U.S. District Judge Ronald L. Buckwalter issued the injunction on Nov. 18, effectively preventing Common Pleas Judge Mark I. Bernstein from ordering the Cradle of Liberty Council’s eviction from 231-251 N. 22nd St.
Prior to the injunction, the eviction case had been pending before both judges because of overlapping issues that both said they were capable of ruling on.
In their Dec. 15 motion, the Scouts said it would be unfair to give Bernstein the opportunity to evict them before the case is more fully developed in federal court.
A federal jury trial is scheduled for April 2010, for which depositions are being taken, the Scouts’ motion states.
If the Scouts had been given fair notice that the matter would be heard first by Bernstein, they would have developed their case more extensively in state court, the chapter stated.
Prior court pleadings filed by city attorneys indicate a mutual agreement that Buckwalter would be the first judge to hear the case, according to the Scouts’ motion.
“In view of these circumstances, the state court proceedings did not afford Cradle of Liberty an adequate opportunity to raise Cradle of Liberty’s federal claims,” the motion states.
City officials want to evict the Scouts from the building because the organization won’t permit gay participants, nor will it pay the annual fair-market rent of $200,000.
The Scouts’ federal lawsuit, filed in May 2008, alleges “viewpoint discrimination” by the city because the Scouts exercised their constitutional right to ban gays.
The lawsuit relies on a 2000 Supreme Court decision stating that the Boy Scouts of America aren’t a public accommodation and thus not required to comply with local civil-rights laws protecting gays.
The city replied that the Scouts are free to associate with whomever they please, but aren’t entitled to city subsidies to facilitate discriminatory practices.
The Dec. 15 motion also disputes the relevance of a federal appellate court ruling cited by city attorneys in support of their position that Buckwalter failed to recognize limitations on his ability to issue the injunction.
The appellate ruling, known as the “Coughlin case,” dealt with a very different set of circumstances and should not be used as guidance by Buckwalter in the Scouts’ case, the Scouts’ motion states, adding it would be “absurd” to cite the Coughlin case as justification for lifting the injunction.
The motion also holds that it’s for the Scouts to post a bond if Buckwalter’s injunction remains in effect because Buckwalter already has the ability to order back-rent payments to the city if the Scouts are evicted.
In a prior court pleading, city attorneys asked Buckwalter to order the Scouts to post a bond to protect the city’s financial interests if he doesn’t lift the injunction.
The litigation has ensued for 19 months, and the Scouts are in rental arrears of about $300,000, according to court records.
In a related matter, some activists have turned attention to the Scouts’ retail store in the back of the 22nd Street facility.
Open six days a week, the Scout Shop is affiliated with the national Boy Scouts of America, and offers a wide variety of literature and items associated with camping and the outdoors. It’s believed to be the largest — if not the only — Scouts Shop operating in a municipally owned building in the country.
So far, neither side has addressed the store in court papers.
If the Scouts are permitted to stay at the 22nd Street building without diversifying their membership policies, the city may be able to require changes at the retail store on the legal theory that it’s a public accommodation subject to the city’s anti-bias rules.
City leases routinely contain guidelines for revenue-generating activities within city-owned buildings, and the leases forbid the revenue from supporting discriminatory practices.
The guidelines are based on a 1983 City Council ordinance, Bill 1757, which forbids city officials from leasing space to a vendor that contributes financially to a private club with antigay membership policies.
Typical city leases also contain clauses regulating retail-store operations and advertisement, so that all visitors feel welcome.
Jason P. Gosselin, an attorney for the Scouts, declined a request by PGN to disclose the amount of revenue generated at the Scout Shop each month.
Any long-term lease between the city and the Scout Shop would be subject to approval by Philadelphia City Council, according to provisions of the Philadelphia Code.
Margaret A. Downey, president of the Freethought Society of Greater Philadelphia, hopes the Scout Shop will prove to be a venue for change in the organization.
“I really want this to work out,” Downey told PGN. “The store has the potential to sensitize the Scouts to a wide variety of issues related to the LGBT, disabled and nontheist communities.”
Timothy Cwiek can be reached at (215) 625-8501 ext. 208.