Dispatches from the Creation Wars

It’s been a long time since I wrote about the lawsuit in Philadelphia, where the Boy Scouts are suing after the city decided to end its long-time tradition of giving the organization office space in a building rent-free because the group discriminates against atheists, agnostics and gays and lesbians. The case is still pending in the U.S. District Court for the Eastern District of Pennsylvania.

The American Humanist Association, along with several other groups, has filed a brief (PDF) arguing on behalf of the city’s decision. In a press release, they say:

“It’s outrageous that the Boy Scouts of America thinks they have the right to force taxpayers to support their policies of discrimination against the nontheist and LGBT communities,” said Bob Ritter, staff attorney of the American Humanist Association. “Although they certainly have a First Amendment right to bar membership to whomever they please, the government cannot be compelled to support them in the form of offering public subsidies. In fact, the Establishment Clause, which bans government establishment of religion, prohibits them from doing so.”

The one difficult fact in the case is that the building the Boy Scouts are occupying was one that they built themselves for the city, on city land, and then deeded the building to the city. They signed a contract with the city allowing them to rent space in the building for $1 a year, but the contract also allows the city to change the terms of that contract with one year’s notice, which they gave several years ago.

I do disagree with this statement from the AHA:

The case mirrors several aspects of the case Christian Legal Society v. Martinez, in which a University of California Hastings College of the Law student group, which denied non-orthodox Christians and gays from becoming voting members or leaders, sued the school for denying them official school recognition.

But those two cases are not the same. In the CLS case, what is at stake is a generally applicable benefit available to all student groups regardless of viewpoint. That is not the case in Philadelphia, where the benefit to the Boy Scouts is given only to the Boy Scouts; no other similar group gets rent-free use of public buildings instead of paying market rent.

That brings the case under a very different set of precedents, like Rosenberger and Lamb’s Chapel.