Tuesday, May 27, 2008

Boy Scouts Sue Philly: Associational Freedom v. Nondiscrimination

In another conflict between associational freedom and nondiscrimination rules, the Cradle of Liberty Council of the Boy Scouts of American has sued the City of Philadelphia. According to the complaint, the city intends to evict the Scouts from city-owned property they lease unless they allow atheists and homosexuals to become members.

The Philadelphia Inquirer story is here.

The Scouts, of course, prevailed in the landmark Dale case, in which the Supreme Court held that the application of New Jersey's ban on sexual orientation discrimination in public accommodations to the Scouts would violate the Scouts' constitutionally protected right of expressive association. The Scouts had declined to permit an openly homosexual man to serve as a Scoutmaster.

Many governments have declined to follow the logic and spirit of this opinion, conditioning religious groups' access to benefits upon compliance with such rules.

As readers of this blog know, the CLS Center's number one priority is to establish that the Constitution forbids government from applying religion and sexual orientation nondiscrimination rules to religious groups.


Brian Westley said...

There IS no conflict; the BSA has the right to exclude whoever they like. However, the city of Philadelphia only offers subsidized rent to organizations that meet their requirements, and the city isn't obligated to give the BSA a $1/year lease in order for the BSA to exercise their rights. You'll notice the city is will to allow the BSA to rent the building at normal, market rates, just like any other private, religious organization.

Greg Baylor said...

I appreciate Mr. Westley's comment. Although he appears to be correct about certain facts, his conclusion that "there is no conflict" does not follow. There is undoubtedly a conflict between the Scouts' associational freedom and the City's position. If the Scouts want to continue with their policies and practices they must give up a government benefit. The fact that the Scouts can do certain things to *avoid* that conflict (e.g., pay full rent, go somewhere else) does *not* mean there is no conflict. I think most courts would agree with this: the Supreme Court has long held that indirect pressure on the exercise of a constitutional right is just as problematic as direct pressure.