Dispatches from the Creation Wars

In the ongoing battle between the city of Philadelphia and the Boy Scouts, a jury in a federal case has ruled in favor of the scouts and forbid the city from evicting them from a building — or even charging them rent, apparently.

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.


The facts of the story go way back to the 1920s, when the scouts helped to build the city building they have had offices in ever since, rent free. But the lease agreement did not guarantee that situation forever; indeed, the agreement allowed the city to evict the scouts for any reason at all. And several years ago, the city decided that because the scouts engage in discrimination against atheists and gays, they could no longer have rent-free space in a public building.

The scouts said they could not afford to pay the rent on the offices, so they were evicted. And it’s been in court ever since. But now a jury has ruled that the eviction can’t go forward because it violates the First Amendment rights of the Boy Scouts:

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…

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.”

What is absurd here is that a jury should never have made this decision in the first place. These are questions of constitutionality, not guilt or innocence or liability, and those questions should be answered by the judge, not by a jury. But since they were asking for monetary damages over $20, they had a right to a jury trial; that’s a flaw in the constitution which really should be fixed (but won’t be, of course).

The jury is clearly wrong here. The constitutionality actually runs in the other direction. The equal protection violation is on the other side. This is not a generally applicable benefit that the scouts are getting, it is a unique benefit that only they get, which means the government is actually funding discriminatory activity. The government is essentially giving the scouts $200,000 a year to discriminate by allowing them — and only them — to use a government building free of charge.

There are instances where the government can fund groups that discriminate, but only where the benefit is generally applicable and available. In the Rosenberger case, for example, the University of Virginia had to give funds to all student groups, even those set up for a religious purpose. But this is not such a case. The benefit here is given only to the scouts. It is a special benefit only for them and, as such, is clearly unconstitutional.

The decision can be appealed, I believe, and the jury is left out of it at the appeals court level. I’m pretty sure that’s true. Let’s hope this one is overturned.