restraining order to halt the four-week class in its second week.

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