Friday, December 7, 2007
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
I have a few comments on Romney’s speech. Romney said, “A
person should not be elected because of his faith nor should he be rejected
because of his faith. . . . I believe in
my Mormon faith and I endeavor to live by it.” The first sentence of the
quotation seems plainly overstated. If the religious views espoused by a
candidate are considered relevant to government and are opposed by a voter, the voter rightly can vote against the
candidate. This has nothing to do with toleration. The government must tolerate
religions; citizens need not vote for candidates holding ideologies they oppose,
religious or not, though they may at the same time believe that the government
should not discriminate against those holding such ideologies.
Romney also says, “There are some who would have a
presidential candidate describe and explain his church's distinctive doctrines.
To do so would enable the very religious test the founders prohibited in the
Constitution.” This quotation embraces the same mistake. The test clause
applies to government; it does not apply to the grounds that citizens employ in
voting.
I say this not to encourage voting against Romney, or to
imply anything about the goodness or badness of the Mormon faith. The question
does not even arise for me. I belong to the Working Families Party in
New York and will likely
vote for whatever candidate is nominated by the Democrats.
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
Thanks to Michael for his post about the Commonweal editorial on the CDF's statement on the nutrition and hydration of pvs patients. The Commonweal editorial, which relies on a more temperate essay by Daniel Sulmasy, is entitled "utmost care" and it is a plea for the Church to be cautious about pronouncing on moral questions.
I was troubled by the editorial and the Sulmasy essay. My basic problem is that despite the concerns expressed about the burdens of treating pvs patients the real objection of the editorial and the Sulmasy essay is that the CDF doesn't seem to realize that the lives of these patients aren't really worth living. The editorial refers in an ambiguous way to pvs patients as "dying" and the intent here seems to be to draw from the view that considers these patients to be suffering from a "fatal pathology." In fact, the "problem" is that these patients won't die soon enough and the "solution" is to try to find a way to help them along. The editorial also expresses concern about the focus on "preserving physical life" and this reflects the dualistic understanding of the person that the CDF statement and its accompanying commentary reject. Sulmasy emphasizes that we ought to respect the "good-faith determination by the family that the patient would not want to live if unable to recover...." This doesn't seem to me to depend on the patient being terminally ill or even in a pvs condition. It doesn't seem to depend on the treatment at stake. It seems to be based on a judgment that the life of a pvs patient isn't really worth living.
The CDF statement took pains to emphasize that a pvs patient, however disabled, is still a person with fundamental human dignity. I think the CDF statement was a much-needed clarification of Church teaching on this issue. For my thoughts on these issues in the context of the Terri Schiavo case, see this paper. For Mark Latkovic's careful analysis of the moral issues, see this paper.
Richard M.
