Out Scouted

Did the city wimp out in its effort to stop Boy Scouts from excluding gays on the public dime? Or did gay activists botch it themselves?

by Andrew Thompson

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Published: Dec 1, 2010

Don Haring Jr.

The fight was finally over.

After 10 years of investigations, meetings, friendly e-mails, not-so-friendly e-mails, subpoenas, a pre-trial, a jury trial, legal fees, settlement offers and the possibility of an appeal, the Boy Scouts and the city of Philadelphia finally reached an agreement.

Neither side got what they wanted, exactly: The Cradle of Liberty Council (CLC) — Philly's local Scouts chapter — wanted to be able to keep gays out of its city-owned, rent-free headquarters, and the city wanted the Scouts to stop discriminating.

Instead, on Nov. 17, City Solicitor Shelley Smith announced that the city would sell the Scouts their headquarters (which they, after all, had constructed at their own expense 80 years ago), and the Scouts would drop the $1 million in legal fees they were prepared to extract from the city. It wasn't perfect, but everyone was giving, and getting, something.

Smith wrote in a press release that Council would introduce an ordinance finalizing the sale on Nov. 18.

And then, overnight, the settlement disintegrated: Councilman Darrell Clarke, in whose district the building sits, suddenly declined to introduce the bill, vaguely citing community concerns. The mayor's office apologized to Clarke, and then went silent — as did nearly everyone else involved in the dispute.

In the two weeks since, no explanation has surfaced as to what, exactly, happened, or why. But the answer probably has something to do with a story that hasn't been in the press, but which has played out in private for years.

The one thing everyone agrees on is that the situation, as it stands, is a mess. The question is, who made it?

THE BOY SCOUTS

Across the country, the Boy Scouts have a way of provoking strong emotions.

On one hand, the century-old club embodies some of the very best of the American Dream: It's open to rich and poor alike; it offers advancement based on merit; it teaches kids self-reliance, cooperation and civic-mindedness. In a modern world, it offers a deep connection to nature and community. But sometimes its old-fashioned values get it into trouble.

Take, for example, the Scouts' policy on gender: Girls can't be Boy Scouts. Or the Scout Oath, including a pledge of "duty to God" (though which isn't specified), which has drawn several (failed) lawsuits from atheists.

And then there's its policy on admitting gays: namely, that "homosexual conduct is inconsistent with obligations in the Scout Oath to be morally straight and clean."

The wording, and the official policy, dates back to a controversy over New Jersey Scoutmaster James Dale, who was expelled from the organization after a newspaper article identified him as co-president of the Rutgers University Lesbian/Gay Alliance. Dale was subsequently told that the Boy Scouts "specifically forbid membership to homosexuals."

Dale sued, and the case made its way to the New Jersey Supreme Court, where Dale won. The Scouts then appealed, arguing they had a constitutional right to exclude homosexuals. This case, because it so directly tested the meaning and limits of the First Amendment, was heard by the U.S. Supreme Court, which, in 2000, handed the Scouts a victory. The Boy Scouts, according to a majority opinion written by Chief Justice William Rehnquist, have a right to "freedom of association," and therefore "a freedom to not associate" with gays.

But the Scouts' legal victory came at a price: The Scouts became, for many, a symbol of institutionalized homophobia. And while the Dale decision may have bolstered the Scouts' right to exclude gays, it also sent a surge of adrenaline through rights activists, who began looking for other ways to challenge the Scouts' policy.

Here in Philadelphia, those activists' eyes set upon the CLC, which has been housed — rent-free — on city-owned property for more than 80 years. If the Boy Scouts wouldn't take Philadelphia's gays, then why should Philadelphia give a free ride to its Boy Scouts?

Where there is anger, there is political opportunity. Former Mayor John Street's 1999 campaign (in which, among other things, he opposed extending health benefits to same-sex couples) hadn't exactly won him friends in Philadelphia's gay community. When he took office in 2000 — the same year as the Dale decision — the mayor apparently wanted to change that. He appointed several gays to high-profile positions, created a liaison to the gay community, attended a fundraiser for gay rights.

"Street has gone a long way to diminish fear and loathing of him in the gay community," noted a February 2001 Inquirer article, adding, "The test of the budding good feeling will come when Street has to deal with an issue of major importance" — the Boy Scouts, that is.

That's not to say Street's decision to begin pursuing action against the Philadelphia Scouts' discriminatory policies wasn't based on personal conviction. But there's no question that the move helped his image in Philadelphia's gay communities, including a small but powerful clique of gay and gay-friendly advocates in Philadelphia — among them former Temple president David Adamany, former Philadelphia Bar Association chancellor Andrew Chirls, high-powered Flaster Greenberg attorney Abbe Fletman and former Equality Advocates Pennsylvania executive director Stacey Sobel.

They called themselves the Working Group, and determined to wield their considerable influence — and remarkable access — to fight the Scouts' policy.

Slowly, and with the cooperation of the city and rights activists including the Working Group, the powers that be began converging on the Scouts. In spring 2003, the Pew Charitable Trust and the United Way, both donors for the Scouts' Philadelphia program, withdrew a combined $500,000 in funding, based on the organization's discriminatory policy.

The city, meanwhile, in an effort overseen directly by Street's chief of staff, began examining whether the Scouts' use of city land violated Philadelphia's non-discrimination ordinance — and whether and how they might force the Scouts to stop discriminating, or leave.

The CLC, which, after all, was only following national protocol, was willing to talk. In 2003, the CLC's board quietly — but unanimously — voted not to discriminate against gays, in open defiance of the national chapter.

For a brief, glorious moment, everyone seemed relatively happy with the situation.

And then the Scouts spoiled it. Just weeks later, 18-year-old Life Scout Gregory Lattera, presumably inspired by his Council's decision, came out as gay during a national Scouts conference in Philly. Two weeks later, he received a letter from the CLC directing him to "sever any relationship you may have with the Boy Scouts of America."

The news crushed him. "I broke down," he says. "I made some phone calls ... and asked them what it meant, and they said, 'Have no contact with Scouting. You can't go to troop meetings. Don't go to the Scout shop. Don't go to camp. You're done."

THE WORKING GROUP

While the city publicly declared its own opposition to the Scouts' flip-flop, privately its lawyers were less ready to take up arms against them.

The city's lawyers had already provided the Street administration with an opinion that the Scouts' (newly reinstated) anti-gay policies violated the city's 1982 Fair Practices Ordinance for the Scouts' headquarters at 22nd and Winter.

But that didn't necessarily mean the city could just kick them out. That might very well be left up to a court to decide. And that's exactly what the city didn't want.

The reason was the Dale decision, says Lewis Rosman, a city lawyer at the time.

"The [city's legal] department could make a determination that the Scouts were violating the law," Rosman explains, "but it could not seek to get penalties against the Boy Scouts," and "a court [cannot] ask the Boy Scouts to change their behavior."

In other words, they'd lose the battle — and, potentially, a lot of money — if the case found its way to a courtroom. The city, accordingly, proceeded cautiously — or wimpily, as some saw it.

Particularly displeased with the city's reluctance to get its hands dirty was the Working Group.

They swooped in, and so began their long, tortured and surprisingly personal relationship — detailed in e-mails and private notes obtained by City Paper — with the city. Leveraging a personal bond with then-City Solicitor Romulo Diaz, who is openly gay, the Working Group began demanding in private that Philadelphia pressure the Scouts to change their policy.

In 2005, the group began sending Diaz letter upon letter, forwarding "talking points," asking to see what the city was doing at every turn. The Group, e-mails make clear, played an active role in literally helping draft the administration's letters to the Scouts; when the city made a move that the Group hadn't approved, city officials (Diaz, mostly) would be chided.

In January 2005, for example, the city asked the CLC to sign a nondiscrimination statement saying they would "oppose any form of unlawful discrimination."

The CLC agreed, but the move infuriated members of the Working Group, who felt the inclusion "unlawful discrimination" made it legally worthless, since the Scouts' discriminatory practices had already been upheld in court.

"[The Working Group's Sobel] is quite sure the 'unlawful' modifier ... did not originate with her," attorney Arthur Kaplan, one of the most vocal and public members of the group, wrote in a letter to Diaz in July 2005. "She does not approve."

When Diaz revised the letter — but, apparently, failed to run final revisions by Working Group members, Kaplan wrote him again: "By not circulating a draft by last Friday, as promised to our Working Group ... and by instead hand-delivering to the Scouts today a revised letter that shares the same fundamental ambiguity as your initial letter," wrote Kaplan to Diaz, "you are coming close to public criticism."

In another, Kaplan got even more personal: "Your letter ... really is a disservice to the LGBT community of which you are a part," he wrote.

What Diaz thought of these e-mails isn't clear: He declined to comment for this story, and the court records from which they are taken contain only sparse replies.

Why did the Working Group pursue the issue so hotly? Why all the e-mails? Because, put simply, they thought the Scouts' policy was wrong.

"The motivation behind [our] e-mails," explains Kaplan, "is that we don't like discrimination."

While the city balked at actually enforcing its nondiscrimination policies, the Working Group wanted to force a confrontation.

Such tactics have worked elsewhere. In 1997, the City Council of Berkeley, Calif., demanded that its local Sea Scouts chapter (a subset of the Boy Scouts of America), which had enjoyed subsidized use of a public marina, admit homosexuals and atheists. When they declined, the city effectively evicted them by requiring that all organizations getting the subsidies agree not to discriminate. The city of Los Angeles refused to rent its parks facilities to groups that discriminate.

The Working Group made it clear that the city should give the Scouts a simple choice as (non-paying) tenants: Let gays in, pay for the space, or be evicted.

Slowly, they got their way: Indeed, letters between Diaz and the Working Group reveal the advocates guiding the city as it moved (albeit slowly and, perhaps, reluctantly) toward confrontation.

In one e-mail, Kaplan tells the law department exactly what kind of letter the Scouts should get: "The letter should forthrightly say that as quid pro quo for keeping a rent-free building, the CLC agrees that it will not discriminate on the basis of sexual orientation."

It is, almost verbatim, exactly what the city finally sent the Scouts a year later.

That letter was followed by a vote by the Fairmount Park Commission to evict the Scouts, then a City Council vote to do the same. The Scouts had been served their evictions. The Scouts had until mid-2008 to accept gays or get out.

But three days before that deadline, they chose another option: They sued the city instead.

THE CITY

What happened next is well-known: The city lost, and lost bad, opening itself up to potentially having to pay $1 million of the Scouts' legal fees. But all but unknown to the public were the details of the case and the surprising drama that unfolded behind the thick courtroom doors.

The city, one could argue, had arrived in court less with sword in hand than with prod in butt. In the midst of the Great Recession, it was now defending a legal case, the merits of which its own lawyers had long doubted.

Maybe that's why, as critics charge, the city didn't put up much of a fight as the Scouts proceeded to clobber it.

While lawyers at Drinker, Biddle & Reath were busy subpoenaing every e-mail between the Working Group and the city solicitor's office and amassing a multi-pound folder of evidence, city lawyers, now led by current solicitor Shelley Smith, offered the court exactly four exhibits over the course of the entire trial: all publicly and readily available, and none subpoenaed.

The CLC gave the jury a show, calling to the stand Scouts who had become judges and political candidates, and detailing the 50,000 hours of community service provided by the Scouts — "Ask yourself," said Scouts lawyer Jason Gosselin, "Who's subsidizing who?"

The Scouts even used city witness Lattera, the very member they'd encouraged to come out as gay and then banished, to testify favorably: "I still love the organization," he told the court. "I'll never feel any kind of resentment or anything like that toward the Scouting organization."

Conversely, the city presented its four exhibits and its simple, and perhaps somewhat uninspiring, argument: As owner of the property, it could end the relationship with the Scouts whenever it wanted, period.

When, early in the trial, it came out that Judge Ronald Buckwalter had served on a local Scout council, the city waived its right to request a new judge.

The Working Group, furious, felt the city was botching the case.

"The things that they didn't do — these aren't subtle things that reasonable minds can differ on," says one member, who wished to remain anonymous. "They're either incompetent or they don't care."

The group began privately demanding the city outsource the case to a private attorney. And, amazingly, it did, handing the case to David Smith of Schnaeder, Harrison, Seagul & Lewis, who took it pro bono. By then, the period of discovery was already over. Smith petitioned Buckwalter to reopen it, but the judge refused.

Did the city, as some members of the Working Group charge, simply throw its hands up when it came to defending its own eviction of the Scouts? Did the administration privately determine that the Scouts case was simply not winnable, and therefore not worth much trouble? Or did the city try, and lose, fair and square?

It's hard to say. Most city officials contacted for this story declined to comment. David Smith, who took on the case later, declined to comment, as well. Asked why the city had suddenly turned the case over to him, City Solicitor Smith says only that, "At some point, we decided that we wanted to try a different strategy."

In any case, the city lost, the jury ruling in favor of the Scouts on most counts. After 10 years of fighting, almost nothing had changed.

ENDGAME?

It's probably fair to say that by this November, no one was particularly happy with how the Scouts saga had played out (winning in court, after all, didn't necessarily help the Scouts' relationship with the city or its charitable benefactors).

But then, two weeks ago, a light appeared at the end of this 10-year tunnel — and, just as quickly, seemed to vanish.

On Nov. 17, Smith announced that a settlement had been reached: The city would sell the Scouts' building to them for $500,000 — about half of its estimated value — and, in return, the Scouts would not ask that the city recompense it the $1 million in legal fees incurred from the trial.

"What we have on the table is a win-win situation," said Smith in a statement, adding that the City Council ordinance needed to authorize the building's sale would be introduced the following day in City Council.

Except that it wasn't. The next morning in Council, Darrell Clarke didn't introduce the bill. After the meeting, he told the Daily News that he hadn't been involved in the settlement talks, and neither had representatives of the gay community or the residents of the Logan Square neighborhood. And until they were, there was no deal.

"I think there have been some premature comments made by various parties," Clarke told reporters. "Right now, I'm not prepared to introduce anything."

Huh? What had happened?

After all, the settlement received a note of approval from many, if not most, corners: The Daily News wrote an editorial in cautious support of it. The Logan Square Neighbors Association is behind it, too, so long as the Scouts don't flip the building to a developer. And the Scouts appear to be more interested in making long-term peace than short-term moolah.

Someone had gummed up the works — but who?

There's one group so far that's come out as anything but happy with the proposed settlement: the Working Group.

"It capitulates to the Scouts," says Andy Chirls, a Working Group member. "The price is not right. It's a giveaway."

The Working Group argues that a onetime payment of $500,000 is much less than the $200,000-per-year the city asked for back in 2007. And besides, says Chirls, "Once you get past the giveaway, the question is: Is there a right price? The Scouts have avowed to discriminate in that building. And the answer is, the city ought to appeal."

For Chirls, and other members of the Working Group interviewed, the fight against the Scouts is, ultimately, not just a matter of practicality: It's a symbolic battle against discrimination and injustice — it's the good fight, and that's why the city should fight it.

For the moment, everyone appears to be right back where they were: The Scouts are angling for a favorable escape from this uncomfortable spotlight; the Working Group still wants to duke it out with them; and the various forces of city government appear, again, trapped nervously between the two.

How many share the Working Group's gusto for the fight simply isn't clear. Efforts to speak with other gay leaders yielded few responses, and the Working Group seems to have a monopoly over public gay sentiment ( Philadelphia Gay News publisher Mark Segal, for example, told City Paper, "I believe that there's a group of people who have been working on this" — the Working Group — "and I would bow to their judgment.") The city, which just announced the settlement, is suddenly mum about it. The mayor's spokesman, Mark McDonald, said, "Other parties have revealed details, we're just not commenting on any of that. We respect the process of negotiation." Clarke, city lawyers and the Scouts declined to comment at all.

Asked whether he had direct involvement in changing Clarke's mind, Chirls says no, and that Working Group members were not part of settlement talks.

But on Nov. 11 — six days before the city announced the settlement — the Philadelphia Gay News published a piece detailing the settlement as it was in the works. The reporter, Timothy Cwiek, didn't disclose who had alerted him to the settlement in the first place (it wasn't in the news). He wrote that Mayor Michael Nutter's office "had no comment," Clarke's office "had no comment," and the Boy Scouts "declined to comment." In fact, the only person quoted was Chirls, saying, "This is something that everybody has to look at skeptically."

Had the Working Group leaked the story, hoping to pull the rug out from under Clarke and therefore disrupt a deal they don't support?

"I don't really know how the Gay News got it," says Chirls.

(andrew.thompson@citypaper.net)

Additional reporting by Holly Otterbein.