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Jury says Philly can't evict Boy Scouts for anti-gay policy
Philadelphia Inquirer ^ | June 24, 2010 | Nathan Gorenstein

Posted on 06/24/2010 12:25:07 PM PDT by mdittmar

A federal jury Wednesday decided that Philadelphia violated the Boy Scouts' First Amendment rights by using the organization's anti-gay policy as a reason to evict them from their city-owned offices near Logan Square.

"We can't be kicked out of the building or evicted, and we don't have to pay any rent," scouts attorney William M. McSwain said after the unanimous verdict by a jury of six women and two men.

The scouts' lawyers expect U.S. District Judge Ronald Buckwalter to issue a permanent injunction that bars eviction because of the policy - set by the national organization - that homosexuals cannot be scouts or troop leaders.

That's not necessarily the end of the dispute, however.

The jury's answers to the 11 questions on the verdict sheet were "inconsistent," City Solicitor Shelley Smith said, "and when verdict sheets have inconsistent answers, the potential exists that the verdict is flawed. We will be exploring our options."

Mayor Nutter said in a statement, "While the good work of the Boy Scouts cannot be disputed, the city remains steadfast in its commitment to prevent its facilities from being used to disadvantage certain groups."

Councilman Darrell L. Clarke, whose district includes the scouts' headquarters, was disappointed: "If in fact you have a policy that does not comply with the city's antidiscrimination policy, then you should not be allowed to be in a city-owned facility, period."

Under the ordinance that leased the property to the scouts, the city has the right to evict them without giving any reason at all, both sides have agreed.

Asked if the city would take that step, Smith said, "The verdict was just issued today, and we'll be considering all of our options."

In an unusual address to the jury, Buckwalter said he hoped the Cradle of Liberty Council and the city can reach a negotiated solution.

The scouts are willing to negotiate and would like to end the nearly seven-year standoff, said Jason Gosselin, the lead attorney for the scouts.

The jury deliberated for about seven hours over two days and voted unanimously.

They ruled in favor of the city on two points: the scouts' right to due process was not violated, and another First Amendment complaint by the scouts had no validity.

The official Boy Scouts policy bans gays, but the top official of the council, Tom Harrington, said his organization had no test for prospective members. "There is a national policy we have to follow," he said.

Jury foreman Merrill Arbogast, 40, a truck driver from Lancaster County, said jurors discussed each legal issue.

"There was a lot of debate before we came to an agreement. . . . We took each question and tried to break it down."

"On some things we believed the city, on others we believed the scouts," he said.

The trial, which began June 14, was never about whether the council could discriminate. A 5-4 U.S. Supreme Court decision in 2000 said the Boy Scouts is a "membership organization" and can exclude gay youths and troop leaders.

But the City Charter says otherwise, and after years of negotiations the city decided that the council's refusal to explicitly reject the national policy violated the charter.

In 2007, the scouts were ordered to vacate the 80-year-old headquarters they had occupied rent-free, or pay $200,000 a year to lease the building from the Fairmount Park Commission.

The scouts contended the city's move was an unconstitutional coercion that violated the organization's First Amendment rights and the Equal Protection clause.

The city leases land to other institutions that have membership rules, including a Catholic church, and those groups do not face eviction, the scouts argued. The city called that comparison inaccurate, and the jury decided against the scouts on that point.

It did find that the city "would have permitted [the scouts] to continue to use its headquarters building on a rent-free basis if [the scouts] repudiated or renounced the policy of the Boy Scouts of America to gays."

The jurors said that position was "not reasonable." Those two responses combined created a finding of an "unconstitutional condition."

During the trial, Bill Dwyer, a retired Cradle of Liberty chief executive, said he and other leaders realized "in our heart of hearts" that "we couldn't repudiate totally the national position. They would put us out of business."

The local scouts cannot be forced to "repudiate a policy that the Supreme Court says is protected," Gosselin had said.

David Smith, a lawyer for the city, told the jury that the city initially accepted the local group's statement that it opposed discrimination, until learning that the chapter used the national group's employment application, which bars hiring homosexuals, as well as atheists and agnostics.

Similar controversies have developed elsewhere since the high court ruling, prompting a variety of lawsuits with varied results. About 360 school districts and 4,500 schools in 10 states have terminated sponsorship of scout activities because of the scouts' stand on homosexuals, according to the American Civil Liberties Union.

A negotiated solution here was reached briefly in 2003, when the scouts agreed not to discriminate against gays, but the council rescinded that policy after the national council threatened to revoke its charter.

In 2004, the Cradle council agreed to oppose "any form of unlawful discrimination," but a year later, then-City Solicitor Romulo L. Diaz Jr. said that was too vague. In 2007, City Council voted to evict the scouts.

The scouts can now ask the court to order the city to pay legal fees of about $860,000.

 


TOPICS: Constitution/Conservatism; Front Page News; News/Current Events; US: Pennsylvania
KEYWORDS: boyscouts; boyscoutsbsa; bsa; philadelphia

1 posted on 06/24/2010 12:25:09 PM PDT by mdittmar
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To: mdittmar

I hope the city does have to eat that legal bill. Freedom of association still lives there in Philly...at least for now.


2 posted on 06/24/2010 12:27:03 PM PDT by anniegetyourgun
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To: mdittmar
I guess the City of Brothers in Love will have to

SUCK IT UP!"

3 posted on 06/24/2010 12:29:28 PM PDT by Young Werther ("Quae cum ita sunt" Since these things are so!)
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To: mdittmar
The scouts can now ask the court to order the city to pay legal fees of about $860,000.

It's nice to know that the city is so awash in cash that we can afford to use our courts and solicitors wage nuisance law suits to make our sodomite City Solicitor and our useless mayor.

4 posted on 06/24/2010 12:32:00 PM PDT by South Hawthorne (In Memory of my Dear Friend Henry Lee II)
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To: mdittmar
Jury says Philly can't evict Boy Scouts for anti-gay policy existing ... (fixed it)
5 posted on 06/24/2010 12:32:27 PM PDT by Servant of the Cross (the Truth will set you free)
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To: mdittmar

Well, sometimes it seems evil doesn’t win. I was beginning to get discouraged.


6 posted on 06/24/2010 12:32:30 PM PDT by IrishCatholic (No local Communist or Socialist Party Chapter? Join the Democrats, it's the same thing!)
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To: mdittmar

They mention city-owned building a few times but fail to mention that the Scouts built the building at the city’s request and deeded it back to them with the right to rent it for $1 a year. Unfortunately they also gave the city the right to change the terms with one year’s notice and the city did just that.


7 posted on 06/24/2010 12:36:07 PM PDT by NonValueAdded ("The real death threat is their legislation" Rush Limbaugh, 3/25/10)
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To: mdittmar

This is great news too:)


8 posted on 06/24/2010 12:36:14 PM PDT by fatima (Free Hugs Today :))
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To: mdittmar

Good. The queers can go stuff each other and leave the Scouts alone. I was a Boy Scout, First Class with a few merit badges. Some of the best days of my boyhood.


9 posted on 06/24/2010 12:37:50 PM PDT by thethirddegree
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To: mdittmar

“While the good work of the Boy Scouts cannot be disputed, the city remains steadfast in its commitment to prevent its facilities from being used to disadvantage certain groups.”

Their logic is backwards. It is they who think they can legally disadvantage private groups of associated citizens; picking and choosing which citizens groups they will honor on equal terms and which ones they won’t.

There is no honest truth to any idea that the lease given the Boy Scouts is an act of promotion of, or support of the policies of the Boy Scouts.

In such matters, the government MUST be agnostic, neither actively promoting or actively suppressing the points of view of one group of citizens over another.

The city is free to offer the same terms to a youth organization that does not restrict its membership to homosexuals. It is not free to pick and choose between those that do and those that don’t.


10 posted on 06/24/2010 12:40:51 PM PDT by Wuli
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To: NonValueAdded

I did NOT know that. Thank you for the information!!


11 posted on 06/24/2010 12:44:10 PM PDT by twigs
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To: mdittmar

“Mayor Nutter said...”


12 posted on 06/24/2010 12:54:44 PM PDT by beelzepug (This administration is a tagline-rich environment.)
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To: mdittmar
Councilman Darrell L. Clarke, whose district includes the scouts' headquarters, was disappointed: "If in fact you have a policy that does not comply with the city's antidiscrimination policy, then you should not be allowed to be in a city-owned facility, period."

Unless, of course, the "antidiscrimination" policy is discriminatory!

13 posted on 06/24/2010 1:12:48 PM PDT by TheDon ("Citizen" of Kalifornia, USSA)
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To: mdittmar
"Under the ordinance that leased the property to the scouts, the city has the right to evict them without giving any reason at all, both sides have agreed. Asked if the city would take that step, Smith said, "The verdict was just issued today, and we'll be considering all of our options.""

This is worrisome.

14 posted on 06/24/2010 1:16:51 PM PDT by Think free or die
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To: NonValueAdded

Ouch! You have to be kidding me. I think the city should stand by their principles by vacating the building and deeding the building back to the Scouts.


15 posted on 06/24/2010 1:18:42 PM PDT by TheDon ("Citizen" of Kalifornia, USSA)
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To: TheDon; twigs
Just looked for a backup source and it is worse than what I described:
In 1928, the city gave the local Boy Scouts Council permission to build a headquarters building on city land, to be the regional Scout headquarters, with the proviso that the completed building would be city property, which the Scouts could use exclusively for their own activities without having to pay rent. The Scouts also had the obligation to maintain the building. The building was completed in 1929 and has been in continuous use since then. Annual maintenance costs to the Scouts have averaged $60,000 in recent years, and they spent $1.5 million on a major renovation project in 1994. [emphasis added]
Source: Leonard Link: Boy Scouts Defeat Dismissal Motion in Philadelphia Headquarters Building Dispute
16 posted on 06/24/2010 1:30:15 PM PDT by NonValueAdded ("The real death threat is their legislation" Rush Limbaugh, 3/25/10)
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To: mdittmar; RonF; AppauledAtAppeasementConservat; Looking for Diogenes; Congressman Billybob; ...

Scout Victory Ping


17 posted on 06/24/2010 1:34:38 PM PDT by SandRat (Duty, Honor, Country! What else needs said?)
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To: SandRat

A victory for people who believe in being trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean and reverent!


18 posted on 06/24/2010 3:23:01 PM PDT by SmithL
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To: Owl_Eagle

Do they still have that bell in Philadelphia? The one that’s cracked. Or did they melt that down? Liberty seems to be anathema to the town.


19 posted on 06/24/2010 4:58:21 PM PDT by gitmo ( The democRats drew first blood. It's our turn now.)
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To: gitmo
Liberty seems to be anathema to the town.

But when you know more than anyone else, you're obligated to tell them what to do and liberty just gets in the way.

20 posted on 06/25/2010 6:12:27 AM PDT by South Hawthorne (In Memory of my Dear Friend Henry Lee II)
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To: mdittmar
The scouts can now ask the court to order the city to pay legal fees of about $860,000.

A good day for all. A very good day.

Mom of 2 Eagle Scouts.

21 posted on 06/25/2010 8:23:07 PM PDT by MarMema
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To: mdittmar

If the city wants to save face at this point, perhaps it should agree to sell the building outright to the Scouts for $1.


22 posted on 06/26/2010 3:23:31 AM PDT by pnh102 (Regarding liberalism, always attribute to malice what you think can be explained by stupidity. - Me)
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To: Young Werther
I guess the City of Brothers in Love will have to

SUCK IT UP!"

Whether they like it or not? :)

23 posted on 06/26/2010 3:28:53 AM PDT by pnh102 (Regarding liberalism, always attribute to malice what you think can be explained by stupidity. - Me)
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To: mdittmar
My head is spinning?????
  1. Councilman Darrell L. Clarke, ... was disappointed:
    "If in fact you have a policy that does not comply with the city's antidiscrimination policy, then you should not be allowed to be in a city-owned facility, period."

  2. Under the ordinance that leased the property to the scouts, the city has the right to evict them without giving any reason at all, both sides have agreed.

Sooooooooo.
Per Philly pols the Boys Scouts can't 'discriminate' even though SCOTUS says they can.

BUT! Philly can 'discriminate' when leasing property (or anything) and they don't even have to give a reason why they ARE discriminating.

To quote Capt. John Joseph Yossarian:

"That's some Catch, that 'Catch-22."

24 posted on 06/26/2010 5:02:37 AM PDT by Condor51 (SAT CONG!)
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To: mdittmar

All Right!


25 posted on 06/26/2010 5:25:55 AM PDT by 2harddrive
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To: anniegetyourgun

The city must pay. BUT: How can legal fees escalate to that level, over a mere municipal dispute? The system is BROKEN.


26 posted on 06/26/2010 5:27:53 AM PDT by 2harddrive
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