“We think we have information that can help the court render a just decision in this matter,” said David M. Rosenblum, legal director of Mazzoni Center. “So we’re delighted to file this brief, and hope the court will accept it for consideration.”
The parties in the brief are Lambda Legal Defense & Education Fund, Inc.; Mazzoni Center; Equality Forum; Equality Pennsylvania; Human Rights Campaign; and Parents, Families and Friends of Lesbians and Gays Philadelphia.
The city has tried to evict the BSA Cradle of Liberty Council from a city-owned building near the Ben Franklin Parkway because Cradle won’t pay rent or allow openly gay participants.
A federal jury in 2010 found that the city placed an “unconstitutional condition” on Cradle’s First Amendment right to exclude gays during the eviction attempt.
The city is appealing that verdict in the United States Court of Appeals for the Third Circuit.
The ACLU of Pennsylvania — and a coalition of 15 religious organizations, civil-rights groups and faith leaders — also filed proposed friend-of-the-court briefs with the appeals court Nov. 26, expressing support for Cradle’s eviction.
LGBT groups emphasize harm of
In their brief, the LGBT groups emphasized the damaging effects of antigay discrimination, noting that at times it has even led to suicide.
“The pernicious effects of Cradle’s policies hit particularly hard on young people, who are meant to benefit from Scouting,” the brief states.
Rosenblum said Cradle appears unwilling to address the harm its conduct causes gay youth.
“Cradle’s court filings focus on their purported right to exclude gay adults,” Rosenblum said. “Cradle apparently doesn’t realize that gay youths are coming out at a young age — often as early as 10. And it’s important to give them the right to be themselves in Scouting, too.”
Remaining in the closet isn’t an acceptable option, he said.
Closeted individuals could be “subject to serious mental-health consequences should they attempt to remain in Scouting by concealing their sexual orientation,” the brief states.
The brief also notes that Cradle’s behavior causes harm to the entire community.
“The segregation of straight youth and adults from gay peers creates barriers to healthy interaction between them and causes harm to the community as a whole,” it states.
By refusing to subsidize Cradle’s discrimination, the city “can help strengthen individuals’ feelings of safety and belonging; this, in turn, can prevent harm and health problems caused by discrimination.”
Forced subsidization of Cradle’s discrimination sets a bad precedent, Rosenblum added.
“If you allow Cradle to get away with this, what’s to stop any discriminatory organization from demanding a similar arrangement from the city?” he posed.
ACLU focuses on LGBT-advocacy rights
The brief filed by the ACLU of Pennsylvania emphasized that lobbying efforts by LGBT advocates during the eviction attempt were proper, despite negative characterizations by the trial judge, Ronald L. Buckwalter.
“The same [First] Amendment that protects Cradle’s right of association guarantees everyone, including gay people, the right to petition the government for redress of grievances,” the ACLU brief notes.
The language of the brief urges the appeals court to clear the way for Cradle’s eviction or, in the alternative, order a new trial that views as irrelevant the lobbying efforts of the LGBT advocates.
The brief stresses that the city has acted reasonably in trying to distance itself from Cradle’s discrimination.
“The city has not denied [Cradle] a generally available benefit; it has instead terminated a unique and preferential rental arrangement,” the brief states. “The city’s interest in avoiding the financing of an organization with a very public policy of discrimination overbalances any harm to [Cradle’s] right of association.”
The ACLU also notes that the city gave Cradle the option of discriminating in the building if it paid rent — another indication that the city is focused on ending the subsidy.
Religious groups raise Establishment Clause issue
The brief filed by the religious coalition questions whether the city’s continued subsidy of Cradle violates the First Amendment’s Establishment Clause, which forbids governments from endorsing a particular religious viewpoint.
“Cradle takes a particular religious viewpoint, and excludes those who disagree,” said Seth M. Marnin, a co-author of the brief. “Forcing the city to subsidize Cradle puts it in a position of adopting that viewpoint, which violates the Establishment Clause.”
Marnin is senior staff attorney with the national Anti-Defamation League, based in New York City.
“Cradle views gays as spiritually unclean outsiders, and favors members of the faith community who are conservative — while excluding liberal or progressive folks,” Marnin continued. “Those two things make Cradle’s subsidy unconstitutional, because it puts the city in a position of endorsing a particular religious viewpoint.”
Marnin added: “Not only does Cradle exclude atheists and agnostics, it also expects its members to view those individuals as second-class citizens. In my opinion, the city has a right to end its support of that mistreatment. If it doesn’t do so, it would be adopting a particular religious viewpoint, which is unconstitutional.”
The BSA also excludes Buddhists who do not believe in God, which means that under BSA policy, the Dalai Lama would be “unfit to work with youth,” Marnin noted.
He also said the Cradle’s subsidy “makes gay youth and adults feel like outsiders in their own city.”
Future items on agenda
Last week, the city filed its opening appellate brief that seeks Cradle’s eviction or, alternately, a new trial.
If those requests aren’t granted, the city wants guidance from the court as to how it can extricate itself from Cradle’s discrimination.
Cradle has until Dec. 24 to respond to the city.
Then, a three-judge panel will have the option of holding arguments prior to issuing a ruling.
Thomas W. Ude Jr., senior staff attorney with Lambda Legal, expressed hope that an end to the dispute is within sight.
“This dispute has dragged on, and on and on,” Ude said. “While it does, the city continues to involuntarily subsidize an organization’s damaging discrimination. I fervently hope this appeal will bring closure, so the city can end its subsidy.”