Two years after the city filed eviction papers against a local Boy Scouts council, the long-awaited jury trial on the matter is set to begin Monday, June 14. The city wants to evict the Cradle of Liberty Council from a city-owned building at 231-251 N. 22nd St. because the council won’t permit openly gay participants, nor will it pay fair-market rent. The Scouts claim they’re being discriminated against for simply exercising their First Amendment right to exclude gay participants. On June 2, 2008, city officials filed eviction papers in Philadelphia Common Pleas Court, stating that the Scouts refuse to come into compliance with the city’s anti-bias policies. But a week earlier, on May 23, 2008, the Scouts filed a federal lawsuit, alleging that the city was applying its anti-bias policies in an unconstitutional manner. In November 2009, the Scouts convinced a federal judge to issue a preliminary injunction, effectively preventing a Common Pleas judge from ordering the Scouts’ eviction. Court is in session Now, a federal jury will decide the case, and no one can predict how a jury might rule. First, jurors must decide whether there’s merit to the Scouts’ constitutional claims. If jurors decide the claims are meritless, they move to the second phase of the trial, to determine whether the Scouts should be evicted and how much back rent the Scouts should pay the city. The city is seeking $333,000 in back rent from the Scouts. If jurors decide the Scouts’ claims have merit, they won’t have to rule on the eviction and back-rent issues because the Scouts will be permitted to stay in the building. The eight-member jury panel will be called from the counties of Berks, Bucks, Chester, Delaware, Lancaster, Lehigh, Montgomery, Northampton and Philadelphia. Both sides expect the trial to last a week. The jury trial is believed to be the first of its kind in the country. Over the years, the Scouts have been the subject of various litigation concerning “preferential treatment,” but none has reached a jury. The cases include nominal rent for a city-owned marina, campground and aquatics center; participation in a statewide employee-fundraising program; use of a military base for a Scouts Jamboree and access to public schools for recruitment purposes. In Philadelphia, both sides are framing the law very differently. For their part, the Scouts emphasize their right to associate with whomever they please, contending the city cannot place unfair conditions on the exercise of that right — such as demanding fair-market rent or departure from the building. For its part, the city says the Scouts’ right to associate with whomever they please doesn’t trump the city’s right to enforce its anti-bias policies within city-owned buildings. In addition to their First Amendment claim, the Scouts also are pursuing a 14th Amendment claim, alleging that the city is selectively enforcing its anti-bias policies against them, while ignoring other city tenants that discriminate. To buttress that allegation, the Scouts point to the Colonial Dames of America, St. Joseph’s University and BVM Catholic Church — all of whom occupy buildings in Fairmount Park for little or no rent. The Scouts claim the Colonial Dames discriminate against men, and St. Joseph’s University and BVM Catholic Church discriminate against women because they aren’t allowed to be priests. The city responded by noting that the Scouts have been unable to show any substantiated acts of discrimination in the provision of services inside the buildings cited by the Scouts. Additionally, city attorneys note the buildings cited by the Scouts are open to members of the general public during posted hours, but the front door of the Scouts’ building is almost always locked. From the Scouts In their defense, the Scouts said the building they occupy is occasionally opened to the public for special events, such as a race of homemade wooden cars known as “Pinewood Derby,” a program honoring veterans and a program teaching Scouting skills. In recent court papers, the Scouts spotlighted their connection with Learning for Life, a subsidiary of the Scouts that’s purportedly open to all city youths, regardless of sexual orientation or religious belief. The Scouts say the majority of activities taking place inside the 22nd Street building are related to Learning for Life.
In other disputes, the Scouts have distanced themselves from Learning for Life, to convince potential supporters that Learning for Life isn’t influenced by the Scouts’ anti-gay policies. Los Angeles, Chicago, San Francisco and San Diego have determined that Learning for Life has too many ties with the Scouts to be considered a “nondiscriminatory” organization. Philadelphia’s city attorneys haven’t taken a position on whether Learning for Life is discriminatory. Instead, they note that the Scouts’ traditional programs warrant their eviction, regardless of any good done by Learning for Life. Throughout the litigation, anti-gay bias has surfaced in court filings and during hearings. In court papers, the Scouts have portrayed the local LGBT community as unprincipled individuals engaging in “crass politics” to avenge a Supreme Court decision allowing the Scouts to expel an openly gay assistant scoutmaster. The Scouts also have entered into evidence a 2005 Papal Encyclical referring to homosexual acts as “intrinsically immoral and contrary to the natural law.” During a Nov. 17, 2009, preliminary-injunction hearing, William T. Dwyer III, the council’s former Scout executive, testified that openly gay Learning for Life workers would be permissible, even though they might take youths on “outings,” because at those outings there would be extra supervision and guidance. The presiding judge, U.S. District Judge Ronald L. Buckwalter, did not challenge Dwyer’s inference that gay Learning for Life workers may pose more of a danger to youths than heterosexual Learning for Life workers. Jury selection is scheduled to begin 10 a.m. June 14 in Courtroom 14A of the U.S. Courthouse, 601 Market St. The public is permitted to attend. Stephen A. Glassman, chair of the Pennsylvania Human Relations Commission, is glad the case is about to start, but cautioned that either side might file appeals, and the case could continue for another few years. “I am pleased to see that the trial is about to begin,” Glassman told PGN. “I just hope a jury will understand that the city cannot facilitate discrimination in any form. It certainly cannot provide a rent-free headquarters building to any organization that blatantly discriminates against a protected class.” Tim Cwiek can be reached at (215) 625-8501 ext. 208.