PHILADELPHIA - The American Civil Liberties Union of Pennsylvania has filed a friend-of-the-court brief in the city of Philadelphia's appeal from a jury verdict that it was "unreasonable" for the city to require the Boy Scouts of America's Cradle of Liberty affiliate to certify that it would not discriminate against gay scout members and leaders as a condition of continuing its rent-free use of city property for its headquarters building at 21st and Spring Streets.
Cradle of Liberty sued Philadelphia in 2008 after years of negotiation with the city about whether Cradle of Liberty would follow the Boy Scouts' national policy of discrimination. In 2000, the United States Supreme Court held that the Boy Scouts could not be required to admit gay scouts and scout leaders because that would interfere with the organization's ability to promote its view that "homosexual conduct is inconsistent with the requirement … that a Scout be morally straight and … clean in word and deed".
"As a private organization, Cradle of Liberty has a constitutional right to discriminate if it so chooses. But the taxpayers of Philadelphia are not obligated to subsidize that discrimination," said Reggie Shuford, executive director of the ACLU of Pennsylvania.
In 2010, a jury found that the city of Philadelphia violated the First Amendment rights of Cradle of Liberty when it attempted to evict the group after it refused to rescind its discriminatory policies against gay scouts and scout leaders. In a 2012 opinion, the trial judge refused to overturn the jury's decision, and the city appealed.
In the same opinion, the judge held that the jury could have found the city responded to "improper influence" because a group of gay rights activists, known as the "Working Group," had an "inside track" and "special access" when they lobbied then-city solicitor Romulo Diaz, who is gay, to end the city's support of Cradle of Liberty.
In its brief, the ACLU asks the appeals court to overturn the judgment against the city. The ACLU argues that the lobbying efforts of the "Working Group" are irrelevant to the constitutionality of the city's demands to Cradle of Liberty, stating "gay and lesbian citizens and officials are no less entitled to participate in the political process than their heterosexual counterparts."
The brief also argues that the US Supreme Court has made it clear that the right to engage in constitutionally protected activity does not mean that taxpayers are obligated to fund the activity, and that the city has an overriding interest in refusing to subsidize a private group with a known policy of discrimination.