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Jury says Philly eviction illegal; city may appeal

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Going by what the jury said, even if the BSA excluded blacks & Jews the city couldn't stop the $1/year lease.




A federal jury Wednesday decided that Philadelphia violated the Boy Scouts' First Amendment rights by using the organization's anti-gay policy as a reason to evict them from their city-owned offices near Logan Square.


"We can't be kicked out of the building or evicted and we don't have to pay any rent," Scouts' attorney William M. McSwain said after the unanimous verdict by a jury of six women and two men.


Scouts lawyers expect U.S. District Judge Ronald Buckwalter to issue a permanent injunction that bars the Scouts' eviction because of their policy - set by the national organization - that homosexuals cannot be scouts or troop leaders.


That's not necessarily the end of the dispute, however.


The jury's answers to the 11 questions on the verdict sheet were "inconsistent," City Solicitor Shelley Smith said, and when verdict sheets have inconsistent answers, the potential exists that the verdict is flawed. We will be exploring our options."


In an unusual address to the jury, Buckwalter said he hopes the Council and the city can reach a final negotiated solution.


The Scouts are willing to negotiate and would like to end the nearly seven-year standoff, said Jason Gosselin, the lead attorney for the scouts.


"We want to sit down with the city and see if we can resolve this" permanently, Gosselin said.


Under the ordinance that leased the land to the Scouts, the city has the right to evict the Scouts without giving any reason at all - just not for an unconstitutional reason, both sides have agreed.


Asked if the city would take that step, Smith said "the verdict was just issued today, and we'll be considering all of our options."


The jury deliberated for about seven hours over two days and voted unanimously.


The jurors ruled in favor of the city on two points: the Scouts right to due process was not violated, and another First Amendment complaint by the scouts had no validity.


Jury foreman Merrill Arbogast, 40, a truck driver from Lancaster County, said jurors discussed each of the legal points.


"There was a lot of debate before we came to an agreement. . .we took each question and tried to break it down.


"On some things we believed the city, on others we believed the Scouts," he said.


The trial, which began June 14, was never about whether the Cradle of Liberty Council could 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 the 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 charter.


The scouts were ordered to vacate the 80-year-old headquarters they had occupied rent-free, or 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 also has Boy Scout troops in Delaware and Montgomery Counties.


The scouts contended 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 that have membership rules, including a Catholic church, and those groups do not face eviction, the scouts argued. The city called that comparison inaccurate, and the jury decided against the Scouts on that point.


They did find that the city "would have permitted [the Scouts] to continue to use its headquarters building on a rent-free basis if [the Scouts] repudiated or renounced the policy of the Boy Scouts of America to gays?"


They said yes, and added that position was "not reasonable." Those two answers combined were a finding of an "unconstitutional condition."


During the trial, retired Cradle of Liberty CEO Bill Dwyer said he and other leaders realized "in our heart of hearts" that "we couldn't repudiate totally the national position. They would put us out of business."


The local scouts cannot be forced to "repudiate a policy that the Supreme Court says is protected," Gosselin had said.


David Smith, a lawyer for the city, told the jury that the city initially accepted the local group's statement that it opposed discrimination - until learning that the chapter used the national group's employment application, which barred hiring homosexuals, atheists and agnostics.


Similar controversies have developed elsewhere in the nation since the high court ruling, prompting a variety of lawsuits with varied results. About 360 school districts and 4,500 schools in 10 states have terminated sponsorship of scout activities because of the scouts' stand on homosexuals, according to the American Civil Liberties Union.


A negotiated solution here was reached briefly 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 voted to evict the scouts.


The Scouts can now ask the court to order the city to pay legal fees worth some $860,000.

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It's been falling steadily since 1998, which is when the BSA's policies against gays first became national news (the NJ state supreme court Dale decision). And if you look around the web, nearly everyone who writes off the Boy Scouts as a possible activity for their sons cites their disagreement with the BSA's discrimination against gays and atheists -- this includes a lot of fathers who were in Scouts, were Eagles, etc. That is the overwhelming reason I see people state, nothing else even comes close.

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Yah, Merlyn, anecdote is not da same thing as data. I wonder what sort of web sites and discussions you tend to frequent, eh? :). I don't think yeh have an unbiased sample there.



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I know anecdotes aren't data, beavah, but even ordinary stories mentioning boy scouts will often have comments from people about how they won't let their sons join the BSA. These aren't political stories, just comments in online newspaper stories that mention boy/cub scouts in some way.

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Yah, but stories in da outlets you tend to read, eh?


Forgive me for suggestin' it, but I reckon that your reading habits don't constitute a random sample ;). You're also more likely to weight such comments more highly than they merit.



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I'm betting the membership decline is one of those cyclical things. It will hit an up swing again and it will decline again. So no it doesn't chap my shorts. Next win in court by the BSA will be the Balboa Park case.


I know you posted it Merlyn. That was a general comment!

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Its not the 3Gs, several youth organizations in North America over the past 25 years have veered left with more liberal politically policies and their number decreased dramatically. None of them maintained their numbers or increased. While a few here would like to think otherwise, the youth scout programs community is basically conservative. For all the marketing of outdoor activities, they are still viewed as values based programs (Think Character Traits of an Eagle). When the program makes a left turn away from values, they loose members.


My opinion is the BSA is loosing scouts from its own weight. Any volunteer with a few years experience in managing a Cub program will tell you its nearly a full time job. The number of Cub families that drop in the first year is pretty high.


As for the 1998 mark of membership decreasing, there was a dramatic rise of membership in the early 90s that was attributed to the Gulf war. You pick the reasons, but I remember the theory was the drop in the 1998 was only a leveling of that upward trend.




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Beavah, just use google news to look up any story mentioning Boy Scouts; I'm not reading political boards, these are US online newspapers from all over the country. Nearly any story mentioning scouts that allows reader comments will have comments from people on how they won't associate with the BSA. Cub scout membership has consistently fallen for the last 12 years.

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Actually Boy Scout membership peaked in 2002, not 1998.


The number of cub scouts peaked in 1990 then dipped,

peaked again in 1998 and then dipped again.


Personally I don't expect the Cub scout enrollment to peak again anytime soon. It's a lot harder to run Cubs scouts now that Scouting now has a two-deep leadership requirement.

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Back to the original post. Let's review what we know from the article.


1) The city of Philadelphia entered a contract with the BSA (or more likely, some locally chartered entity of the BSA). 2) The city is now trying to break that contract.


The excuse is some public policy issue, however I seriously doubt the contract has language in it that says the city can legitimately break the contract for public policy issues.


More likely, the city is trying to add another $200k to its coffers every year.


What I find interesting is that any sane person can read the article Merlyn posted and realize it is biased against the scouts by the quotes they use and the suggestions for legal tactics in the future in this matter.

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If you read the article, it would have been legal for the city to terminate the agreement without giving a reason; what the jury found illegal was the way the city told the C of L that they could keep the agreement if the C of L renounced the national policy.

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