Stanford Law School - Robert Crown Law Library

Filed 3/9/06

IN THE SUPREME COURT OF CALIFORNIA

EUGENE EVANS et al.,
Plaintiffs
and
Appellants,
S112621
v.
) Ct.App.
1/5
A097187
CITY OF BERKELEY et al.,
Alameda
County
Defendants and Respondents. )
Super. Ct. No. 809180-4

A city requested that a volunteer youth group affiliated with the Boy Scouts
of America, in order to qualify for continued free use of berths in the city’s
marina, provide written assurance the group would not discriminate against
homosexuals or atheists wishing to participate in the group’s program. The city,
deeming the policy statement the group provided ambiguous and therefore
insufficient, discontinued its subsidy. Members of the group sued, claiming,
among other things, that the city’s action violated their freedoms of speech and
association. The trial court sustained the city’s demurrer, and the Court of Appeal
affirmed. We conclude the Court of Appeal correctly determined that the
complaint does not establish a violation of plaintiffs’ constitutional rights and
affirm the lower court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because this case comes to us on a demurrer for failure to state a cause of
action, we accept as true the well-pleaded allegations in plaintiffs’ first amended
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complaint. “ ‘We treat the demurrer as admitting all material facts properly
pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]
We also consider matters which may be judicially noticed.’ (Serrano v. Priest
(1971) 5 Cal.3d 584, 591 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187].)
Further, we give the complaint a reasonable interpretation, reading it as a whole
and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29
Cal.2d 34, 42 [172 P.2d 867].)” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
“ ‘[A] complaint otherwise good on its face is subject to demurrer when facts
judicially noticed render it defective.’ [Citation.]” (Joslin v. H.A.S. Ins.
Brokerage (1986) 184 Cal.App.3d 369, 374; see Code Civ. Proc., § 430.30, subd.
(a).) The following facts appear from the allegations of the complaint and from
judicially noticeable sources.
Plaintiffs are 14 individual adult and youth participants in the Berkeley Sea
Scouts, suing for themselves and other program participants. The Berkeley Sea
Scouts (Sea Scouts) are volunteers joining together in a nonprofit association with
no formal administrative structure, no budget, and no employees. Adults,
including some of the named plaintiffs, use Sea Scout vessels to teach sailing,
seamanship, marine engine repair, electrical repair, woodworking, and other skills
for a maritime career, as well as teamwork, to teenagers who pay no more than $7
a year to participate. 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.
According to the operative complaint, the Sea Scouts are “a subdivision
of,” or “associated/affiliated with,” the national Boy Scouts of America (BSA).
The Sea Scouts operate under what the complaint describes as BSA’s “regional
office,” the Mount Diablo Council. Each Sea Scout “ship” functions as the
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equivalent of a Boy Scout troop. BSA provides the group with a low-cost
maritime liability insurance policy but gives it no direct funding. BSA, according
to the complaint, follows a “policy of discriminating against homosexuals’ and
atheists’ participation.”1
In the late 1930’s, Berkeley began giving BSA one or more free berths at
its marina for use by the Sea Scouts, after the Mount Diablo Council permitted
Berkeley to quarry rock from BSA property to build the marina and breakwater.
The arrangement was formalized by city resolutions in 1945 and 1969 that
required compliance with marina rules and regulations and allowed revocation on
30 days’ written notice.
In March 1997, in response to requests from other nonprofit organizations
for free berths, the city manager recommended and the Berkeley City Council
adopted through resolution No. 58,859-N.S. (Resolution 58,859) a uniform policy
for awarding free berths to nonprofit community service organizations.2 Under
the resolution, an organization seeking free berth space must “supply a beneficial

1
The complaint cites Curran v. Mount Diablo Council of the Boy Scouts
(1998) 17 Cal.4th 670, and Boy Scouts of America v. Dale (2000) 530 U.S. 640,
both of which describe BSA’s doctrinal opposition to participation in scouting
programs by atheists and known homosexuals.
2
Resolution 58,859 is a “legislative enactment[] issued by or under the
authority of . . . [a] public entity in the United States,” of which notice may be
taken under Evidence Code section 452, subdivision (b). (See Cooke v. Superior
Court (1989) 213 Cal.App.3d 401, 416 [county resolution increasing level of
dental care for indigents], disapproved on another point in County of San Diego v.
State of California (1997) 15 Cal.4th 68, 106, fn. 30.) The operative complaint
also alleges the existence and some of the terms of the resolution. We also take
notice, as legislative history reflecting on the purposes of the enactment, of the
city manager’s memorandum to the mayor and city council recommending the
resolution’s adoption. (See Koebke v. Bernardo Heights Country Club (2005) 36
Cal.4th 824, 848, fn. 6; Elsner v. Uveges (2004) 34 Cal.4th 915, 929 & fn. 10.)
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public service,” the benefit of which “greatly exceeds the value of the berth.” The
organization also must “demonstrate,” through “[m]embership policy and
practices,” among other criteria, that it “promote[s] cultural and ethnic diversity.”
Resolution 58,859 goes on to specify that access to marina facilities may “not be
predicated on a person’s race, color, religion, ethnicity, national origin, age, sex,
sexual orientation, marital status, political affiliation, disability or medical
condition.” The resolution provides for the Berkeley Waterfront Commission
(Waterfront Commission) to review applications and make recommendations to
the city council. Organizations receiving berthing subsidies are to have those
subsidies reviewed annually by the city council after a review and
recommendation by the Waterfront Commission.
The continued provision of free marina berths to the Sea Scouts came up
for review in the Waterfront Commission in early 1998. The commission
expressed concern that BSA’s policy of discrimination against homosexuals and
atheists was in conflict with Resolution 58,859 and asked the Sea Scouts to
provide a “local policy statement” ensuring nondiscrimination. The Sea Scouts, in
negotiation with the Mount Diablo Council, approved a policy statement intended
to satisfy Berkeley’s requirements. In a letter to the waterfront manager, dated
April 8, 1998, the Sea Scouts stated: “We will continue to comply with the
Constitution of the United States of America, the laws of the State of California
and the Berkeley Municipal Code—including Section 13.28.060 and City Council
Resolution No. 58,85[9], N.S. [¶] . . . We actively recruit adult leaders and
adolescents meeting the minimum age requirements without regard to sex, race,
color, national origin, political affiliation, religious preference, marital status,
physical handicap or medical condition. We believe that sexual orientation is a
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private matter, and we do not ask either adults or youths to divulge this
information at any time.”3
The Waterfront Commission recommended the city council continue the
Sea Scouts’ free berths. The city manager, however, recommended the council
discontinue the free berths, based on an opinion by the city attorney concluding
that continuation of the free berth subsidy to the Sea Scouts would violate both
Resolution 58,859 and section 13.28.060 of the Berkeley Municipal Code, which
prohibits discrimination based on sexual orientation in the use of city owned or
supported facilities and services.4
In her opinion, which was provided to the council with the city manager’s
recommendation, the city attorney concluded the Sea Scouts’ April 8, 1998, letter
did not constitute compliance with Resolution 58,859 or Berkeley Municipal Code
section 13.28.060. In the city attorney’s view, the Sea Scouts’ assertion in the
April 8 letter that they considered sexual orientation to be “a private matter” did
not state a policy that the group would not, in the future, discriminate on the basis
of sexual orientation. According to the city attorney, the Sea Scouts said they
were unwilling to state such an express policy “due to fear of losing their charter
from the Boy Scouts.” From her examination of this court’s then recent opinion in

3
The text of the Sea Scouts’ April 8, 1998, letter appears in the appellate
record only in plaintiffs’ original complaint, which was superseded by amendment
after the trial court granted judgment on the pleadings for Berkeley with leave to
amend. Both parties, however, quote the letter’s language in their briefing. The
superseded allegation, it thus appears, was not made by mistake or inadvertence,
and no potential dispute exists as to the letter’s language, allowing its
consideration on demurrer. (See Reichert v. General Ins. Co. (1968) 68 Cal.2d
822, 836; Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d at p. 375.)
4
Regarding judicial notice of the city attorney’s opinion, see footnote 5,
post.
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Curran v. Mount Diablo Council of the Boy Scouts, supra, 17 Cal.4th 670, and her
discussion with BSA’s attorney in that case, the city attorney concluded that BSA
requires local groups to adhere to its policy of excluding avowedly gay or atheistic
members or adult leaders, even where a local nondiscrimination law requires
otherwise. In light of BSA’s policy, the city attorney concluded, the qualified
language of the April 8 letter was insufficient to show compliance with Berkeley’s
ordinance and resolution.
The Berkeley City Council took up the matter on May 5, 1998. According
to plaintiffs’ complaint, at the May 5 meeting the city council was “made aware”
that the Sea Scouts had never discriminated against gays or atheists and that the
Sea Scout program served an ethnically and economically diverse group of young
people. The city council nevertheless voted to end the berth subsidy.
According to the minutes of the May 5 council meeting, the free berths
were discontinued “due to [BSA’s] discriminatory policies against gays and
atheists.”5 In a letter giving the Sea Scouts notice their free berths were cancelled,
the Berkeley Waterfront Manager indicated the city council had denied free berths
to the Sea Scouts because, in the complaint’s words, the Sea Scouts “were

5
Berkeley asserts the minutes are noticeable as a legislative enactment (Evid.
Code, § 452, subd. (b)) and the city attorney’s opinion is noticeable as legislative
history reflecting on the basis for that enactment. Plaintiffs do not dispute the
former point and quote the minutes’ statement of the reason for denial at least
twice in their brief, which we take as a concession the minutes may be considered
on review of the demurrer. In their reply brief, plaintiffs object to the city
attorney’s opinion on the ground it contains hearsay regarding BSA’s policies, but
that objection does not reach the facts for which notice is sought: that the city
attorney concluded continuing free berths would violate the city’s resolution and
ordinance and conveyed that opinion to the city manager and council. In the
absence of a sound objection, we take notice of the opinion as well as the minutes.
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associated with the national Boy Scouts of America organization which has a
national policy of discriminating based on sexual orientation and atheism.”
Because of its hostility to BSA, plaintiffs allege, Berkeley “decided to
punish and intentionally discriminated against the completely innocent children
and community volunteer[s]” of the Sea Scouts. Berkeley allegedly knew
plaintiffs had, in the April 8, 1998, letter, “agreed not to discriminate against gays
or atheists.” The city used “[g]uilt by association,” excluding plaintiffs from the
free berth program solely because of BSA’s policies, without ever determining
that the Sea Scouts themselves “pose[d] the threat feared by the government”―
discrimination in the use of publicly owned facilities. “Here, there is no evidence
that Plaintiffs or any participant in the Berkeley Sea Scouts program was going to
unlawfully discriminate against anyone, yet they have been penalized by the
deprivation of the continued free use of the public facilities.”
Plaintiffs allege the exclusion of the Sea Scouts from the free berth program
violated their rights of free speech and association and constituted a denial of due
process and equal protection of the laws. These deprivations of constitutional
rights are claimed to be violations of state and federal civil rights laws, including
Civil Code sections 51, 52, and 52.1, and title 42 United States Code section 1983.
Plaintiffs seek damages reflecting the value of berths they were unable to afford to
continue using, the rental they have paid and will pay for the berth they still use,
emotional distress, and consequential losses. The complaint does not pray for
injunctive or declaratory relief.
The trial court sustained Berkeley’s demurrer to the amended complaint
without leave to amend. The Court of Appeal affirmed, reasoning that plaintiffs
had merely been denied a city subsidy “because they declined to adhere to
Berkeley’s nondiscrimination policy.” Berkeley had not “attempted to muzzle
anyone’s speech” or force the Sea Scouts to sever their association with BSA, but
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had only “conditioned a city subsidy on compliance with nondiscrimination
principles.”
We granted plaintiffs’ petition for review.
DISCUSSION
Plaintiffs contend Berkeley violated their rights of free association, speech,
and equal treatment under the law by punishing them for being part of BSA
despite their having never violated Berkeley’s antidiscrimination laws and having
“solemnly promised” not to do so in the future. The Court of Appeal, plaintiffs
argue, erred in holding Berkeley had properly conditioned the subsidy on
compliance with nondiscrimination laws because plaintiffs “have agreed to
comply.” The lower court and Berkeley, plaintiffs maintain, “are refusing to take
. . . yes for an answer.”
Berkeley, in contrast, argues that it may place nondiscrimination conditions
on government funding without violating rights of speech and association, and
insists it properly denied continued free berthing solely because the Sea Scouts
were unable to provide adequate assurances of future nondiscrimination,
assurances Berkeley reasonably demanded in light of the known policies of BSA,
of which the Sea Scouts are a part.
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.
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I. Berkeley Could Constitutionally Demand Sufficient Guarantees of
Nondiscrimination
Berkeley’s requirement that an individual or group receiving a city subsidy
in the form of free berths in the Berkeley Marina agree in advance to administer its
program without invidious discrimination did not infringe on plaintiffs’ speech or
associational rights. In order to meet the city’s mandate of nondiscriminatory
participation policies, the Sea Scouts were required neither to espouse nor to
denounce any particular viewpoint nor to form or break any association or
affiliation, but only to assure Berkeley of their adherence to the city’s policies in
connection with subsidized use of Berkeley’s facilities.
Under the decisions of the United States Supreme Court, that Berkeley’s
nondiscrimination requirement applied only to programs assisted by a city
subsidy, in the form of free berths at the marina, is virtually dispositive. The high
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.
In the leading case of Rust v. Sullivan (1991) 500 U.S. 173, the court
rejected a First Amendment challenge to regulations prohibiting abortion
counseling in programs supported by federal family planning funds. “The
Government can, without violating the Constitution, selectively fund a program to
encourage certain activities it believes to be in the public interest, without at the
same time funding an alternative program which seeks to deal with the problem in
another way. In so doing, the Government has not discriminated on the basis of
viewpoint; it has merely chosen to fund one activity to the exclusion of the other.
‘[A] legislature’s decision not to subsidize the exercise of a fundamental right does
not infringe the right.’ [Citations.]” (Id. at p. 193.)
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In restricting the range of counseling and advocacy in which programs
receiving federal funding could engage, the government had not denied the
grantees the right to engage in abortion-related activities. “Congress has merely
refused to fund such activities out of the public fisc . . . .” (Rust v. Sullivan, supra,
500 U.S. at p. 198; accord, United States v. American Library Assn., Inc. (2003)
539 U.S. 194, 212 (plur. opn.) [statutory requirement that libraries receiving aid
for Internet access use filtering software “does not ‘penalize’ libraries that choose
not to install such software, or deny them the right to provide their patrons with
unfiltered Internet access. [The statute] simply reflects Congress’ decision not to
subsidize their doing so. To the extent that libraries wish to offer unfiltered
access, they are free to do so without federal assistance”]; Regan v. Taxation With
Representation of Wash. (1983) 461 U.S. 540, 549 [denial of full tax-exempt
status to an organization that engages in substantial lobbying activities does not
infringe on freedom of speech: “a legislature’s decision not to subsidize the
exercise of a fundamental right does not infringe the right, and thus is not subject
to strict scrutiny”]; cf. Locke v. Davey (2004) 540 U.S. 712, 721 [scholarship
program’s exclusion of theology students does not violate First Amendment’s free
exercise clause; provision of assistance to those pursuing secular education does
not constitute a “ ‘baseline’ ” against which denial of assistance to theology
students must be deemed a burden on religion].)
The Supreme Court has applied these principles, in particular, to uphold,
against First Amendment challenges, government rules limiting financial
assistance to those organizations that agree in advance not to practice invidious
discrimination in government-assisted programs. Grove City College v. Bell
(1984) 465 U.S. 555 (Grove City) is the closest case on point. A federal statute
required recipients of federal education funds to agree not to discriminate on the
basis of sex in any program so funded. When the plaintiff college declined to
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provide an “Assurance of Compliance” with the statute, the federal Department of
Education terminated a program of tuition assistance to the college and its
students. (Id. at pp. 557-561.)
The Grove City plaintiffs attacked the statutory condition as, inter alia, a
violation of their First Amendment rights, but the high court found the
constitutional claim “warrants only brief consideration. Congress is free to attach
reasonable and unambiguous conditions to federal financial assistance that
educational institutions are not obligated to accept. E.g., Pennhurst State School
and Hospital v. Halderman, 451 U.S. 1, 17 (1981). Grove City may terminate its
participation in the [tuition aid] program and thus avoid the requirements of [the
nondiscrimination provision]. Students affected by the Department’s action may
either take their [tuition aid] elsewhere or attend Grove City without federal
financial assistance. Requiring Grove City to comply with Title IX’s prohibition of
discrimination as a condition for its continued eligibility to participate in the
[tuition aid] program infringes no First Amendment rights of the College or its
students.” (Grove City, supra, 465 U.S. at pp. 575-576, italics added; see also Bob
Jones University v. United States (1983) 461 U.S. 574, 602-604 (Bob Jones)
[restrictive condition on charitable tax status, requiring lack of racial
discrimination, did not infringe university’s First Amendment right to freedom of
religion because the compelling interest in preventing racial discrimination in
education justified the policy’s limited impact on exercise of religion: “Denial of
tax benefits will inevitably have a substantial impact on the operation of private
religious schools, but will not prevent those schools from observing their religious
tenets”].)6

6
Plaintiffs argue Grove City and Bob Jones govern only where eliminating a
particular type of discrimination has been recognized as a “compelling national

(footnote continued on next page)
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Similarly, Berkeley, in conditioning free berths on a group’s adoption of a
nondiscriminatory membership policy, has not prohibited or penalized plaintiffs’
exercise of speech or associational rights. In adopting Resolution 58,859 and
applying it to end free berths for the Sea Scouts, the city did not purport to prohibit
the scouts from operating in a discriminatory manner; it simply “refused to fund
such activities out of the public fisc . . . .” (Rust v. Sullivan, supra, 500 U.S. at
p. 198.) To the extent the Sea Scouts objected to compliance with Resolution
58,859, the organization (to paraphrase Grove City, supra, 465 U.S. at p. 575) was
free to terminate its participation in the free berth program and thus avoid the
requirements of the nondiscrimination provision; “a legislature’s decision not to
subsidize the exercise of a fundamental right does not infringe the right” (Regan v.
Taxation With Representation of Wash., supra, 461 U.S. at p. 549).
The Supreme Court has recognized two exceptions to its broad rule that the
government’s refusal to subsidize exercise of a First Amendment right does not
infringe that right. Neither is applicable here.
First, a funding restriction that has as its purpose the suppression of a
disfavored viewpoint―especially, but not only, where the government program at
issue exists to create or foster a public forum―is subject to strict scrutiny.
Invalidating a rule precluding federally funded legal services affiliates from

(footnote continued from previous page)
interest.” The high court in Grove City, however, relied on no such
compelling-interest analysis, holding simply that the government could attach
“reasonable and unambiguous conditions” to financial assistance it offered private
institutions. (Grove City, supra, 465 U.S. at p. 575.) The court did, in Bob Jones,
supra, 461 U.S. at page 603, apply the compelling-interest test for free exercise
claims, but it later held, in Employment Div., Ore. Dept. of Human Res. v. Smith
(1990) 494 U.S. 872, 885, that such a justification was not required for neutral
laws of general applicability.
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challenging welfare laws, the Supreme Court explained: “Where private speech is
involved, even Congress’ antecedent funding decision cannot be aimed at the
suppression of ideas thought inimical to the Government’s own interest.” (Legal
Services Corp. v. Velazquez (2001) 531 U.S. 533, 548-549; see also Rosenberger
v. Rector and Visitors of Univ. of Va. (1995) 515 U.S. 819, 832-834 [exclusion of
journals promoting a particular set of religious viewpoints from program of
financial assistance to student newspapers infringed student group’s freedom of
speech]; Regan v. Taxation With Representation of Wash., supra, 461 U.S. at
p. 548 [refusal to subsidize lobbying would not come within the rule of
permissibility “if Congress were to discriminate invidiously in its subsidies in such
a way as to ‘ “aim[] at the suppression of dangerous ideas” ’ ”]; Perry v.
Sindermann (1972) 408 U.S. 593, 595, 598 [college teacher’s allegation that the
administration’s decision not to rehire him was based on his public criticism of its
policies presented “a bona fide constitutional claim”]; Speiser v. Randall (1958)
357 U.S. 513, 518 [“denial of a tax exemption for engaging in certain speech”
infringes freedom of speech because it is “ ‘frankly aimed at the suppression of
dangerous ideas’ ”].)7
The exception for attempted suppression of a disfavored viewpoint is
inapposite to the condition imposed here. In terminating the Sea Scouts’ free
berths because of the group’s failure fully and unambiguously to promise future
nondiscrimination, Berkeley did not demand adherence to or renunciation of any

7
The restriction on speech of family planning grant recipients in Rust v.
Sullivan, supra, 500 U.S. 173, might appear to fall logically within this exception,
but the high court has since characterized the program in Rust as involving
government promulgation of its own message, an enterprise in which the
government enjoys even greater leeway than in the funding of private speech.
(Legal Services Corp. v. Velazquez, supra, 531 U.S. at p. 541.)
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idea or viewpoint. 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. More specifically, to state, in applying for government
funding, that one will not use the funding for a discriminatory program is not
necessarily to state that one agrees with the government’s nondiscrimination
objective. Thus Berkeley, in requiring assurances that its subsidy and property
will be used without discrimination on the basis of religion or sexual orientation,
does not demand adherence to the viewpoint that motivated the nondiscrimination
provision. (See Boy Scouts of America v. Wyman (2d Cir. 2003) 335 F.3d 80, 94
[exclusion of BSA from state’s workplace charitable contribution campaign
because of its discriminatory policies was viewpoint neutral in that
nondiscrimination rule’s purpose was “to protect persons from the . . . economic
and social harms of discrimination” rather than “to impose a price on the
expression of [BSA’s] point of view”]; but see Boy Scouts of America, South
Florida v. Till (S.D.Fla. 2001) 136 F.Supp.2d 1295, 1308 [exclusion of local
council from off-hours use of public schools because of its adherence to BSA’s
discriminatory policy characterized as punishment of council for its “message”].)
Second, a restriction is suspect to the extent it goes beyond limiting the
government funded expressive activity of the recipient and attempts further to
limit expressive activities that are not government funded. In Rust v. Sullivan,
supra, 500 U.S. at pages 196-197, the high court explained that funding
restrictions previously held to constitute unconstitutional conditions had involved
“a condition on the recipient of the subsidy rather than on a particular program or
service, thus effectively prohibiting the recipient from engaging in the protected
conduct outside the scope of the federally funded program,” but that a recipient of
family planning funds could, despite the restrictions at issue, “continue to . . .
engage in abortion advocacy . . . through programs that are separate and
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independent from” the federally assisted project. (See also FCC v. League of
Women Voters of California (1984) 468 U.S. 364, 400 [invalidating rule
precluding public broadcasting stations from editorializing, in part because under
the rule a station that received only a small amount of its income from federal
grants was “barred absolutely from all editorializing. . . . The station has no way
of limiting the use of its federal funds to all noneditorializing activities, and, more
importantly, it is barred from using even wholly private funds to finance its
editorial activity”]; Sullivan, Unconstitutional Conditions (1989) 102 Harv. L.Rev.
1413, 1463-1467 [discussing “germaneness” as a limitation on government
funding conditions].)
This exception, too, is inapplicable. Berkeley, in conditioning its free
berths on the Sea Scouts’ agreement not to engage in invidious discrimination, did
not purport to control the exercise of speech or associational rights by the Sea
Scouts or individual plaintiffs outside the Berkeley Marina program. Even were
the nondiscrimination assurance demanded by Berkeley regarded as a conditional
burden on speech or association, its scope would be limited to the very program
subsidized by the city. As in Rust v. Sullivan, supra, 500 U.S. 173, and Regan v.
Taxation With Representation of Wash., supra, 461 U.S. 540, plaintiffs here would
be free to exercise their expressive or associational rights fully in any program not
funded by public money. Federal high court precedent thus fails to support
plaintiffs’ constitutional claims.
Plaintiffs also contend that by conditioning free berths on adequate
assurance of nondiscrimination, Berkeley has established an unconstitutional
condition under the decisions of this court. We disagree.
In Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536, this court
held invalid on First Amendment grounds a statutory and regulatory scheme that
permitted the use of school facilities for the meetings of private groups but
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excluded “subversive elements.” We explained that while “[t]he state is under no
duty to make school buildings available for public meetings” (id. at p. 545),
having done so it could not constitutionally “demand tickets of admission in the
form of convictions and affiliations that it deems acceptable” (id. at p. 547). We
reiterated this principle in Bagley v. Washington Township Hospital Dist. (1966)
65 Cal.2d 499, 504, explaining that “the power of government, federal or state, to
withhold benefits from its citizens does not encompass a supposed ‘lesser’ power
to grant such benefits upon an arbitrary deprivation of constitutional right.” At the
same time, we emphasized that some such conditions on public benefits were
justifiable; we articulated a test of justification focusing on how germane and well-
tailored the condition is to the purpose of the legislation establishing the benefit
and whether the utility of imposing the condition outweighs the impairment of
constitutional rights. (Id. at pp. 505-507; see also Committee to Defend
Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 265-266.)
To apply these principles governing conditions on public benefits here, we
need not decide whether Berkeley had adequate justification for its condition, as
the condition―the giving of adequate assurances of nondiscrimination―did not
demand or preclude the exercise of any speech or associational right by plaintiffs.
Plaintiffs repeatedly disavow, both in their complaint and in their briefs in this
court, any desire to discriminate on the basis of sexual orientation or religion.
They therefore cannot, and do not, claim that Berkeley, by requiring them to
refrain from such discrimination as a condition of the free berths, is restricting
their freedom to limit their membership for purposes of expressive association.
(Cf. Boy Scouts of America v. Dale, supra, 530 U.S. 640; Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) 515 U.S. 557.) Indeed,
plaintiffs, in their briefing, explain why this is a misconstruction of their claims:
“Berkeley suggests that Petitioners challenge the condition as ‘forc[ing] inclusion’
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of homosexuals and atheists in their ranks. Obviously this is not so, because
Petitioners do not discriminate.”
Berkeley’s requirement that the Sea Scouts document a nondiscriminatory
membership policy in order to qualify for the free berth program also did not
condition receipt of a public benefit on the Sea Scouts’ giving up their right to be a
part of BSA. In requiring assurances of nondiscrimination, Berkeley did not in
any way demand, even as a condition of the free berths, that the Sea Scouts quit
BSA. To the extent compliance with the city’s requirement would have that
effect, it would be by the choice of a third party, BSA. Were BSA, that is, to cut
its ties with a local scouting program because the program made assurances of
nondiscrimination to a local government, the decision to sever the association
would be BSA’s, not the government’s. We are aware of no authority for the
extraordinary proposition that government infringes on associational rights by
offering one group a financial benefit that, if accepted, could lead another group to
sever its association with the recipient.8
Nor, as already discussed, did Berkeley’s requirement that free berth
recipients have nondiscriminatory membership policies require the Sea Scouts, as
a condition of the subsidy, to adopt an antidiscrimination viewpoint or repudiate
BSA’s discriminatory philosophy (a philosophy the Sea Scouts, in any event,
expressly state they do not share). We therefore do not agree with plaintiffs that
by conditioning free berths on the Sea Scouts’ statement of a local
nondiscrimination policy, the city compelled them to “renounce” BSA’s positions
and to “advocate and disseminate” Berkeley’s own philosophy. As already

8
In part II of the discussion, post, we reject plaintiffs’ additional argument
that Berkeley has infringed their associational rights by punishing them for being
affiliated with BSA.
17

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explained, to condition a public benefit on assurances of nondiscrimination is not
to compel advocacy of a viewpoint.
The complaint alleges Berkeley attempted to compel the Sea Scouts to
subscribe to a “pledge of fealty” or “loyalty oath” according with Berkeley’s
antidiscrimination values. On analysis, however, these general claims provide no
valid grounds for a claim of unconstitutionality. The only facts alleged regarding
such a coerced statement of viewpoint concern the Waterfront Commission’s
request for a local policy statement of nondiscrimination. The Sea Scouts,
according to the complaint, provided such a statement in their letter of April 8,
1998. This satisfied the Waterfront Commission, which recommended
continuation of the free berths, albeit on conditions that the letter be distributed to
program participants and that the Sea Scouts initiate a dialogue with the Mount
Diablo Council on obtaining a change in the national BSA policy. Had the
Berkeley City Council accepted the Waterfront Commission’s recommendation
and imposed these conditions on continuation of the free berths, plaintiffs might
with greater plausibility contend the conditions infringed their freedom of speech.
But the city council rejected the Waterfront Commission’s recommendation,
instead accepting the city manager’s and city attorney’s recommendation that the
subsidy be discontinued because the April 8 letter was an insufficient assurance of
nondiscrimination. The city council’s action mooted any claim that the conditions
proposed by the Waterfront Commission were unconstitutional.
18

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II. Plaintiffs Have Not Been Punished for Associating with BSA
Relying on Healy v. James (1972) 408 U.S. 169, plaintiffs contend they
have been subjected to a judgment of “ ‘guilt by association’ ” in that Berkeley
had no reason to believe the Sea Scouts themselves “ ‘pose[d] the threat [of
discrimination] feared by the Government,’ ” but rather assumed they
discriminated simply because of their affiliation with BSA. (Id. at p. 186.)
Berkeley’s denial of free berths was arbitrary and unjustified by its
nondiscrimination purpose because, plaintiffs contend, it “punishes innocent
children, and their adult leaders, who are not engaged in the discrimination that
Berkeley claims to be battling.” In a related claim, they argue they were denied
equal protection of the laws in that they were treated differently from other
nonprofit community service organizations using the marina, solely because of
their association with BSA. Again, we disagree.
The Sea Scouts are a part of BSA, an organization whose official policy
excludes homosexuals and atheists from participation. That Berkeley officials
were unaware of any past discrimination by the Sea Scouts does not mean none
would occur in the future. To require of a group operating as part of an
organization with an official policy of discrimination that it agree in advance not
to discriminate in the use of the city’s free marina berths is a reasonable and
narrowly tailored step to implement the diversity and nondiscrimination provisions
of Resolution 58,859. That other groups, which were not part of BSA, were not
required to give local policy statements assuring nondiscrimination does not show
unequal treatment.
When the city asked the Sea Scouts to document that their local policy
differed from BSA’s, the Sea Scouts negotiated with BSA over such a policy, but,
as their attorney explained to the trial court, “They couldn’t say the words ‘We do
not discriminate on the basis of sexual discrimination [sic: orientation],’ because
19

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the Boy Scouts objected.” According to the attorney, BSA told plaintiffs, “You
can’t say you don’t discriminate based on sexual orientation.”
At oral argument in this court, plaintiffs, through their attorney, expanded
on these concessions. When asked by the court what plaintiffs’ course of action
would be if an “openly and avowedly gay” person sought to participate in the Sea
Scouts program, counsel responded, “If the Boy Scouts forbid it, it wouldn’t
happen. . . . [I]f the Boy Scouts came down on us, we would have to exclude that
person.” Asked whether plaintiffs and BSA were “one and the same” with regard
to potential discrimination, counsel replied, “Essentially,” and explained that while
BSA and the Sea Scouts were “different organizations, . . . we are bound by what
the Boy Scouts tell us we have to do.” We accept these concessions by plaintiffs
as establishing, even as against any contrary allegation or implication of the
complaint, that the Sea Scouts could not, consistent with the limitations imposed
on them by BSA, truthfully state they would not in the future discriminate against
openly gay or atheistic participants. (See DeRose v. Carswell (1987) 196
Cal.App.3d 1011, 1018-1019 [concessions of the plaintiff’s attorney before trial
court negate contrary allegations for purposes of demurrer]; cf. Browne v.
Superior Court (1940) 16 Cal.2d 593, 599 [the petitioner’s concessions at oral
argument negate contrary allegations in the habeas corpus petition]; Sacramento
County Deputy Sheriffs’ Assn. v. County of Sacramento (1996) 51 Cal.App.4th
1468, 1474, fn. 6 [admissions in the plaintiffs’ appellate brief negate statements in
declarations for summary judgment purposes].)9

9
In light of plaintiffs’ concessions that the Sea Scouts could not
unequivocally state they would not discriminate against gay and atheistic
participants and that they would have to follow BSA’s discriminatory policy if the
occasion arose, their reliance on Robb v. Hungerbeeler (8th Cir. 2004) 370 F.3d
735 is misplaced. In that case, the State of Missouri claimed it had properly

(footnote continued on next page)
20

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Because of the restrictions enforced by BSA, the April 8, 1998, letter was
ambiguous as to how the Sea Scouts would treat an avowedly gay or atheistic
participant. The Sea Scouts’ statement that they would obey city law implied they
would not discriminate on the basis of sexual orientation or religion, as city law
forbade such discrimination. But the subsequent statement that the Sea Scouts
recruit without regard to a list of factors including race, sex, and “religious
preference,” but not including sexual orientation or religion as such, implied, to
the contrary, that the group would disfavor potential participants who were known
to be gay or who “prefer[red]” no religion. Finally, the Sea Scouts’ statement that
they viewed sexual orientation as a “private matter” they do not ask participants to
“divulge” strongly implied that they viewed openly or avowedly gay people
differently from those who kept their orientation private, and reserved the right to
treat them differently, contrary to the nondiscrimination requirement of Resolution
58,859. In the April 8 letter, the Sea Scouts, in effect, reserved the right to
discriminate against avowedly gay or atheistic participants.

(footnote continued from previous page)
excluded a local unit of the Knights of the Ku Klux Klan from the state’s Adopt-
A-Highway program because of the group’s judicially noticed history of violence.
(Id. at p. 740.) The court of appeals found the state’s rationale for exclusion “rings
hollow” (ibid.) because the judicially noticed history of violence related generally
to organizations named Knights of the Ku Klux Klan rather than specifically to the
local unit or its organizers (id. at p. 741). “The mere fact that an applicant’s
organizational name includes certain widely-used language that has been used in
the past by groups for which judicial notice has been taken of having a history of
violence is inadequate to demonstrate that the applicant itself violates the dictates
of the regulation.” (Ibid.) The Sea Scouts, who according to the complaint form a
subdivision of BSA, whose statement of local policy was limited by BSA dictates,
and who, plaintiffs concede, must follow BSA’s discriminatory policy, obviously
share more than a coincidence of nomenclature with the national organization.
21

---

Healy v. James, supra, 408 U.S. 169, upon which plaintiffs rely, actually
supports Berkeley’s decision. While the high court there condemned government
actions “denying rights and privileges solely because of a citizen’s association
with an unpopular organization” (id. at p. 186), the court went on to explain that
the government could legitimately demand assurances that an individual or group
would not engage in the same prohibited activities as the larger organization with
which the individual or group was associated (id. at pp. 191-194). Specifically,
the high court held that a local Students for a Democratic Society chapter’s
“equivocation” regarding the use of violent and disruptive tactics could warrant
denying the group official recognition. (Id. at p. 191.) Though there was no
evidence the local group actually posed a significant threat of disruption to the
college (id. at pp. 189-190), the court explained, “the benefits of participation in
the internal life of the college community may be denied to any group that
reserves the right to violate any campus rules with which it disagrees” (id. at
pp. 193-194). The requirement that a student group seeking official recognition
“affirm in advance its willingness to adhere to reasonable campus law . . . does not
impose an impermissible condition on the students’ associational rights.” (Id. at
p. 193; see also Grove City, supra, 465 U.S. at p. 575 [requiring “Assurance of
Compliance” from college was a “reasonable and unambiguous” condition of
federal assistance].)
Similarly, Berkeley did not engage in overbroad or arbitrary regulation in
denying a subsidy to a BSA program that refused to state an unambiguous local
policy of nondiscrimination, instead pointedly reserving the right to discriminate
against openly gay and atheistic participants. Denial of free berths to a program
operating under a national organization with an enforced policy of discrimination,
a program that was asked to and would not give an unqualified assurance of future
nondiscrimination, was not overbroad or unjustified as a means of enforcing
22

---

Berkeley’s policy limiting free berths to nonprofit community service
organizations that serve the public diversely and without invidious discrimination.
As explained earlier, a demurrer assumes the truth of the complaint’s
properly pleaded allegations, but not of mere contentions or assertions
contradicted by judicially noticeable facts. (Blank v. Kirwan, supra, 39 Cal.3d at
p. 318; Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d at p. 374.) Here,
the noticeable and conceded facts contradict the complaint’s assertions that
Berkeley “decided to punish . . . [the] completely innocent” plaintiffs for their
association with BSA despite knowing that plaintiffs had, in the April 8, 1998,
letter, “agreed not to discriminate against gays or atheists.” The facts, including
those in the complaint, those subject to judicial notice, and those conceded by
plaintiffs, show the Sea Scouts could not and did not unambiguously promise not
to discriminate in the use of the marina facilities. The city council, in receipt of
the city attorney’s opinion discussing the April 8 letter’s ambiguity and the city
manager’s consequent denial recommendation, denied the continued subsidy
because BSA’s “discriminatory policies against gays and atheists” made
impossible a full and unambiguous assurance the Sea Scouts would not
discriminate in the future.
Similarly, plaintiffs’ allegation that the city excluded plaintiffs from the
free berth program without ever determining that the Sea Scouts themselves
“pose[d] the threat” of discrimination and without “evidence that Plaintiffs or any
participant in the Berkeley Sea Scouts program was going to unlawfully
discriminate against anyone,” is contradicted by their own concessions and the
noticeable facts. The city asked for full assurances that the program posed no
threat of future discrimination, but it did not receive them. In light of BSA’s
policies, which, as counsel conceded in this court, plaintiffs would have to follow,
Berkeley reasonably concluded that the Sea Scouts’ representations were
23

---

inadequate to assure future compliance with the city’s nondiscrimination rules.
Plaintiffs’ claim that Berkeley simply “refuses to take . . . yes for an answer” is
belied by the record, which establishes that the Sea Scouts, because of BSA’s
enforced policies, could not and did not respond to the city with a simple “yes,”
but rather with an evasive “maybe.”
Plaintiffs rely in part on allegations that individual members of the
Berkeley City Council and other city officials expressed the intent to punish BSA
or the Sea Scouts for BSA’s policies.10 Under some circumstances, where the
decision maker’s reason or object is itself a contested element of a claim of
unconstitutionality, “statements made by members of the decisionmaking body”
are properly considered, together with other types of evidence, in determining the
object of the official action. (Church of Lukumi Babalu Aye, Inc. v. Hialeah
(1993) 508 U.S. 520, 540; see also Arlington Heights v. Metropolitan Housing
Corp. (1977) 429 U.S. 252, 267-268.) But here there is no dispute the basis for
the city council’s action was, as the council minutes stated, BSA’s “discriminatory
policies against gays and atheists,” which―as the record shows and plaintiffs’
attorney conceded in this court―made it impossible for the Sea Scouts to give a
complete and unambiguous guaranty against future discrimination. In light of that
undisputed legislative object, allegations suggesting merely that individual council

10
Councilmembers Woolley and Worthington allegedly “made clear,” around
the time of the March 11, 1998, Waterfront Commission meeting, that they
intended to take “punitive actions” against the Sea Scouts in an “attempt to
overturn [BSA’s] national policies.” At the May 5, 1998, city council meeting,
unnamed Berkeley “officials” allegedly indicated the city should and would deny
the Sea Scouts continued benefits in order to discourage BSA from maintaining its
disfavored policies and to retaliate for BSA’s expulsion of Timothy Curran (the
plaintiff in Curran v. Mount Diablo Council of the Boy Scouts, supra, 17 Cal.4th
670) pursuant to those policies.
24

---

members voted for the action because of their personal hostility to BSA’s views
do not state a claim for a constitutional violation, for such individual motives do
not alter the undisputed grounds upon which the council, as a body, acted. (See
Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 572, fn. 5 [“ ‘Material
showing the motive or understanding of an individual legislator, including the
bill’s author, his or her staff, or other interested persons, is generally not
considered. [Citations.] This is because such materials are generally not evidence
of the Legislature’s collective intent’ ”].)
CONCLUSION AND DISPOSITION
The properly pleaded factual allegations of the first amended complaint,
taken as true and read in light of the judicially noticeable facts and plaintiffs’
factual concessions, show that Berkeley discontinued the Sea Scouts’ berth
subsidy because the program was unable, consistent with the enforced policies of
BSA, to provide adequate assurances of future nondiscrimination. Denial of a
continued subsidy on this ground did not infringe plaintiffs’ associational, speech,
or equal protection rights. We therefore affirm the judgment of the Court of
Appeal.
WERDEGAR, J.
WE CONCUR:

GEORGE,
C.J.
KENNARD,
J.
BAXTER,
J.
CHIN,
J.
MORENO,
J.
CORRIGAN,
J.

25

---

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Evans v. City of Berkeley
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 104 Cal.App.4th 1
Rehearing Granted
__________________________________________________________________________________

Opinion No.

S112621
Date Filed: March 9, 2006
__________________________________________________________________________________

Court:

Superior
County: Alameda
Judge: James A. Richman
__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Jonathan D. Gordon and Jonathan D. Gordon for Plaintiffs and Appellants.

Pacific Legal Foundation, John H. Findley and Harold E. Johnson for Plaintiff and Appellant Tonatiuh
Alvarez.

John H. Findley and Harold E. Johnson for Pacific Legal Foundation as Amicus Curiae on behalf of
Plaintiffs and Appellants.

Brad W. Dacus and Roger G. Ho for Pacific Justice Institute as Amicus Curiae on behalf of Plaintiffs and
Appellants.

Bartko, Zankel, Tarrant & Miller, William I. Edlund, Ramiz I. Rafeedie; and Andrew W. Fortin for
California State Club Association and National Club Association as Amicus Curiae on behalf of Plaintiffs
and Appellants.

Eric R. Carleson for American Civil Rights Union as Amicus Curiae on behalf of Plaintiffs and Appellants.

Hughes Hubbard & Reed, William T. Bisset, George A. Davidson and Carla A. Kerr for Boy Scouts of
America as Amicus Curiae on behalf of Plaintiffs and Appellants.

Kirton & McConkie and Alexander Dushku for The Church of Christ of Latter-Day Saints, National
Catholic Committee on Scouting, Orestimba Presbyterian Church and Hope Chapel Christian Fellowship as
Amicus Curiae on behalf of Plaintiffs and Appellants.

Sweeney & Greene, James F. Sweeney and Eric Grant for California Catholic Conference as Amicus
Curiae on behalf of Plaintiffs and Appellants.
__________________________________________________________________________________

Attorneys for Respondent:

Manuela Albuquerque, City Attorney, Matthew J. Orebic and Laura McKinney, Deputy City Attorneys, for
Defendants and Respondents.

1

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Page 2 – counsel continued – S112621

Attorneys for Respondent:

Munger, Tolles & Olson, Jerome C. Roth, Ailsa W. Chang; and Jon W. Davidson for Bay Area Lawyers
for Individual Freedom and Lambda Legal Defense and Education Fund, Inc., as Amici on behalf of
Defendants and Respondents.

Dennis J. Herrera, City Attorney, Therese Stewart, Burke Delventhal and Ellen Forman, Deputy City
Attorneys, for City and County of San Francisco, California League of Cities and California State
Association of Counties as Amici Curiae on behalf of Defendants and Respondents.

Heller Ehrman White & McAuliffe, Warrington S. Parker III; Miranda D. Junowicz and Oren Sellstrom
for Anti-Defamation League and Lawyers’ Committee for Civil Rights of the San Francisco Bay Area as
Amicus on behalf of Defendants and Respondents.

Morrison & Foerster, Mark W. Danis, M. Andrew Woodmansee; Jordan C. Budd, Watson Branch; Martha
Matthews; and Margaret C. Crosby for ACLU Foundation of San Diego and Imperial Counties, ACLU
Foundation of Southern California and ACLU Foundation of Northern California as Amici on behalf of
Defendants and Respondents.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Richard M. Frank, Chief
Assistant Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Suzanne M. Ambrose and
Timothy M. Muscat, Deputy Attorneys General, as Amicus on behalf of Defendants and Respondents.

2

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jonathan D. Gordon
Law Offices of Jonathan D. Gordon
140 Mayhew Way, Suite 1001
Pleasant Hill, CA 94523
(925) 284-1901

Manuela Albuquerque
City Attorney
2180 Milvia Street, 4th Floor
Berkeley, CA 94704
(510) 981-6950

3

---

Opinion Information

Date:	Docket Number:
Thu, 03/09/2006	S112621

Disposition
Mar 9 2006	Opinion: Affirmed

Dockets
Jan 3 2003	Petition for review filed   by counsel for appellants (Eugene Evans et al.).
Jan 7 2003	Record requested
Jan 7 2003	Received document entitled:   Substitution of counsel. John H. Findley & Horald E. Johnson replace attorney Jonathan Gordon for appellant Tonatiuh Alvarez.
Jan 9 2003	Received Court of Appeal record   file jacket/briefs/accordian file
Jan 23 2003	Answer to petition for review filed   by counsel for respondent (City of Berkeley)
Jan 30 2003	Received Court of Appeal record   Petition for Rehearing in CA
Feb 3 2003	Reply to answer to petition filed   by counsel for appellant (Eugene Evans, et al)
Feb 4 2003	Received:   Certif. of Word Count on Reply from counsel for appellant
Feb 5 2003	Received letter from:   counsel for respondent (City of Berkeley) re: appellant's Reply to Answer to Petition.
Feb 26 2003	Received:   from counsel for appellant Amended Proof of Service showing service on CA 1/5
Feb 26 2003	Time extended to grant or deny review   to and including April 3, 2003, or the date upon which review is either granted or denied.
Mar 26 2003	Petition for Review Granted (civil case)   Votes: Kennard, Baxter, Chin and Brown, JJ.
Apr 3 2003	Request for extension of time filed   counsel for appellant requests extension to May 27, 2003 to file the opening brief on merits.
Apr 9 2003	Certification of interested entities or persons filed   by counsel for appellant (Evans)
Apr 15 2003	Filed:   by counsels for appellants addendum to declaration to request for extension of time to May 27, 2003.
Apr 21 2003	Certification of interested entities or persons filed   by counsel for respondents (City of Berkeley)
Apr 22 2003	Extension of time granted   Appellants time to serve and file the opening brief on the merits is extended to and including May 27, 2003. No further extensions will be granted.
May 27 2003	Opening brief on the merits filed   by counsel for appellants
May 29 2003	Request for extension of time filed   by counsel for respondents (City of Berkeley) requesting extension to July 14, 2003 to file the Answer Brief.
Jun 13 2003	Extension of time granted   to 7-14-03 for resp to file the answer brief on the merits. No further extensions will be granted.
Jul 14 2003	Answer brief on the merits filed   by counsel for respondent (City of Berkeley)
Aug 4 2003	Reply brief filed (case fully briefed)   by counsel for appellants (E. Evans,et al.)
Aug 15 2003	Received application to file amicus curiae brief; with brief   Calif. State Club Assoc.and Nat'l Club Assoc. in support of petitioners (E. Evans, et al.,)
Aug 20 2003	Permission to file amicus curiae brief granted   Calif. State Club Assoc., et al. in support of appellants.
Aug 20 2003	Amicus curiae brief filed   by Calif. State Club Assoc., et al., in support of appellants. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 28 2003	Request for extension of time filed   Calif. Attorney General requests an extension of time to September 10, 2003 to file application for permission to file amicus curiae brief.
Aug 29 2003	Received application to file amicus curiae brief; with brief   City and County of San Francisco, Calif. League of Cities, and the Calif. State Assoc. of Counties in support of respondent. (non-party)
Sep 2 2003	Received application to file amicus curiae brief; with brief   Bay Area Lawyers for Individual Freedom, et al. in support of respondent (non-party)
Sep 2 2003	Received application to file amicus curiae brief; with brief   Anti-Defamation League and Lawyers' Comm. for Civil Rights of the San Francisco Bay Area in support of respondent. (non-party)
Sep 2 2003	Received application to file amicus curiae brief; with brief   American Civil Liberties Union of No. Calif., American Civil Liberties Union of San Diego and Imperial Counties and American Civil Liberties Union of So. Calif. in support of respondent. (non-party)
Sep 2 2003	Received application to file amicus curiae brief; with brief   Pacific Justice Institute in support of petitioners Evans, et al. (non-party)
Sep 3 2003	Received application to file amicus curiae brief; with brief   American Civil Rights Union in support of petitioners
Sep 4 2003	Received application to file amicus curiae brief; with brief   Church of Jesus Christ of Latter-Day Saints, et al., in support of petitioners (40k) Fed Exp.
Sep 4 2003	Received application to file amicus curiae brief; with brief   Boy Scouts of America in support of petitioners. (non-party) (40k) (under same cover)
Sep 4 2003	Application filed to:   be admitted as counsel pro hac vice George A. Davidson on behalf of amicus curiae Boy Scouts of America.
Sep 4 2003	Application filed to:   be admitted as counsel pro hac vice Carla Kerr on behalf of amicus curiae Boy Scouts of America.
Sep 4 2003	Permission to file amicus curiae brief granted   City and County of San Francisco, et al.
Sep 4 2003	Amicus curiae brief filed   City and County of San Francisco,et al in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 4 2003	Extension of time granted   Attorney General time to serve and file the appllication for permission to file amicus curiae brief is extended and including September 10, 2003.
Sep 5 2003	Received application to file amicus curiae brief; with brief   by Calif. Catholic Conf. in support of petnrs
Sep 8 2003	Permission to file amicus curiae brief granted   Pacific Justice Institute.
Sep 8 2003	Amicus curiae brief filed   Pacific Justice Institute in support of petitioners. An answer thereto maybe served and filed by any party within twenty days of the filing of the brief.
Sep 9 2003	Response to amicus curiae brief filed   by counsel for respondent (City of Berkeley) to amicus brief of Calif. State Club Assoc. and Nat'l Club Assoc.
Sep 9 2003	Permission to file amicus curiae brief granted   American Civil Rights Union
Sep 9 2003	Amicus curiae brief filed   American Civil Rights Union in support of petitioners. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 10 2003	Permission to file amicus curiae brief granted   Boy Scouts of America in support of petitioners
Sep 10 2003	Amicus curiae brief filed   Boy Scouts of America in support of petitioners. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 10 2003	Permission to file amicus curiae brief granted   Bay Area Lawyers for Individual Freedom, et al.
Sep 10 2003	Amicus curiae brief filed   Bay Area Lawyers for Individual Freedom et al., in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of th brief.
Sep 10 2003	Permission to file amicus curiae brief granted   Anti-Defamation League,et al.,
Sep 10 2003	Amicus curiae brief filed   Anti-Defamation League, et al., in support of respondents. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 10 2003	Permission to file amicus curiae brief granted   The Church of Jesus Christ of Latter-Day Saints, et al., in support of petitioner. An answer thereto may be served and filed by any party within days of the filing of the brief.
Sep 10 2003	Permission to file amicus curiae brief granted   The American Civil Liberties Union of Northern California et al.
Sep 10 2003	Amicus curiae brief filed   The American Civil Liberties Union of Northern Calif. in support of respondents. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 11 2003	Amicus curiae brief filed   Attorney General Bill Lockyer in support of respondent City of Berkeley (40k)
Sep 12 2003	Permission to file amicus curiae brief granted   California Catholic Conf. in support of petitioners.
Sep 12 2003	Amicus curiae brief filed   California Catholic Conference in support of petitioners. An answer thereto may be served and filed by any party within twenty days of the filing of the brief,
Sep 12 2003	Order filed   The application of Carla A. Kerr and George A. Davidson of the State of New York for admission pro hac vice to appear on behalf of amicus curiae Boy Scouts of America is hereby granted.
Sep 15 2003	Filed:   by counsel for petitioners (Than Tonatiuh Alvarez and Tanotiuh Alvarez) request to file consolidated answer brief in response to amici briefs of parties listed herein and to the brief of the Attorney General to a period to and including October 1, 2003.
Sep 22 2003	Extension of time granted   Petitioners time to serve and file the consolidated answer brief in response to amici briefs is extended to and including October 1, 2003.
Sep 26 2003	Response to amicus curiae brief filed   by counsel for respondent (City of Berkeley) to parties listed on cover of **(Consolidated Response)**
Oct 2 2003	Response to amicus curiae brief filed   counsel for petitioners (Evans, et al.,) to parties listed on cover of (Consolidated Response) (40k)
Mar 3 2005	Filed letter from:   Lead counsel for (City of Berkeley) re: Oral Arg. and notification of counsel's vac. dates of 3-22-05 thru April 11, 2005. Request argument not be set during that time.
Sep 30 2005	Filed:   by counsel for resp. (City of Berkeley) Notice of Unavailibility
Oct 13 2005	Change of contact information filed for:   Harold E. Johnson, Counsel for appellant {Tonatiuh Alvarez}.
Nov 9 2005	Case ordered on calendar   December 6, 2005, 2:00 p.m., in Los Angeles
Nov 16 2005	Request for Extended Media coverage Filed   by John Hancock of the California Channel.
Nov 17 2005	Filed:   by counsel for (City of Berkeley) letter re: Non-Stipulation to Justice Kennard's participation re: oral argument
Nov 17 2005	Filed:   by counsel for petnr. (Tonatiuh Alvarez) Stipulation to Justice Kennard's participation re: oral argument
Nov 18 2005	Request for Extended Media coverage Granted   subject to the conditions set forth in rule 980, California Rules of Court.
Nov 21 2005	Note: Mail returned and re-sent   to James F. Sweeney, counsel for amicus California Catholic Conference
Nov 21 2005	Filed:   Stipulation of all petitioners other than Tonatiuh Alvarez to Justice Kennard's participation despite her absence from oral argument in December, filed by counsel Jonathan Gordon.
Nov 21 2005	Argument rescheduled   to the January 10, 2006 oral argument calendar.
Dec 14 2005	Case ordered on calendar   January 10, 2006, 9:00 a.m., in San Francisco
Dec 19 2005	Request for Extended Media coverage Filed   John Hancock, The California Channel Network.
Dec 21 2005	Request for Extended Media coverage Granted   subject to the conditions set forth in rule 980, California Rules of Court.
Dec 29 2005	Filed:   by counsel for respondent (City of Berkeley) Letter to the court setting forth additional relevant cases.
Dec 30 2005	Filed:   by counsel for petnr. (Tonatiuh Alvarez) Joinder in Supplemental Brief of all petitioners other than Tonatiuh Alvarez.
Dec 30 2005	Supplemental brief filed   for all petitioners other than Tonatiuh Alvarez, of authorities not available in time to be included in petitioner's briefs on the merits. Jonathan D. Gordon, counsel
Jan 3 2006	Filed:   (corrected) additional authorities for oral argument City of Berkeley, respondent Manuela Albuquerque, counsel
Jan 10 2006	Filed:   stipulation of counsel regarding Justice Chin's participation in the case.
Jan 10 2006	Cause argued and submitted
Jan 13 2006	Received:   by counsel for petnr. Tonatiuh Alvarez letter re: clarification of two points regarding oral argument.
Jan 23 2006	Received:   from counsel for petnrs. letter re: case argued on 1-10-06.
Jan 25 2006	Received:   from counsel for resp. City of Berkeley, letter re: letters sent by petnrs.
Mar 9 2006	Opinion filed: Judgment affirmed in full   OPINION BY: Werdegar, J --- joined by: George, C.J., Kennard, Baxter, Chin, Moreno, Corrigan, JJ.
Apr 11 2006	Remittitur issued (civil case)
Jul 19 2006	Received:   notification from U.S.S.C. of writ filed and on the docket for 7-11-06.

Briefs
May 27 2003	Opening brief on the merits filed
Jul 14 2003	Answer brief on the merits filed
Aug 4 2003	Reply brief filed (case fully briefed)
Aug 20 2003	Amicus curiae brief filed
Sep 4 2003	Amicus curiae brief filed
Sep 8 2003	Amicus curiae brief filed
Sep 9 2003	Response to amicus curiae brief filed
Sep 9 2003	Amicus curiae brief filed
Sep 10 2003	Amicus curiae brief filed
Sep 10 2003	Amicus curiae brief filed
Sep 10 2003	Amicus curiae brief filed
Sep 10 2003	Amicus curiae brief filed
Sep 11 2003	Amicus curiae brief filed
Sep 12 2003	Amicus curiae brief filed
Sep 26 2003	Response to amicus curiae brief filed
Oct 2 2003	Response to amicus curiae brief filed

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