That's essentially the argument that counsel for the Cradle of Liberty Council of the Boy Scouts of America is making in a suit recently filed against the city of Philadelphia:
The Boy Scouts have occupied the building at 22nd and Winter streets for 80 years, having paid for its construction and several renovations themselves. In 2006, then Mayor John Street (D) insisted that if the scouts wanted to remain there, they must either pay fair-market rent or cease their putative policy of discrimination against homosexuals. The city maintains that such a rent amounts to $200,000 annually…
The litigation filed by the council rests upon two major legal underpinnings. The Boy Scouts contend that the city is, firstly, depriving them of their First Amendment rights by abridging their ability to freely associate and, secondly, violating an agreement it reached with the group in 2004 on an anti-discrimination policy.
Make no mistake I disagree with the BSA's policy of discrimination against gay people, but even if I didn't, I'd tell the Scouts that their constitutional argument is, to put it mildly, lame. It's true that the United States Supreme Court held, in a 2000 decision, that the Scouts have a First Amendment right to freedom of association as does any other group, and that this freedom means they cannot be compelled to admit gay people in any capacity.
But freedom of association does not mean freedom from rent, nor from taxes, nor a right to charity. As I understand it, the dollar a year rent that the city of Philadelpha charges the Council is a gift. No lease was ever signed, nor is the city compelled to provide the Scouts with an all-but-free location by any law. The city does have laws policies prohibiting discrimination based on sexual orientation. It stands to reason that the city should not give away its valuable property to those who violate those policies, no matter how sympathetic.
There are conflicting claims regarding the fair market value of the rent the city claims, as well as oral agreements, made earlier, but to the extent that the Scouts claim that by taking away a charitable gift, the city is depriving them of their First Amendment rights, that's ludicrous. By analogy, if I disagree with a church on a matter of religious doctrine and decide to stop giving or leave the church, that's it. That I've dropped a twenty dollar bill in the plate at the Catholic church every sunday for the past ten years doesn't mean the Pope has a lien on future gifts when I decide to join the Episcopalians because they ordain women or gay people.
The Council says it's tried to change its policy on this form of discrimination, but has been barred by the national BSA from doing so. That's unfortunate. There are competing youth organizations which don't discriminate in this fashion, and there are other landlords who might be willing to rent at below market value. It sounds as though someone's going to have to make some tough choices.