City, Scouts: How is compromise possible?

A JURY'S VERDICT in

the city's tug of war with a local Boy Scout council may mean a cease-fire.

But don't expect a truce.

There is talk of a compromise. Jason P. Gosselin, an attorney for the local Cradle of Liberty Council, told the Daily News that he'd like to "talk about a reasonable way we can put this behind us."

But, "I don't know really what they think we can do," City Solicitor Shelly Smith told me last night. "I'm not sure what compromise means in this context. We can't compromise the policy. We just can't."

The two sides might try. But they'd be hard-pressed to find a middle ground in the ideological gulf that divides them.

Zealots on either side are certain that the lofty constitutional principle they espouse is the only right way to see this issue.

It's simple, the Boy Scouts argue. We have a right to deny membership to people that we find morally unfit, and the city is wrong to try to force us to abandon our principles in return for free rent.

It's simple, the city says. This city can never subsidize any organization that discriminates against a segment of its citizens, thus using their taxes to support discrimination against themselves.

I think the Scouts have a right to deny membership to gays. But the city has a responsibility to oppose discrimination against gays.

How do you reconcile those positions? A jury took only five hours to decide against the city and the firm of Schnader, Harrison, Segal and Lewis, which donated hundreds of otherwise billable hours to assist the city solicitor.

One juror, Merrill Arbogast, told the Daily News that the jury "does not fault the city."

Arbogast, a former Eagle Scout, said he hopes that the Boy Scouts "will change their minds" about their policy banning gay Scouts and Scout leaders.

But how does a city that is required to protect the rights of its citizens or a values-based organization that mentors boys compromise on its most fundamental principles?

It doesn't. In fact, it can't.

It tried that. In 2003, the council agreed to a compromise that would have allowed the city to continue to charge only nominal rent for the headquarters that the Scouts built in 1928 on city property at 22nd and Winter streets.

But that agreement quickly unraveled. The Boy Scouts of America cited a U.S. Supreme Court ruling that private organizations can't be forced to accept homosexuals. It threatened to decertify the local council if it compromised on this point.

The City Solicitor's Office later ruled that the local council's compromise was meaningless anyway because it was too vague to be binding.

So, the two sides followed their bright line to the courthouse door, where a verdict was reached but nothing was settled.

The city still maintains that the terms of its original agreement allow it to evict the Scouts without citing a reason. One of the attorneys for the Scouts said as much in his closing argument.

So, in a sense, the case rests on a kind of squatters rights. It's unlikely that a court would have required the city to give free land to a group that violated the city's anti-discrimination laws if that group hadn't already occupied the property.

"That's right," the city solicitor agreed. "As it stands, the ruling means that we cannot now evict them for what would be an illegal reason."

Smith's office is getting pressure from some City Council members to enforce its ordinance barring antidiscrimination against gays.

She said that the city is likely to file post-trial motions and may look for a "more global" approach to the eviction that is not specific to the Scouts.

The Scouts' lawyers say that they will seek an injunction to permanently bar eviction. They say that they will also sue the city for $850,000 in legal expenses.

That bell heard in the background was not the end of the fight. It just sent them back to their stools to rest between rounds.

Send e-mail to smithel@ phillynews.com or call 215-854-2512. For recent columns: http://go.philly.com/smith