As widely reported last week, the local Boy Scouts won a partial victory against the City of Philadelphia from a federal jury in the Eastern District of Pennsylvania:

A federal jury on Wednesday declared that the city of Philadelphia had violated the First Amendment rights of the local chapter of the Boy Scouts of America by moving to evict it from its city-owned headquarters if it refused to repudiate the anti-gay policies of the Scouts’ national parent group.

In its verdict, the jury of six women and two men found that the city had imposed an "unconstitutional condition" on the Scouts and declared that it was not "reasonable" to do so.

But the jury found in favor of the city on two other claims. It rejected the Scouts’ claim that the city had engaged in "viewpoint" discrimination, and it also rejected an Equal Protection claim by finding that the city had a rational basis for its actions.

Nevertheless, lawyers said the verdict must be described as a win for the local scout chapter — known as the Cradle of Liberty Council — because a win on any one of its three constitutional claims would prevent the city from going ahead with its planned eviction.

In essence, the Boy Scouts raised four constitutional claims, two under the First Amendment and two under the Equal Protection Clause of the Fourteenth Amendment. The jury rejected both of the equal protection claims, one of which alleged the Boy Scouts were treated differently from other entities with similar membership policies, the other of which claimed the city had no rational basis (apart from animus towards the group) for evicting Boy Scouts.

The jury similarly rejected the Boy Scouts’ First Amendment claim that the city had created a "nonpublic forum" for various other entities to use to promote their beliefs, from which it improperly excluded the Boy Scouts.

That left a single claim, which the jury accepted, that the City had unconstitutionally conditioned the subsidized use of city property upon the Boy Scouts limiting their own freedom of speech. As Judge Ronald Buckwalter explained in denying the city’s motion to dismiss — which, unusually, and perhaps tellingly, was far more detailed than his order denying summary judgment for the city — an unconstitutional conditions claim works as follows:

The general idea behind the unconstitutional conditions doctrine is that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially his interest in freedom of speech.” Perry v. Sinderman, 408 U.S. 593, 597 (1972). “Put another way, the Government may not propose a penalty ‘to produce a result which [it] could not command directly.’ ” Forum for Academic and Institutional Rights (FAIR) v. Rumsfeld (FAIR I), 390 F.3d 219, 229 (3d Cir. 2004) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)), rev’d, Rumsfeld v. Forum for Academic & Institutional Rights (FAIR II), 547 U.S. 47 (2006). Unconstitutional conditions claims have proven troublesome, and courts have wrestled with how to best apply a series of Supreme Court cases that appear to be in some conflict. Additionally, there is a great deal of overlap between the doctrine of unconstitutional conditions and claims of viewpoint discrimination like the one addressed above. See Wyman, 335 F.3d at 92 (observing that “[t]he case before us,” which also involved the Boy Scouts, “lies at the intersection of these two lines of

The Third Circuit recently examined the unconstitutional conditions doctrine in
FAIR I. There, a group of law schools challenged the Solomon Amendment, which withheld a broad array of federal funding from universities that did not provide access to military recruiters. Id. at 224. As the Third Circuit succinctly put it, “if the law schools’ compliance with the Solomon Amendment compromises their First Amendment rights, the statute is an unconstitutional condition.” Id. at 229. The court went on to find that forcing the law schools to accommodate military recruiters both violated the law schools’ right of expressive association and impermissibly compelled speech. Id. at 230-42. Having established this, the court applied strict scrutiny and determined that the government could not demonstrate that its actions survived this test. Id. at 243.

The Supreme Court reversed in FAIR II, stating that “[b]ecause the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.” 547 U.S. 47, 60 (2006). In other words, the Supreme Court disagreed that the Solomon Amendment compromised FAIR’s First Amendment rights, whether framed as FAIR’s right to be free of compelled speech or its right of expressive association. See id. at 61-68.

The most prestigious law schools in the country banded together to litigate the FAIR cases — which revolved around, ironically, the government forcing private entities to accept military recruiters, who necessarily brought with them the military’s policies prohibiting gays from service — and lost. As the Supreme Court held, there’s no right to government subsidies: if the government could have taken them away for the heck of it, then it rarely matters if the government took it away because it didn’t like the views of the targeted group.

That would seem to be a serious problem here for the Boy Scouts, because:

Under the ordinance that leased the property to the scouts, the city has the right to evict them without giving any reason at all, both sides have agreed.

Asked if the city would take that step, Smith said, "The verdict was just issued today, and we’ll be considering all of our options."

I’d thus be surprised to see the verdict survive appeal. The City clearly misfired at summary judgment — a common occurrence in complicated cases — and, more importantly, the Boy Scouts only succeeded on what was arguably their weakest claim. Judge Buckwalter dealt with the Third Circuit’s conflicting precedent on these claims in a compelling and persuasive manner, he did so only by assuming a number of facts favorable to the Boy Scouts, including the facts underlying the Boy Scout’s unsuccessful viewpoint discrimination claim.

Under the Supreme Court’s opinion in FAIR, if the City of Philadelphia didn’t engage in viewpoint discrimination and could have kicked them out for no reason at all, then it rarely matters what the City’s reason actually was. Where the government can discriminate in its subsides in opposition to gay rights, it can discriminate in favor of them, too.