Boy Scouts sue Phila. to stay in headquarters

[uberllama42]

By Joseph A. Slobodzian

INQUIRER STAFF WRITER

The Boy Scouts of America's Philadelphia chapter has sued the City of Philadelphia in federal court to block the city's May 31 deadline for the scouts to open membership to gays and atheists, or vacate their historic 1928 headquarters off Logan Square.

The civil rights lawsuit, filed Friday in federal court in Center City, contends that the city's ultimatum violates the scouts' rights under the U.S. and Pennsylvania Constitutions.

"The City has imposed an unconstitutional condition upon Cradle of Liberty's receipt of a benefit that Cradle of Liberty has enjoyed for nearly eight decades, and that many other organizations that limit members or services to members of a particular group continue to enjoy without punishment or the threat of punishment," the scouts' lawsuit reads.

<snip>

In 2000 the Supreme Court ruled 5-4 in Boy Scouts of America v. Dale that the scouts are a private group and thus have the right of "expressive association" under the First Amendment to set their own membership rules.

The legal victory was short-lived as municipal officials nationwide began reexamining longstanding relationships with local scouts. Unlike the scouts, local public officials were bound by another line of Supreme Court opinions that barred taxpayer support for any private group that discriminates. Other mainstream supporters, such as United Way, also dropped them.

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http://www.philly.com/philly/hp/news_update/20080527_Boy_Scouts_sue_Phila__to_stay_in_headquarters.html

I think the Supreme Court's precedents are pretty clear in this case. The Scouts can discriminate in their membership requirements because they are a private group and have a right to freedom of association under the First Amendment. The government cannot subsidize such a private group with a preferential rent agreement. That would be considered a violation of the Equal Protection Clause of the Fourteenth Amendment.

[varkam]

1. So then, in other words...

the scouts have the right to discriminate, just not while using government funds to do so? Is that an accurate view of the situation?

[uberllama42]

3. Yup

This is a legal brief I wrote on Boy Scouts of America v. Dale for a con law class:

James Dale, a former Eagle Scout, applied for adult membership in the Scouts in 1988. Attending Rutgers, he openly announced his homosexuality and began advocating for gay role models for youth. The Scouts revoked his membership, saying that their by-laws specifically barred homosexuals. Dale sued under New Jersey’s public accommodation law. The state court ruled for the Scouts and the Appellate Court for Dale.

Chief Justice Rehnquist wrote that BSA was an expressive group and that restricting their expression violated Amendment I. Restriction in association must serve a compelling state interest which is not related to the suppression of ideas and which cannot be achieved through alternate means. BSA, he said, is intended to promote morality and condoning homosexuality would undermine their message.

Stevens dissented, asserting that the law did not unduly burden BSA’s expressive character and efforts.

As long as the state does not fund or otherwise subsidize the Scouts, they can discriminate on the basis of religion and sexuality. The dissent focused on whether the Boy Scout's mission really entailed discouraging homosexuality. As I recall, Stevens did not object to the idea that a private group may discriminate under the First Amendment.

[TechBear_Seattle]

2. Since when is a benefit owed by divine right?

"... a benefit that Cradle of Liberty has enjoyed for nearly eight decades..."

The property belongs to the city; the city therefore has full landlord rights to the property. If the BSA is under lease, the city has the right not to renew the lease. If the BSA is not under lease, then the city has the right of eviction upon sufficient notice. The fact that the BSA has enjoyed the use of municipal property for some period of time in the past does not, in any way, give them rights to the property in the future.

Crimeny, this is remedial property rights law.

[uberllama42]

4. The city offered to allow them to stay if they paid a fair-market rent

If they can't afford it, the city has no obligation to subsidize their activities. Even if the Fourteenth Amendment wasn't a factor here, I don' think they'd have a case.