MEMORANDUM

BUCKWALTER, Senior District Judge.

Defendant City of Philadelphia has filed the present Motion for Judgment as a Matter of Law and, Alternatively, for a New Trial. For the following reasons, the Motion is denied.

I. FACTUAL AND PROCEDURAL BACKGROUND1

Plaintiff is a local council of the Boy Scouts of America, and administers scouting programs in Philadelphia, Montgomery, and Delaware counties. (Trial Tr. 69:4-11, Eaton Test., June 15, 2010.) In 1929, Plaintiff completed the construction of a building at 22nd and Winter Street in Philadelphia, which it has used as its regional headquarters ever since. (Id. at 119:2-5; 123:2-6.) Defendant owns the building and the property on which it is situated, but has not charged Plaintiff rent in exchange for its use. (Id. at 119:20-120:18; Trial Tr. 212:15-19, Dwyer Test., June 15, 2010.) Beginning in 2003, however, a dispute arose between the two parties concerning Plaintiff's membership policy. (Id. at 196:15-200:7.) Plaintiff denies membership to openly homosexual men, and Defendant informed Plaintiff that this practice violates its nondiscrimination laws. (Id.)

Over the course of several years, Plaintiff and Defendant attempted to negotiate a resolution that would satisfy both parties. (Id. at 212:7-216:13.) These negotiations failed and, in 2007, the Philadelphia City Council passed a resolution approving the eviction of Plaintiff from Defendant's property. (Id.) Plaintiff was left with three options: (1) it could continue its rent-free use of the building if it changed its policy with respect to homosexuals; (2) it could remain in the building and continue to discriminate if it paid rent in the amount of $200,000 per year; or (3) it could vacate the building. (Id.)

On May 23, 2008, Plaintiff filed its Complaint in this Court, bringing six counts for relief. A subsequent Motion to Dismiss filed by Defendant was granted in part and denied in part on September 25, 2008, narrowing the scope of the litigation to the following claims: (1) Defendant's demand that Plaintiff relinquish its membership policy with respect to homosexuals in order to continue its rent-free use of the building was an unconstitutional condition that violated the First Amendment to the United States Constitution and Article I, § 7 of the Pennsylvania Constitution (Counts I and III); (2) Defendant's attempt to evict Plaintiff because of its membership policy constituted viewpoint discrimination in violation of the First Amendment to the United States Constitution and Article I, § 7 of the Pennsylvania Constitution (Counts I and III); and (3) Defendant's attempt to compel Plaintiff to change its membership policy while failing to take comparable action against other similarly-situated groups with discriminatory policies violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article I, §§ 1 and 26 of the Pennsylvania Constitution (Counts II and IV). (See Compl. ¶¶ 40-64); Cradle of Liberty Council, Inc. v. City of Phila., No. Civ.A.08-2429, 2008 WL 4399025 (E.D.Pa. Sept. 25, 2008). On June 23, 2010, at the conclusion of a trial on these issues, the jury returned a verdict in favor of Defendant on the viewpoint discrimination and equal protection claims, and a verdict in favor of Plaintiff on the unconstitutional conditions claim. (Jury Interrogs., Docket No. 120.)

On July 21, 2010, Defendant filed the present Motion for Judgment as a Matter of Law and, Alternatively, for a New Trial, and Plaintiff filed its Response in Opposition on August 23, 2010. Shortly thereafter, however, the parties asked the Court to refrain from deciding Defendant's Motion while they attempted to negotiate a settlement agreement. In December 2011, the Court was informed that those discussions failed. Subsequently, Defendant filed a Reply Brief on February 28, 2012, and Plaintiff filed a Sur-Reply Brief on March 6, 2012. Defendant's Motion is now ripe for resolution.

II. STANDARDS OF REVIEW

A. Motion for Judgment as a Matter of Law

Pursuant to Federal Rule of Civil Procedure 50(b), a party may move for judgment as a matter of law after the conclusion of a jury trial. This remedy is "sparingly invoked" and "is appropriate only where `a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.'" Cange v. Phila. Parking Auth., No. Civ. A.08-3480, 2010 WL 1254337, at *1 (E.D.Pa. Apr. 1, 2010) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). In short, "a motion for judgment as a matter of law `should be granted only if, viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability.'" Id. (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993)).

B. Motion for a New Trial

After a jury trial, Federal Rule of Civil Procedure 59 allows a court to grant a new trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R.Civ.P. 59(a)(1)(A). Reasons for granting a new trial may include the following: "(1) there is a significant error of law, to the prejudice of the moving party; (2) the verdict is against the weight of the evidence; (3) the size of the verdict is against the weight of the evidence; or (4) counsel engaged in improper conduct that had a prejudicial effect on the jury." Sharrow v. Roy, No. Civ.A.08-0068, 2009 WL 3101031, at *1 (M.D.Pa. Sept. 23, 2009) (citing Maylie v. Nat'l R.R. Passenger Corp., 791 F.Supp. 477, 480 (E.D.Pa.)). "Where the evidence is in conflict and subject to two or more interpretations, the trial judge should be reluctant to grant a new trial." Id. (citing Klein v. Hollings, 992 F.2d 1285, 1295 (3d Cir.1993)).

III. DISCUSSION

Defendant has raised four arguments in support of its Motion for Judgment as a Matter of Law and, Alternatively, for a New Trial: (1) the United States Supreme Court's decision in Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, ___ U.S. ___, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) requires judgment in its favor; (2) Plaintiff failed to meet its burden of proving an unconstitutional conditions claim; (3) the Part II Jury Interrogatories and instructions relating to the unconstitutional conditions claim were clearly erroneous; and (4) the jury verdict is inconsistent and therefore requires judgment in Defendant's favor or a new trial. The Court considers each argument in turn.

A. The Impact of the Martinez Decision on the Present Case

Defendant first argues that the Supreme Court's decision in Martinez requires judgment as a matter of law in its favor. (Def.'s Mem. Supp. Mot. J. Matter of Law & New Trial ("Def.'s Mem.") 3-10.) In Martinez, the respondent was a public law school which, through its "Registered Student Organization" ("RSO") program, offered official recognition to student groups. 130 S.Ct. at 2978-79. RSOs received certain benefits from the law school, including financial assistance, use of school space, access to the school's communication channels, and use of the school's name and logo. Id. at 2979. In order to qualify as an RSO, however, a student group was required to comply with the respondent's nondiscrimination policy, which prohibited unlawful discrimination "on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admission, access and treatment in Hastings-sponsored programs and activities." Id. (citation to the record omitted).

The petitioner, a group of Christian law students, was denied RSO status because it excluded students who engaged in homosexual conduct or held religious beliefs that differed from those contained in the group's bylaws. Id. at 2980. The petitioner then filed suit, claiming that the respondent's "refusal to grant the organization RSO status violated [its] First and Fourteenth Amendment rights to free speech, expressive association, and free exercise of religion." Id. at 2981.

The Supreme Court rejected all of the petitioner's constitutional claims. In doing so, it first found that both parties had stipulated that the nondiscrimination requirement at issue was an "all-comers" policy, which meant merely that all organizations had to offer every student — regardless of his or her beliefs — the opportunity to apply for admission. Id. at 2982. The existence of this stipulation prevented the Supreme Court from considering the petitioner's argument that the nondiscrimination policy — as written rather than as stipulated — targeted only those groups who held beliefs based on religion or sexual orientation. Id. at 2982-84.

Next, analyzing the free speech and expressive association claims concurrently, the Supreme Court held that the respondent could restrict access to the RSO program as long as the restrictions were reasonable and viewpoint neutral. Id. at 2984. It then found that the respondent's all-comers policy was reasonable in light of the forum's function and the surrounding circumstances. Id. at 2985-91.2 Finally, the Supreme Court concluded that because the policy required "all student groups to accept all comers," it was "textbook viewpoint neutral." Id. at 2993.

In this case, Defendant contends that the Martinez decision mandates judgment as a matter of law in its favor on the unconstitutional conditions claim. Defendant argues that, in Martinez, the Supreme Court "reviewed the unconstitutional conditions/expressive association and nonpublic forum/viewpoint discrimination claims based solely upon its analysis of the latter." (Def.'s Mem. 5.) In other words, according to Defendant, the Supreme Court's decision with respect to viewpoint discrimination controlled its ruling on all First Amendment claims. Applying that logic to this case, Defendant argues that the jury's verdict with respect to the viewpoint discrimination claim — which was decided in Defendant's favor — must control the analysis of the unconstitutional conditions claim, on which the jury found for Plaintiff. (Id. at 5-6.)3

In order to properly compare Martinez with the current matter, it is necessary to accurately identify the nature of the claims made in the two cases. Defendant characterizes the first Martinez claim as an "unconstitutional conditions/expressive association" claim and the second as a "nonpublic forum/viewpoint discrimination" claim. What the petitioner in that case actually alleged was that the respondent violated its First Amendment rights to (i) free speech and (ii) expressive association. While recognizing that two separate lines of decisions had emerged to address these distinct claims, the Supreme Court determined that, given the circumstances of that particular case, it would analyze the two claims concurrently. See Martinez, 130 S.Ct. at 2985 ("[The petitioner] would have us engage each line of cases independently, but its expressive-association and free-speech arguments merge: Who speaks on its behalf, [the petitioner] reasons, colors what concept is conveyed.... It therefore makes little sense to treat [the] speech and association claims as discrete."). The Court further held that when speech and expressive association rights "arise in exactly the same context, it would be anomalous for a restriction on speech to survive constitutional review under our limited-public-forum test only to be invalidated as an impermissible infringement of expressive association." 130 S.Ct. at 2985. In other words, the petitioner in Martinez had made the same allegation — that the government's policy violated its right to express its views — two different ways, and so it was logical for the Supreme Court to treat them as one claim.

Here, on the other hand, the First Amendment claims at issue are (i) unconstitutional conditions and (ii) viewpoint discrimination in a government forum.4 (See Compl. ¶¶ 40-50.) With respect to the former claim, Plaintiff alleges that "Defendant's efforts to condition [Plaintiff's] continued use of its headquarters on [Plaintiff's] agreement to abandon its constitutionally protected membership policy or to pay a punitive rental increase violates the First Amendment doctrine of unconstitutional conditions." (Id. ¶ 44.) The second claim alleges that Defendant sought to evict Plaintiff solely because it disagreed with its membership policy, and therefore unconstitutionally discriminated against Plaintiff on the basis of its viewpoint. (Id. ¶ 49.) It is true that both claims are analyzed under the same "reasonable and viewpoint neutral" framework under which the Supreme Court reviewed the First Amendment claim in Martinez, but they address different questions.5 Specifically, the unconstitutional conditions claim addresses what Defendant did to Plaintiff, while the viewpoint discrimination claim concerns the reasons why Defendant did what it did. It is certainly possible to conclude, as the jury did in this case, that Defendant's purpose in imposing the condition was reasonable, but that the condition itself was unreasonable. Thus, unlike the petitioner in Martinez, Plaintiff is not simply making one claim two different ways, and there is no "anomaly" inherent in two different verdicts on the viewpoint discrimination and unconstitutional conditions claims.

Furthermore, in comparing the condition imposed in Martinez to the condition at issue in this case, the Court finds a significant factual difference between the two that precludes judgment as a matter of law in Defendant's favor. In Martinez, the nondiscrimination requirement covered only "admission, access and treatment in Hastings-sponsored programs and activities." 130 S.Ct. at 2979 (emphasis added). Thus, to the extent the respondent in Martinez placed any indirect pressure at all on the petitioner to change its membership policy, it was only in the context of the law school itself, where the benefit would be enjoyed. There was no evidence that the respondent attempted to influence the petitioner's activities that were unrelated to the law school.

In this case, Plaintiff alleges that Defendant did more than attempt to prohibit discrimination in city-owned property. As addressed in detail in Section III.B.2 of this Memorandum, Defendant informed Plaintiff that if it wished to remain, rent-free, at its current location, it had to completely abandon its practice of denying membership to homosexuals, even in contexts unrelated to the subsidized building. Defendant's attempt to compel Plaintiff to change its views in such a broad manner by threatening to remove a government benefit distinguishes this case from Martinez and, as discussed below, may have played a role in convincing the jury that the condition was unreasonable.

In sum, the Martinez case involved very different facts and, more importantly, different claims from the present matter. Accordingly, the Court finds that the holding in Martinez does not mandate judgment as a matter of law for Defendant on the unconstitutional conditions claim.6

B. Whether Plaintiff Met its Burden of Proving its Unconstitutional Conditions Claim

The doctrine of unconstitutional conditions holds that the government may not deny a benefit to a party "on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech." Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). More specifically, the condition for receipt of a benefit must not "allow the government to `produce a result which (it) could not command directly.'" Id. (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)). This is true "even if the government may withhold that benefit altogether. It reflects the triumph of the view that government may not do indirectly what it may not do directly over the view that the greater power to deny a benefit includes the lesser power to impose a condition on its receipt." Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415 (1989).

In deciding Defendant's Motion to Dismiss on September 25, 2008, the Court engaged in a detailed analysis of what a party must establish in order to prevail on an unconstitutional conditions claim. See Cradle of Liberty Council, Inc. v. City of Phila., No. Civ.A.08-2429, 2008 WL 4399025, at *9-12 (E.D.Pa. Sept. 25, 2008). There, this Court held as follows:

The first question is whether the government's condition compromises a First Amendment right. The next question is the scope of the condition. If the condition seeks to limit the use of the government subsidy only, and the condition does not impose a penalty beyond the withdrawal of the subsidy itself, then the condition need merely be reasonable and viewpoint neutral. If the condition, on the other hand, is broader in scope, a heightened level of scrutiny may be applied.

Id. at *12.

At the end of the trial, the jury concluded "that Defendant would have permitted Plaintiff to continue to use its headquarters building on a rent-free basis if Plaintiff repudiated or renounced the policy of the Boy Scouts of America to gays." (Jury Interrogs. II.5, Docket No. 120.) It also found that this condition was unreasonable. (Id. at II.6.) Accordingly, judgment was entered in favor of Plaintiff on the unconstitutional conditions claim. (See J. Order of July 13, 2010 ¶ 1, Docket No. 123.) Defendant now contends that it is entitled to judgment as a matter of law on this claim because Plaintiff failed to meet its burden of proof. In support of this argument, Defendant avers the following: (1) there is no evidence that Plaintiff has a right of expressive association around the exclusion of gays that has been infringed; (2) Plaintiff failed to present evidence that complying with Defendant's viewpoint-neutral nondiscrimination policy is an unconstitutional condition; and (3) there is no evidence that Defendant's laws regulate speech, and not conduct. (Def.'s Mem. 10-20.) Because the Court finds no discernible difference between Defendant's first and third arguments,7 it considers them together in Section III.B.1, and analyzes its second argument separately in Section III.B.2.

1. Plaintiff's Evidence That a Right of Expressive Association to Exclude Homosexuals Has Been Infringed

In its brief, Defendant refers to the testimony of three of Plaintiff's representatives — William Dwyer, Charles Eaton, and the Honorable John Braxton — who stated that they disagreed with the Boy Scouts of America's policy with respect to homosexuals. (Def.'s Mem. 11-13.) According to Defendant, this testimony demonstrates that Plaintiff does not actually associate around a viewpoint of excluding homosexuals. (Id. at 10-13.) Defendant contends that Plaintiff has no First Amendment right to protect a viewpoint it does not hold, and so its unconstitutional conditions claim must fail.

In making this argument, Defendant relies on the California Supreme Court's decision in Evans v. City of Berkeley, 38 Cal.4th 1, 40 Cal.Rptr.3d 205, 129 P.3d 394, 396 (2006). In that case, the plaintiffs were participants in the Berkeley Sea Scouts ("Sea Scouts"), a group which taught teenagers "sailing, seamanship ... and other skills for a maritime career." Evans, 40 Cal.Rptr.3d 205, 129 P.3d at 397. The Sea Scouts, which apparently was not a party to the litigation, consisted of "volunteers joining together in a nonprofit association with no formal administrative structure, no budget, and no employees." Id. The group described itself as a "subdivision of" or "associated/affiliated with" the Boy Scouts of America, which "provide[d] the group with a low-cost maritime liability insurance policy but [gave] it no direct funding." Id.

The defendant, which provided the Sea Scouts with free berths at its marina, required the group to "provide written assurance [that it] would not discriminate against homosexuals or atheists wishing to participate in the group's program." Id., 40 Cal.Rptr.3d 205, 129 P.3d at 396. The plaintiffs alleged that the Sea Scouts satisfied this requirement, but that the defendant nevertheless discontinued the free berth program because of the group's affiliation with the Boy Scouts, which did not comply with the defendant's nondiscrimination policy. Id., 40 Cal.Rptr.3d 205, 129 P.3d at 399. The plaintiffs then sued, claiming that the defendant violated their rights to free speech, free association, and equal treatment "by punishing them for being part of [the Boy Scouts] despite their having never violated [the defendant's] antidiscrimination laws and having `solemnly promised' not to do so in the future." Id., 40 Cal.Rptr.3d 205, 129 P.3d at 400.

In rejecting the free association claim, the court found that "[i]n requiring assurances of nondiscrimination, [the defendant] did not in any way demand, even as a condition of the free berths, that the Sea Scouts quit [the Boy Scouts]. To the extent compliance with the city's requirement would have that effect, it would be by the choice of a third party, [the Boy Scouts]." Id., 40 Cal.Rptr.3d 205, 129 P.3d at 404. The court then held that the government does not "infringe[] on associational rights by offering one group a financial benefit that, if accepted, could lead another group to sever its association with the recipient." Id.

The Court finds that Defendant's reliance on Evans is misplaced for several reasons.8 First, there is an important difference between the claim raised by the plaintiffs in Evans and the claim made by Plaintiff. In Evans, the plaintiffs argued that the defendant infringed upon their right to associate with the national Boy Scouts organization. The court rejected that argument because the defendant never conditioned the Sea Scouts' use of the berths upon disassociating itself from the Boy Scouts. The Boy Scouts' decision to end its relationship with the Sea Scouts was only an indirect consequence of the group's compliance with the defendant's nondiscrimination policy. Here, Plaintiff never claimed that Defendant infringed upon its right to associate with the Boy Scouts. Rather, Plaintiff alleged that Defendant unconstitutionally conditioned receipt of a benefit on abandoning its membership policy, namely, its own practice of excluding homosexuals. (See Compl. ¶¶ 42-44.) No comparable claim was made by the plaintiffs in Evans. See 40 Cal.Rptr.3d 205, 129 P.3d at 404 ("Plaintiffs repeatedly disavow, both in their complaint and in their briefs in this court, any desire to discriminate on the basis of sexual orientation or religion. They therefore cannot, and do not, claim that [the defendant], by requiring them to refrain from such discrimination as a condition of the free berths, is restricting their freedom to limit their membership for purposes of expressive association.").

Second, in analogizing the present case to Evans, Defendant suggests that, like the Sea Scouts, Plaintiff is a separate organization that exists independent of the Boy Scouts and does not adhere to its discriminatory practices. The Court disagrees. Plaintiff is a local chapter of the national Boys Scouts organization, and the evidence presented at trial established that the viewpoints of the Boy Scouts are shared by Plaintiff. At multiple points during his testimony, William Dwyer, Plaintiff's former CEO, made this explicitly clear:

In addition, Romulo L. Diaz, Jr., who worked for Defendant as city solicitor, testified that Plaintiff told him it would not change its policy or sign a lease that included a nondiscrimination provision. (Trial Tr. 35:20-22, Diaz Test., June 18, 2010.) Finally, R. Duane Perry, who was on Defendant's Lesbian, Gay, Bisexual, and Transgender Advisory Board, stated that the Board "advised the mayor and the mayor's office about the concerns about the discriminatory policies of the Cradle of Liberty Council." (Trial Tr. 25:14-16, Perry Test., June 21, 2010 (emphasis added).) In short, there can be no dispute that Plaintiff — and not merely the national Boy Scouts organization — has a policy of discriminating against homosexuals. Furthermore, because Plaintiff's exclusion of homosexuals is designed to transmit the values contained in the Scout Oath, it is expressive activity, and so the condition imposed by Defendant was an attempt to regulate speech, not merely conduct. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 649-50, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000).

Next, the fact that several of Plaintiff's leaders disagreed with this policy is irrelevant to the constitutional claim of Plaintiff itself. Mr. Dwyer, Mr. Eaton, and Judge Braxton are not parties to this litigation — indeed, none of Plaintiff's individual members are named in the caption to the Complaint — and there is a crucial distinction between the views of a group and the views of the individuals who comprise that group. This difference was illustrated at trial, when it was revealed that Plaintiff's leaders attempted to adopt a policy that did not discriminate against homosexuals, but were rebuffed by the national Boy Scouts organization. (See Trial Tr. 38:5-14, Dwyer Test., June 16, 2010.) The evidence established that Plaintiff's message remained identical to the Boy Scouts, even while some of its own members tried, unsuccessfully, to reform that message.10 Finally, as noted by Plaintiff, the Supreme Court has made clear that the "First Amendment simply does not require that every member of a group agree on every issue in order for the group's policy to be `expressive association.'" Dale, 530 U.S. at 655, 120 S.Ct. 2446.

The Court therefore rejects Defendant's claim that Plaintiff failed to establish a right of expressive association that excludes homosexuals.11

2. Whether Plaintiff Presented Evidence that Complying with Defendant's Nondiscrimination Policy is an Unconstitutional Condition

Defendant next argues that it is not required to subsidize private speech and that it may condition participation in its programs on compliance with its nondiscrimination policies. (Def.'s Mem. 15-18.) It contends that Plaintiff was under no obligation to accept the subsidy, and that its condition would not have prohibited Plaintiff from espousing its views. (Id. at 17.) Thus, according to Defendant, Plaintiff failed to establish that the condition imposed was unconstitutional.

Defendant is certainly correct that, in general, it has the authority to dictate the parameters of its funding programs. As discussed above, however, when a condition for receipt of a government benefit compromises a First Amendment right, it must be reasonable and viewpoint neutral. Here, the jury found that the condition imposed on Plaintiff by Defendant was not reasonable, and returned a verdict in favor of Plaintiff on the unconstitutional conditions claim. Accordingly, the issue faced by the Court is whether there was a sufficient basis for the jury to reach this decision.

In order to make this determination, it is necessary to precisely identify the condition placed upon Plaintiff. At trial, Mr. Dwyer testified that the termination of Plaintiff's lease was "subject to withdrawal upon agreement by the Boy Scouts to either pay fair market rent or end its discriminatory policy and practice with respect to homosexual members." (Trial Tr. 213:19-22, Dwyer Test., June 15, 2010; see also Trial Tr. 4:5-8, Dwyer Test., June 16, 2010.) Mr. Dwyer understood Defendant's position to mean that Plaintiff could choose one of three options: "Number one, change your policy. Number two, pay fair market rent as determined by [Defendant]. Or, number three, leave the building." (Trial Tr. 4:11-13, Dwyer Test., June 16, 2010.) Thus, the only way Plaintiff could have continued to receive the government subsidy was to comply with Defendant's demand that it "end its discriminatory policy and practice with respect to homosexual members."

At first glance, it may appear that Defendant, in imposing this condition, merely wished to prevent a public subsidy from being used in conjunction with discriminatory activity. The jury was confronted with evidence, however, that Defendant's demand was actually much broader. Mr. Dwyer and Mr. Eaton testified that Plaintiff's organization encompasses over 500 units and provides Scout programs in Philadelphia, Montgomery, and Delaware counties. (Trial Tr. 5:4-23, Dwyer Test., June 16, 2010; Trial Tr. 69:9-11, Eaton Test., June 15, 2010.) During trial, Mr. Dwyer was asked how Plaintiff interpreted the condition that Defendant imposed upon it:

(Trial Tr. 5:25-6:6, Dwyer Test., June 16, 2010.) From this testimony, the jury could have concluded that Defendant's condition went beyond prohibiting discrimination at or in connection with the city-owned building. Rather, it could have found that Defendant was attempting to compel Plaintiff to renounce its policy towards homosexuals in its entirety, even in contexts and locations that were entirely unrelated to the use of the city's property. The jury may have concluded that while Defendant had an interest in enforcing its nondiscrimination laws, it could not use the promise of a benefit to coerce Plaintiff into relinquishing its First Amendment rights in such a categorical manner.

Furthermore, Plaintiff introduced evidence that another Boy Scouts troop, located on Wigard Avenue, was also receiving rent-free access to city-owned property, but that Defendant never imposed any similar condition on that group. Lewis Rosman, an attorney who worked for Defendant, testified that Defendant knew that the other Boy Scouts troop was also being subsidized:

(Trial Tr. 10:6-16, Rosman Test., June 17, 2010.) Mr. Rosman was then asked if he knew the reason for the disparate treatment of the two Boy Scouts groups:

(Id. at 12:2-9.) Hearing this, the jury could have concluded that Defendant was selectively enforcing its nondiscrimination laws in a manner that lacked any rational basis. If Plaintiff and the Wigard Avenue Boy Scouts had identical policies, and if the existence of those policies was supposed to have precluded participation in Defendant's free rent program, it may have seemed illogical to the jury that Plaintiff alone was asked to renounce its policy simply because it possessed more "symbolic" attributes than the other Boy Scouts troop.12

Finally, the record supports the finding that the condition was unreasonable if the jury believed Plaintiff's argument with regard to what both sides referred to as "the working group." The working group consisted of private citizens, led by a man named Arthur Kaplan, who advocated for the rights of homosexuals and urged Defendant to evict Plaintiff if it did not change its membership policy. Needless to say, the positions of Plaintiff and Defendant do not coincide with respect to the role played by the working group in this dispute.

Plaintiff argued in its closing that "[t]he reason the city is trying to evict the Boy Scouts is because Arthur Kaplan and his working group are demanding it." (Trial Tr. 17:24-25, June 22, 2010.) According to Plaintiff, the working group put pressure on Romulo L. Diaz, Jr., the then city solicitor, to promote the interests of the gay community, of which Mr. Diaz — a gay man — is a part. (Trial Tr. 21:12-22:16, June 22, 2010.) To support this theory of improper influence, Plaintiff referred to a series of communications between Mr. Diaz and Mr. Kaplan, excerpts from some of which follow:

Referring to the repeated pressure placed on Mr. Diaz by Mr. Kaplan, Plaintiff's counsel stated the following in his closing address to the jury:

(Trial Tr. 34:20-35:19, June 22, 2010.)

Of course, as stated earlier, the opinions of Plaintiff and Defendant with respect to the role of Arthur Kaplan and the working group do not coincide. In discussing the group, Defendant's counsel stated as follows:

(Trial Tr. 79:12-19, 86:3-16, June 22, 2010.)

Defendant's argument was very well presented and made clear its ongoing commitment to not subsidizing discrimination. Throughout its closing, however, Defendant never took any blame for what was, at the least, an appearance of impropriety in the solicitor's office in what could be looked upon as preferential treatment to a group that had the inside track to the solicitor. Above all, it could have been argued that even if these overzealous advocates had special access to the solicitor, this should not obscure the laudable goal of Defendant. Sometimes, it could be argued, the end does justify the means.

In sum, Defendant's account of the role played by the working group is certainly credible, but the jury was free to give more weight to Plaintiff's argument. More specifically, the jury could have found that a group dedicated to evicting Plaintiff unless it changed its policy had an unfair advantage in advancing its agenda — an advantage that certainly an average citizen would not have if she or he wanted to advocate a particular position with the assistance of the office of the city solicitor. Put simply, it smells of cronyism — the same sort of cronyism that perhaps got Plaintiff its sweetheart no-rent deal in the first instance. As suggested above, if the jury accepted this argument, then it follows that the condition imposed upon Plaintiff, crafted by improper influence, was unreasonable.

For all of these reasons, the Court finds that the jury did not err in finding that Defendant's condition was unreasonable and therefore unconstitutional.

C. Whether the Jury Interrogatories and Instructions Relating to the Unconstitutional Conditions Claim Were Clearly Erroneous

1. Whether the Court's Instructions on the Dale Decision Were Clearly Erroneous

When instructing the jury, this Court stated that the Supreme Court's decision in Dale was relevant to the present case because it held "that the Boy Scouts could revoke membership based or around homosexuality." (Trial Tr. 9:18-19, June 22, 2010.) Defendant contends that this description was "misleading in its reference to `Boy Scouts' without instructing that the parties to that case were the Boy Scouts of America and the Monmouth Council, and not [Plaintiff]. [Defendant] has carefully distinguished the [Plaintiff] from the Boy Scouts of America — just as [Plaintiff] does in attempting to distinguish itself as an organization that does not, in fact, practice discrimination." (Def.'s Mem. 24.) Here, Defendant is essentially making the same argument that was discussed and rejected in Section III.B.1 of this Memorandum, and the Court declines to analyze this issue any further. Put plainly, there is simply no evidence that Plaintiff — as opposed to its individual members — did not associate around a viewpoint that homosexual conduct was incompatible with the Scout Oath. The Court therefore finds that it did not err in instructing the jury on the significance of the Dale decision.

2. Whether the Court Failed to Instruct the Jury on the Requirements of an Expressive Association Claim

Jury Interrogatory Number 5 asked as follows: "Do you find that Plaintiff proved by a preponderance of the evidence that Defendant would have permitted Plaintiff to continue to use its headquarters building on a rent-free basis if Plaintiff repudiated or renounced the policy of Boy Scouts of America to gays?" (Jury Interrogs. II.5, Docket No. 120.) According to Defendant, "this instruction did not cause the jury to properly consider the requisite existence of a protected viewpoint ... around which [Plaintiff] associates, and failed to instruct the jury to assess the effect of [Defendant's] condition on [Plaintiff's] expressive association." (Def.'s Mem. 26.) In addition, Defendant contends that "the Interrogatory did not permit the jury to properly consider the condition imposed by [Defendant]: comply with City laws and policies or pay fair market rent to maintain both occupancy and the discriminatory policy." (Id.) The Court is unpersuaded. First, with respect to the existence of a protected viewpoint, the jury's consideration of this issue was encompassed in the Interrogatory's reference to "the policy of Boy Scouts of America to gays." To the extent Defendant is again arguing that Plaintiff did not have such a policy and therefore had no right of expressive association, the Court rejects this contention for all the reasons set forth in Section III.B.1. Second, consideration of the condition imposed was an element of the ensuing Interrogatory, which addressed the reasonableness of the condition.

Next, Defendant takes issue with Interrogatory Number 6, which asked as follows: "Do you find that the reason Defendant imposed a condition on Plaintiff's continued occupation of its headquarters building was reasonable?" (Jury Interrogs. II.6, Docket No. 120.)13 Defendant contends that this question was improper because it did not directly ask whether the restrictions imposed were reasonable. (Def.'s Mem. 27.) The Court finds no error in the phrasing of the Interrogatory, which allowed the jury to consider both the condition and the attendant circumstances — specifically, Defendant's purpose in imposing the restrictions — in assessing whether Plaintiff met its burden of proof on the reasonableness element of its unconstitutional conditions claim.

Finally, Defendant contends that the Court erred in instructing the jury that in determining whether Defendant's attempt to evict Plaintiff was "reasonable," it merely had to decide whether there was a rational basis for Defendant's actions. (Def.'s Mem. 27; see also Trial Tr. 14:3-6, June 22, 2010.) According to Defendant, the Court should have told the jury that "'[t]he reasonableness of the Government's restriction of access to a nonpublic forum must be assessed in light of the purpose of the forum and all surrounding circumstances.'" (Def.'s Mem. 27-28 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 809, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)).) The Court disagrees. In assessing "reasonableness" in terms of whether there was a rational basis for Defendant's actions, the jury was free to consider all aspects of those actions, including their nature and purpose. Furthermore, Interrogatory Number 6 — to which, as discussed above, Defendant also objected — specifically asked the jury to consider Defendant's reasons for imposing its condition on Plaintiff. The Court therefore finds no error in how it instructed the jury on this issue.

D. Whether the Jury Verdict is Inconsistent

"[V]erdicts are inconsistent when a jury renders different verdicts on two different causes of action, even though the only contested elements were the same as to both causes of action." Directv v. Crespin, 224 Fed.Appx. 741, 757 (10th Cir.2007) (citing Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 912 (10th Cir.2004)). The Third Circuit Court of Appeals has provided district courts with four potential approaches when faced with an inconsistent verdict:

Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 217-18 (3d Cir.2009) (quoting Mosley v. Wilson, 102 F.3d 85, 90-91 (3d Cir.1996)) (footnote omitted).

Here, Defendant argues that the jury's verdict in its favor on the viewpoint discrimination and equal protection claims is inconsistent with its verdict in favor of Plaintiff on the unconstitutional conditions claim. (Def.'s Mem. 28-31.) Specifically, Defendant contends that "[t]he jury's negative response to Interrogatory No. 6 in Part II asking whether the City `imposed a condition on [Plaintiff's] continued occupation of its headquarters building [that] was reasonable' is on its face inconsistent with the remainder of the verdict...." (Id. at 29.) Defendant argues that the inconsistency must be resolved in its favor, and that it is entitled to either judgment as a matter of law or a new trial. (Id. at 28-31.) In addressing this argument, the Court looks to the verdicts themselves and the questions the jury was required to answer in making its decisions.14

The elements of Plaintiff's unconstitutional conditions claim and the Interrogatories submitted to the jury in conjunction with this claim are discussed at length above. To reiterate, in order to have found in favor of Plaintiff on the unconstitutional conditions claim, the jury had to conclude that Defendant's condition compromised a First Amendment right and was either unreasonable or lacked viewpoint neutrality. Having found that the condition affected a First Amendment right and was unreasonable, the jury did not decide whether it was viewpoint neutral.

With respect to Plaintiff's nonpublic forum/viewpoint discrimination claim, the jury was asked the following four questions:

(Jury Interrogs. I.1-4, Docket No. 120.) The jury answered all four questions in the affirmative, and found in favor of Defendant on the viewpoint discrimination claim. (Id.) Finally, the jury was asked four questions in connection with Plaintiff's equal protection claim:

(Jury Interrogs. III.8-11, Docket No. 120.) The jury answered "Yes" to the first three questions and "No" to the final question, resulting in a verdict in favor of Defendant. (Id.)

After careful review, the Court finds no inconsistency among the three verdicts. In the nonpublic forum/viewpoint discrimination Interrogatories, the jury found that Defendant opposed Plaintiff's views with respect to homosexuals, but that its reasons for attempting to evict Plaintiff were reasonable and viewpoint neutral. In other words, although Defendant may have disagreed with Plaintiff's policy, the jury concluded that its purpose in attempting to terminate the lease was to enforce compliance with its nondiscrimination laws, not to suppress Defendant's viewpoint. In its equal protection analysis, the jury concluded that while Defendant treated Plaintiff differently than other similarly situated groups, it had a rational basis for wanting to terminate Plaintiff's lease, and therefore any disparate treatment did not rise to the level of a constitutional violation.

These two verdicts can be easily contrasted with the jury's decision on the unconstitutional conditions claim, which held that the particular condition imposed by Defendant was unreasonable. Whereas the viewpoint discrimination and equal protection claims addressed why Defendant did what it did to Plaintiff — especially in relation to other groups with different views — the unconstitutional conditions claim dealt more specifically with what Defendant did to Plaintiff. As previously stated, the jury could have determined that the condition was too broad, and therefore unreasonable, because it interfered with First Amendment activity unrelated to the subsidy at issue. Such a conclusion would not require a concomitant finding of viewpoint discrimination or an equal protection violation.

Furthermore, even if the jury's verdict could be considered inconsistent, the Court has the discretion to allow an apparent inconsistent verdict to stand, and is not convinced that a new trial is warranted in this case. As discussed before, in addition to creating an overly broad speech restriction, the condition at issue was not imposed on another Boy Scouts group with the same policy, and was implemented at the behest of an advocacy group that may have had an improper influence on the solicitor's office. All three of these factors support a finding of unreasonableness. Therefore, regardless of how the jury decided the viewpoint discrimination and equal protection claims, there is ample evidence to support a verdict in Plaintiff's favor on the unconstitutional conditions claim, and so there is no inherent unfairness in denying Defendant a new trial on this issue. As such, Defendant's Motion for Judgment as a Matter of Law and, Alternatively, for a New Trial is denied.

IV. CONCLUSION

For all of the foregoing reasons, the Court finds that the United States Supreme Court's decision in Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, ___ U.S. ___, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) does not mandate judgment as a matter of law in Defendant's favor on Plaintiff's unconstitutional conditions claim. The Court also concludes that Plaintiff introduced sufficient evidence for the jury to find in its favor on the unconstitutional conditions claim, that the Court did not err in issuing its instructions and interrogatories to the jury, and that the jury's verdict is not inconsistent. In the alternative, even if the verdict could be considered inconsistent, the record is replete with evidence to support a verdict in favor of Plaintiff on the unconstitutional conditions claim, and so a new trial is not warranted. Accordingly, Defendant's Motion for Judgment as a Matter of Law and, Alternatively, for a New Trial is denied.

An appropriate Order follows.