City attorneys want a federal judge to clear the way for the eviction of a Boy Scouts of America council from a city-owned building, even though federal jurors said the Scouts’ rights were violated during the eviction process.
Last month’s U.S. Supreme Court decision affirming the right of a California university to deny subsidies to an antigay Christian student group reinforces the city’s position, city attorneys contend.
Even without the Supreme Court ruling, city attorneys maintain the jury verdict is so flawed that U.S. District Judge Ronald L. Buckwalter shouldn’t enter any judgment in the case. Instead, he should hold a new trial, or decide the matter without a new trial, they said.
If Buckwalter does enter judgment in the matter, he should do so in a very limited way, so that the Cradle of Liberty Council’s occupancy rights aren’t enhanced, city attorneys added.
At most, Buckwalter could prevent the city from citing the Scouts’ antigay leadership policy as a reason to evict them. But he shouldn’t permanently bar the city from evicting the Scouts for any or no reason, the attorneys argue.
On June 23, after an eight-day trial, jurors found that the city had a right to evict the council from a city-owned building, but determined the city violated the council’s constitutional rights when it tried to evict the club because of its antigay leadership policies.
In court papers filed July 6, city attorneys said the verdict is “inconsistent” and “doesn’t make any sense.”
Errors in structuring the trial, instructing the jury and wording the verdict form contributed to the flawed outcome, city attorneys contend.
The Scouts say they have a First Amendment right to remain in the building rent-free — and asking them to “repudiate” their antigay leadership policy placed an “unconstitutional condition” on that right.
City officials say the Scouts don’t have a First Amendment right to receive a city subsidy.
Once the jury ruled the city’s subsidy policy was constitutional, it couldn’t then “invalidate” the policy by ruling that its application was an “impermissible infringement” on the Scouts’ rights, city attorneys said.
The Supreme Court case is known as “Christian Legal Society vs. University of California’s Hastings College of the Law.”
City attorneys provided Buckwalter with a copy of the 85-page ruling, noting that the CLS case reinforces the city’s position that the Scouts don’t have a First Amendment right to a city subsidy.
But the Scouts maintain the CLS case doesn’t have even a “remote” effect on the Philadelphia dispute.
In a reply brief filed July 7, attorneys for the Scouts say the case involves the rights of a Christian group that never had a government subsidy, while the Scouts have enjoyed one for more than 80 years.
The reply brief also notes that the Scouts have a jury verdict indicating that the city was “unreasonable” when applying its subsidy policy to them — and that the Christian group had no such favorable verdict.
“The CLS did not enjoy a long-held benefit upon which [the university] placed an unconstitutional condition and, more importantly, there was no factual finding at the district-court level that the [university] acted unreasonably,” the Scouts stated in the reply brief.
The city’s position is that jurors only had to consider whether the city’s subsidy policy was reasonable and viewpoint-neutral — not whether the policy placed an “unconstitutional condition” on the Scouts’ First Amendment rights.
There is no deadline for Buckwalter to make his next ruling.
The Scouts want him to issue a permanent injunction, preventing the council’s eviction from the building, and also preventing the city from imposing a lease arrangement that would be less favorable than those provided to other nonprofit organizations.
In their reply brief, the Scouts claim the city has a “warped analysis” of the law and a “cavalier attitude” toward their constitutional rights.
For their part, city attorneys said the manner in which the Scouts have conducted themselves during the litigation has reinforced its commitment to “disentangle” the city from the Scouts.
During closing arguments, William M. McSwain, an attorney for the Scouts, differentiated between “normal people” and LGBT activists who oppose the Scouts’ occupancy of the building.
McSwain pegged activist Arthur Kaplan as out to “destroy” the Scouts for selfish reasons, and also claimed Kaplan was a domestic partner of former city solicitor Romulo L. Diaz Jr., which was untrue. McSwain later corrected himself to jurors but never explained the relevance of his statements to the litigation.
In July 7 court papers, city attorneys described McSwain’s closing argument as a “homophobic rant.” But the Scouts denied that allegation, noting that city attorneys didn’t object when McSwain delivered his remarks.
City attorneys also hold that the jury’s verdict indicates the Scouts can be evicted for no reason. But the Scouts, in their reply brief, said an eviction without a reason would be viewed by the Scouts as “retaliation.”
The building in question is located at 231-251 N. 22nd St.
The Scouts built the structure in 1928 on city-owned land. Under the terms of a 1928 city ordinance, the city owns the building and the Scouts are permitted to occupy it rent-free unless given one-year’s notice by the city to vacate.
More extensive filings from both sides are expected once Buckwalter enters judgment, as both sides can then ask Buckwalter to reconsider. Following the judge’s final decision, it can be appealed to the Third Circuit Court of Appeals.
Tim Cwiek can be reached at (215) 625-8501 ext. 208.