City Cannot Evict Boy Scouts from their Parkway Headquarters
by Judah Labovitz, member, JSPAN Board and Church-State Policy Center
On June 24, 2010 a federal court jury found that the City of Philadelphia violated the Cradle of Liberty Boy Scouts’ constitutional right of expressive association by terminating their lease for the Boy Scouts’ Parkway headquarters. JSPAN joined as an amicus in support of the City.
More than 80 years ago, the City had leased the property to the Boy Scouts for $1 a year, and the Boy Scouts built their headquarters on that property. The City has similar lease agreements with other non-profits, including a Catholic church. However, in 2007, the City sought to terminate the lease due to the Boy Scout’s failure to comply with the City’s non-discrimination ordinance by refusing, in accordance with national Boy Scouts policy, to admit gays and atheists and, alternatively, their refusal to pay a market rate rent of approximately $200,000 per year.
In 2000, the Supreme Court had held in the case of Boy Scouts of America v. Dale that the State of New Jersey could not compel, under its public accommodation law, the reinstatement of a scout leader who had been dismissed because he was gay. According to the Court, the application of the public accommodation law to the Philadelphia Scouts violated their constitutional right to expressive association. Although the City of Philadelphia did not seek to compel the Scouts to admit anyone, the jury nonetheless concluded that the City’s refusal to continue the subsidized lease violated the Scouts’ constitutional rights. The judge has encouraged the parties to try to reach some accommodation, but it is likely that there will be an appeal.
On June 28, the Supreme Court ruled that the application by the Hastings School of Law, a California state institution, of its "all comers" requirement, denying official recognition and support to a Christian law student group that refused membership and the right to hold office to those who did not profess their belief in Jesus and/or adopted a homosexual life style, did not take away any constitutional right of the group. The school's "all comers" requirement states that recognized student organizations must admit as members eligible to hold office anyone who wishes to join. The application of the Hastings decision to the Boy Scouts case is an open question, because the majority of the Court expressly did not address whether it would have been a constitutional violation if Hastings Law School had reached the same result by applying a non-discrimination rather than "all comers" policy.
To learn more abut the Hastings School of Law case, See "Supreme Court Rules on Campus Faith Discrimination" segment below.