Dispatches from the Creation Wars

No Legal Merit Badge for This Attorney

The deadline for the Boy Scouts in Philadelphia is approaching. They only have until December 3rd to rescind their discriminatory policies or face a choice: either move out of the city-owned building they’ve been using since 1931 or start paying fair market rent, estimated at around $200,000 a year. Defenders of the scouts are inventing all sorts of fanciful legal theories, none of which they are showing any inclination of actually trying in court. The AFA is publicizing one of them:

Randall Wenger, chief legal counsel with the Independence Law Center of the Pennsylvania Family Institute, is not involved in the controversy but has followed it and the parties’ attempts at resolution. He acknowledges the lease agreement allows Philadelphia to change the arrangement at any time with a year’s notice and take the land back — but says it is valid only for reasons within the law.

“I would say that it’s unequal access — and it’s unequal access on the basis of viewpoint and belief and conduct.” Wenger states. “While the city can regulate a certain amount of conduct, here they’re trying to regulate expressive conduct.”

And that, says the attorney, amounts to an illegal reason. “It’s based on the viewpoint or the expressive conduct of the Boy Scouts,” he explains. “It’s not an issue where anybody’s brought a claim of discrimination against the Boy Scouts; it’s because of the Boy Scouts’ stance on the issue that the city is having a problem.”

Wenger thinks that right of “expressive association” given generally to Boy Scouts by a U.S. Supreme Court decision in 2000 and by a law passed by Congress several years ago is now being violated by the City of Philadelphia’s demand.

Sorry, Mr. Wenger, but you will not be receiving your merit badge for legal reasoning. The issue here is not whether they have a right to engage in such discrimination; the Supreme Court has clearly said that they do. The issue is whether the government must subsidize them as they do so.

The only “unequal access” in this situation is that the Boy Scouts have been receiving a unique benefit that no other group has received, a $200,000 subsidy by allowing them to use a very exclusive and expensive government building for a mere $1 a year. The city has no obligation to give such a subsidy, and indeed their own law forbids them from doing so. Rescinding that subsidy will remove the unequal access and put the Boy Scouts on exactly the same footing as every other private group. Are they free to discriminate? Absolutely. But in doing so, they also forfeit any claim on government subsidy.