Philadelphia Ordered to Pay Nearly $1,000,000 in Boy Scouts' Attorney Fees

The City of Philadelphia will have to pay $900,000 in legal fees to the local chapter of the Boy Scouts of America, a federal judge ordered last week, following the city’s failed eviction attempts.

Philadelphia has been attempting to evict the Scouts from a city-owned building since 2008, because of its anti-gay policy. Aside from attempting to oust the group, the city has also attempted to force the group to pay rent, which it refused.

At trial in 2010, the jury found that the city's imposition on the Cradle of Liberty Council (the local chapter), requiring it to depart from the national agency's policy of barring openly gay members, in order to comply with the city's LGBT-inclusive nondiscrimination law, was an "unconstitutional condition." The condition was unconstitutional because it essentially, by its very definition, it would be forcing a certain type of speech upon a private group.

However, the jury did find in the city's behavior in terms of viewpoint discrimination and equal-protection. Viewpoint discrimination claims typically present themselves in a situation where a city is only requiring the plaintiff to behave a certain way, such as if it was only requiring the local Boy Scouts to abide by a certain policy, rather than requiring all non-profit groups to abide by the inclusive policy.

The crux of the problem was that the city insisted that non-profit organizations given free use of its property must abide by local anti-discrimination laws, which include equal protection for gays and lesbians. Thus, when the Scouts did not disavow the national policy, the city sought to evict them, thus violating their First Amendment rights.

What was presumably not discussed, however, is what legal ramifications the city would have faced had it refused to offer the space to the group. I wonder whether the city would have survived the viewpoint discrimination claims had it not offered the space in the first place, given the fact that the group was non-compliant with the condition.

Additionally, I agree with Philadelphia's position that the verdict is inconsistent. How can a condition be an unconstitutional imposition, and yet not be viewpoint discrimination? That would imply that the same behavior applied to a different group would be constitutional simply because they didn't happen to be anti-LGBT inclusion. That happenstance doesn't seem to be enough of a justification to make the exact same behavior constitutional only some of the time. Of course this is only a district court decision, meaning that it can, and likely will be, appealed.

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