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May 29, 2008


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Question for Ms. Bergin. Did you see how the Boy Scouts are being forced out of their property in Philadelphia because they are exercising their first amendment right to associate? Suddenly, after 80 years of being in the same place, the city is forcing them to leave because of their commitment to being morally straight.

In fact, the city is on record as saying that "The Boy Scouts think their First Amendment Rights are more important than our ordinance" that forbids anti-discrimination. Now, you are the so-called "Firstamendment blogger." Where in the Constitution is there a right for gay marriage to override the first amendment? Where is the right for the concept of gay marriage to prevent children from going to scout camp because said scout camp is being fined hundreds of thousands of dollars? Where is the right for the city of Philadelphia to confiscate a building that has had millions of renovations paid for by the Scouts because the Scouts don't want to associate with gay marriage?

Gay marriage is being used as a bludgeon to force a different form of morality on organizations, as stories like the one in the news I just cited shows. There is no harm for renting a building to the Boy Scouts, yet because of gay marriage, the boy scouts will be forced to leave their building. What conceivable harm to gay marriage rights is there by allowing a scout group to rent a building? And as for legislating morality, is not this a form of government forced morality? Gay marriage is good (better than your 1st amendment rights!) and if you don't promote it, we will fine you?

Explain that, Ms. FirstAmendment blogger.

Kathleen Bergin

Its my understanding that the city has allowed the Boy Scouts to rent space in a public facility at an extraordinary below market discount rate for some time, and that now it has decided to cease offering that subsidy because the group's membership policy violates the city's anti-discrimination ordinance. (I'm not sure the Scouts have an official policy on gay marriage itself). The Scouts do have a constitutional right to adopt a membership policy that discriminates against non-heterosexuals. But the First Amendment does not require the city or its taxpayers to carry their rent or provide them with other special privileges.

Professor Kathy Bergin


Thank you for answering, Professor. But let's take your logic here and run with it. The Scouts DO have an anti-gay policy; see Boy Scouts of America v. Dale. The Philadelphia Scouts have had this deal for 80 years with the city, and now they are in violation of the ordinance for, essentially, exercising their first amendment right to associate.

Now, their argument in their lawsuit is that the city also gives the low rent to various churches. Does your analysis require, then, that the city revoke all those special rents to churches (also of historical length)? I suspect that it would.

So then the next question is: what about tax exemptions? Those are granted to churches, and likely the Scouts as well. Yet those are organizations that discriminate, and other organizations such as businesses don't get those tax breaks. Under your logic, that of "they discriminate so they shouldn't get special privileges" doesn't that require any and all tax benefits to churches to get revoked as well?

In short, doesn't this argument that Philadelphia is using pretty much destroy historical privileges religious institutions have enjoyed for thousands of years?

And doesn't this action by Philadelphia pretty much destroy any argument about "Why do you care about gay rights if you aren't gay--they have no impact on you."? It's because gay rights are now more important than Scout rights--if I was a Scout in Philadelphia, either I accept lesser services or have to pay more money even though nothing at the Scout group has changed for 80 years. And when all the churches in Philadelphia have to charge their parishioners money so they can pay property tax (unless they change their doctrine!) will that not impact people?

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