Philadelphia, Boy Scouts in talks to settle dispute over headquarters

Barely a month after a bitter court fight, Philadelphia and the Cradle of Liberty Council Boy Scouts are negotiating to settle the nearly decade-long dispute over the scouts' refusal to explicitly renounce the national organization's antigay policy.

A federal jury decided in June that the city had violated the Boy Scouts' First Amendment rights by using the antigay policy as a reason to evict them from their offices near Logan Square.

The Depression-era building, while built by the scouts, is on city land and effectively owned by Philadelphia. Despite the court victory, the city can still evict the scouts, provided it is done without violating the organization's constitutional rights.

"There have been talks," said Jason P. Gosselin, a partner with Drinker Biddle & Reath L.L.P., who represents the scouts. "We are on a good path."

City Solicitor Shelley R. Smith declined to comment on the discussions.

After the verdict, U.S. District Judge Ronald L. Buckwalter advised both sides to negotiate a final end to the dispute.

Meanwhile, in a not unexpected move, the city has asked Buckwalter to overturn the verdict on the ground that it is at odds with a recent U.S. Supreme Court decision.

And Drinker Biddle wants the city to pay it $963,570 in legal fees, the cost of representing the scouts. Although the firm took the case without a fee, federal law allows the winning side in a civil-rights case to dun the losers for costs.

Buckwalter will decide the amount, and in the filing Gosselin said the firm had tried to keep costs down during the two-year legal battle.

About 10 lawyers worked on the case, and two - Gosselin and a second partner, William M. McSwain - represented the scouts in court. The fee will not be paid if the city wins on an expected appeal.

The trial was never about whether the Cradle of Liberty Council had the legal right to discriminate. A 5-4 U.S. Supreme Court decision in 2000 said the Boy Scouts are a "membership organization" and can exclude gays.

But the City Charter forbids discrimination on the basis of sexual orientation, and the city decided in 2006 that the council's refusal to explicitly reject the national scout policy violated city law.

The scouts were ordered to vacate the 80-year-old headquarters, which they had occupied rent-free, or pay $200,000 a year to lease the building from the Fairmount Park Commission. It is one of two offices operated by the council, which also has Boy Scout troops in Delaware and Montgomery Counties.

The scouts contended that the city's move was an unconstitutional "coercion" that violated the organization's rights to free speech and equal protection.

The jury found the city would have allowed the scouts to remain rent-free if they had "repudiated or renounced the policy of the Boy Scouts of America to gays," which was "not reasonable" under the Constitution.

The jurors ruled against the scouts on two other constitutional claims, which the city also cited as grounds for overturning the verdict.

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