Mixed verdict in Scouts case

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A body of eight federal jurors handed down a mixed verdict Wednesday after deliberating the City of Philadelphia’s case against a local Boy Scout council.

After several hours of deliberation, jurors said the city didn’t discriminate against the Scouts when it sought to evict them from a city-owned building, but it acted unconstitutionally when it requested fair-market rent or disavowal of the national Boy Scouts of America antigay policy.

The jury also clearly rejected the Boy Scouts of America council’s claim that the city violated its 14th Amendment right of equal protection.

But it reached a split verdict on the council’s claim that its First Amendment right to free speech was violated.

Specifically, the jury found that the city did not engage in viewpoint discrimination in seeking the eviction of the BSA council, but it placed an unconstitutional condition on the council’s free-speech rights by requesting fair-market rent or disavowal of the national policy banning gays.

Attorneys for the Scouts claimed victory on Wednesday after an eight-day trial, and plan to ask U.S. District Judge Ronald L. Buckwalter to convert the temporary injunction preventing their eviction into a permanent one.

But the Scouts’ attorneys also said they were eager to speak with city attorneys to reach an out-of-court settlement to resolve the dispute.


Attorneys for the city said it was too soon to decide their next move.

Outside the courthouse, jury foreman Merrill Arbogast, 40, said the jury sympathized with both sides.

“We did not feel that the city acted maliciously: They didn’t try to get the Scouts for some reason other than what they stated. But [city officials] could have gone about it with a better process.”

He said the legal issues were complicated, and jurors did their best when answering 11 questions put to them for the verdict. “We feel for the gay community, but we also feel for the Scouts,” Arbogast added.

The local council, an affiliate of the national Boy Scouts of America, occupies a city-owned building, but refuses to adhere to a city anti-bias policy that protects gays, nor will it pay fair-market rent.

The city’s Fair Practices Ordinance, along with other municipal codes, forbids antigay bias within city-owned buildings.

The BSA council wants the right to remain in the building permanently, without paying any rent. It’s also seeking from the city an estimated $860,000 in legal fees and costs.

City officials want the right to evict the council, but the mixed verdict leaves in question whether they have that right.

The judge did not yet schedule a hearing to decide if the preliminary injunction should be permanent.

The dispute has lasted several years, with the city urging the council to take responsibility for its discriminatory actions, and local Boy Scouts officials claiming the city is trying to force the group to “say something that Cradle of Liberty doesn’t have to say.”

In closing arguments, David Smith, an attorney for the city, said the eviction became necessary because of an untenable relationship.

He said city officials never knew when the council might oust another gay, issue another press release containing “hate language” or hand out another discriminatory employment application.

When city officials tried to understand where the council stood, the organization would alternately point to the city’s anti-bias policy or the national office’s antigay policy, Smith said.

The organization also pointed to a U.S. Supreme Court decision allowing the Boy Scouts of America to oust an openly gay assistant Scoutmaster.

Smith said Cradle is a nonprofit affiliated with the national Scouts but doesn’t have to be controlled by it; similarly, Learning for Life — a vocational and educational youth program — is a nonprofit affiliated with the Scouts but not controlled by it.

During the court case, the city found that the council’s underlying message is one of nondiscrimination, and the organization doesn’t have a constitutional right to act in violation of that message, Smith added.

“Doing what you’re ordered to do even though you know it’s wrong isn’t protected by the Constitution,” Smith said.

He said the local BSA council officials speak out of “both sides of their mouths,” contending the side that speaks of nondiscrimination is protected, but the side that spreads antigay bias is actually conduct — not speech — and not protected by the First Amendment.

But William M. McSwain, an attorney for the BSA council, told jurors that Smith has his “legal theories” all wrong.

McSwain said that, under the terms of a 1928 ordinance, the city didn’t have to give any reason for the eviction, but city attorneys were “dumb” by giving an unconstitutional reason.

McSwain said the Scouts have a right to speak from both sides of their mouths, and can’t be forced to speak only from the side the city likes.

McSwain said the council’s policy is one of discrimination. “Cradle of Liberty has a policy that discriminates — not a lot, but a little. We minimize it,” McSwain told jurors Tuesday.

McSwain emphasized the good works done by the council, implying that the city should recognize those efforts and back off from trying to enforce its Fair Practices Ordinance.

Smith responded by noting that the city is very aware of the council’s good works. “But doing great things is not a license to do bad things,” Smith told jurors.

McSwain also told jurors that LGBT activists are “in bed” with city officials. “Normal people don’t have that kind of access to city officials,” McSwain said.

He pegged Arthur Kaplan, a member of the LGBT Working Group, as trying to “destroy” the council.

But Smith said that “demonizing” Kaplan and other members of the LGBT Working Group was just more evidence of the BSA council’s homophobic conduct.

He said city officials listen to the views of all citizens, but just because the council distanced itself from the process doesn’t mean LGBT activists had to do the same.

Trial testimony

During the trial, BSA council attorneys asked city officials why they didn’t try to enforce the Fair Practices Ordinance by utilizing the Philadelphia Commission of Human Relations, which permits fines for discriminators.

The Scouts’ attorneys maintained the city’s failure to use that mechanism suggested the local BSA council wasn’t violating the ordinance.

Smith said the city took some time to decide the best mechanism to use, partly because of difficulties in communicating with the local Scouts.

Lewis Rosman, a former city attorney, compared the situation to foreign diplomats who flout local rules. Host governments often take time before deciding whether to enforce a local rule or expel a diplomat.

The building in question, built by the BSA council in 1928, is located at 231-251 N. 22nd St.

The council presented several witnesses stressing how much the building means to them, and the hardships that would be imposed if they must relocate.

Perhaps the witness who elicited the strongest reaction for the BSA council was Mark Chilutti, a young man who was shot during a robbery attempt in 1996 and suffered a spinal-cord injury.

Chilutti, who serves as co-chair of the council’s board, appeared very cheerful and optimistic about life, despite his setbacks. “I credit Scouting for making me the person I am today,” he told jurors.

But the trial also contained testimony that some felt was irrelevant or repetitive.

For example, Common Pleas Judge John L. Braxton, who serves on the council’s board, spoke at length about his service in Vietnam. He even ventured an opinion that some South Vietnamese aided North Vietnamese during the Tet Offensive.

But Braxton declined to venture an opinion on whether the council would violate the Fair Practices Ordinance, if handed down an antigay order by the national Scouts office.

Greg Lattera, a gay former Scout, testified that he was ousted from the council in June 2003, and his appeal to be reinstated is still pending.

Lattera, 25, said he holds much affinity for the council, and has nothing against its occupancy of the building — even though he’s not permitted to enter any part of it, including its retail store.

He said he even urged his mother not to remove his two younger brothers from the Scouts.

Due to lack of communication, neither side realized at the beginning of the trial that Lattera’s 2003 appeal for reinstatement remains pending.

Smith referred to the council’s appeals process as a “hoax” because the local Scouts never responded to the request.

But outside the courtroom, McSwain told PGN he would look into the matter, and whether Lattera at least could be permitted to enter the Scout store.

Witnesses also were called from Maternity BVM Church and the Colonial Dames of America. Both organizations occupy a city-owned building for little or no rent in Fairmount Park, and the council says didn’t get the same “punishment” given to it.

But representatives of the organizations in question, the Rev. Paul Quinter and Eleanor Penniman, testified that they welcome all members of the community to visit their buildings and utilize their services.

Duties of jurors

Jurors had their work cut out for them. The verdict form contained legal terminology such as “substantially similarly situated,” and “nonpublic forum.”

In his jury instructions, Judge Buckwalter may have added confusion by referring three times to the council’s “lease” with the city, when there’s never been a lease.

But Buckwalter also had a way of making witnesses from both sides feel comfortable in his courtroom. He exchanged pleasantries with former City Solicitor Romulo L. Diaz after his testimony. When Joyce Wilkerson, a former city official who now works in New Orleans, completed her testimony, Buckwalter extended words of encouragement about the oil-spill crisis.

Tim Cwiek can be reached at (215) 625-8501 ext. 208.