A trial to decide if the local Boy Scouts can stave off eviction from their Center City headquarters for refusing to renounce the organization's ban on homosexuals starts Monday in U.S. District Court.
At issue is not whether the Cradle of Liberty Council can discriminate. A landmark 5-4 U.S. Supreme Court decision in 2000 said the Boy Scouts is a "membership organization" and can exclude gay youths and troop leaders.
But Philadelphia's City Charter says otherwise, and after years of negotiations the city decided in 2006 that the Cradle Council's refusal to explicitly reject the national scout policy violated the local rules.
So the scouts were ordered to vacate the 80-year-old headquarters they had occupied rent-free, or else pay $200,000 a year to lease the building from the Fairmount Park Commission. It is one of two offices operated by the council, which runs scout troops in the city and Delaware and Montgomery Counties.
The scouts contend the city's move is an unconstitutional "coercion" that violates the organization's rights to free speech and equal protection. The city leases land to other institutions with membership rules, including a Catholic church, and those groups do not face eviction, the scouts say. The city says the comparison is inaccurate.
A jury will decide, and both sides are sparring over how to screen the jury pool.
"The dispute at this point is really narrowed down to the basis for the city's decision to end its lease, and whether that's the same rule they apply across the board," said Mary Catherine Roper, a lawyer for the American Civil Liberties Union, which filed a brief endorsing the city's position.
The property is a half-acre at 22d and Winter Streets, about a block from Logan Square. The land was turned over to the Cradle of Liberty Scouts rent-free in 1928. They in turn erected a Beaux Arts-style headquarters at a Depression-era cost of $200,000, then gave the building to the Park Commission in return for the free lease.
Cradle of Liberty officials say they renovated the building in 1994 for $2.6 million. They serve 87,000 youths in Philadelphia, Delaware, and Montgomery Counties. A second office is near Valley Forge National Historical Park.
It's a First Amendment issue because there is a right to an "expressive association" under the Supreme Court decision, said Jason P. Gosselin, the Drinker Biddle & Reath L.L.P. attorney for the scouts.
Because the scouts can decide who their members are, the city's effort "to take that benefit away unless the Boy Scouts forgo a constitutionally protected right is a violation" of free speech, Gosselin said.
The city declined to comment, citing the pending trial, but its court filings say it is trying to "regulate conduct, not speech." The act of banning openly homosexual youths from becoming scouts violates the City Charter, the city says.
Philadelphia also has "broad discretion to make selective funding decisions," the city's latest legal brief contends.
Dozens of groups get free or reduced-price leases on Fairmount Park property, including the Church of the Maternity of the Blessed Virgin Mary in Pennypack Park and the Colonial Dames of America, which controls the 1799 Lemon Hill Mansion.
The Dames, dedicated to preserving colonial-era artifacts and property, limit membership to Americans with a direct descendant who lived in a colony before 1750 and "who served his country in some official capacity before July 4, 1776."
Judge Ronald L. Buckwalter will oversee the jury trial. In 2009, Buckwalter issued an injunction banning the scouts from being evicted before the trial.
Similar controversies have erupted elsewhere in the nation since the 2000 Supreme Court ruling, prompting a variety of lawsuits with varied results. According to the ACLU, about 360 school districts and 4,500 schools in 10 states have terminated sponsorship of scout activities because of the scouts' stand on homosexuals.
Here, a negotiated solution was briefly reached in 2003, when the scouts agreed not to discriminate against gays, but the Cradle Council rescinded that policy after the national council threatened to revoke its charter.
In 2004, the Cradle Council agreed to oppose "any form of unlawful discrimination," but a year later then-City Solicitor Romulo L. Diaz Jr. said that clause was too vague. In 2007, City Council passed an ordinance to evict the scouts.
A number of well-known Philadelphians are expected to testify, including Diaz; former Mayor John F. Street's chief of staff, Joyce Wilkerson; and Dominick DiJulia, the athletic director at St. Joseph's University, which leases a boathouse in Fairmount Park.
The jury will also rule on a city counterclaim that seeks $333,000 in damages from the scouts, the rent it says is due since June 2008.
Along with a permanent injunction allowing them to use the building, the scouts want the city to pay $860,000 in legal fees and costs.