Boy Scouts sue city in building dispute

Days before a deadline to vacate their historical Center City headquarters because of their policies on homosexuals and atheists, the Boy Scouts have sued the city, saying their constitutional rights have been trampled.

The federal suit, assigned to U.S. District Judge Ronald L. Buckwalter, asks for a court order prohibiting city officials from evicting the Cradle of Liberty Council from its building, a Beaux Arts structure at 22d and Winter Streets. The scouts had been facing a deadline of Saturday to change their policy, begin paying market rates - about $200,000 a year - for the half-acre of city-owned land near Logan Square, or vacate.

The civil-rights lawsuit, filed Friday in federal court in Center City, contends that the city is violating the scouts' rights under the U.S. and Pennsylvania Constitutions.

"The City has imposed an unconstitutional condition upon Cradle of Liberty's receipt of a benefit that Cradle of Liberty has enjoyed for nearly eight decades," the suit reads.

Mayor Nutter, asked about the lawsuit at a speaking engagement yesterday in Harrisburg, said: "The issue is very, very clear and has been clear for a very long time. . . . I do find it interesting that somehow, some way, the Girl Scouts have figured out how to provide services to all girls and not discriminate, and the Boy Scouts have not figured out how to do the same.

"Our position is, you cannot discriminate in terms of delivery of services on city property," Nutter added. "The U.S. Supreme Court has opined that the Boy Scouts can have any rules that they want, and at the same time you can't discriminate on public property."

If the judge rules in the city's favor, the lawsuit asks that the Cradle of Liberty Council, which represents 70,000 members in Philadelphia, Delaware and Montgomery Counties, be compensated for its investment.

The building was erected by the Boy Scouts at a cost of $200,000. Cradle of Liberty officials say they renovated the building in 1994 for $2.6 million and spend about $60,000 a year on maintenance.

Regardless of the lawsuit's outcome, its filing means the scouts will not be on the sidewalk come Monday morning. Lawyers for both sides said the lawsuit preserves the status quo until the court rules, a process that could take months or more.

The lawsuit maintains that about 100 private organizations with membership criteria - including 15 youth groups - lease city property at rents of under $2,000 a year.

Only the Boy Scouts, the suit continues, have been threatened with eviction.

The lawsuit mentions the Roman Catholic Church of the Maternity of the Blessed Virgin Mary, which the suit says has paid a nominal rent for a church building in Pennypack Park since 1935; Zion Baptist Church, which pays $25 a year to lease three parcels of recreational land for the Clara Baldwin Home for seniors; and Women for Greater Philadelphia and the Colonial Dames of America, which have free perpetual leases for historic mansions in Fairmount Park.

"This city allows numerous organizations to use city-owned property and does not necessarily refuse them based on restrictions on membership," said Center City lawyer Jason P. Gosselin, who filed the suit on behalf of the Cradle of Liberty Council.

City Solicitor Shelley R. Smith said she believes the difference between the Boy Scouts and the other groups that lease city land or buildings is that the other groups do not discriminate in the social services they provide.

Smith said you cannot be a Boy Scout if you are openly gay or an atheist: "If we find that these other groups are doing that, we will take the appropriate action."

The Cradle of Liberty Council's predicament is one that scouting councils nationwide have faced since a 2000 U.S. Supreme Court ruling in a case the scouts won.

In

Boy Scouts of America v. Dale

, the Supreme Court ruled, 5-4, that the scouts are a private group and thus have the right of "expressive association" under the First Amendment to set their own membership rules.

But the scouts' legal victory soon soured as municipal officials began reexamining long-standing relationships with local scout groups.

Local public officials say they are bound by another line of court rulings that bar them from using taxpayer support for any private group that discriminates. Other supporters, such as United Way, also dropped the scouts.

The scouts have maintained that they cannot change their membership policies without being ejected by the national scout organization and cannot afford the rent.

Scout officials say $200,000 a year would fund 30 new Cub Scout packs of summer camp for 800 needy children.

In October 2006, the Supreme Court refused to review a California Supreme Court ruling affirming the City of Berkeley's decision to revoke free marina use for a Sea Scouts group.

Gosselin said he did not believe the high court's ruling in the Berkeley case meant the Cradle of Liberty lawsuit could not succeed.

"Their decision not to take up the case on appeal was not a decision on the merits of the case," Gosselin said. "They don't take that many cases."

Philadelphia has an added wrinkle: a 1982 Fair Practices Ordinance that also bars the city from supporting any discriminatory groups.

Gosselin said the 1982 ordinance raises another question: "This situation has existed for 20 years. Why now?"