Editorial
Last week’s ruling in the City of Philadelphia’s efforts to evict the Cradle of Liberty Council Boy Scouts of America, in which the judge determined the city owed the council $877,000 in legal fees, reeks of judicial bias and homophobia.
Judge Ronald L. Buckwalter handed down his decision on the legal fees March 20, following a jury’s 2010 determination that the city had placed an “unconstitutional condition” on the BSA council, but had not violated its First Amendment free-speech rights through viewpoint discrimination nor violated the Equal Protection Clause of the 14th Amendment by treating it differently than other groups.
To start, it seems unreasonable that the city would be responsible for the council’s full legal costs when the jury only found the city at fault on one of three counts. Common sense would dictate that the city would only be liable for one-third of the total costs.
Further, the judge — or whoever wrote the memorandum — predominately uses the term “homosexual,” only occasionally using “gay,” as in, “Plaintiff denies membership to openly homosexual men … ”
Delving into the case, the Scouts do more than deny membership to gay men — actually kicking out gay teens and atheists, a fact the judge (and the city’s case) apparently ignores.
The judge compares the situation to two Supreme Court cases, finding “The Boy Scouts of America v. Dale” to be related and “Christian Legal Society v. Martinez” to have no bearing.
In Dale, the Supreme Court ruled that BSA was exercising its “freedom of association” when it kicked out Scoutmaster James Dale for being gay.
In Martinez, the Supreme Court ruled that a college wasn’t obligated to provide funding or benefits to a student group that excluded gay members in violation of the school’s nondiscrimination policy.
Here, Buckwalter found that this case differed because the city placed too broad of a condition on the council — essentially finding that attempting to enforce the city’s nondiscrimination policy on city property by trying to work with the council to end its practice of expelling gay Scouts was unconstitutional.
In this sense, this argument is not just about free speech and freedom of association. The city was, rightly, trying to end discriminatory practices on land it owned by an avowed discriminator who occupied the space rent-free. (Following the precedent in Dale, one can assume that regardless of state or municipal nondiscrimination laws, an organization would be allowed to discriminate against an unprotected class such as gays.)
Put another way, the city should be allowed to end its subsidy of an organization who is in violation of its laws, especially considering it had (and has) the right to evict the Scouts from the building per the original 1928 statute granting them use of the land.