Last week, U. S. District Judge Ronald L. Buckwalter upheld a jury verdict that the city placed an “unconstitutional condition” on a local Boy Scouts of America council’s right to exclude gays by allegedly asking it to repudiate the national BSA’s antigay policy to stay in a city-owned building.
The judge said the repudiation requirement was an “overly broad speech restriction” on the BSA Cradle of Liberty Council’s first-amendment rights, thus justifying the jury verdict.
In a separate ruling, Buckwalter ordered the city to pay $877,000 in legal fees to Cradle.
According to sources close to the case, attorneys for the city are expected to file an appeal with the Third Circuit Court of Appeals before the April 20 deadline.
While the appeal is pending, the city is not required to pay any legal fees to Cradle.
Nature of Cradle’s discrimination
In 2008, the city gave Cradle two options to avoid eviction from its headquarters on the Ben Franklin Parkway at 231-251 N. 22nd St.: Pay fair-market rent or stop discriminating in the building.
The club declined both options.
The city emphasized the rental-payment option in court papers, noting its focus was to stop subsidizing discrimination.
If the Scouts paid fair-market rent, they could discriminate “to their hearts’ content,” the city said in court papers.
Some local activists had expressed hope that any rental money collected from Cradle could be used to help fund city programs for LGBT youth.
Thomas W. Ude Jr., senior staff attorney at Lambda Legal, explained the importance of ending Cradle’s subsidy.
“The city rightfully sought to end a subsidy of discriminatory practices that cause harm,” Ude told PGN. “We’re not talking about some abstract ideal. LGBT youths are particularly vulnerable to that harm. It’s disappointing that [Buckwalter’s] ruling does not discuss or recognize the importance of the city’s interest in ending its subsidy of these harmful practices.”
In his ruling, Buckwalter faulted the city for allegedly requiring Cradle to repudiate BSA’s antigay policy “in contexts and locations that were entirely unrelated to the use of the city’s property.”
But Buckwalter didn’t specify a single location or context where the city required Cradle to make such repudiations.
For its part, the city argued it never required Cradle to say anything about BSA’s antigay policy to avoid eviction.
“The city’s laws and policies do not compel the Boy Scouts to make any statement about religion, homosexuality or any speech whatsoever,” the city said in court filings.
If Cradle didn’t want to pay rent, it could have signed a lease with antibias provisions that don’t mention the word “gay,” much less anything on BSA’s antigay policy.
Cradle was well aware of the lease-signing option, as demonstrated by its attorneys poring through dozens of city leases to see if other tenants signed similar ones. (The bill for that review was part of the legal fees awarded to Cradle.)
In the ruling, Buckwalter quoted the trial testimony of former Cradle official William T. Dwyer 3rd to support his assertion that the city placed an overly broad speech restriction on Cradle.
However, while Dwyer might have interpreted the lease option as an “overly broad speech restriction,” that doesn’t make it so.
Buckwalter also noted that the city didn’t try to evict the Scouts from a city-owned building in Roxborough. He said the city’s failure to do so indicated it was “selectively enforcing its nondiscrimination laws in a manner that lacked any rational basis.”
But in making this point, Buckwalter contradicted his earlier assertion that the city over-reached into locations other than the Parkway building to impose a broad speech restriction on Cradle.
During litigation, Cradle was offered a third option: Limit its programming inside the building to Learning for Life, an educational and vocational program that’s purportedly open to all public-school children.
“If Learning for Life was the lessee of the city-owed property, and if the Learning for Life program does not, as the Boy Scouts assert, discriminate in violation of the city’s laws and policies, the question of an alleged right to a government subsidy for their discriminatory conduct would not be before the court,” the city stated, in a court filing.
In court papers, Cradle said it serves about 50,000 children annually through LFL programs administered in the Parkway building. But it also acknowledged that it administers traditional Scouting programs in the building as well.
In his ruling, Buckwalter failed to mention the LFL option for Cradle.
Dale decision emphasized
Throughout his ruling, Buckwalter emphasized a 2000 Supreme Court decision, “Boy Scouts of America vs. Dale,” which allows the Boy Scouts to set its own membership standards.
LGBT advocates were aware of the Dale decision when complaining about Cradle’s discrimination almost 12 years ago. That’s why some of them recommended a rental-payment option for Cradle — to avoid running afoul of the Supreme Court decision.
While Dale allows BSA to eject gay Scouts, nothing in the decision requires subsidy of the Scouts’ discrimination.
Others pushed for prompt eviction of Cradle, without offering a payment option.
During the trial, Cradle contended the payment option was just another tactic by the city to “coerce” it into repudiating BSA’s antigay policy, which it didn’t have to do under Dale.
The jury apparently rejected that contention when it determined the city acted in a reasonable and viewpoint-neutral manner during the eviction attempt.
Cradle’s favorable jury verdict resulted from a jury question that asked if Cradle could have avoided eviction if it “repudiated or renounced the policy of the Boy Scouts of America to gays.”
The city objected to that question, partly because it didn’t include the rental-payment option for Cradle. But Buckwalter allowed it to be submitted to jurors.
In 2010, in “Christian Legal Society vs. Martinez,” the Supreme Court affirmed the right of government entities to condition access to benefits — including use of a building — on compliance with antibias laws.
LGBT advocates say the Martinez decision bodes well for a successful city appeal, noting that the city took the extra precaution of offering a payment option to Cradle — which Martinez doesn’t require.
But in his ruling, Buckwalter said Martinez isn’t comparable to the Cradle case, in part because the governmental entity in Martinez didn’t seek an overly broad speech restriction from CLS.
Judge criticizes LGBTs
The city has a policy against subsidizing discrimination, and Cradle is in conflict with that policy. Instead of praising LGBT advocates for steadfastly opposing the subsidy, Buckwalter faulted them.
Buckwalter was particularly critical of Arthur Kaplan, a board member of the national ACLU with a long history of advocating for marginalized people.
Kaplan has been honored by many organizations, including Mazzoni Center, Human Rights Campaign and Lambda Legal.
Buckwalter claimed Kaplan led the LGBT Working Group, comprised of private citizens who Buckwalter claimed were “dedicated” to evicting Cradle if it didn’t change its membership policies.
Contrary to his assertion, the Working Group was a major proponent of the rental-payment option, which wouldn’t have required any policy changes by Cradle.
Further, the Working Group didn’t have a hierarchical structure of leaders and followers, but was rather a loose coalition of community members who opposed allowing the council to continue receiving a subsidy (remaining in the city-owned building rent-free) while not complying with the city’s nondiscrimination law.
Buckwalter also insinuated that former City Solicitor Romulo L. Diaz’s status as a gay man made him incapable of handling the issue impartially.
Similar presumptions about LGBTs have been routinely rejected elsewhere.
To support his insinuation, Buckwalter quoted from a series of emails between Diaz and Kaplan. He said the emails showed the Working Group had “improper influence” and an “inside track” with Diaz.
However, the judge ignored the fact that Diaz reached out to Cradle over the course of several years, trying to reach some type of compromise with the club.
Cradle repeatedly rebuffed his outreach.
Also, it should be noted that the city never subpoenaed records from Ceisler Jubelirer — a public-relations firm that reportedly lobbied city officials on behalf of Cradle.
Such records might have placed the Kaplan-Diaz emails in context.
Applying the law to the facts
Toward the end of his ruling, Buckwalter referred to the “sweetheart no-rent deal” the city made with the Scouts in the 1920s.
But he failed to mention a major provision: The Scouts can be evicted at any time, as long as the city gives a year’s notice.
In his ruling, the judge referred to the 1928 ordinance codifying the deal as a “lease.”
However, Cradle never signed a city lease or similar documentation — let alone one that contains standard antibias provisions.
Tim Cwiek can be reached at [email protected].