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     Ever since the Dale decision, the Cradle of Liberty Council (Philadelphia, PA) has been attempting to satisfy both the National Council and its local community. In 2003, it attempted to abide by the community's standards by adopting a policy of non-discrimination, which allegedly prohibited discrimination on the basis of sexual orientation and religious belief. Pressure from the National Council resulted in them renouncing their recently adopted policy. For more information, click here.
     The council's very public embrace of the National Council's discrimination policies forced the City of Philadelphia to review its $1/year lease to the council for prime real estate for its offices. Since the council was a private religious youth organization who provided services to residents and acknowledged that they discriminated on the basis of religious belief and sexual orientation, the city felt it could not subsidize such unlawful discrimination. The city obtained an appraisal of the land and asked the council to pay the fair market rental rate of $200,000 per year. The council refused and for 3 years negotiations between the council and the city were held. The city council in 2007 terminated the lease with the council and gave the council until June 1, 2008 to either pay the fair market rate or leave.
     In May 2008, the council sued the city of Philadelphia. In 2010 a jury found in favor of the council and the judge ordered the city to pay legal fees of $877,000 to the council. Attempts at settling the matter failed and the city is now appealing the decision to the Third Circuit Court of Appeals.

Philadelphia Cites Recent U.S. Supreme Court Case in Bid to Overturn Scouts Verdict
By: Shannon P. Duffy
The Legal Intelligencer
7/8/2010

Just five days after a federal jury handed up its verdict in favor of the local chapter of the Boy Scouts of America in its suit against the city of Philadelphia, a potentially game-changing twist came down from on high when the U.S. Supreme Court announced a decision that could ultimately cause the verdict to be overturned.

In court papers filed this week, the city lawyers are arguing that the verdict cannot stand because the Boy Scouts' theory of the case was rejected by the Supreme Court in its June 28 decision in Christian Legal Society Chapter of University of California v. Martinez. But lawyers for the Scouts filed a response late on Wednesday that said the Martinez decision simply doesn't apply and that the city's reliance on it is misguided.

In Martinez, a group of Christian law students complained that officials at Hastings College of the Law, a California state law school, had refused to grant their group official recognition and meeting space because it would not agree to honor a nondiscrimination policy requiring it to admit "all comers." A similar claim was lodged by the Philadelphia chapter of the Boy Scouts, known as the Cradle of Liberty Council. Its suit said the city of Philadelphia imposed an "unconstitutional condition" when it demanded that the chapter repudiate the anti-gay policies of the national Boy Scouts or be evicted from a city-owned building it had used rent-free as its headquarters for more than 80 years.

In its June 23 verdict, the jury sided with Cradle of Liberty on the "unconstitutional condition" claim, but found in favor of the city on two other claims. It rejected the Scouts' claim that the city had engaged in "viewpoint" discrimination, and it also rejected an Equal Protection claim by finding that the city had a rational basis for its actions.

Cradle of Liberty's lawyers -- Jason P. Gosselin and William M. McSwain of Drinker Biddle & Reath -- have since asked U.S. District Judge Ronald L. Buckwalter to enter judgment in their favor and to extend an injunction that blocked the city from evicting the scouts from the free space.

In a letter to Buckwalter, the plaintiffs team urged Buckwalter to make the injunction permanent and declare that the city "is barred from commencing any proceedings to evict plaintiff from its headquarters building based on [the city's] opposition to the constitutionally protected leadership policy with respect to gays of plaintiff and/or the Boy Scouts of America."

But now the city's lawyers -- David Smith, Stephenie Yeung and Rebecca Lacher of Schnader Harrison Segal & Lewis -- have filed papers that say the Martinezdecision, as well as inconsistencies in the jury's verdict, should lead to an entry of judgment in the city's favor.

The city's filing is sparse and was clearly designed only as a quick response to the plaintiff's move to secure an entry of judgment. Throughout the brief, the city says repeatedly that it will discuss its arguments more fully when it files post-trial motions.

Nonetheless, the city's 11-page brief offers a clear sketch of its argument that the Martinez decision has altered the jurisprudential landscape and that the theory of the case that proved successful for the plaintiffs at trial must now be reconsidered.

The Martinez Court, the city argues, noted that the Christian Legal Society chapter was "seeking what is effectively a state subsidy" and therefore may still "exclude any person for any reason if it forgoes the benefits of official recognition."

Writing for a 5-4 Court, Justice Ruth Bader Ginsburg found that Hastings' nondiscrimination policy was reasonable and viewpoint neutral, and that the Christian Legal Society "is simply confusing its own viewpoint-based objections to ... nondiscrimination laws (which it is entitled to have and voice) with viewpoint discrimination."

That analysis, the city argues, directly applies to the Cradle of Liberty's claims under the First Amendment.

In a response filed late Wednesday, Cradle of Liberty's lawyers argued that "nothing in the [Martinez] opinion remotely affects the decision reached by the jury."

Gosselin and McSwain argued that the jury found in favor of Cradle of Liberty on its First Amendment claim based on the doctrine of unconstitutional conditions, and that the Martinez Court "did not consider, let alone discuss, the doctrine of unconstitutional conditions." Factually, the cases have stark differences, the plaintiffs lawyers argue, because the Christian Legal Society "did not enjoy a long-held benefit upon which Hastings Law School placed an unconstitutional condition, and more importantly, there was no factual finding at the district court level that the law school acted unreasonably."

In a brief filed on Tuesday, the city's lawyers also offered a preview of their argument that the jury's verdict -- which consisted of answers to 11 questions -- is inconsistent and must be set aside.

In the first and third sections of the verdict, the city notes, the jury "concluded that the city had neither committed viewpoint discrimination nor violated the Cradle of Liberty's right of equal protection."

The jury inconsistently found in favor of Cradle of Liberty only on its "expressive association claim" in the second section, the city argues, because the verdict form was badly worded.

"The jury interrogatories (to which the city objected for precisely this reason) asked the wrong questions and were ambiguous and misleading, which resulted in responses that make no sense and are inconsistent with the jury's responses to Part I," the city's lawyers wrote.

In Part I of its verdict, the city notes, the jury found that "the city's reasons for evicting the [Cradle of Liberty] were both reasonable and viewpoint neutral," and in Part III found that the city "had a rational basis for terminating [Cradle of Liberty's] rent-free occupancy."

As a result, the city argues that the jury's finding in Part II that the city had imposed an unreasonable condition on the Scouts "is on its face inconsistent with the remainder of the verdict."

McSwain and Gosselin were both out of town on Wednesday and could not be reached for comment on the city's filing.

 

 

Philadelphia, Boy Scouts in talks to settle dispute over headquarters
By Nathan Gorenstein
Philadelphia Daily News
7/30/2010

Barely a month after a bitter court fight, Philadelphia and the Cradle of Liberty Council Boy Scouts are negotiating to settle the nearly decade-long dispute over the scouts' refusal to explicitly renounce the national organization's antigay policy.

A federal jury decided in June that the city had violated the Boy Scouts' First Amendment rights by using the antigay policy as a reason to evict them from their offices near Logan Square.

The Depression-era building, while built by the scouts, is on city land and effectively owned by Philadelphia. Despite the court victory, the city can still evict the scouts, provided it is done without violating the organization's constitutional rights.

"There have been talks," said Jason P. Gosselin, a partner with Drinker Biddle & Reath L.L.P., who represents the scouts. "We are on a good path."

City Solicitor Shelley R. Smith declined to comment on the discussions.

After the verdict, U.S. District Judge Ronald L. Buckwalter advised both sides to negotiate a final end to the dispute.

Meanwhile, in a not unexpected move, the city has asked Buckwalter to overturn the verdict on the ground that it is at odds with a recent U.S. Supreme Court decision.

And Drinker Biddle wants the city to pay it $963,570 in legal fees, the cost of representing the scouts. Although the firm took the case without a fee, federal law allows the winning side in a civil-rights case to dun the losers for costs.

Buckwalter will decide the amount, and in the filing Gosselin said the firm had tried to keep costs down during the two-year legal battle.

About 10 lawyers worked on the case, and two - Gosselin and a second partner, William M. McSwain - represented the scouts in court. The fee will not be paid if the city wins on an expected appeal.

The trial was never about whether the Cradle of Liberty Council had the legal right to discriminate. A 5-4 U.S. Supreme Court decision in 2000 said the Boy Scouts are a "membership organization" and can exclude gays.

But the City Charter forbids discrimination on the basis of sexual orientation, and the city decided in 2006 that the council's refusal to explicitly reject the national scout policy violated city law.

The scouts were ordered to vacate the 80-year-old headquarters, which they had occupied rent-free, or pay $200,000 a year to lease the building from the Fairmount Park Commission. It is one of two offices operated by the council, which also has Boy Scout troops in Delaware and Montgomery Counties.

The scouts contended that the city's move was an unconstitutional "coercion" that violated the organization's rights to free speech and equal protection.

The jury found the city would have allowed the scouts to remain rent-free if they had "repudiated or renounced the policy of the Boy Scouts of America to gays," which was "not reasonable" under the Constitution.

The jurors ruled against the scouts on two other constitutional claims, which the city also cited as grounds for overturning the verdict.

Jury says Philly can't evict Boy Scouts for anti-gay policy
By Nathan Gorenstein
Philadelphia Daily News
6/24/2010

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.

Philly Boy Scouts case now in hands of the jury
By MICHAEL HINKELMAN
Philadelphia Daily News
6/23/2010

When the then-director of the local Boy Scouts signed a news release in June 2003 that it would abide by the national organization's policy banning gays, it was analogous to "putting a sign in back of the lunchroom counter that said, 'Gays are not welcome,' " an attorney for the city said yesterday.
The comment came during a closing argument by David Smith in the federal civil-rights trial over whether the local Cradle of Liberty Council can continue to occupy rent-free space in a city-owned building at 22nd and Winter streets, near Logan Square.

The city wants to terminate a $1-a-year lease with the Cradle, saying its anti-gay-membership policy violates city antidiscrimination laws and make Cradle pay $200,000 in annual rent.

Cradle sued in federal court in May 2008 to block the move. It said the city was resorting to "coercion" that violates Cradle's right to free speech and equal protection under the Constitution.

Bill McSwain, an attorney for Cradle, said during his closing argument yesterday that the city was "picking on" Cradle "because it doesn't like the Scouts' policy."

"The demand for rent is to bring the Boy Scouts to its knees and make them change their policy," he told the jury, which deliberated for about two hours yesterday without reaching a verdict.

Smith countered that the dispute was not about speech but about conduct. "If you're going to discriminate, we can't continue to subsidize you," Smith said.

He said Cradle had committed "blatantly" discriminatory acts, which included expelling an openly gay Scout in 2003 and utilizing a job application that says known or avowed homosexuals need not apply.

The dispute grew out of a 2000 U.S. Supreme Court decision that the government cannot force the Boy Scouts to admit openly gay members because it is a private group and has a right to associate with whomever it wants.

McSwain also said the city was treating Cradle differently from other groups with limited membership that enjoy nominal rents on city land, including a Roman Catholic church in Pennypack Park and the Colonial Dames of America.

Smith said neither organization had issued a news release saying it was going to discriminate in violation of city law.

McSwain said that if Cradle loses its case, the impact would be devastating, a "loss, loss" for Cradle and the city.

If jurors side with the city, McSwain said, "[Cradle is] going to have to leave that building. There is no money in the operating budget for that rent."

He also said that Cradle would be forced to relocate to a Boy Scouts' office in Valley Forge and that impoverished youth in the city now served by Cradle would be bereft of its services.

But Smith scoffed at those arguments, pointing to a recent tax return that showed Cradle had $14 million in endowment, cash and securities.

He also reminded jurors that Cradle retained a "high-powered" lobbying and public-relations firm to plead its case before city officials.

"The Boy Scouts is a wonderful organization that does great things in this community," Smith said. "But doing great things is not a license to do bad things. That doesn't mean they have a right to discriminate against a group of boys they don't like."

Ousted gay Scout testifies in Cradle of Liberty Council rent trial
Philadelphia Daily News
6/22/2010

A gay man ousted from the Boy Scouts as a teen never sought to become the poster child for gays in scouting, he said yesterday after testifying in a federal trial over whether a local Boy Scout council can keep a cheap lease in a city building.
Greg Lattera said that scouting meant the world to him as an inner-city child and that he still loves the organization. But he also said he has no regrets about appearing on TV in his uniform in 2003 to applaud the anti-discrimination policy briefly adopted by the local chapter.

"The organization that I loved was finally open. I could be who I was," Lattera, 25, said after his court appearance. "I'm from South Philadelphia - Italian and Catholic. There weren't many gay kids growing up."

The Cradle of Liberty Council quickly rescinded the anti-discrimination policy under pressure from the Boy Scouts of America, which bans gays.

The city has since tried to terminate Cradle's $1-a-year lease on its city-owned headquarters, saying the chapter is violating city anti-discrimination laws. Cradle sued to block the move and has been making its case to a jury since last week.

The long-running fight grew out of the 5-4 Supreme Court decision in 2000 that said the Boy Scouts, as a private organization, could legally ban gays.

Numerous public and private donors cut funding in response. Likewise, the city considers the virtually free rent a perk to be leveraged, not a right owed to all.

Lattera was the trial's last witness. Closing arguments were set for this morning.

Lattera joined the Boy Scouts at age 10. By 18, he had earned 32 merit badges and had achieved the rank just below Eagle Scout. He worked at a camp in Montgomery County and was twice named staffer of the year.

"It was probably the only thing I had going for me when I was younger," Lattera testified. "I would encourage people to this day to still put their kids in scouting. I took so much away from it. It's made me a better person."

Lattera had been openly gay with close friends and family since age 14. Amid the fallout from the Supreme Court decision, his father told him in 2003 that the local chapter was adopting an anti-discrimination policy. Lattera was thrilled.

"[It] meant I could still be who I was and be a Scout," he testified.

He recalls saying only that he was proud of his chapter's new stance when he appeared in his uniform on TV at a meeting of the activist group Scouting for All.

The "separation letter" came within weeks. He was no longer welcome in the Boy Scouts of America.

Under cross-examination, a Cradle attorney suggested that Lattera had violated the Boy Scout uniform policy - not a sexual-orientation rule - by advocating his personal views while in uniform.

Cradle also argues that the city lets other groups with limited membership, including a Roman Catholic parish, enjoy cheap rents.

Trial opens in suit over Boy Scouts headquarters
By Emilie Lounsberry
Philadelphia Daily News
6/16/2010

When the U.S. Supreme Court ruled in 2000 that the Boy Scouts of America could set rules as a private organization, even if that meant excluding homosexuals, the Philadelphia chapter disagreed with the exclusionary policy.
The local group, the Cradle of Liberty Council, thought scouting should be open to everyone. It even adopted a resolution saying it opposed any form of discrimination.

But Bill Dwyer, a retired chief executive of the council, told a federal court jury Tuesday that 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."

Dwyer's testimony came on the first day of the U.S. District Court trial focusing on the city's effort to evict the local group from the headquarters it built and has occupied, rent-free, for 81 years on city-owned property near 22d and Winter Streets.

The city gave the scouts three options: Pay $200,000 fair-market rent, move out, or "have the courage of its convictions and agree" to acknowledge the city's antidiscrimination policy.

The scouts contend the city's position is unconstitutional and violates the organization's right to free speech and equal protection. The city leases property to other organizations that have membership rules, including a Catholic church, and those tenants do not face eviction, say attorneys for the scouts. The city calls that comparison inaccurate.

Jason P. Gosselin, who represents the Cradle of Liberty Council, told the jury in his opening address that the city's effort was unconstitutional and motivated only by hostility to the antigay viewpoint expressed by the scouts' national leadership policy.

"They wanted to force Cradle of Liberty to say something that Cradle of Liberty doesn't have to say," said Gosselin, who said the local scouts could not be forced to "repudiate a policy that the Supreme Court says is protected."

David Smith, a lawyer for the city, told the jury of six women and two men that the city accepted the local group's statement that it opposed discrimination until learning that the chapter used the national group's employment application, which stated that homosexuals, atheists, and agnostics would not be hired.

Local leaders were "speaking out of both sides of their mouths," said Smith, who said the city began to "look more carefully" at the long-standing practice of rent-free headquarters for the group.

The national Boy Scouts were unhappy with the local group, Smith said, adding that the local group should have had "the courage of its convictions" and denounced the national policy. The local group, he said, gave in to "heavy-handed coercion by the Boy Scouts of America."

Under questioning by Gosselin, Dwyer testified that as the dispute with the city escalated, the city made it clear that if the local group repudiated the national policy, the matter would have been resolved.

"We would have liked to have done that, but we knew we couldn't," he told the jury.

Ten years ago this month, the nation's high court ruled that the Boy Scouts can bar homosexuals from being troop leaders. The decision came in the case of a New Jersey assistant scout leader who was expelled for being gay and sought reinstatement.

Testimony is to resume this morning in the trial before U.S. District Judge Ronald L. Buckwalter.

Philly Boy Scouts' position reversal on gay members led to eviction actions - city lawyer
By MICHAEL HINKELMAN
Philadelphia Daily News
6/16/2010

The local Boy Scouts chapter should be evicted from city-owned property because the group didn't "have the courage of its convictions" to repudiate the national organization's ban on openly gay members, a lawyer for the city said yesterday in federal court.
Attorney David Smith told jurors during his opening statement that the local chapter - the Cradle of Liberty Council - had signed off on a statement in 2004 opposing "any form of unlawful discrimination" but quickly caved to pressure from the national organization and said it could not disavow the ban.

After that, Smith said, the city began to scrutinize whether Cradle could - and should - continue to occupy nearly rent-free headquarters on city property at 22nd and Winter streets, near Logan Square.

The dispute arose from a U.S. Supreme Court decision in 2000 that held that the government can't compel the Boy Scouts to admit openly gay members because the Scouts is a private group and has a right to associate with whomever it wants.

The city says the national ban violates both the city charter and an ordinance outlawing discrimination on the basis of sexual orientation and other grounds.

The city wants to evict Cradle or make it pay $200,000 in annual rent unless it renounces the national ban on gay members.

Cradle attorney Jason P. Gosselin said the city's move amounts to "coercion" that violates its right to free speech and equal protection under the Constitution.

Gosselin said that the city is now doing "indirectly what it can't do directly" under the law, and that it wanted to "punish" Cradle.

"The only leverage they have is the building they own, and they want to kick us out," Gosselin said.

He said local Scout leaders have never asked Scouts about sexual orientation and weren't aware of the national policy banning gays until the high court ruled.

But, Smith said, the leaders were "speaking out of both sides of their mouth" and the city was not obligated to subsidize their conduct.

Gosselin said Cradle provides up to 50,000 hours of community service each year. Addressing jurors, he said: "Ask yourself, who is subsidizing who?"

Also at issue is whether Cradle is being treated differently from similarly situated groups.

Gosselin said the city leases property rent-free in Pennypack Park to a Roman Catholic church, and the Lemon Hill Mansion to the Colonial Dames of America.

Both have membership policies that conflict with the city's anti-discrimination laws, but neither organization is facing eviction, Gosselin said.

But Smith said that the comparison was not apt, noting that the church opened its doors to all worshippers and that the Dames had partnered with an open -membership group to operate the Lemon Hill Mansion and let all comers in.

In 2007, City Council passed an ordinance to evict the Scouts and went to Common Pleas Court in June 2008 in an effort to do so, but Cradle filed the federal civil-rights lawsuit in May 2008.

Last year, U.S. District Judge Ronald Buckwalter issued an injunction banning the city from evicting the Scouts until the federal lawsuit is resolved.

Flap between city, Boy Scouts headed to trial
By MICHAEL HINKELMAN
Philadelphia Daily News
6/7/2010

The long-festering dispute between the city and the local Boy Scouts chapter over the chapter's right to occupy headquarters on city property may finally be resolved next week during a civil trial in a federal courtroom here.

The city and the the Scouts' local chapter, Cradle of Liberty Council Inc., were unable to settle their differences last August.

U.S. District Judge Ronald L. Buckwalter declined to grant motions by both parties to decide the case without a trial on April 22. That trial is expected to last about a week.

On Friday, both sides filed court papers laying out their legal arguments, as well as identifying witnesses who may be called and damages sought.

At issue is whether the city must continue to provide the Scouts with rent-free occupancy of a 1928 Beaux Arts building it owns at 22nd and Winter streets near the Parkway. (Cradle pays the city $1 annually to lease the property.)

The Boy Scouts of America Inc. bars anyone who is openly gay from being a member - which violates a 1982 city ordinance banning discrimination based upon sexual orientation, the city said.

The U.S. Supreme Court ruled in 2000 that because the Boy Scouts is a private group, it has a constitutional right to associate with whomever it wants and government cannot interfere with it.

The city contends that doesn't mean it must subsidize the rent of any organization that discriminates.

As city officials were preparing to file suit in state court in early June 2008 to boot Cradle of Liberty or get it to agree to pay $200,000 in annual rent, Cradle pre -empted the city and sued it in federal court in May 2008.

Cradle alleged that the city breached its rights to freely associate and be afforded equal protection to other similarly situated organizations.

The city seeks $333,000 in damages, the rent it claims Cradle owes since June 2, 2008.

Several high-ranking officials of the former Street administration could testify for the city, including former city solicitor Romulo Diaz Jr. and former chief of staff Joyce Wilkerson. (Diaz also may testify for Cradle. Former mayor John Street is not listed as a potential witness.)

Cradle said in court papers that the city's eviction efforts were "motivated solely by its hostility to the viewpoint" expressed by the Boy Scouts' national membership policy.

The court filing said the city leases about 75 other buildings on Fairmount Park property to nonprofits that pay no or nominal rent, including several that have "exclusive" membership policies.

Cradle wants a permanent ban preventing the city from evicting it based on compliance with a national membership policy, as well as a judge's ruling that the city's eviction attempts trampled its constitutional rights.

The lawsuit also seeks awards of $800,000 in attorneys fees and $60,000 in litigation costs.

Cradle said it may call former Cradle officials to testify, as well as officials of other nonprofits, including the pastor of a Roman Catholic church and athletics director at Saint Joseph's University. Both entities lease Fairmount Park property at little cost.

Boy Scouts sue Phila. to stay in headquarters
May 27, 2008
By Joseph A. Slobodzian
Philadelphia Daily News

The Boy Scouts of America's Philadelphia chapter has sued the City of Philadelphia in federal court to block the city's May 31 deadline for the scouts to open membership to gays and atheists, or vacate their historic 1928 headquarters off Logan Square.

The civil rights lawsuit, filed Friday in federal court in Center City, contends that the city's ultimatum violates the scouts' rights under the U.S. and Pennsylvania Constitutions.

"The City has imposed an unconstitutional condition upon Cradle of Liberty's receipt of a benefit that Cradle of Liberty has enjoyed for nearly eight decades, and that many other organizations that limit members or services to members of a particular group continue to enjoy without punishment or the threat of punishment," the scouts' lawsuit reads.

City Solicitor Shelley R. Smith said the city would respond to the federal lawsuit and would likely file an eviction motion next week.

In the meantime, Smith added, the beginning of litigation would preserve the status quo pending a court ruling. Until that ruling occurs, Smith said, the scouts will be able to continue using the headquarters building.

The suit asks the court to permanently block city officials from attempting to evict the Scouts from their building, which sits on a half-acre of city land at 22d and Winter Streets.

The Cradle of Liberty Council's predicament is one that has faced local scouting councils nationwide since a 2000 U.S. Supreme Court case the scouts won.

The national organization appealed the ruling in a suit filed by an openly gay New Jersey scout barred from serving as a troop leader.

Scouts must swear an oath "to God and my country" and to "obey the Scout Law" that includes keeping oneself "physically strong, mentally awake, and morally straight."

In 2000 the Supreme Court ruled 5-4 in Boy Scouts of America v. Dale that the scouts are a private group and thus have the right of "expressive association" under the First Amendment to set their own membership rules.

The legal victory was short-lived as municipal officials nationwide began reexamining longstanding relationships with local scouts. Unlike the scouts, local public officials were bound by another line of Supreme Court opinions that barred taxpayer support for any private group that discriminates. Other mainstream supporters, such as United Way, also dropped them.

Last October, after several years of sporadic talks between city and council, the city imposed the May 31 deadline: Change your membership rules, vacate the building, or pay a fair market rent of $200,000.

The scouts have maintained that they cannot change their membership policies without being ejected by the national scout organization and cannot afford the rent.

Boy Scouts Lose Philadelphia Lease in Gay-Rights Fight
By IAN URBINA
December 6, 2007
New York Times

PHILADELPHIA, Dec. 4 — For three years the Philadelphia council of the Boy Scouts of America held its ground. It resisted the city's request to change its discriminatory policy toward gay people despite threats that if it did not do so, the city would evict the group from a municipal building where the Scouts have resided practically rent free since 1928.

Hailed as the birthplace of the Boy Scouts, the Beaux Arts building is the seat of the seventh-largest chapter of the organization and the first of the more than 300 council service centers built by the Scouts around the country over the past century.

But over the years the fight between the city and the Scouts was about more than this grandiose structure in Center City.

Municipal officials said the clash stemmed from a duty to defend civil rights and an obligation to abide by a local law that bars taxpayer support for any group that discriminates. Boy Scout officials said it was about preserving their culture, protecting the right of private organizations to remain exclusive and defending traditions like requiring members to swear an oath of duty to God and prohibiting membership by anyone who is openly homosexual.

This week the Boy Scouts made their last stand and lost.

"At the end of the day, you can not be in a city-owned facility being subsidized by the taxpayers and not have language in your lease that talks about nondiscrimination," said City Councilman Darrell L. Clarke, who represents the district where the building is located. "Negotiations are over."

Mr. Clarke said talks ended this week when the deadline passed for the local chapter to change its policy; on June 1 the group will be evicted.

"Since we were founded, we believe that open homosexuality would be inconsistent with the values that we want to communicate with our leaders," said Gregg Shields, national spokesman for the Boy Scouts. "A belief in God is also mentioned in the Scout oath. We believe that those values are important. Tradition is important. Our mission is to instill those values in scouts and help them make good choices over their lifetimes."

In 2000, the Supreme Court decided a case — Boy Scouts of America v. Dale — involving an openly gay scout from New Jersey who was barred from serving as troop leader. The court ruled in a 5-to-4 decision that, as a private organization, the group had a First Amendment right to set its membership rules.

The issue became a local concern in Philadelphia in May 2003 when the national Boy Scouts held their annual meeting in the city. During the conference, a local scout challenged the organization's policies by announcing on television that he was gay and that he was a devoted member of the organization. He was promptly dismissed by the local chapter, which is called the Cradle of Liberty Council.

Municipal officials drew the line at the Beaux Arts building because the city owns the half-acre of land where the building stands. The Boy Scouts erected the ornate building and since 1928 have leased the land from the city for a token sum of $1 a year. City officials said the market value for renting the building was about $200,000 a year, and they invited the Boy Scouts to remain as full-paying tenants.

Jeff Jubelirer, a spokesman for the local chapter, said it could not afford $200,000 a year in rent, and that such a price would require it to cut summer-camp funds for 800 needy children.

"With an epidemic of gun violence taking the lives of children almost daily in this city, it's ironic that this administration chose to destroy programming that services thousands of children in the city," Mr. Jubelirer said. He added that the organization serves more than 69,000 young people, mostly from the inner city, and that its programming focuses on mentoring and after-school programs instead of camping trips.

But Stacey Sobel, executive director of Equality Advocates Pennsylvania, a gay-rights advocacy group based in Philadelphia, said: "Allowing the Boy Scouts to use this building rent free sends a message that the city approves of their policy. We are not looking to kick the Boy Scouts out. We just want them to play by the same rules as everyone else in the city."

Ms. Sobel said the city required that any organization that rented property from it agree to nondiscriminatory language in its lease. The Boy Scouts skirted the requirement by never having had to sign a lease because they were given use of the building by city ordinance in the 1920s.

Local scout leaders said they tried hard to find a compromise between the city and their own national office, and in 2005 they seemed poised to agree on a policy statement adopted by the Boy Scouts in New York, which did not renounce the prohibition against gay members, but affirmed that "prejudice, intolerance and unlawful discrimination in any form are unacceptable."

But last year, city officials wrote Cradle of Liberty Council officials to say that suggested policy statement could not be reconciled with Philadelphia's antidiscrimination ordinance.

On May 31, the City Council voted 16-to-1 to authorize ending the lease, though Mr. Clarke and other Council members continued trying to negotiate a settlement. Those efforts ended this week, Mr. Clarke said, adding that he had shifted his energy toward trying to see if there was a way the city could reimburse the group for improvements it had made to the property over the years.

Boy Scout officials said they do not have a cost estimate for the improvements, but Mr. Jubelirer said it would exceed $5 million.

Flipping through an aged book of fund-raising encouragement for construction of the building — from dignitaries like Helen Keller, Babe Ruth and Winston Churchill — Chuck Eaton, director of field service for the local chapter, noted how the past contrasted with the present.

In front of the building, the wording on a statue of a boy standing sentinel also marks the passage of time. "The past is our heritage," it reads. "The present our opportunity. The future our hope."
 

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