A little more on the City of Brotherly Love

I am very grateful to Susan and Tom for their thoughtful and rich input on the issue of the Boy Scouts and the City of Philadelphia that I raised earlier today. I share Susan’s concerns and skepticism that the City Council on the one hand declares to exile the Boy Scouts if they do not accept homosexuals, but on the other hand will allow them to stay as long as they pay thirty pieces of silver or two hundred thousand dollars rent per year. That is a hard alternative to accept. But I digress from my main point, which follows.

The New York Times refers in its article, to which I previously referred, a city ordinance. When I first read this, I thought it was an ordinance of universal application although subsequent to the arrangement entered by the Scouts and the City in 1928. But, on subsequent research, I discovered that it was not. Why, you might properly ask? Because, there is no ordinance of general application that addresses the matter of the Boy Scouts and the use of the land on which the building they built rests. However, there is an ordinance that specifically addresses the Boy Scouts and the land that is owned by the City of Philadelphia that was adopted on May 31 of this year [HERE]. I am puzzled by the legal authority upon which this ordinance expelling the Boy Scouts is based. The ordinance, Resolution No. 070522, refers to the City’s Fair Practice Ordinance and the City’s Home Rule Charter, both of which I have read in detail. It is unclear to me what provision or provisions in either text did the Boy Scouts violate? At this stage, I would suggest that the Boy Scouts have not violated anything in either Fair Practice Ordinance or the Home Rule Charter. Unless drafters of municipal legislation can be clearer on the authority on which they rely and that the authority is unmistakable in its proper application, their work becomes all the more suspect. Of course, if they simply failed to mention some specific law that applies to this case, then there remains the ex post facto problem to which I referred in my previous posting of this morning.

The ordinance that was enacted on May 31, 2007 is both fact- and case-specific. It addresses the Boy Scouts and the Boy Scouts only. Does this not suggest something as far as the ordinance’s passing Constitutional muster? I would answer, yes, it does. Put aside facially neutral standards that may still contain Constitutional concerns. This regulation boldly targets the Boy Scouts by name. Since neither the Home Rule Charter nor the Fair Practices Ordinance really applies to this case, I would think that the City of Philadelphia might want to reconsider what it has done.

I find the substantive element of the enacted ordinance confounding (and Susan’s post raises the concern as well): “RESOLVED, BY THE COUNCIL OF THE CITY OF PHILADELPHIA, That termination of the arrangement with the Boy Scouts, whereby the Boy Scouts occupy City land and a City building located at 22nd and Spring Streets, is hereby approved, subject to withdrawal upon agreement by the Boy Scouts to pay fair market rent or the Boy Scouts ending its [sic] discriminatory policy and practice.” (Italics of the word “or” are mine.) Note that this text does not say that the “lease” is terminated, but rather the “arrangement” is terminated (an arrangement which apparently included the Boy Scouts being responsible for maintaining and improving the building they built at the Boy Scouts’ expense); and further note that the Boy Scouts can stay as long as they pay the equivalent of “thirty pieces of silver” or the fair market value thereof of the annual fair rental value of the property. It would be interesting to explore further the nature of this “arrangement” insofar as what were the expectations of the City and the Scouts at the time they entered this agreement. I would think that someone, namely the Boy Scouts, would not build a “beaux arts” building and maintain it in perpetuity if they did not think that they could not use the building and the land on which it rests in perpetuity. And I would further think that this was the understanding of the City of Philadelphia back in 1928 when it agreed to this “arrangement.”

Interestingly, four members of the City Council, in order to ameliorate the impact of the ordinance that did pass, subsequently introduced another resolution [HERE] which failed. It seems that Council Members Kelly, O’Neill, Ramos, and Krajewski realized that there were flaws in the successful ordinance introduced by Council Member Darrell Clarke. I would think that Council Members Kelly, O’Neill, Ramos, and Krajewski saw and understood this problem and looked for a graceful way out of it. Sadly, their prudent counsel seems to have been ignored. As a wise individual once told me, it will be interesting to see how this turns out.    RJA sj