Final arguments presented in Philadelphia Boy Scout eviction case

Posted: June 23, 2010

Either local Boy Scouts are victims of a "gay agenda" driven by aggressive rights activists, or their own anti-gay publicity forced the city to order them out of rent-free space, jurors were told Tuesday.

Deliberations will start Wednesday in the U.S. District Court case to decide if the scouts can be forced out of city-owned offices because they will not renounce the national organization's ban against homosexuals.

Starkly different versions of the case were offered Tuesday during final arguments.

The scouts' attorney argued that gay rights activists plotted, with the help of sympathetic city officials, to force the scouts out of their building near Logan Square. The city countered that it was forced to act after the scouts issued a news release announcing their decision to forbid gay scouts or troop leaders.

At issue is a 1928 lease that made available to the scouts a half-acre of city land at 22d and Winter Streets, about a block from Logan Square, for $1 a year. In 2007, after years of negotiations, the city said it would not subsidize discrimination and ordered the Cradle of Liberty Council to vacate the property or start paying $200,000 a year in rent.

The scouts say that violated their right to free speech and due process.

"The city wants you to give the Boy Scouts the back of your hand," said the Scouts' attorney, William M. McSwain of Drinker Biddle & Reath L.L.P.

McSwain recited a long list of contributions that the scouts make to Philadelphia, including an annual food drive that last year collected 2.5 million items. About 15,000 Philadelphians are active in scouting, he said, and most do not have cars to travel to the scouts' suburban office near Valley Forge.

"All the benefits I've described are connected to that beautiful building," McSwain said.

He compared the scouts' legal right to ban homosexuals to the right of a Catholic church, operating rent-free on city land in Pennypack Park, to ban homosexuals from the priesthood.

Also, the scouts can't afford the rent, McSwain said. But a lawyer for the city told jurors that the organization has $26 million in assets, including about $14 million in cash and securities.

However, it was McSwain's accusations that city policy was driven by gay rights activists – led by Arthur Kaplan, a prominent litigator now semi-retired – that drew the most heated response.

McSwain cited e-mail messages showing that Kaplan and other activists coordinated strategy with former City Solicitor Romulo L. Diaz Jr.

Attorney David Smith of Schnader Harrison Segal and Lewis L.L.P. gave the city's closing argument. McSwain was "demonizing" ordinary lobbying efforts, Smith said.

"This is America, we do it every day," he said.

Kaplan and others were part of a "working group" of leading citizens and nonprofit groups trying to reach a negotiated solution with the scouts, Smith said.

"This isn't a bunch of crazies," he told the jury seated before U.S. District Judge Ronald L. Buckwalter.

The city, Smith said, acted only after the council issued a news release "aggressively asserting a right to discriminate."

"Doing great things is not a license to do bad things," he said.

The city cited only one incident of discrimination. In 2003, Greg Lattera, then an 18-year-old who had attained the rank of Life Scout - one step below Eagle Scout - was ejected after he appeared at an activists' meeting in his Scout uniform.

Smith contended that many other potential Scouts might have stayed away because of the ban. In an allusion to signs that once enforced racial segregation, Smith said the "sign on the door" banning gays "scares off the kids before they even apply."

The scouts have the right to ban homosexuals under a 5-4 U.S. Supreme Court decision in 2000 that said that as a "membership organization," it can exclude gay youths and troop leaders.

In 2004 the Cradle council agreed to oppose "any form of unlawful discrimination," but a year later Diaz said that clause was too vague. In 2007, City Council voted to evict the scouts.


Contact staff writer Nathan Gorenstein at 215-854-2797 or ngorenstein@phillynews.com.

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