City Solicitor Shelley R. Smith appeared at a political event last week to promote a controversial proposal that would sell publicly owned land to a local Boy Scouts of America council.
She presented her case for the deal at an 8th Ward Democratic Committee meeting, held Jan. 20 at the Kennedy House in Center City.
The 8th Ward covers Center City west of Broad to the Schuylkill River, from Spring Garden to Lombard streets.
Its 60 members are struggling to reach a position on the issue, and say they need more time to study it.
Officials within the Nutter administration want to sell 231-251 N. 22nd St. to the BSA Cradle of Liberty Council for $500,000 to end a federal lawsuit filed by the Scouts in 2008.
Once it becomes private property, the Scouts would be free to discriminate without objections from the city. In return, the Scouts would stop seeking about $960,000 in legal fees from the city.
Smith noted that a federal jury ruled that the city acted unconstitutionally when trying to evict the Scouts.
She said it’s unlikely that a higher court would overturn that verdict.
Even if the Third Circuit Court of Appeals ruled in the city’s favor, the Scouts probably would take the issue to the U.S. Supreme Court — meaning several additional years of litigation, she said.
If the Scouts ultimately prevail, the city could be required to pay a multi-million-dollar legal bill for the Scouts, she added.
Smith said the city must act in a fiscally responsible manner, and that she cannot justify exposing the city to the potential risk.
LGBT advocates Stephen A. Glassman and Brian K. Sims disputed her assessment.
Both men emphasized that acts of discrimination must never be taken lightly because they seriously harm individuals and entire communities.
Glassman said the city’s Fair Practices Act protects individuals in a variety of categories. “All of the categories [of protected groups] are equally important,” Glassman emphasized.
He said protections on the basis of “sexual orientation” are viewpoint-neutral and cover gay, lesbian, bisexual and heterosexual individuals.
Sims noted a recent U.S. Supreme Court decision makes clear that governments are permitted to condition the receipt of subsidies on compliance with antibias rules.
But Smith minimized the relevance of that decision. She said the decision reaffirms lower-court rulings the city relied on during the federal trial — and still lost.
Smith said the main stumbling block to a successful appeal remains a 2000 U.S. Supreme Court ruling, known as the “Dale” case, permitting the Scouts to exclude openly gay and atheist participants.
Stephanie F. Singer, 8th Ward leader who moderated the discussion, said it’s illegal for the city to subsidize discrimination.
Smith disagreed with Singer, stating there’s no law forbidding Philadelphia from subsidizing discrimination.
But last November, voters approved a ballot initiative amending the Philadelphia Home Rule Charter to forbid city contractors from discriminating on the basis of sexual orientation, gender identity and other categories.
Some LGBT advocates say this new law is relevant to the Scouts issue because the city administration currently contracts with the Cradle of Liberty Council to administer Learning for Life programs.
Learning for Life programs offer vocational and education training to city youths, and purportedly do not discriminate.
Gregory M. Harvey, 8th Ward co-chair, questioned whether local BSA officials could legally assert a right to discriminate against gays by citing the Dale decision.
Harvey, an attorney, said BSA officials have repeatedly presented a policy of inclusion, thus distancing themselves from the antigay viewpoint protected by Dale.
Sims said Mel Heifetz, a local philanthropist and businessman, wants to purchase the property for $1.5 million, and then turn the building over to a nonprofit organization that doesn’t discriminate.
Sims also noted that U.S. District Judge Ronald L. Buckwalter has affirmed the right of the city to evict the Scouts if it’s done in a constitutional manner.
But Smith said that evicting the Scouts would be very difficult at this point, partly because some have complained about the Scouts’ protected “viewpoint,” and the Scouts could use this to their advantage in future litigation.
After City Council approves the deal, the litigation would be settled and the Scouts will stop discriminating inside the building within 90 days, Smith said.
She said there’s “no indication” the Scouts will resume discriminating in the building after they purchase the property.
Pointing to the need for a prompt settlement, Smith said: “Every day this litigation continues, the Scouts are discriminating inside the building.”
But Smith confirmed she has nothing in writing from the Scouts stating they will refrain from discriminating inside the building after purchasing the property.
Smith couldn’t be reached this week to clarify her remarks.
Gregg A. Kravitz, an 8th Ward committeeperson, expressed hope that city officials will abandon the deal.
“It’s not a done deal, and there are several viable options that the city could pursue that would better reflect Philadelphia’s economic interests and longstanding commitment to civil rights,” Kravitz said after the meeting.