A federal judge has prevented the eviction of a Scouts chapter from a city-owned building until it can be determined whether the Scouts’ constitutional rights would be violated by the action.
In a Nov. 18 preliminary injunction, U.S. District Judge Ronald L. Buckwalter said city officials might be punishing the Scouts unfairly for exercising their First Amendment right to oppose homosexuality.
Since the constitutional issues need more litigation on the federal level, Buckwalter enjoined the city from pursuing its eviction case against the Scouts in Philadelphia Common Pleas Court.
Despite the injunction, Common Pleas Judge Mark I. Bernstein held a Nov. 20 court proceeding, affording the Scouts an opportunity to explain why he shouldn’t order their eviction.
Jason P. Gosselin, an attorney for the Scouts’ Cradle of Liberty chapter, declined to take advantage of the opportunity, noting that Buckwalter’s injunction rendered the opportunity pointless.
Bernstein appeared visibly upset with the continued delays in the eviction case. At one point, he asked Gosselin whether he was pursuing “a right or a wrong” on behalf of his clients.
Gosselin declined to respond.
The eviction case against the Scouts was filed 18 months ago — a week after the Scouts filed a federal lawsuit claiming their constitutional rights were being violated by the city.
The Cradle of Liberty chapter has occupied a city-owned building on the Ben Franklin Parkway near 22nd Street since 1928. But the chapter refuses to sign a lease containing anti-bias language mirroring the city’s Fair Practices Ordinance.
That ordinance, enacted in 1982, forbids antigay discrimination in a variety of venues, including city-owned buildings. For several years, LGBT activists implored city officials to enforce the ordinance and remove the Scouts from the building, have them pay fair-market rent or have the Scouts end their discriminatory practices.
In 2007, in response to those pleas, city officials told the Scouts they must begin paying $200,000 annual rent for the building by June 1, 2008, or vacate the premises.
So far, the Scouts are in rental arrears of about $300,000.
City attorneys haven’t requested that the Scouts place the back-rent sum in an escrow account, but they’ve filed legal papers reserving the right to seek the money at a later time.
Several courtroom observers at the Nov. 20 hearing thought Bernstein was poised to order the immediate eviction of the Scouts. However, due to Buckwalter’s injunction, Bernstein had little choice but to declare the state eviction matter concluded.
“This case is over,” Bernstein noted solemnly, after the five-minute proceeding.
About an hour later, city attorneys filed a motion to withdraw the eviction proceeding in state court, reserving the right to refile at a later date.
Buckwalter, in his preliminary injunction, stated that city officials haven’t scrutinized their other renters sufficiently to determine whether they, too, are discriminating against people.
Due to this alleged lack of scrutiny, Buckwalter said it’s possible that the city is singling out the Scouts for punishment due to their viewpoint on homosexuality, which would be unconstitutional.
City attorneys respond by noting the city has no interest in forcing the Scouts — or any other renter — to adhere to a particular viewpoint on homosexuality.
But the city has a blanket policy requiring its renters to deliver services in a non-biased manner, and the Scouts refuse to adhere to that policy.
The Scouts’ employment applications state that “known or avowed homosexuals” cannot be hired, and openly gay Scouts and troop leaders aren’t permitted, according to court papers.
After 18 months of litigation, the Scouts haven’t cited another city renter with similarly biased employment and membership policies, according to court papers.
Buckwalter declined to comment for this story.
Arthur M. Kaplan, an LGBT activist who’s worked on the Scouts issue for several years, expressed concern about Buckwalter’s injunction.
“It gives me great concern that we may lose the very same kind of case that other municipalities have won,” Kaplan said. “Courts have ruled that a municipality doesn’t have to subsidize an organization that blatantly discriminates. Maybe this [injunction] is a wake-up call, and perhaps the city will devote sufficient attention to this case from here on out.”
The federal jury trial to determine if the Scouts’ constitutional rights were violated is scheduled for April.
Tim Cwiek can be reached at (215) 625-8501 ext. 208.