In its latest effort to avoid eviction from a city-owned building, the BSA Cradle of Liberty Council this month filed a legal brief criticizing Liberty City Democratic Club’s indirect connection to the case.
Liberty City is an LGBT Democratic organization in Philadelphia.
Last year, the club sent a letter to U.S. Sen. Robert Casey, opposing a federal judgeship for City Solicitor Shelley R. Smith, alleging she mishandled the Scouts’ case.
Last month, U.S. District Judge Ronald L. Buckwalter asked both sides to file updated briefs on the case, which has been held in abeyance for almost two years as both sides pursued an out-of-court settlement.
Cradle’s brief includes a copy of Liberty City’s letter as an exhibit.
Liberty City sent the letter because there are federal-judiciary vacancies in Pennsylvania, and Smith was believed to be a leading contender to fill one of the vacancies.
The letter states that Smith “grossly mishandled and lost the [Scouts’ eviction] case, then failed to support an appeal, then proposed a sweetheart deal with the Boy Scouts.”
The letter goes on to state: “Shelley Smith committed fundamental errors in the handling of the case. Those errors include rejecting early offers for pro-bono help, taking no discovery whatsoever from the national BSA, stating no objection to Judge Buckwalter’s potential bias based upon his [prior] board membership of the Boy Scouts and designating no expert witnesses for trial.”
The letter also questions Smith’s ability to handle LGBT issues fairly and equitably if she were to serve as a federal judge.
Cradle’s legal brief derides the views expressed in the letter.
“These activists will settle for nothing short of complete victory over Cradle of Liberty, and have even attacked [Smith] for having the temerity to work with Cradle of Liberty and try to forge a compromise,” the filing states. “Rather than praising the city for reaching a compromise that preserves the city’s stated imperative of ending discrimination on city-owned property, with McCarthy-like zeal the activists instead use their power and influence to damage [Smith’s] career.”
Lee Carson, co-chair of Liberty City, declined to comment on Cradle’s legal brief.
John J. Rizzo, Casey’s press secretary, declined to comment on the letter.
“I don’t have anything to say about the letter, because we keep private the names that are under consideration [for the judiciary],” Rizzo told PGN. “Not every applicant is comfortable with having their name out there. And it’s our policy to respect those wishes.”
Rizzo said there are four federal-judiciary vacancies in the Eastern District of Pennsylvania, and Casey and U.S. Sen. Pat Toomey are expected to jointly recommend candidates to President Obama in the near future.
“When a name is ready to be submitted to the White House, Sens. Casey and Toomey will submit it,” Rizzo continued. “They have a good working relationship. They’re actively working through the process. And they’re hopeful to be able to recommend some names to the White House soon.”
Then, it will be up to President Obama to make the judicial nominations, he said.
Approval by at least two-thirds of the Senate is needed for confirmation of a nominee, Rizzo added.
“Unconstitutional condition”
In June 2010, a federal jury ruled that the city placed an “unconstitutional condition” on Cradle’s right to exclude gays by allegedly asking it to repudiate the national BSA’s antigay policy to avoid eviction.
The city’s latest brief asks Buckwalter to overturn that verdict, emphasizing a recent Supreme Court decision allowing governments to condition subsidies on compliance with antibias rules.
But Cradle wants Buckwalter to uphold the jury verdict, and to order the city to pay it more than $1 million in legal fees.
An earlier attempt to settle the dispute by selling the property to the Cradle for $500,000 was abandoned after Philadelphia City Council declined to approve the deal.
If the deal had been approved by City Council, Cradle would have dropped its attempt to collect legal fees from the city.
Buckwalter has no deadline for issuing a ruling.
Cradle says it has a right to exclude gays from its headquarters at 231-251 N. 22nd St. due to a Supreme Court ruling allowing the Scouts to set their own membership standards.
City officials, however, say that policy violates the city’s Fair Practices Ordinance, which forbids anti-LGBT bias on city-owned property.
Vendettas and pawns
Cradle’s brief also claims LGBT activists are pursuing the eviction due to a “vendetta” against Cradle, because Cradle didn’t repudiate the BSA’s antigay policy “from the highest mountaintop.”
The brief continues: “When Cradle of Liberty refused, the city used the only leverage it had and threatened to take away a benefit unless and until Cradle of Liberty cried ‘Uncle.’ The city burdened Cradle of Liberty’s First Amendment right of expressive association and its right to be free from compelled speech.”
Cradle’s brief also claims that former City Solicitor Romulo L. Diaz was used as a “pawn” by LGBT activist Arthur Kaplan and other members of the LGBT Working Group in their alleged attempt to change the BSA’s antigay policy.
“The process that was orchestrated by Mr. Kaplan and his self-styled Working Group was an uncompromising campaign determined to end with Cradle of Liberty tossed from the headquarters that it had built and maintained for eight decades — a campaign in which [Diaz] became Mr. Kaplan’s pawn,” the brief states.
Diaz declined to comment for this story, referring instead to his Scouts’ trial testimony.
During the trial, Diaz testified that, as city solicitor, he was concerned that city taxpayers were subsidizing discrimination due to Cradle’s rent-free occupancy of the property.
Diaz also testified that he recognized Kaplan to be a “passionate” advocate for the LGBT community, but he never felt overly burdened or unduly pressured by Kaplan to end the subsidy.
Kaplan was out of the country this week and unavailable for comment.
Cradle’s brief also reiterates Cradle’s position that it expelled Life Scout Greg Lattera in 2003 because of his alleged inappropriate behavior — not because of his status as a gay man.
“The reason that Mr. Lattera was ultimately expelled was because he went on television in his Boy Scouts uniform to promote a political agenda at odds with the National Boy Scouts,” the brief states.
In his trial testimony, Lattera acknowledged that he granted an interview to a local television station in 2003. He testified that he disclosed his sexual orientation during the interview as a matter of personal pride, not to promote a political agenda.
Lattera’s appeal for reinstatement remains pending almost nine years after his expulsion, according to court records.
Tim Cwiek can be reached at [email protected].