G LBT persons who have served in the military deserve to be honored, not just for their service, but for the fight to defend the U.S. Constitution (even though federal courts rarely protect GLBT rights under the Constitution).

In World War II, the last “real” war, this country fought fascism to protect freedom. Men and women died so that we would be able to criticize groups such as the Boys Scouts for discriminating against gays and nonbelievers.

The First Amendment allows for such a protest on public land. When judges, juries and public officials get to decide what is “appropriate” to protest about on public property, we’re in trouble.

This is what concerns me about last week’s jury verdict against Rev. Fred Phelps and his flock.

We’re all acquainted with Phelps’ antics to get media attention. And we’re all disgusted with what he says and how he does it. But, as one who has witnessed his protests, he and his flock carefully follow the directives of ACLU attorneys, who also counsel GLBT groups: Phelps and his followers remain on public property, normally at a reasonable distance from the targeted event. And, while their signs are inflammatory, they are not “legally” obscene or libelous. Phelps’ group doesn’t make eye contact or otherwise “engage” counter-protestors, nor does it respond to jeers. The group prays and sings. Its events are almost always recorded by someone, so any deviation from this is documented.

(Unfortunately, other groups don’t follow the same guidelines. I’ve reported here about how our own local ex-gay gadfly often crosses the line and engages in harassment, intimidation, trespass and interference with the rights of others to exercise free speech and religious exercise.)

Yet, ironically, people such as Phelps and the gadfly do more good for the GLBT community than harm. Their efforts simply illustrate the hate and prejudice we face and thus convince the electorate we need more protective laws.

And, regardless of the legal theory attorneys try to use to stifle Phelps, federal courts should find that the First Amendment prevails when protesters conduct themselves within the narrow confines protected by free speech.

Like San Diego, the city of Philadelphia leased city-owned property to the Boy Scouts chapter for $1. Now Philly has asked the BSA to pay fair-market rent of $200,000 a year for its headquarters because the BSA refuses to permit gay Scouts.

Philadelphia’s city law is just like San Diego’s law in that it prohibits the city from legally renting taxpayer-owned property for a nominal sum to a private group that engages in anti-gay bias.

Even though the Philadelphia BSA group adopted a nondiscrimination policy in 2003, the National Council told all local chapters that they cannot deviate from national rules barring participation by anyone who is openly gay.

The San Diego City Council has not ordered the BSA to leave Balboa Park, nor has it ordered the BSA to pay fair market value rent. A federal judge has ordered the BSA to vacate, but the litigation continues.

City Attorney Mike Aguirre, unlike his predecessor, has opined that the BSA’s continued use of Balboa Park is illegal under the city charter.

The U.S. Supreme Court ruled in 2000 that Scouts, as a private group, have a First Amendment right to bar gays from membership. However, the California Supreme Court has held that cities may withdraw subsidies to the BSA because of their policies based upon religious and sexual orientation.

The City Council should follow Philadelphia’s lead and require the BSA to pay fair market value for use of public land. Further, the City Attorney should consider whether the BSA’s “boys only” policy also violates state law prohibiting gender bias. (I wrote a few weeks ago about a federal panel ruling that a state law prohibiting bias on a college campus now prohibits same-sex fraternities and sororities.)