More on Scouts and Philadelphia

Susan asks about the Philadelphia/Boy Scouts case:

If the ordinance in fact requires that tenants agree to a nondiscrimination clause, compliance with the ordinance would seem to oust the Boy Scouts regardless of the amount of rent they pay.

It's possible the city thinks a court would rule it unconstitutional to punish a full-paying tenant by evicting it for its standard concerning homosexuality (when, as with the Scouts, that standard is tied to its ideological views against homosexuality).  The SCT's Boy Scouts v. Dale decision on freedom of expressive association would bar the city from subjecting the Scouts to civil liability for their standard.  Presumably that's why, although the city's human-rights ordinance actually prohibits sexual-orientation discrimination not just by city tenants but by all "public accommodations" (which usually is interpreted to include large private entities like the Scouts), the city apparently hasn't threatened to sue the Scouts under the ordinance.  The city might think that eviction of a tenant willing to pay market rent would be seen as just as much of a constitutional burden as would a judgment of liability -- but that refusing to continue a subsidized rental would not be seen as a burden.

It's interesting that the Philadelphia posts are juxtaposed with the post about the DOJ determination on religious hiring rights by federally funded religious organizations.  Setting aside the issues of reliance raised by the long relationship and the Scouts' improvements to the building, I think the constitutional claims by the religious organizations are stronger, since there are distinctive free exercise issues in the religious-hiring context.  In addition, there's more plausibility in the government's concern that it could be appearing to "endorse" sexual-orientation discrimination when it has a special subsidy relationship with the organization (as the city apparently had with the Boy Scouts) than when it's providing funding for a defined service offered by a wide range of organizations, some of which have traditional sexual-morality rules but many of which don't.  (Of course, the city's goal is not just to avoid endorsing traditional sexual morality; it's to discourage it.)

Tom