Sexual Orientation Discrimination

On September 10, 2003, Attorney General Lockyer filed an amicus brief in support of the City of Berkeley's effort to avoid funding a private discriminatory program. At issue before the California Supreme Court is a city policy that requires any group seeking a subsidy for free marina berthing to provide written assurances that the group does not engage in discriminatory practices. The Sea Scouts in Evans v. City of Berkeley contends that the city's denial of its request violates the First Amendment. In his amicus brief, Attorney General Lockyer supports the City's argument that the City did not engage in impermissible viewpoint discrimination against the Sea Scouts. The brief argues that the California and U.S. Constitutions do not require governments to fund discriminatory programs. The brief adds that the city's anti-discrimination condition meets the "unconstitutional conditions" and "viewpoint discrimination" standards under state and federal constitutions. To rule otherwise would violate California's long-established policy that governments should not subsidize or promote organizations that engage in discrimination, the brief states.

On February 17, 1999, Attorney General Lockyer withdrew his predecessor's amicus brief support in the Hawaii Supreme Court in Baehr v. Miike. The amicus brief that was filed argued that Hawaii should not sanction same-sex marriage because it would cause discord with other states.

In 2000, the Attorney General joined six other states in an amicus brief authored by the New York Attorney General in Boy Scouts of America v. Dale seeking to uphold the ability of states to prevent discrimination based on sexual orientation by the Boy Scouts. At issue in the U.S. Supreme Court case was a New Jersey state law prohibiting discrimination by public accommodations to the Boy Scouts. The Boy Scouts sought to reverse a New Jersey Supreme Court decision that prevented the organization from banning gays as members, arguing a right to freedom of association under the First Amendment. Joining in the "friend of the court" brief were Hawaii, Maryland, Oklahoma, Oregon, Vermont and Washington. The Supreme Court ruled in a split 5-4 decision in favor of the Boy Scouts.