CURRAN v. MOUNT DIABLO COUNCIL OF BOY SCOUTS OF AMERICA

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Court of Appeal, Second District, Division 7, California.

Timothy CURRAN, Plaintiff and Appellant, v. MOUNT DIABLO COUNCIL OF the BOY SCOUTS OF AMERICA, Defendant and Appellant.

No. B061869.

Decided: March 29, 1994

Jon W. Davidson, Paul L. Hoffman, Los Angeles, and Richard H. Green, Santa Monica, for plaintiff and appellant. Eisen & Johnston, Jay–Allen Eisen, Marian M. Johnston, Karen Leaf and Ann Perrin Farina, Sacramento, as amici curiae on behalf of plaintiff and appellant. Hughes Hubbard & Reed, George A. Davidson, John Kralick, IV, and Lois C. Moonitz, New York City, for defendant and appellant.

I.

INTRODUCTION

This opinion does not address any moral or social issues relative to homosexuality.   Similarly, this opinion does not address the question of whether a homosexual can be deprived of the privilege of membership in the Boy Scouts of America.   This opinion addresses the right of the Boy Scouts to freedom of expressive association and its right to preserve the basic tenets of the scouts as expressed in its charter when selecting adults for leadership roles.

Mount Diablo Council of the Boy Scouts of America (“Mt. Diablo Council” or “Council”) is a nonprofit, volunteer-run organization that supports Boy Scout troops in two northern California counties.   The trial court found it is an “expressive association” that exists to “ ‘instill values in young people and ․ prepare them to make ethical choices over their lifetime in achieving their full potential.’ ”

In 1980, Timothy Curran (“Curran”) took a male date to the senior prom and took advantage of the resulting press coverage to let the public know that he was “proud of being gay—someone who didn't just say it, but who acted on it.”   The following fall, he sought to be an assistant scoutmaster in part because of his desire to show there was “not anything wrong with it.”   The parties' conflicting moral viewpoints gave rise to this lawsuit when Mt. Diablo Council told Curran in November 1980, that it would not approve him as an adult leader of boy scouts.

Curran's suit is based solely upon the Unruh Act (the “Act”), Civil Code section 51, which prohibits discrimination in “business establishments.”   The trial court took the position that the question whether scouting's views were wise was not before her:

“The issue, of course, is not whether the defendant's view is correct, or enlightened, or even best calculated to achieve the organization's broader goals.”

Rather, the trial court saw its task to decide whether the state could constitutionally impose its own views via the Unruh Act regarding who can be a “morally straight” scoutmaster upon a voluntary expressive association.   As hereafter discussed, we hold that the trial court correctly decided that the state could not, albeit we disagree with part of the decision of the trial court.1

II.

PROCEDURAL HISTORYA. The Previous Appeal Considered The Issue Of The Sufficiency Of Plaintiff's Complaint To State A Cause Of Action.

This court's holding in Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 195 Cal.Rptr. 325, (“Curran I ”) was expressly limited to examining the sufficiency of the complaint.  At p. 719, 195 Cal.Rptr. 325 of Curran I this court stated:  “ ‘Our only concern in this case is whether plaintiff has succeeded in stating a cause of action.’ ”

As the court below noted:  “[Curran I ] was a pleading case and the Court of Appeal necessarily held only that the allegations of the complaint were sufficient to withstand a demurrer;  a great deal of evidence not referred to in the pleading was presented at trial regarding the purpose of the organization and the relationship amongst its members which might have affected the outcome.”  (Emphasis added.)

B. This Appeal And Cross–Appeal Is From A Judgment After Trial By The Court During Which Two Major Issues Were Resolved In A Bifurcated Trial, i.e., (1) Whether Mt. Diablo Was Proven To Be A Business Establishment Under The Unruh Act, And (2) Whether Application Of The Act To Compel The Hiring of Curran Would Constitute A Violation Of The First Amendment.

1. Phase I of Trial:  Business Establishment Issue.2

On November 6, 1990, the court issued its decision regarding “business establishment.”   Judge Disco read the precedents available to her at that time as having caused “[t]he word ‘business' ” to lose “its commonly understood meaning.”   The court held that the term “business” operated simply as an excluder, sweeping in all organizations except “a small intimate, private club.”   The court held that the Mt. Diablo Council could not prove it was a “small, intimate, private club” based on the number of Scouts in the Council (approximately 13,500), a lack of selectivity in membership, and a “public orientation and prominence in the community.”   In holding that the evidence showed that Mt. Diablo Council was a “business establishment” within the Unruh Act, the court recognized that it was extending the Unruh Act beyond any previously reported case by the following statements:

1. “Unlike all the cases, except Isbister, which have been decided to date, the Council has no substantial, or even significant, business purpose.”

2. “Unlike the Boys Club in Isbister, Mt. Diablo Council is not a single purpose organization operating a traditional ‘public accommodation.’ ”

3. “[U]nlike all the other cases which have been decided to date, scouting activities take place principally in small, intimate primary groups where the relationships among the members can be characterized as continuous, close and personal.”

4. “The benefits which the scouts and scouters receive from participation in the program are overwhelmingly personal and non-economic.”

5. “The court does not find that participation in scouting enhances a Boy Scout's chances of getting into the college of his choice or of advancing in his chosen career to a greater extent than participation in any activity that can be included in a resume would.   The evidence does not establish that boys join the scouts for any kind of financial reward.”

2. Phase II of Trial:  Expressive Association Issue.

Phase II of the trial considered whether using the Unruh Act to force the Mt. Diablo Council to install Mr. Curran as an adult scouter would violate the First Amendment right of freedom of association.

The court primarily considered the question presented by the expressive association defense:  May a plaintiff such as Mr. Curran “who has publicly acknowledged his or her homosexuality and has expressed beliefs contrary to the Boy Scouts' view regarding the immorality of homosexuality,” use the force of the state to compel Boy Scout councils, troops, and patrols, to recognize him as a role model and place him in a position of influence over its young members?

The court relied upon Roberts v. United States Jaycees (1984) 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462, to provide “the framework for analyzing defendant's constitutional claims.”  “The issue is simply whether application of the Unruh Act here would substantially interfere with Mt. Diablo Council's ability to achieve its expressive goals.”

The court below reviewed the evidence and found that there would be substantial interference with Boy Scouts' expressive activities.   The court based its decision on two factual conclusions which find support in the record:

First, based on evidence that was “not directly contradicted,” the court found that since its inception, scouting has sincerely viewed homosexuality as immoral behavior inconsistent with the Scout Oath, in which a scout promises to be “ ‘morally straight,’ ” and the Scout Law's requirement that a scout be “ ‘clean.’ ”   Based upon this uncontradicted evidence, the court made the factual finding that there was a nexus between the exclusion of Curran and “the belief system which defines the organization.”

Second, the court made the factual finding, again based upon a record which compelled the conclusion, that Mt. Diablo Council had established “by a preponderance of the evidence” that forced inclusion of a scout leader such as Curran would “substantially interfere with Mt. Diablo Council's ability to achieve its expressive goals,” and “would substantially impact the defendant's ability to get across its preferred message in its preferred way.”

III.

STATEMENT OF FACTS

Mt. Diablo Council “is a California non profit corporation chartered by the National Council of the Boy Scouts of America to support the troops, packs and posts in its geographic area.”   The Council is principally composed of volunteers from scouting groups in Alameda and Contra Costa Counties.

A. Boy Scouting Is An Expressive Association.

Unlike all of the entities which have been found to be business establishments under the Unruh Act, Mt. Diablo Council is an “expressive association.”   All of the Council's activities are directed to the express purpose of instilling values in young people:  “The Boy Scout Mission is ‘to serve others by helping to instill values in young people and in other ways prepare them to make ethical choices over their lifetime in achieving their full potential.’   All Boy Scout activities are designed to further this mission.”  (Emphasis added.)   As stated by scouting's founder, Robert S.S. Baden Powell:  “ ‘Don't let the technical outweigh the moral.   Field efficiency, backwoodsmanship, camping, hiking, good turns, jamborees, comradeship, are all means, not the end.   The end is character.   Character with a purpose.’ ”

As the court found, “[t]he values that the Boy Scouts seek to instill and the rules and regulations governing a Scout's conduct are grounded in the Scout Oath and Law.”   The Scout Oath is the Boy Scout's moral credo:

“SCOUT OATH OR PROMISE

“On my honor I will do my best

“To do my duty to God and my country

“and to obey the Scout Law;

“To help other people at all times;

“To keep myself physically strong,

“mentally awake, and morally straight.”

The Scout Law is “the foundation on which the whole Scouting movement is built,” According to Scout Law, a scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent.

Throughout their activities, scouts continually focus upon the ideals of the scouting movement, which are constantly recited, modeled, taught, positively reinforced and demonstrated.   At the beginning of each meeting, the boys recite the Scout Oath and Scout Law.   At the end of each meeting, the scoutmaster tells a story or a parable to “inspire the kids to live by the Scout Oath and Law in their everyday life.”   At each level of advancement, the boys describe to their scoutmaster or a review board of adult leaders how they are living their lives in accord with the Scout Oath and Law.

Curran himself viewed scouting, and particularly its Eagle Scout award, in moral terms.   At trial, Curran described the Eagle award as a moral statement, and as one of the few awards in American society that shows how moral you are.

B. Mt. Diablo Council And Timothy Curran Had Conflicting Views And Beliefs Regarding The Morality Of Homosexuality.

The court below determined that Curran and the Mt. Diablo Council held different ideologies and philosophies regarding the morality of homosexuality.

1. Scouting views homosexuality as immoral.

As the court found, “[s]exual morality is addressed in the Boy Scout Oath and Law under the rubric of ‘morally straight’ and ‘clean.’ ”

At every meeting, scouts promise to keep themselves morally straight and clean.   The Boy Scout Handbook advises the boys that being “clean” goes beyond washing off dirt, and encompasses getting in with a “clean crowd” with a “clean outlook on life,” and staying away from “swearing and telling dirty stories.”

The Scout Oath and Law is:  “[A] positive code of life.   It's not a litany of negatives.”   Rather than cataloguing sexual practices which are not morally straight, the Boy Scout Handbook presents an approach to sexuality that emphasizes marriage and fatherhood and counsels against premarital sex:  “When you live up to the trust of fatherhood your sex life will fit into God's wonderful plan of creation.   Fuller understanding of wholesome sex behavior can bring you lifelong happiness.”

As the court found:  “[T]he evidence establishes that the Boy Scouts of America as an organization has taken a consistent position that homosexuality is immoral and incompatible with the Boy Scout Oath and Law, that Mt. Diablo Council has adopted this position, and that this is the view that is communicated whenever the issue comes up.”   The court based this conclusion on the testimony of witnesses uniquely qualified to testify regarding both the official position of the organization and how the organizations' members hold and carry out those beliefs in the Mt. Diablo Council over an extended period of time and over a broad area of the Council's activities.

2. Curran did not qualify for scouter status because he modeledand advocated a homosexual lifestyle.

Curran “wished to become a ‘Scouter,’ the Boy Scouts' term for an adult troop leader.”   At the time Curran sought to be a scouter, he “ha[d] publicly acknowledged his ․ homosexuality and ha[d] expressed beliefs contrary to the Boy Scouts' view regarding the immorality of homosexuality.”

In June 1980, Curran had given an interview to the Oakland Tribune, which portrayed him as an “avowed homosexual” and “gay youth activist.”   In the article, which described Curran's attendance at his senior prom with a male date, Curran described himself as someone “ ‘who was proud of being gay—someone who didn't just say it, but who acted on it.’ ”   In an article that he wrote that same month for the Gay Youth Community News, Curran described the statement he was trying to make by going to his prom:  “This was my last chance to say with actions as well as words, ‘Gay is OK.   Gay people are as good as straight people, and can do anything they can.’ ”

A few months later, Curran advised Mt. Diablo Council's scout executive, Quentin Alexander, that he wanted to be an adult leader.   In the meantime, several scouters had brought Curran's statements to the media to Alexander's attention.  “Mr. Alexander testified that he told Mr. Curran that a meeting was necessary because he recognized that the views and lifestyle that Mr. Curran had exhibited and advocated ” in the Oakland Tribune article were “inconsistent with the basic principles of Scouting.”  (Emphasis added.)

As the accounts of the meeting given by both Alexander and Curran show, Curran was not terminated for his secret homosexual desires, but because his espousal of a homosexual lifestyle and his advocacy of homosexuality conflicted with the Boy Scouts' standards for role models and leaders:  “Mr. Curran then testified that Quentin Alexander ‘asked me if I espoused that lifestyle still.’   Mr. Curran said that he did;  and Mr. Alexander indicated that he could not accept the application and explained the process for appealing that decision.   Mr. Alexander then testified that Mr. Curran had said that ‘he specifically wanted to [be in the Scouts]—because he so firmly believed personally in a homosexual lifestyle that there was, quote, not anything wrong with it and he wanted to make sure that other kids understood that.’ ”  (Emphasis added and fns. omitted.)

IV.

DISCUSSIONA. The Trial Court Properly Determined That The First Amendment Protected Scouting Activities As Expressive Association And Curran's Forced Inclusion Would Infringe Upon Those Rights.

 Freedom of association is a fundamental liberty protected by the First and Fourteenth Amendments to the United States Constitution and the first three articles of the California Constitution.  (N.A.A.C.P. v. Alabama (1958) 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488;  Britt v. Superior Court (1978) 20 Cal.3d 844, 852, 143 Cal.Rptr. 695, 574 P.2d 766;  see 7 Witkin, Summary of Cal.Law, (9th ed. 1988) Constitutional Law, § 271, pp. 387–388.)

 The freedom to associate to promote shared values presupposes “the freedom to identify the people who constitute the association, and to limit the association to those people only.”  (Democratic Party of U.S. v. Wisconsin (1981) 450 U.S. 107, 122, 101 S.Ct. 1010, 1019, 67 L.Ed.2d 82.)   In Roberts v. United States Jaycees, supra, 468 U.S. 609, 623, 104 S.Ct. 3244, 3252, the Court recognized that “freedom of association therefore plainly presupposes a freedom not to associate.”   Indeed, the very concept of expressive association assumes a group of like-minded individuals associating for the purpose of promoting shared ideas, values and philosophies.   Curran does not contest the trial court's finding that “Defendant's Activities are Overwhelmingly Expressive.”

Contrary to Curran's suggestion that protected expression must be a “direct public position,” scouting's messages to its own membership are as fully protected as messages directed to society as a whole.  (See Roberts v. United States Jaycees, supra, 468 U.S. at p. 636, 104 S.Ct. at p. 3259 (O'Connor, J., concurring) [“protected expression may also take the form of quiet persuasion, inculcation of traditional values, instruction of the young,” citing the Boy Scout Handbook].)

In any event, Curran's claim about a lack of public position by the Boy Scouts regarding homosexuality is contradicted by the allegations of his own original petition:  “The defendant Mt. Diablo Council of the Boy Scouts of America has publicly characterized the plaintiffs as immoral because they are of homosexual orientation.”

B. The Trial Court Correctly Determined That A State Regulation Violates The First Amendment Where It Substantially Impairs First Amendment Activities.

 The Supreme Court of the United States has reviewed the interrelation between the right of association and state anti-discrimination legislation in three cases—all of which were decided after the decision in Curran I:  Roberts v. United States Jaycees, supra, 468 U.S. 609, 104 S.Ct. 3244;  Bd. of Dirs. of Rotary Int'l v. Rotary Club (1987) 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474;  New York State Club Assn. v. New York City (1988) 487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1.   Curran selectively reads these cases to show that a state antidiscrimination law always overrides the right of freedom of association.   However, the court below properly recognized that these cases stand for the proposition that an application of a state law that “substantially interfere[s]” with an organization's “ability to achieve its expressive goals” is unconstitutional.   While there was no basis in the record, in those cases for concluding that forced admission would have such an effect (Roberts v. United States Jaycees, supra, 468 U.S. at p. 627, 104 S.Ct. at p. 3254), here there is overwhelming evidence in the record that Curran's forced admission in this case would cause substantial interference with expressive association.

C. There Is No “Test” Requiring The Court To Ask An “Initial Question” Regarding The Views That Brought Individual Members Into The Association.

 Because the Council satisfied the test set forth in Roberts, Curran attempts to erect a new hurdle—an “initial question” that would prevent virtually every organization with expressive purposes from asserting the right of expressive association.   Thus, Curran's principal point on appeal is that the court below applied the wrong test by answering what Curran calls “the incorrect initial question” or failing to answer what Curran considers the “correct initial question.”

Although Curran does not clearly articulate the barrier that he seeks to erect to expressive association, he appears to be suggesting that it was mandatory that the court make findings showing that the members of Mt. Diablo Council, perhaps all of them, joined together, specifically, and perhaps only because of, a belief in the immorality of homosexual conduct.   Of course, no organization could ever comply with such a test because one could most certainly find a particular member who disagreed with, or was unaware of, a particular value.   For example, not every member of the Democratic Party supports removing the military's ban on homosexuals.   Not every member of the Catholic Church agrees with its stands on abortion and birth control.   Indeed, we doubt whether every member of the ACLU supports its willingness to defend the expressive activities of the Ku Klux Klan while attacking the expressive activities of Boy Scouts.  (See Invisible Empire, KKK v. Mayor et al. of Thurmont (D.Md.1988) 700 F.Supp. 281.)   Although Curran cites the Ku Klux Klan as an organization established for the specific expressive purposes of discriminating, the case indicates that the Grand Dragon of the Klan testified that “he personally does not believe in white supremacy.”  (Id., at p. 289, fn. 2.)   Nevertheless, the court found that the “group as a whole” held this belief “as reflected in their brochures.”  (Ibid.)

As shown below, Curran's purported “test” is not required by Roberts, Rotary, New York State Club Ass'n. or any other case.

1. Curran's “test” is not contained in Roberts.

Curran complains that his “test” was incorrectly applied by the trial court.   Curran's “test” is constructed by combining two phrases from the opinions in Roberts and Rotary.

The first passage Curran relies on is extracted from Roberts and states:  “There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire.   Such a regulation may impair the ability of the original members to express only those views that brought them together.   Freedom of association therefore plainly presupposes a freedom not to associate.”  (Emphasis added.)  (Roberts v. United States Jaycees, supra, 468 U.S. at p. 623, 104 S.Ct. at p. 3252.)   Clearly, the language selected by Curran was not meant to erect a barrier to further analysis, but was intended merely as an example of how state action may impair First Amendment rights.

The remainder of Curran's test extracts two words from the following sentence in Rotary:  “In this case, however, the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members ability to carry out their various purposes.”  (Emphasis added.)   (Bd. of Dirs. of Rotary Int'l v. Rotary Club, supra, 481 U.S. at p. 548, 107 S.Ct. at p. 1947.)   In this quote, the Court is not talking about members' reasons for joining.   The Supreme Court is merely pointing out that the Rotary Club failed to make the showing that the record to the contrary supports in this case that Mt. Diablo Council's expressive activities would be impaired.

The test which Curran invites this court to employ does not exist.   We decline the invitation to construct such a test.

2. In determining the views of the members, the trial court properly looked to viewpoints and beliefs of the organization, which is the expressive voice of its members.

 Curran claims that the trial court erred by making findings regarding the “belief system of the organization,” and instead should have made findings regarding the beliefs of the individual members and reasons for joining the organization.   This is a belated 3 and unmeritorious attempt to raise the issue of the organization's standing to assert the expressive association rights of its members.   As an expressive association, Mt. Diablo Council has standing to raise the associational rights of its members.  (N.A.A.C.P. v. Alabama, supra, 357 U.S. 449, 459, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488.)

Especially in a voluntary organization, where members who disagree with the organization's expressions are free to leave at any time, the organization is an appropriate vehicle to raise the expressive association rights of its members since for all practical purposes the expressions of the group are the expressions of the members.  (Ibid.) 4  (See New York State Club Assn. v. New York City, supra, 487 U.S. at p. 10 fn. 4, 108 S.Ct. at p. 2232 fn. 4;  Hunt v. Washington Apple Advertising Comm'n (1977) 432 U.S. 333, 342, 97 S.Ct. 2434, 2440, 53 L.Ed.2d 383;  Warth v. Seldin (1975) 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343;  Lindenbaum v. Philadelphia (E.D.Pa.1984) 584 F.Supp. 1190, 1194.)   Here, the interest that the organization seeks to protect, the right to maintain standards of leadership, is clearly “germane to its purpose,” and the organization therefore has standing.  (New York State Club Assn. v. New York City, supra, 487 U.S. at p. 10, fn. 4, 108 S.Ct. at p. 2232 fn. 4.)

D. The Record Amply Supports The Trial Court's Conclusion That The Stand Against Homosexual Conduct Is Part Of The Belief System Of The Organization.

Mt. Diablo Council proved that a belief in the immorality of homosexuality was a long-standing policy 5 and belief of the organization.   The trial court found, based on the testimony of “[n]umerous witnesses” that “it has been Boy Scouts' long standing belief that homosexuality is immoral and inconsistent with the Scout's view of ‘morally straight’ and ‘clean.’ ”   It is clear from the court's references to testimony and “Boy Scouts” that this finding refers to a general belief on the part of the organization and its members.

Curran's own petition for writ of mandate alleged that the Mt. Diablo Council had a membership requirement that “all members ․ must hold to the Judeo–Christian belief that to be a homosexual is to be immoral per se.”   Mt. Diablo Council called as witnesses a representative cross-section of volunteers and scout professionals, who testified that homosexual conduct was inconsistent with the Scout Oath and Law.   The testimony of these members was directed both to the general understanding of the organization and its members, and to the individual understanding of the witnesses.

The volunteer president of the Mt. Diablo Council at the time of Curran's application to be a scouter testified that he understood homosexuality to be inconsistent with the Scout Oath and Law based upon what he had learned from scouting and church leaders.

Richard Krieger, a veteran scoutmaster who trained the majority of scoutmasters in the Mt. Diablo Council and had visited the majority of its individual troops, testified that the immorality of homosexuality was “an agreed understanding by all those who are training people in the Boy Scout Ways,” and we consider it “unclean and immoral.”

As noted by the court, Quentin Alexander, the scout executive for the Mt. Diablo Council, testified that Boy Scouts of America had taken a consistent stand against homosexuality, and continued to emphasize it in a consistent manner.   Curran's counsel cross-examined Alexander on this point, and established that this was also the belief and view of the Mt. Diablo Council.   In addition, many individual members had communicated their support for the position to Mr. Alexander.

Likewise, Julian Dyke, with more than half a century of experience in scouting as a volunteer and a professional, testified to a general historical understanding that “homosexuality was an immoral behavior and had no place in scouting.”   He testified that the leaders in scouting “hold those values and they hold them strongly.”   He also testified that this was his individual understanding, as “explained, interpreted and modeled to me by adult leaders.” 6

The general president of the Young Men's Organization of the Mormon Church, with responsibility for 325,000 young men in 24,000 scout troops, testified that “the Boy Scouts of America has given a principle of being morally straight that's well understood in our faith.”

Substantial evidence supported the findings regarding the belief system of the organization.

The trial court rejected the weight and credibility of Curran's attempt to rebut this factual showing.   The court found that Curran's witnesses,7 including Curran himself, were conspicuously unwilling to state directly that scouting viewed homosexuality as morally straight:  “The testimony that the Boy Scouts view homosexuality as immoral was not directly contradicted.   No witness testified that he or she understood homosexuality to be consistent with the Scout Oath and Law and that the Boy Scouts so regarded it.”

The credibility of Curran's witnesses was impeached at trial.8  All of these witnesses had been out of scouting for more than 10 years.   Justifiably, the court below gave limited weight to this testimony.

Thus, the trial court found the Boy Scouts' evidence and witnesses to be credible and convincing on the question of the belief system of Boy Scouts in general, and the sincerity of those beliefs:

“The defense witnesses' sincerity on these points was not impugned at trial.   Nothing in the evidence indicates that the Boy Scouts' belief that homosexuality, is immoral was adopted simply as a pretext or a post hoc justification for the exclusion of homosexuals from participation in the organization.”

E. Overwhelming Evidence Justifies The Lower Court's Factual Finding That Forced Inclusion Of A Person Such As Curran Would Interfere With The Expressive Activities Of The Boy Scouts.

 In seeking to be a scouter, Curran sought a critical role in the expressive activities of the organization.9

The lower court found that inclusion of an open and avowed homosexual such as Curran “would either undermine the force of the Boy Scout view that homosexuality is immoral and inconsistent with the Scout Oath and Law, or would undermine the credibility of the Scoutmaster who attempts to communicate that view.”   Contrary to Curran's assertions that the court relied upon “a form of stereotypical thinking” and “factors condemned by case law,” the court's conclusion was based upon substantial evidence presented below.

Viewed dispassionately, and without regard to one's own personal view as to whether homosexuality is moral or immoral, Boy Scouts' exclusion of an adult leader who openly models or advocates homosexual behavior is no more or less rational than its exclusion of a leader who modeled or advocated any other type of behavior that it seeks to discourage.   Unless scouting can determine its own standards of morality, it will be disabled as a teacher of moral views on any subject.

1. The imposition of a leader who is an improper role model is a severe intrusion upon the First Amendment activities of an expressive association.

 “In any organization, the leader occupies a sensitive role with respect to the articulation and transmittal of the group's values.”   The leader is the prime expressor in an expressive association, and this is particularly true in scouting, because the “Scouting program is organized around the principle that the most effective way to teach the values of Scouting is through the leadership, counseling and example of the Scoutmaster.”   The scoutmaster may be the most influential adult in a boy's life other than the boy's own parents.   Even after the scouts leave the troop, scouts often remain close to the scoutmaster and continue to discuss ethical issues with him.

The assistant scoutmaster, the position sought by Curran, is the next most important adult to the scoutmaster.   He or she must assist the scoutmaster and assume the scoutmaster's duties when the scoutmaster is not there.

As the court below recognized, the intrusion on expressive rights is even greater when the state substitutes its judgment for the organization's in choosing members to model the organization's values.   The undisputed evidence showed that an avowed homosexual scoutmaster would cause the boys to be more likely to believe that homosexual conduct is morally straight and more likely to engage in homosexual conduct.

a. Effect on counseling and direct teaching.

As found by the court below, adult leaders have a definite role in counseling the boys on sexual matters and communicating to them the Boy Scouts' views on morality:  “While the Scoutmaster does not engage in any formal instruction regarding sexual matters, his or her role extends to monitoring and counseling with respect to sexual behavior.”  (Emphasis added.)   The adult leader must be prepared to respond to the boys' direct “questions that come up or any issues of sexual activity as they come up.”   The Scoutmaster Handbook confirms that “If Scouts came to you to ask questions or to seek advice [about sex], you would give it within your competence.”

Curran, on the other hand, testified that as a scouter he would have advised scouts that homosexual acts are or can be moral.   In his original complaint, Curran cited his desire both to be a scouter and to be a homosexual advocate to his peers through the press:  “Plaintiff, Timothy Curran wishes to continue to make statements [regarding homosexuality] to his peers through the press, associate with other homosexuals and to achieve the status of an adult ‘Scouter’ within the Mt. Diablo Council of the Boy Scouts of America Troup 37.”   Expert testimony showed that this type of counseling would adversely impact the transmission of Boy Scouts' values regarding homosexuality and would increase the extent to which scouts would engage in homosexual conduct.

Curran's experts admitted the impact of moral teachings in discouraging homosexual conduct.   Dr. Judd Marmor, former president of the American Psychiatric Association, testified that fixed homosexual erotic attraction occurs in a relatively small number of males, four percent.   But homosexual behavior can occur in a much larger group of men and boys—over half of the population.   Dr. Marmor acknowledged that these males will be influenced not to engage in homosexual behavior by a variety of personal or sociological influences, such as religious convictions or the demands and restrictions of the culture.   Dr. Uribe, Curran's other expert, also acknowledged that teachings regarding morality affect decisions regarding sexual behavior.

b. Role modeling and other indirect influences.

As Curran's expert conceded, even in the absence of direct teaching,10 the role model of an avowed homosexual adult leader would have an effect on the sexual values and conduct of boy scouts.   Mt. Diablo Council's expert evidence showed that an avowed homosexual scoutmaster would affect boys' sexual mores and behavior.   The scoutmaster develops a close, personal relationship with each boy.   Scoutmasters “directly influence ethical decision-making by Scouts” through “[p]ersonal example as an ethical person.”   A scoutmaster is a model in and out of the program.   The scouts “will attempt to emulate everything that he stands for.”   Once the homosexuality of the leader were known, it would become something that “every boy would have to deal with.”

2. Forced admission of avowed homosexual scout leaders would break apart Boy Scouts' association with religious groups.

As a result of scouting's commitment to spiritual values,11 65 percent of Boy Scout troops in America are chartered directly by religious organizations.   In 1980, religious organizations sponsored half of the troops in the Mt. Diablo Council.   The Mormon Church sponsored between 25 and 30 percent of the troops.   The Presbyterian, Lutheran, Roman Catholic and Methodist Churches also sponsored troops.   As shown by the evidence, forced inclusion of homosexuals such as Curran would break apart the moral compact that holds together scouting's close associations with traditional religions that believe homosexuality is immoral.

Religious groups associate with scouting based on a shared value system, which includes a belief that homosexual conduct is inconsistent with the Scout Oath and Scout Law.   Representatives of the Catholic, Mormon and Methodist scouting programs, scouting's three largest religious sponsors, testified such a change would cause these religions to separate their youth programs from scouting.   The admission of avowed homosexuals would negatively impact a broad range of scouting's religious relationships, lessening the commitments of some religions, causing the loss of other relationships entirely, and causing a significant decline in youth and adult membership.

F. Curran Seeks To Minimize The Showing Of Interference With Expressive Activities By Recasting The Case On Appeal.

Rather than confront the evidence of interference with scouting's expressive activities, Curran seeks to reframe the issue in terms of homosexual “status.”   Homosexual status is neither the basis on which Mt. Diablo Council acted with respect to Curran nor the basis for its policy with respect to known or avowed homosexuals.

1. Curran was excluded because he was a model and advocate of the homosexual lifestyle.

Relying on an argumentative interpretation of findings made five years before trial at a motion for summary adjudication of issues, to the effect that Curran was refused admission because of his “homosexuality” or because he “was a homosexual,” Curran seeks to create a synthetic fact situation in which he was avowedly excluded solely because of secret, unarticulated and unexpressed homosexual desires.

There is no conflict between the facts as proved at trial and the summary adjudication findings made in 1985 pursuant to a now revised procedure.12  Homosexuality is identifiable only by conduct or affirmation;  in other words, expressive activity:  “Homosexuality is ․ behavioral and hence is fundamentally different from traits such as race, gender, or alienage․”  (High Tech Gays v. Defense Ind. Sec. Clearance Off. (9th Cir.1990) 895 F.2d 563, 573.)

The trial made clear that it was this expressive element, necessarily part of any finding of homosexuality, that formed the basis for Curran's exclusion.   Curran's counsel asked Alexander “What was it about Tim's homosexuality that would make it—that you could not accept an application from him?”   Alexander answered:  “It really related to at that point the best information we had was in the article in terms of homosexual activities and promoting the homosexual lifestyle because the newspaper article was very explicit about Tim's interest in doing that․”  It was Curran's conduct and advocacy, rather than his status, that caused his exclusion.

2. Overbreadth of Boy Scouts' policy is not at issue.

 Curran's argument that Boy Scouts must prove that it has the least restrictive policy necessary is not supported in the case law.13  Actually, the case law demonstrates that an expressive association has broad latitude in determining the reach of membership policies related to its expressive voice.   For example, in Democratic Party of U.S. v. Wisconsin, supra, 450 U.S. 107, 101 S.Ct. 1010, the Supreme Court stated that:  “[A] State, or a court, may not constitutionally substitute its own judgment for that of the Party.   A political party's choice among the various ways of determining the makeup of a State's delegation to the party's national convention is protected by the Constitution.”  (Id., at pp. 123–124, 101 S.Ct. at p. 1020;  see also id., at p. 124, fn. 27, 101 S.Ct. at p. 1020 fn. 27.)

Curran's only authority for his claimed right to argue overbreadth is another “test” composed of words winnowed from the Rotary decision.   Curran argues that infringement occurs only where individuals are required to “ ‘abandon or alter’ ” expressive activities.   The full quote from the Rotary decision is as follows:  “But the Unruh Act does not require the clubs to abandon or alter any of these activities.”  (Emphasis added.)  (Bd. of Dirs. of Rotary Int'l v. Rotary Club, supra, 481 U.S. at p. 548, 107 S.Ct. at p. 1947.)   Once again, the Supreme Court was commenting on a lack of evidence of interference with expressive activities in the Rotary case, not setting up a barrier to expressive association.   In any event, here the relief requested would cause the Boy Scouts to “abandon or alter” the method of encouraging traditional sexual morality and conduct by choosing only leaders who would model and counsel such conduct.

The Boy Scouts' policy is directed to persons “professing and practicing the homosexual lifestyle.”   The policy does not depend on status or orientation of the individual as a homosexual, but rather on whether an individual would model homosexuality or teach that homosexual conduct is moral.   A heterosexual or a homosexual who did not engage in homosexual conduct, would be dismissed if he were to counsel the boys that homosexual conduct was moral.   It is the effect on the boys that is important.   As Curran himself pointed out, the policy is directed to persons like himself, “who [are] not going to shut up about it.” 14

Curran postulates on appeal a strained hypothetical of overbreadth.   If a known homosexual agreed that he would counsel the boys against homosexuality, the “hypocr[is]y of it would overwhelm whatever compensations they could make.”   In any event, Curran is not aggrieved by any hypothetical over- or under-breadth of the policy.   His actions and statements showed him to be a role model of homosexual conduct and an advocate for the position that “ ‘Gay is OK.’ ”

G. In The Context Of The Purely Voluntary Activities, The Compelling State Interest Underlying the Unruh Act Does Not Justify Interference With An Expressive Association's Right To Choose Leaders.

 The court assumed as a matter of law that California had a compelling state interest in eliminating discrimination in business establishments and that this interest extended to eliminating such discrimination against homosexuals.   Indeed, Mt. Diablo Council conceded as much.   But in this case, the core of the state's interest, insuring equal opportunity to commercial advantages and public accommodations, was not implicated at all.   Under these circumstances the court properly held that the state interest does not outweigh the First Amendment rights.

1. The state's interest must be balanced against the extent of infringement of constitutional rights.

Curran claims that the trial court committed error by balancing the state's interest against the constitutional infringement shown.   Curran contends that having identified the existence of a compelling state interest which generally supports the statute, the court should simply have overridden the constitutional rights involved.

If Curran's analysis was correct, the ACLU would be obsolete, for there would be no constitutional rights to protect.   This court pointed out the correct approach in Curran I:  “ ‘The character and extent of any interference with the freedom of association must be weighed against the countervailing interests.’ ”  (Curran I, supra, 147 Cal.App.3d at p. 730, 195 Cal.Rptr. 325.)

In view of the fundamental role of associational freedom in checking government's control over the expression of ideas, the Supreme Court has made it clear that direct governmental attempts to regulate association are prohibited.   Even regulation having an incidental impact on associational freedom is permitted only in “narrowly defined circumstances.”   (NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 912, 102 S.Ct. 3409, 3425, 73 L.Ed.2d 1215;  see also Britt v. Superior Court, supra, 20 Cal.3d 844, 855, 143 Cal.Rptr. 695, 574 P.2d 766.)

 To justify even limited regulation of associational activity the state must advance an interest that is both (1) “compelling,” and (2) “unrelated to the expression of ideas.”  (Roberts v. United States Jaycees, supra, 468 U.S. at p. 623, 104 S.Ct. at p. 3252;  see also NAACP v. Claiborne Hardware Co., supra, 458 U.S. at p. 912, fn. 47, 102 S.Ct. at p. 3425, fn. 47.)

2. The state's interest in ending discrimination is not compelling outside the commercial context.

 As the California Supreme Court has observed, the burden of demonstrating that a governmental interest is compelling is “particularly heavy.”  (Britt v. Superior Court, supra, 20 Cal.3d at p. 855, 143 Cal.Rptr. 695, 574 P.2d 766.)

In this case, the governmental interest found to be compelling in Roberts of equal access to economic opportunity or economic advantage is not involved.   Curran's counsel conceded the point in his opening statement in Phase II of the trial, saying “we agree that this case is not principally about an economic interest on behalf of Mr. Curran.”  (Compare Roberts v. United States Jaycees, supra, 468 U.S. at p. 626, 104 S.Ct. at p. 3254 [noting “ ‘business contacts and employment promotions' ” the Jaycees' program was trying to produce] with N.A.A.C.P. v. Claiborne Hardware Co., supra, 458 U.S. at pp. 913–915, 102 S.Ct. at pp. 3425–3426 [“While States have broad power to regulate economic activity,” picketing for non-economic purposes is constitutionally protected.].)

Although Roberts recognizes that the state's interests extend to social and personal harms, this harm cannot be divorced from the context in which it occurs.  Roberts referred to the sorts of social and personal harms that result from “ ‘ “denials of equal access to public establishments.” ’ ”   (Roberts v. United States Jaycees, supra, 468 U.S. at p. 625, 104 S.Ct. at p. 3254.)

As the court recognized in its Phase I statement of decision, “Mt. Diablo Council is not a single purpose organization operating a traditional ‘public accommodation.’ ”   A federal court likewise recently determined that Boy Scouts was not a public accommodation under federal law.  (Welsh v. Boy Scouts of America (N.D.Ill.1992) 787 F.Supp. 1511, aff. (7th Cir.1993) 993 F.2d 1267.)  Welsh remarked upon the difficulties of justifying a state interest in an association where neither commercial benefits nor a traditional public accommodation was at issue:  “For where the benefits of membership in an organization flow primarily, if not exclusively, from the interpersonal association among the people who belong to the organization rather than the enjoyment of the physical accoutrements of a particular facility, the rival interests implicated by exclusion of an individual from the group become more difficult to resolve.”  (Id., at p. 1540.)

The state interest in personal dignity cannot be considered compelling in the abstract:  “Unlike the concern for equality, however, the state interest in eliminating the insult, hate, and divisiveness that accompany invidious discrimination is not properly considered ‘compelling.’   First, unlike the harms addressed by the state equality interests, these injuries are created by almost every display of prejudice.   Thus, to characterize the state interest as compelling leads to the unacceptable conclusion that all discriminatory decisions raise interests of the highest state concern.”  (Marshall, Discrimination and the Rights of Association, (1986) 81 Nw.U.L.Rev. 68, 97.)   Such a distinction is obviously necessary, since otherwise every act of discrimination on the basis of sexual orientation would give rise to an equally compelling interest—even those acts of discrimination that take place in homes.   Here, the principal thing that Curran is being denied is the moral approval of an organization whose goal is to instill in young people a set of values with which he disagrees.

Thus, outside the context of equal access to economic activities or traditional public accommodations, the interest in preventing discrimination ceases to be compelling.   Although Curran does not accept this distinction in this case, the authorities cited in Curran's brief directly support the distinction.

“The laws at issue in the trilogy [Roberts, Rotary, New York State Club Association ] were public accommodation laws directed at associations where commercial activity occurred.   The underlying purposes of these laws were to provide equal opportunity to minorities and women to participate in the business life of the community and to expose them to business contacts and activity which often occur at discriminatory clubs.   The state has a compelling interest in ensuring equal access to such advantages as business and professional opportunities and skills.  [Citation.]

“Those cases, however, do not stand for the Proposition that the state may require noncommercial expressive associations to allow minorities to participate in expressive group activities.   In those cases, the regulation only minimally affected the groups' various messages and the groups were not formed solely for the purpose of communicating ideas.”  (Invisible Empire, KKK v. Mayor et al. of Thurmont, supra, 700 F.Supp. 281, 289; 15  cf. Besig v. Dolphin Boating and Swimming Club (9th Cir.1982) 683 F.2d 1271, 1276 [“We decline to place the basic right to employment in the same category of importance as a right to greater access to sports facilities.”].)

3. In this case, the Unruh Act is being used for purposes directly related to the expression of ideas.

 In scouting, the adult leader is primarily engaged in the expression of ideas.   He expresses these ideas directly by what he tells the boys, and indirectly as a role model.   By substituting its own views of what constitutes an appropriate role model, the state imposes a regulation “squarely on protected expression.”   Even assuming that the State of California has an interest in making a conscious effort to promote a positive image of homosexuals at all levels of society, the United States Constitution prevents the state from conscripting a private organization into such an exercise in thought control.   The right of expressive association does not depend on the state's view of the wisdom of the beliefs which define the association's membership.  (Gilmore v. City of Montgomery (1974) 417 U.S. 556, 575, 94 S.Ct. 2416, 2427, 41 L.Ed.2d 304.)   Any state interest in requiring Mt. Diablo Council to accept an avowed homosexual as a role model and moral example to youth cannot be said to be unrelated to the expression of ideas.

4. The trial court's decision not to take evidence on the subject of compelling state interest was proper.

The question whether a compelling state interest overrides a federal constitutional right is a question of federal constitutional law.   Because compelling state interest was a matter of law, and the content of the relevant cases was conceded, the court properly informed both parties that further evidence was unnecessary.16  Curran nevertheless claims a number of evidentiary errors regarding evidence that he wished to offer on this point.

Contrary to the assertion in Curran's brief, the court below never made an express decision to “exclude” “proposed witness Thomas Coleman.”   Curran's counsel informed the court that Mr. Coleman was to be called to “help [the court] decide about judicial notice questions,” and the court indicated that it did not view such help as necessary.   This was simply an attempt by Curran to place an advocate on the witness stand to assist in arguing evidentiary questions.   Had the court denied this request, it would have been well within its discretion.  (L.A. Teachers Union v. L.A. City Bd. of Ed. (1969) 71 Cal.2d 551, 78 Cal.Rptr. 723, 455 P.2d 827;  Sullivan v. Fox (1987) 189 Cal.App.3d 673, 682, fn. 4, 235 Cal.Rptr. 5.)

Virginia Uribe's proposed testimony on compelling state interest was not competent.   She had no professional licensing credentials other than a “general pupil personnel” and was not qualified to treat any of the alleged “harms” she was supposed to testify about.   The reports referred to and quoted in Curran's brief were likewise objectionable as hearsay and constituted attempts to introduce expert opinions without an opportunity for cross-examination.17

V.

MT. DIABLO COUNCIL'S CROSS–APPEAL

By its cross-appeal, Mt. Diablo Council contends that the judgment in this action can also be sustained on two grounds independent from the expressive association defense as follows:

1. First, the judgment should also be affirmed on the ground that decisions on membership in a Boy Scout troop are protected against state interference by the constitutional right of intimate association.   While acknowledging that “scouting activities take place principally in small, intimate, primary groups where the relationships among the members can be characterized as continuous, close and personal,” the trial court applied the intimate association tests to Mt. Diablo Council itself rather than the Boy Scout troop Curran sought to join.   As the Supreme Court has made clear in Roberts v. United States Jaycees, supra, 468 U.S. 609, 621, 104 S.Ct. 3244, 3251, and elsewhere, the relevant group for intimate association purposes is the local group, not the larger organization.   On the basis of the lower court's findings as to troops, a troop is an intimate association for constitutional purposes.

2. Second, the judgment may be affirmed without reaching any constitutional issues, since the Unruh Act applies only to privileges in business establishments.   The trial court's assumption that the term “business establishment” had lost its commonly understood meaning can no longer stand given the California Supreme Court's later ruling in Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159, 278 Cal.Rptr. 614, 805 P.2d 873, requiring lower courts “to give meaning to every word and phrase in the statute.”   What Curran sought was a position in a Boy Scout troop, an entity he conceded at trial was not a business establishment.   Even assuming that the status of Mt. Diablo Council itself was relevant, the Council cannot be regarded as a business establishment in any meaningful sense of the word.   To read the Unruh Act as sweeping up all organizations except small private clubs has far-reaching negative implications that the legislature could never have intended.

A. The Previous Appeal Ruled Upon The Sufficiency Of The Complaint And Did Not Determine That Mt. Diablo Was A Business Establishment.

As previously noted, this Court's prior opinion in Curran I did not determine that Mt. Diablo Council was a business establishment.   Curran I only determined the sufficiency of the complaint in this case:

A far different case is now before this court on this appeal.   First, the evidence showed Mt. Diablo Council to be a far different entity from the one portrayed on the face of the complaint.   The complaint reviewed in Curran I alleged that “membership in the Boy Scouts of America is of considerable financial value to its members in admission to institutions of higher learning, in employment, and in advancement in the business world.”  (Id., 147 Cal.App.3d at p. 718, 195 Cal.Rptr. 325.)   At trial, the court found that there were no such benefits.

In addressing the Unruh Act questions, the Court in Curran I did not have the benefit of Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 219 Cal.Rptr. 150, 707 P.2d 212, in which the Supreme Court considered Curran I and indicated that it might not extend the Unruh Act to single sex youth organizations.18  (Id., at p. 81, fn. 8, 91, 219 Cal.Rptr. 150, 707 P.2d 212.)   The Court also did not have the benefit of Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d 1142, 278 Cal.Rptr. 614, 805 P.2d 873, in which the Supreme Court indicated that thenceforth the Unruh Act should be read in accordance with the letter of the statute.

B. In Finding That Mt. Diablo Council Was A Business Establishment, The Court Expanded That Notion Beyond Any Previous Case.

On November 6, 1990, when Judge Disco determined that Mt. Diablo Council was a business establishment, the California Supreme Court had not issued its decision in Harris advising courts to “give meaning to every word and phrase” in the Unruh Act.   As a result, Judge Disco read the precedents available to her at that time as having caused “[t]he word ‘business' ” to lose “its commonly understood meaning.”   The court found that term “business” operated simply as an excluder, sweeping in all organizations except “a small intimate, private club.”   The court held that Mt. Diablo Council could not prove it was a small intimate, private club based on the number of scouts in the Council (approximately 13,500), a lack of selectivity in membership, and a “public orientation and prominence in the community.”

In holding that Mt. Diablo Council was a business establishment within the Unruh Act, the court recognized that it was extending the Unruh Act beyond any previously reported case.

C. Application Of The Unruh Act Under The Circumstances Of This Case Violates The Right Of Intimate Association.

 In declining to find that the relief sought would infringe the right of intimate association, the trial court erroneously focused on Mt. Diablo Council as a single, seamless overall unit.   Based upon Mt. Diablo Council's “size, the non-selectivity of its membership, and its public orientation and prominence in the community,” the court found that the Council itself could not be considered an intimate association.   Having predetermined the analysis by focusing the inquiry in this way, the court's statement of decision peremptorily dealt with the right of intimate association and then moved on to expressive association.   The court's decision to focus upon Mt. Diablo Council was erroneous;  the Court should have focused on the troop Curran sought to join.

 The freedom of intimate association protects personal relationships from unjustified interference by the State.   In determining whether a group is entitled to protection, “[t]he United States Supreme Court has described a qualitative continuum of personal relationships, from the most intimate to the most public and impersonal․”  (Pacific–Union Club v. Superior Court (1991) 232 Cal.App.3d 60, 72, 283 Cal.Rptr. 287.)   Groups entitled to constitutional protection by the freedom of intimate association are “distinguished by ․ relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.”  (Roberts v. United States Jaycees, supra, 468 U.S. 609, 618–620, 104 S.Ct. 3244, 3249–3250.)   In examining an organization, the factors which may be relevant include “size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent.”  (Id., at p. 620, 104 S.Ct. at p. 3251.)   The Boy Scout troops to which the relief sought is directed are concededly small and intimate and should qualify for such protection.

The Supreme Court's decisions show that in examining an organization with local and national units, the focus should be on the local organization where the personal relationships actually occur.   Hence, in Roberts, the Court considered a dispute between the United States Jaycees and a local chapter of the organization, which wished to challenge the Jaycees' national women-only membership rules.   The Jaycees was a national organization with 295,000 members, 51 State organizations, and 7,400 local chapters.   Yet in analyzing the right of intimate association, the Court focused upon the local chapter, which had approximately 430 members.  (Id., at p. 621, 104 S.Ct. at p. 3251.)   Likewise, in Bd. of Dirs. of Rotary Int'l v. Rotary Club, supra, 481 U.S. 537, 107 S.Ct. 1940, the Supreme Court again considered a dispute between a local Rotary Club and Rotary International over the Rotary's men-only rule.   Again, the Court's intimate association analysis focused upon the local chapter, examining the “relationship among Rotary Club members.”  (Id., at p. 546, 107 S.Ct. at p. 1946.)

Here, the relevant local unit is the troop.   As the trial court found, scouting activities “take place principally in small, intimate, primary groups where the relationships among the members can be characterized as continuous, close and personal.”   Troop meetings are usually attended only by members of the troop.   When the troop attends one of the occasional events where other troops are present, the Boy Scouts usually function as a troop.   Likewise, most of the adult volunteers function at the level of Boy Scout troops, or Cub Scout packs.   The court's statement of decision confirms that the troops, and patrols within the troops, are the principal site for scouting activities.

By joining the Boy Scouts, parents, boys and adult leaders voluntarily agree to a set of rules and regulations that will govern their necessarily intimate relationships in the troop.   If courts and legislatures can change those rules, they undeniably interfere with those intimate relationships.   The interference is no greater or less because there are many scout troops.

Furthermore, imposition of the Unruh Act upon Mt. Diablo Council results in regulation of the associational interests of the troops and patrols.   For example, in this case, Curran sought to be an assistant scoutmaster in Troop 37, which was sponsored by, and met in the North Congregational Church.   Shortly after the publicity regarding Curran's prom, the church, which viewed homosexuality as an anathema, appointed a new scouting coordinator, whose job it was to approve the troop's adult leadership.   Cummings testified that he would not have approved of Curran because of the conflict between the church's morality and Curran's.

Based upon the findings of the trial court, it is clear that the right of intimate association should protect Boy Scout troops.   Curran even conceded that the troops were not business establishments.   With respect to their size, they are undeniably small:  three to eight boys make up each patrol;  troops consist of groups of patrols, “consisting of between 12 and 30 boys, led by a Scoutmaster and an Assistant Scoutmaster.”   With respect to their purpose, Boy Scout troops join with all of scouting in the educational goal of instilling values in young people.   In addition, the troops are selective in ways not noted in the statement of decision.   All boys must subscribe to the Scout Oath and the Scout Law, and agree to live by them.   Boys choose the Boy Scout troops which they join, and they often do so based upon a preexisting personal affinity.   Within the troop, the relationships are personal and “intimate.”   Moreover, the troops are very selective with respect to their adult leadership.  (“Most of the responsibility of selecting adult volunteers is really at the unit level.”)

The court characterized troops and patrols as “primary” groups based upon sociological testimony showing that “[t]he purpose among the members of the group is simply to be together, ․”  As such, the personal relationships in the troop differ fundamentally from those in Little League or other “task-oriented” youth groups.   The adult leaders “build a very positive, intimate relationship” with the boys:  “[T]hey will know that he is a man that they can come and talk to when, perhaps, they are uncomfortable talking to anybody else.”

The statement of decision declares that the troops do not exist in a vacuum because they receive support from the council.   While this is undeniably true, the same could be said of the Rotary and the Jaycees.   For the most part, troops operate as troops.   Similarly, Curran has argued that the spotlight should be on Mt. Diablo Council because it was a council representative who informed him that his application would not be accepted.   Of course, the same could be said of the Jaycees and Rotary.   In both those cases, it was the national and international organization that imposed the rule against women, not the local organization.   Nevertheless, the Supreme Court focused on the local unit in analyzing the intimate association defense.

D. The Unruh Act Does Not Apply To Scout Troops.

Curran sought admission into Troop 37, which is sponsored by the North Congregational Church, in Berkeley, California.   Thus, the troop is the only relevant entity for Unruh Act purposes.   It was conceded below, however, that the troop is not a business establishment.   Even if the court were to view Mt. Diablo Council as the relevant entity, the Unruh Act does not apply to it.

1. The troop is the relevant entity under the Unruh Act.

Unless the troop to which Curran sought admission is a business establishment, the Unruh Act does not apply.   The Unruh Act determination should have concluded with the concession by plaintiff's counsel that a troop is not a business establishment under the Unruh Act.

It is not at all clear why the court below considered the question whether Mt. Diablo Council was a business establishment to be the relevant one.   An adult becoming an assistant scoutmaster joins a troop, and becomes a registered member of Boy Scouts of America;  he does not enroll as a member of a local council.19  The scouting coordinator of Troop 37 testified that he crossed Mr. Curran's name off the troop roster.   Even if Mt. Diablo Council played a role in refusing Curran membership, the issue for Unruh Act purposes is whether the “advantages” sought were advantages “in” a business establishment, not whether the entity which allegedly did the depriving was a business establishment.20  (Civil Code, § 51.)

Curran having conceded that Troop 37 was not a business establishment, the court below could not properly have found that Curran was deprived of the advantages in a business establishment.

2. The court below erroneously found that Mt. Diablo Council was a business establishment.

 Even assuming that the court below correctly focused its attention on Mt. Diablo Council, the court erred in finding Mt. Diablo Council to be a business establishment.   Since the Supreme Court's decision in Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d 1142, 1159, 278 Cal.Rptr. 614, 805 P.2d 873, calling for judges “to give meaning to every word and phrase in the statute,” courts have refused to extend the Unruh Act to situations not within the letter of the statute.  (E.g., Beaty v. Truck Ins. Exchange (1992) 6 Cal.App.4th 1455, 1465–1466, 8 Cal.Rptr.2d 593 [refusing to expand coverage of the Act to unmarried persons];  Gayer v. Polk Gulch, Inc. (1991) 231 Cal.App.3d 515, 525, 282 Cal.Rptr. 556 [refusing to expand coverage of the Act to retaliatory discrimination].)

Prior to Harris, the Supreme Court had applied the Unruh Act to not-for-profit organizations in only two circumstances:

(1) Where the organization had a business purpose (e.g., O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 796, 191 Cal.Rptr. 320, 662 P.2d 427 [maintenance of condominium property];  Rotary Club of Duarte v. Board of Directors (1986) 178 Cal.App.3d 1035, 1053–55, 224 Cal.Rptr. 213, aff'd, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987) [commercial advantage] ), or

(2) Where the organization existed to offer a traditional public accommodation.  (Isbister v. Boys' Club of Santa Cruz, Inc., supra, 40 Cal.3d 72, 219 Cal.Rptr. 150, 707 P.2d 212 [gymnasium and pool].)

On the previous appeal, this court lacked the benefit of a record showing that scouting had no commercial purpose and did not operate a traditional public accommodation.   Now, the lower court's statement of decision amply demonstrates that Mt. Diablo Council does not fit within either category.

a. No business purpose.

The trial court here specifically found that Mt. Diablo Council had “no substantial, or even significant, business purpose.”  (See also Welsh v. Boy Scouts of America, supra, 787 F.Supp. 1511, 1518 [The “central purpose” of scouting “is to foster the development of certain skills and values in male youths.”].)

While almost all Unruh Act cases have been brought against traditional commercial businesses, in the early 1980's, the California courts extended the Act to cover certain nonprofit organizations which were formed to accomplish a business purpose or goal.   In all but one of these cases, the word “business,” while broadly construed, retained its commonly-understood meaning.

The courts in these cases relied principally on a showing that the nonprofit organization had an underlying commercial purpose or function.   For example, in O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d 790, 796, 191 Cal.Rptr. 320, 662 P.2d 427, the court found that a condominium owners' association had a “businesslike purpose,” and performed “all the customary business functions” of a commercial landlord.   In Pines v. Tomson (1984) 160 Cal.App.3d 370, 206 Cal.Rptr. 866, the court dealt with an operation which, despite its nonprofit status, was virtually indistinguishable from its profit-making counterpart, the Yellow Pages.  (Id., at p. 376, 206 Cal.Rptr. 866.)   Likewise, in Rotary Club of Duarte v. Board of Directors, supra, 178 Cal.App.3d 1035, 1055, 1057, 224 Cal.Rptr. 213, the court found that “the primary purpose for the formation of the Rotary movement was commercial advantage,” and that “business concerns are a motivating factor in joining local clubs.”

Since the court below found that Mt. Diablo Council has no business purpose, none of the above cases applies here.

b. Not a traditional public accommodation.

Isbister is the only case in which the California Supreme Court has applied the Unruh Act to an organization that lacked a business purpose.   In applying the Unruh Act to the Boys' Club, the Supreme Court expressly relied on the fact that the function of the Boys' Club was to provide “ ‘public’ ” “recreational facilities” of the kind commonly thought to be a “ ‘public accommodation.’ ”   (Isbister v. Boys' Club of Santa Cruz, Inc., supra, 40 Cal.3d 72 at p. 81, 219 Cal.Rptr. 150, 707 P.2d 212.)   The court noted that boys used the Boys' Club facility on a drop-in basis, that there were few organized activities, and that the Club lacked “any sense of social cohesiveness, shared identity, or continuity.”  (Ibid.)

The Isbister court took pains to make clear that its analysis did not extend to “organizations ․ which maintain objectives and programs to which the operation of facilities is merely incidental.”  (Id., at pp. 76–77, 219 Cal.Rptr. 150, 707 P.2d 212.)   The court went on to affirm that:  “ ‘Private’ groups and institutions do not fall prey to the Act simply because they operate ‘nongratuitous' residential or recreational facilities for their members or participants.”  (Emphasis added.)  (Id., at p. 84, fn. 14, 219 Cal.Rptr. 150, 707 P.2d 212.) 21

In a vigorous dissent, Justice Mosk asserted that the decision would threaten “the Boy Scouts, Cub Scouts, Young Men's Christian Association, and similar organizations that maintain camps or physical facilities.”  (Id.,at p. 93, 219 Cal.Rptr. 150, 707 P.2d 212.)   In response, the majority retorted that “Nothing we have said compels that result.”  (Id., at p. 84, fn. 14, 219 Cal.Rptr. 150, 707 P.2d 212.)

As the trial court noted here:  “Unlike the Boys Club in Isbister, Mt. Diablo Council is not a single purpose organization operating a traditional ‘public accommodation.’   The Council does own recreational facilities, namely the camps, but their operation is not the Council's ‘principal activity and reason for existence’ as the Club's provision of gym and pool facilities was.   And the camps are not utilized on a casual, drop-in basis as Club, the facilities in Isbister, were.”

The relationships in scouting are “ ‘continuous, personal, and social’ ” and “take place more or less outside ‘public view.’ ”  (Isbister v. Boys' Club of Santa Cruz, Inc., supra, 40 Cal.3d at p. 84, fn. 14, 219 Cal.Rptr. 150, 707 P.2d 212.)   The court in Isbister held such relationships to be beyond the Act's reach.   As Professor Horowitz, whom the Isbister court referred to as the principal commentator on the Act, has explained, the Unruh Act was not intended to reach relationships that are personal, social, continuous, and gratuitous.  (Horowitz, The 1959 California Equal Rights in “Business Establishments” Statute—A Problem in Statutory Application (1960) 33 So.Cal.L.Rev. 260, 288–290.)   Rather, the statute should be applicable only to “relationships in which the ‘establishment’ offers its facilities for compensation, and in which the relationship with the patron is relatively noncontinuous, and in which personal and social aspects of the relationships are relatively insignificant.”  (Id., at p. 289.)

Thus, a patron deals with a retail store episodically and irregularly, his interactions with store personnel are perfunctory and impersonal, and he pays prices which reflect the full cost of what is received.   In contrast, a boy scout meets with his patrol once a week and with his troop once a month.   The relationships with his fellow scouts and his scout leaders are close and personal.   The time devoted to scouting by the youth members, and volunteered by their leaders, is gratuitous.

The record here fully supports the same conclusion as the Welsh court that scouting is not a “place of public accommodation”:  “Having reviewed the body of evidence presented in this case, this Court is convinced that it would not particularly matter whether a Cub Scout den met in a club house, in a living room, or in a garage.   The kinds of activities in which Boy Scout, Cub Scout, and Tiger Cub groups typically engage are not dependent upon the accoutrements of any particular location, let alone of a facility one would normally think of as a place of public accommodation.   Rather, the success of the Boy Scouts, and the attraction to boys and their parents alike, lies in the sense of community among its participants.”  (Welsh v. Boy Scouts of America, supra, 787 F.Supp. at p. 1539.) 22

3. Post–Harris, the Act cannot be extended to scouting groups.

The Unruh Act has never been extended to not-for-profit groups which neither have a business purpose nor offer a traditional public accommodation.   After Harris, such an extension would be particularly unwarranted.

In Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at pp. 1159–1162, 278 Cal.Rptr. 614, 805 P.2d 873, the Supreme Court held that it would not further extend the categories in the Unruh Act to include “economic discrimination.”   The court announced that it would once again focus upon the legislative intent, as set forth in the words of the statute:

“As in any case of statutory interpretation, our task is to determine afresh the intent of the Legislature by construing in context the language of the statute․  [¶] In analyzing statutory language, we seek to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose, ․”  (Emphasis added.)  (Id., at p. 1159, 278 Cal.Rptr. 614, 805 P.2d 873.)

To extend the Unruh Act to scouting councils would transform numerous charitable organizations that are fundamentally different from business establishments and commercial or business clubs, such as the Rotary and Jaycees.   Many charitable organizations direct their services to a distinct religious, cultural, gender, ethnic or age group in a way that would be unacceptable in a business, but is neither offensive or improper in the case of a charity seeking to accomplish its particular mission.   These organizations encourage volunteerism and personal involvement because they undertake activities as a result of a distinct mission rather than for profit:  “The value of a pluralistic, democratic society is that it permits members of each group to join with others sharing their views, to pool their resources as they wish, to seek the resources of new members, and to experiment to try to prove the validity of their respective concepts.”  (Isbister v. Boys' Club of Santa Cruz, Inc., supra, 40 Cal.3d at p. 98, 219 Cal.Rptr. 150, 707 P.2d 212 (Mosk, J. dissenting).)

Thus, the NAACP directs its services to African–Americans, the Sons of Norway limits membership to persons of a particular ancestry, and the Girl Scouts serve young girls.   Such organizations encourage diversity and undertake activities because of a sense of mission rather than a desire for profit.   These organizations encourage personal participation through voluntarism and charitable giving.  (See generally, Roberts v. United States Jaycees, supra, 468 U.S. at p. 619, 104 S.Ct. at p. 3250 [Associations “foster diversity and act as critical buffers between the individual and the power of the State.”];  Walz v. Tax Commission (1970) 397 U.S. 664, 689, 90 S.Ct. 1409, 1422, 25 L.Ed.2d 697 (Brennan, J., concurring) [Religious institutions are among the groups that contribute to “the diversity of association, viewpoint, and enterprise essential to a vigorous, pluralistic society.”].)

To require such organizations to serve all comers would radically transform them and undermine their reason for existing.   Indeed, if the characteristics listed by the court below were sufficient to classify an organization as a business establishment, then local Girl Scout groups and even the Archdiocese of Los Angeles of the Roman Catholic Church could not escape such classification either.

For these reasons, we find the reasoning of the trial court to be erroneous on the issues presented in the cross appeal and reverse the trial court's decision to the extent that it holds that the Mt. Diablo Council is a business establishment under the Unruh Act and that its rights and the rights of its members to intimate association under Roberts were not violated in this instance.   But we affirm the judgment below on the basis that the trial court judgment was correct in finding that the compelled hiring of Curran would constitute an unlawful interference by the state of the expressive association rights of Mt. Diablo Council.

VI.

DISPOSITION

The judgment is affirmed.   Costs of appeal are awarded to Mt. Diablo Council.

I respectfully dissent.

This case is not a vehicle for demonstrating Mount Diablo's moral correctness or our approval or disapproval of certain moral values.

This case is about blatant admitted discrimination against an individual because he openly declared his status as a homosexual person.   Mount Diablo seeks to override the California anti-discrimination law and policy on the basis of the First Amendment to the Federal Constitution.

The moral question, if there is one, may be insoluble but the legal question is simple.   Does the United States Constitution First Amendment right of “expressive association ” authorize discrimination based upon status, not acts, of an individual in violation of section 51 of the California Unruh Act?   The majority hold that the treasured pillar of individual rights, the First Amendment to the Federal Constitution, denies the individual the right to declare openly his own sexual preference, his status as a “gay” person.

I would conclude that neither the constitution, the law, nor the facts of this case authorize this askewing of the First Amendment.   To be specific:  (1) The majority opinion ignores the “law of the case doctrine”;  (2) the Code of Civil Procedure section 437c, subdivision (f) adjudication of issues pretrial by an independent judge were ignored by the trial court;  (3) the majority opinion violates the substantial evidence rule in reversing the trial court's factual findings of the basis for application of the Unruh Act to Mount Diablo;  (4) the majority reliance upon Welsh v. Boy Scouts of America, 993 F.2d 1267 [7 Cir.1993], is upon a weak reed.   The anti-discrimination statute in Welsh, supra, differs marketably from the Unruh Act; 1  (5) the United States Supreme Court decisions demarking the nature and limits of the “expressive association ” doctrine negates the majority declarations as to its application to Mount Diablo.

PROCEDURAL BACKGROUND

Curran's action was filed on April 30, 1981.   Mount Diablo's general demurrer was sustained to Curran's amended complaint without leave to amend.   Curran appealed the judgment of dismissal.   This court reversed the order of dismissal holding Curran's amended complaint stated a cause of action for violation of the Unruh Act.  (Curran v. Mount Diablo Council of the Boy Scouts of America, 147 Cal.App.3d 712, 195 Cal.Rptr. 325 [hereinafter referred as “Mount Diablo I ”].)

Upon remand to the superior court Curran filed a motion for summary adjudication of certain issues.   Then Superior Court Judge Norman L. Epstein ruled that a number of issues were without substantial controversy in the case.  (Code Civ.Proc., § 437c, subd. (f).)  Judge Epstein specifically found (1) “Plaintiff was refused admission by defendant as an adult member or scouter because he was a homosexual.”  (2) “Plaintiff's homosexuality was the only reason for the defendant's refusal to admit him as an adult member.”   (Emphasis mine.)  (3) “The policy and practice of defendant is that no homosexual might be an adult member of the Boy Scouts of America.”  (4) “Defendant will not admit any homosexual into membership regardless of such a person's qualifications and will dismiss homosexuals from memberships if it becomes aware of the member's homosexuality.”

The trial was bifurcated.   The first phase was limited to the issue of whether defendant was a business establishment within the meaning of the Unruh Act.   The trial court concluded that the Boys Scouts was a business establishment within the meaning of the Unruh Act.   The court further found Mount Diablo was a large multi-purpose organization with significant businesslike attributes;  it was active in the world of commerce and it consisted of a large physical plant.   The court further found that membership in the boy scouts was nonselective.  “Any boy between the ages of 11 and 18 who expresses his willingness to abide by this scout oath can become a boy scout.”   Further the trial court found that in delivering services, the defendant operates “very much in the public view and has significant ties with the government and interacts extensively with local community.”   The trial court concluded defendant organization “meets many of the criteria which case law has considered significant in determining whether an organization is a business establishment for the purposes of the Unruh Act.”   Finally the trial court rejected the defendant's argument that “because it's an expressive association it should not be subject to the Unruh Act.”

The second phase was by stipulation limited to the issue of whether defendant's exclusion of Curran was justified under the First Amendment to the United States Constitution.   In short, the question of whether the right of “expressive association” overruled, nullified the protections afforded Curran by the California anti-discrimination Unruh Act.

The court rejected defendant's assertion that its policy excluding lesbians and gay men from participation was justified by the right of “intimate association” finding specifically that defendant had failed to make a showing required to establish a violation of its members' rights to “intimate association”.

The court concluded that defendant's exclusion of Curran from becoming an adult scouter was actionable.   The court then held, however, Mount Diablo does have a right to exclude individuals based solely on their sexual orientation because, as the court explained, if defendant was prohibited by the Unruh Act from excluding plaintiff or others like him from defendant's association, this “would violate defendant's members first amendment rights to expressive association.”  (Emphasis mine.)

THE FACTS

Timothy Curran was a member of a boy scout troop within defendant's jurisdiction for four years (1975 to 1979).   No words or acts hinting at immorality were ever ascribed to Curran.   He attained the rank of Eagle Scout, the highest rank a boy scout can reach.   He was selected to participate in defendant's troop leadership development program where he was taught leadership and motivational skills.   He was one of the small number of scouts elected by his troop to attend the Wolfeboro Pioneers and the Order of the Arrow (honor camping organizations) within scouting.   In addition, Curran was one of some 35 boy scouts selected by defendant out of some 13,500 scouts within its jurisdiction to attend the Boy Scouts of America (“BSA”) National Jamboree in 1977.   Curran enjoyed the recreational and social activities and valued the prestige of being a boy scout.   He prized the skills it taught.   He received practical training in journalism (which ultimately became his career).   He attended the National Jamboree in 1977 and the National Conference of the Order of the Arrow in 1979.

In July of 1980, Curran turned 18.   He formally notified Mount Diablo officials he wished to attend the 1981 National Jamboree to again participate in its journalism program.   He had been encouraged to do so by one of the adult leaders who supervised his work on scouting publications in the past.   In October and November of 1980, defendant Mount Diablo refused to allow Curran to become an adult member of the boy scouts “a Scouter” or to attend the National Jamboree because—and only because—Curran was gay.

Mount Diablo points to these further facts:  At the time Curran sought “scouter” status, he had publicly acknowledged his homosexuality and had expressed beliefs contrary to the boy scouts view regarding immorality of homosexuality.   In June 1980, Curran had given an interview to the Oakland Tribune newspaper in which he portrayed himself as an avowed homosexual and gay youth activist.   The article described Curran's attendance at his senior prom with a male date.   Curran had described himself as someone “who was proud of being gay—someone who didn't say it but who acted it out.”   In an article he wrote for the Gay Youth Community News, Curran described the statement he was trying to make by going to the prom, “This was my last chance to say with actions as well as words, ‘Gay is okay, gay people are as good as straight people and can do anything they can.’ ”   It was some months later that Curran made his request to become a scouter.   In the meantime several scouters had brought Curran's statements to the attention of a boy scout executive (Quentin Alexander).   Alexander testified he told Curran that a meeting was necessary because he recognized the unusual lifestyles that Curran had exhibited and advocated in the Oakland Tribune article were “inconsistent with the basic principles of scouting.”   According to Alexander, at that meeting, Curran stated he still espoused that lifestyle.   Alexander testified Curran said he specifically wanted to be in the scouts because he so firmly believed personally in homosexual lifestyle;  that there was “not any thing wrong with it” and he wanted to make sure that other kids understood that.   In sum, Curran came “out of the closet.”   For this exercise of free speech he was not admitted as a “Scouter”.

ISSUES

Mount Diablo contends substantial evidence supports the trial court's factual findings on the issue of expressive association and therefore under the substantial evidence rule the trial court's judgment should be affirmed.

Curran contends:

1. The trial court committed legal error in that there was no factual dispute Mount Diablo had discriminated against him only on the basis of his sexual orientation, his status as a homosexual.

2. California has enacted statutes prohibiting discrimination on the basis of sexual orientation by organizations such as Mount Diablo.

3. California had a “compelling state interest” in eliminating such discrimination.

4. Curran further contends the trial court decision rested upon erroneous legal conclusions.   Curran contends the trial court applied the wrong tests as to what is protected by the Federal Constitutional Right of “expressive association”.   Curran points out the lower court concluded that Mount Diablo as an organization had adopted the position that homosexuality was immoral.   He points out there was no evidence before the trial court that expressive views about homosexuality is a significant reason that causes defendant's members to join together in the organization.   Curran points out there is no evidence to support a finding that defendant's members actually do associate for an expressive purpose that might be infringed in some “significant” way by application of the Unruh Act to Mount Diablo.

5. He contends the trial court misapplied the controlling United States Supreme Court and California authorities.   He urges that requiring Mount Diablo not to discriminate against plaintiff on the basis of his sexual orientation would not “substantially ” or “significantly” impair defendant's members ability to achieve their expressive goals.

6. He points out there is no evidence presented to the trial court that nondiscriminating against him (admitting him as a scouter) would lead to such an impairment.   Curran points out the lower court relied upon “stereotypical thinking” contrary to Federal and State case law.   The trial court presumed that in allowing someone whom defendant learns to be gay to participate in scouting necessarily would cause an interference with expressive goals.

7. Finally, the lower court failed to consider whether there were ways in which defendant's members expressive goals could be achieved without excluding Curran.   The trial court failed to follow controlling State and Federal precedent in arriving at its conclusions.

He argues absent a supportable factual finding that defendant members would be required to abandon or significantly alter their joint expressive activities if the Unruh Act was applied, there would be no basis in law or fact for a judgment barring Curran from participating as an adult “scouter”.

8. This court declared in Mount Diablo I the expulsion from the boy scouts on the basis of Curran's status as a homosexual “is both capacious and offensive to public policy”.  (147 Cal.App.3d at p. 723, 195 Cal.Rptr. 325.)   This court specified in one aspect that homosexuals struggle for equal rights was “to induce homosexual individuals to ‘come out of the closet’ and to acknowledge their sexual preference.”  (At p. 724, 195 Cal.Rptr. 352.)   This is the precise state of the evidence before the trial court used as a basis for excluding Curran as an adult.

9. Finally, error is charged that the controlling law declares a compelling state interest should be balanced against defendant's members interest in associational freedom.   Here the lower court excluded evidence relating to, and thus failed to consider, the strength of California's interest in ending discrimination based upon sexual orientation.

I

This court in Mount Diablo I reviewed an appeal from a dismissal of Curran's amended complaint after a demurrer was sustained without leave to amend.   Upon this court's reversal the cause was remanded for factual hearings.   This appeal court held as a matter of law the exclusion of Curran on the basis of his sexual preference of homosexuality was not permissible under the Unruh Act.

The majority opinion has ignored a host of rules of law set forth in Curran I, and in so doing does not follow the fundamental rules of “law of the case” doctrine.   The majority erroneously declares that Curran I “was a pleading case and the Court of Appeal necessarily declared only the allegations of the complaint were sufficient to withstand a demurrer.”

It is true the law of the case rules do not give any conclusive effect to determinations of questions of fact.   It is a settled proposition that the doctrine of the law of the case, generally speaking, “is applied only to the principles of law laid down by the court as applicable to a retrial of facts, that it does not embrace the facts themselves․”  (Moore v. Trott (1912) 162 Cal. 268, 273, 122 P. 462;  see also Wallace v. Sisson (1896) 114 Cal. 42, 43, 45 P. 1000.)

Rather the doctrine, as its name implies, is exclusively concerned with issues of law and not of fact.  (People v. Shuey (1975) 13 Cal.3d 835, 844, 120 Cal.Rptr. 83, 533 P.2d 211.)

“If the decision relates to a matter which cannot be thus presented under different aspects as the construction of a contract or a statute—the first decision of the appellate court is conclusive upon the second trial and second appeal.”  (Shuey, supra, at p. 842, 120 Cal.Rptr. 83, 533 P.2d 211.)

To invoke the “unjust decision” exception to the law with case doctrines there must be more than a disagreement with a prior appellate determination;  “judicial order demands there must at least be demonstrated a manifest misapplication of existing principles resulting in substantial injustice before an appellate court is free to disregard the legal determination made in a prior appellate proceeding.”  (People v. Shuey, supra, 13 Cal.3d 835, 846, 120 Cal.Rptr. 83, 533 P.2d 211;  Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 435, 212 Cal.Rptr. 466, 696 P.2d 1308.)

II

The rules of law announced in Curran I are sound and correct rules of law.   Curran is but one of a long line of decisions to interpret the Unruh Act to forbid discrimination against individuals on the basis of sexual orientation.   (E.g., Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289, 200 Cal.Rptr. 217;  Hubert v. Williams (1982) 133 Cal.App.3d Supp. 1, 184 Cal.Rptr. 161;  Stoumen v. Reilly (1951) 37 Cal.2d 713, 716–717, 234 P.2d 969.)   This court's decision in Curran I on the interpretation of the Unruh Act is binding upon both the trial court on remand and an appellate court on this subsequent appeal.  (See City of Oakland v. Superior Court of Monterey, (1983) 150 Cal.App.3d 267, 277, 197 Cal.Rptr. 729;  Lindsay v. Meyer (1981) 125 Cal.App.3d 536, 541, 178 Cal.Rptr. 1;  People v. Shuey, 13 Cal.3d 835, 841–842, 120 Cal.Rptr. 83, 533 P.2d 211.)   To the extent Mount Diablo challenges a specific holding of the Court of Appeal on matters of law “reconsideration is indeed barred by the law of the case.”  (People v. Sims (1993) 5 Cal.4th 405, 437, fn. 4, 20 Cal.Rptr.2d 537, 853 P.2d 992.)

In Mount Diablo I this court analyzed the Unruh Act declaring the law to be:

“Our Supreme Court in In re Cox, supra, 3 Cal.3d 205, 216 [90 Cal.Rptr. 24, 474 P.2d 992], held that the Unruh Act bars all types of arbitrary discrimination.   The Act's reference to particular bases of discrimination—‘sex, color, race, religion, ancestry or national origin’—is illustrative rather than restrictive.  (Ibid.;  Accord:  Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d [721] at p. 732 [180 Cal.Rptr. 496, 640 P.2d 115];  O'Connor v. Village Green Owners Assn., supra 33 Cal.3d at p. 794 [191 Cal.Rptr. 320, 662 P.2d 427].)

“Moreover, the statute's focus on the individual precludes the exclusion of persons based on a generalization about the class to which they belong.   For example, the statutory protections of the act bar exclusionary policies directed against (1) homosexuals (Stoumen v. Reilly, supra, 37 Cal.2d 713, 716 [234 P.2d 969] );  (2) reputed immoral persons (Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734 [227 P.2d 449] );  (3) children (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721 [180 Cal.Rptr. 496, 640 P.2d 115] );  (4) students (59 Ops.Cal.Atty.Gen. 70 (1976));  and (5) those who associate with blacks (Winchell v. English, supra, 62 Cal.App.3d 125, 128–130 [133 Cal.Rptr. 20] ).

“Nor can an exclusion be justified only on the ground that the presence of a class of persons does not accord with the nature of the organization or its facilities.  (See, e.g., Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d at p. 741 [180 Cal.Rptr. 496, 640 P.2d 115].)   However, an organization may ‘promulgate reasonable deportment regulations that are rationally related to the services performed and the facilities provided.’  (In re Cox, supra, 3 Cal.3d at p. 217 [90 Cal.Rptr. 24, 474 P.2d 992].)”

Curran asserted he was expelled from membership in the Boy Scouts, and excluded from ‘Scouter’ status therein on the claim that he is not a good moral example for younger scouts due to his sexual preference of homosexuality.

Relevant to this assertion this court stated the law to be (147 Cal.App.3d at p. 734, 195 Cal.Rptr. 325):

“In Stoumen v. Reilly, supra, 37 Cal.2d 713, 716 [234 P.2d 969], our Supreme Court recognized that the Unruh Act prohibits the exclusion of a person on the basis of homosexual status.   Also, in Gay Law Students Assn. v. Pacific Tel. & Tel. Co., supra, 24 Cal.3d 458, 475 [156 Cal.Rptr. 14, 595 P.2d 592], the court held that section 453, subdivision (a) of the Public Utilities Code prohibits arbitrary employment discrimination against homosexuals, although homosexuals are not specified in the statutory language.   Thus, we conclude that the Unruh Act prohibits arbitrary discrimination against homosexuals.”

And this court further explained the law at p. 723, 195 Cal.Rptr. 325:

“Secondly, an expulsion from an association on the basis of a person's status of homosexuality is both capricious and offensive to public policy.   The mere status of homosexuality without more does not connote immorality.   In Stoumen v. Reilly (1951) 37 Cal.2d 713 [234 P.2d 969], the liquor license of the plaintiff had been revoked because he was found to have conducted a disorderly house in violation of section 58 of the Alcoholic Beverage Contract Act.   The violation was based on the licensing board's finding that ‘ “persons of known homosexual tendencies patronized said premises and used said premises as a meeting place.” ’  (Id., at p. 715 [234 P.2d 969].)   Our Supreme Court reversed, saying that no evidence of any illegal or immoral conduct on the premises had been shown:  ‘[S]omething more must be shown than that many of his patrons were homosexuals and that they used his restaurant and bar as a meeting place.’ ”  (Id., at p. 717 [234 P.2d 969].)

“Thus, the struggle of the homosexual community for equal rights is recognized as political activity.  (Id., [24 Cal.3d] at p. 488 [156 Cal.Rptr. 14, 595 P.2d 592].)  ‘[O]ne important aspect of the struggle for equal rights is to induce homosexual individuals to “come out of the closet,” and acknowledge their sexual preferences, and to associate with others in working for equal rights.’  (Ibid.)”  (147 Cal.App.3d at p. 724, 195 Cal.Rptr. 325.)  (Emphasis mine.)

This court further explained:

“In the instant case the allegations can reasonably be construed as charging that defendant's action to expel rests on plaintiff's political decision to ‘come out of the closet ’ and acknowledge his sexual preference of homosexuality.   As so construed, the expulsion would be distinctly contrary to public policy.  (Cf. Bernstein v. Alameda, etc., Medical Assn., supra, 139 Cal.App.2d 241, 246 [293 P.2d 862].)

“On the other hand, if defendant's action to expel is based on plaintiff's homosexual conduct, then plaintiff's right of freedom of expression is qualified with respect to his participation in the activities of defendant.   In this context, the association's natural right of self-preservation comes into play.  (See Davis v. Int. Alliance etc. Employees (1943) 60 Cal.App.2d 713, 715 [141 P.2d 486].)”  (Emphasis mine.)

The soundness of the rules of law announced in Curran I is evidenced by the following circumstances:  The Unruh Act has been amended three times since 1983;  and while the Legislature is considered to be familiar with appellate opinions, it has not chosen to overturn Curran.   Neither has the Supreme Court, which recognized its appearance in passing in a similar holding in Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 81, fn. 8, 219 Cal.Rptr. 150, 707 P.2d 212.   The Supreme Court refused to overrule Curran I in Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155, 278 Cal.Rptr. 614, 805 P.2d 873;  Harris is perhaps the most restrictive interpretation of the Unruh Act in the history of the Supreme Court.   In Hart v. Cult Awareness Network (1993) 13 Cal.App.4th 777, 787, 16 Cal.Rptr.2d 705, this court properly distinguished, but did not overrule, its decision in Curran I.

The rules of law of Curran I have been followed without criticism in both the California Supreme Court and Courts of Appeal.  (E.g., see Pines v. Tomson, 160 Cal.App.3d 370, 385–386, 206 Cal.Rptr. 866;  Randall v. Orange County B.S.A. (1994) 22 Cal.App.4th 1526, 28 Cal.Rptr.2d 53;  Warfield v. Peninsula Golf Country Club (1993) 17 Cal.App.4th 1662, 1673, 16 Cal.Rptr.2d 243;  Buhl v. Hannigan (1993) 16 Cal.App.4th 1612, 1624, 20 Cal.Rptr.2d 740;  Beaty v. Truck Ins. Exch., 6 Cal.App.4th 1455, 1460, 8 Cal.Rptr.2d 593.)

Moreover, in addition to not following the law of the case doctrine, the ancient and respected doctrine of stare decisis has also not been followed.   Almost without exception the rules of law announced in Curran are supported in point by citations to California Supreme Court and appellate court authorities.

Wherein the trial court followed the rules of law announced in Curran I and concluded—in the mandated legal framework—that factually Mount Diablo was a “business” under the Unruh Act, the majority now overrules the trial court's factual findings.   In so doing the majority violates the substantial evidence rule.

III

The majority opinion also errs in the suggestion we should follow the decision in Welsh v. Boy Scouts of America, supra, 993 F.2d 1267, rather than our Supreme Court in Isbister v. Boys' Club of Santa Cruz, Inc., supra, 40 Cal.3d 72, 219 Cal.Rptr. 150, 707 P.2d 212 [dis. opn., p. 5, fn. 5].   Federal Circuit Court of Appeals decisions can be persuasive, but we must follow the California Supreme Court.   Moreover, Isbister is closer to the point because it deals with the Unruh Act in a similar setting.   Most significant is the fact that Welsh, supra, is not in point.   In fact, the Welsh court distinguishes its holding from the California Unruh law stating (993 F.2d at p. 1271):

“We are aware that certain state courts have in instances interpreted their respective state statutes dealing with public accommodation to cover organizations like the Boy Scouts.   However, in all but two of those instances, the state public accommodation statute was far broader and more inclusive than the federal statute before us.   For cases interpreting broadly worded state public accommodation statutes, see Quinnipiac Council, Boy Scouts, Inc. v. Commission on Human Rights and Opportunities, 204 Conn. 287, 528 A.2d 352 (1987);  Curran v. Mount Diablo Council of the Boy Scouts, 147 Cal.App.3d 712, 195 Cal.Rptr. 325 (1983);  United States Jaycees v. McClure, 305 N.W.2d 764 (Minn.1981).”  (Emphasis mine.)

IV

Judge Norman L. Epstein, in a pretrial Code of Civil Procedure section 437c, subdivision (f) proceeding ruled there was no substantial controversy (1) Curran was refused admission by Mount Diablo as an adult member of the scouts because he was a homosexual;  (2) Curran's homosexuality was the only reason for Mount Diablo's refusal to admit him as an adult member.

This factual finding binding upon the trial court—must be viewed in light of certain law of the case rules.   In Stoumen v. Reilly, 37 Cal.2d 713, 716, 234 P.2d 969, the Supreme Court declared that the Unruh Act prohibits excluding of a person on the basis of homosexual status.  (Curran I, 147 Cal.App.3d at p. 734, 195 Cal.Rptr. 325.)   This finding, this law requires a finding that the Unruh Act has been violated and should require reversal unless First Amendment Rights overrules the Unruh Act.

V

Thus the determinative issue is whether the Federal Constitutional First Amendment right of “expressive association” overrules and nullifies the protections afforded Curran by the Unruh Act.   Mount Diablo contends and the majority opinion declares the United States Constitution First Amendment right of “expressive association” precludes the application of the Unruh Act.

The nature and scope of this “expressive association” right has been the subject of three recent United States Supreme Court cases.   They, together with the decisions of this appellate court control this court's decision as to the efficacy of the Mount Diablo defense.

The first of the United States Supreme Court cases (hereinafter “trilogy”) is Roberts v. Jaycees, 468 U.S. 609, 104 S.Ct. 3244, where the Supreme Court addressed a conflict between a state's efforts to eliminate gender-based discrimination against its citizens and the constitutional freedom of association asserted by members of a private organization.

The Jaycees contended by requiring the Jaycees to admit women as full voting members, the Minnesota Human Rights Act violated the First and Fourteenth Amendment rights of the organization members.

The Minnesota Human Rights Act provided in part:

“It is an unfair discriminatory practice:

“To deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex.  (Minn.Stat. § 363.03, subd. 3 (1982).”

The Supreme Court declared the constitutional protected freedom of association embraced two distinct species of association.   In one line of decisions, the court concluded the choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.   In this respect, freedom of association receives protection as a fundamental element of personal liberty.   The Supreme Court said that several features of the Jaycees clearly place the organization outside of the category of relationships worthy of this kind of constitutional protection afforded where an “intimate relationship” was factually present.

The Roberts court relied upon the second line of decisions where the United States Supreme Court recognized a right to associate for the purpose of engaging in activities protected by the First Amendment—“speech, assembly, petition for the redress of grievances, and the exercise of religion.”

The Roberts, Supreme Court stated:

“We have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.   See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–909 [102 S.Ct. 3409, 3422–3423, 73 L.Ed.2d 1215];  [citations].”

The Supreme Court then declared:

“There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire.   Such a regulation may impair the ability of the original members to express only those views that brought them together.   Freedom of association therefore plainly presupposes a freedom not to associate.  [Citation.]”  (468 U.S. at p. 623, 104 S.Ct. at p. 3252.)   (Emphasis mine.)

But the United States Supreme Court then explained:

“The right to associate for expressive purposes is not, however, absolute.   Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”  [Citations.]  We are persuaded that Minnesota's compelling interest in eradicating discrimination against its female citizens justifies the impact that application of the statute to the Jaycees may have on the male members' associational freedoms.”  (At p. 623, 104 S.Ct. at 3252.)  (Emphasis mine.)

The Supreme Court explained at p. 624, 104 S.Ct. at p. 3253:

“That goal, which is unrelated to the suppression of expression, plainly serves compelling state interests of the highest order.”  (At p. 624, 104 S.Ct. at p. 3253.)  (Emphasis mine.)

The Supreme Court continued (At p. 625, 104 S.Ct. at pp. 3253–3254):

“․ [W]e emphasized that fundamental object ․ was to vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.  Heart of Atlantic Motel, Inc. v. United States, 379 U.S. 241, 250 [85 S.Ct. 348, 354, 13 L.Ed.2d 258] (1964).   That stigmatizing injury, and the denial of equal opportunities that accompanies it, is surely felt as strongly by persons suffering discrimination on the basis of their sex as by those treated differently because of their race.”  (468 U.S. at p. 625, 104 S.Ct. at pp. 3253–3254.)

Concerning the use of stereotype evidence as a basis for discrimination the Supreme Court said:

“The Jaycees relies solely on unsupported generalizations about the relative interests and perspectives of men and women.   See Brief for Appellee 20–22, and n. 8.   Although such generalizations may or may not have a statistical basis in fact with respect to particular positions adopted by the Jaycees, we have repeatedly condemned legal decisionmaking that relies uncritically on such assumptions.   See e.g., Palmore v. Sidoti, 466 U.S. 429, 433–434 [104 S.Ct. 1879, 1882, 80 L.Ed.2d 421] (1984);  Heckler v. Mathews, 465 U.S. [728], at 745 [104 S.Ct. 1387, 1398, 79 L.Ed.2d 646].   In the absence of a showing far more substantial than that attempted by the Jaycees, we decline to indulge in the sexual stereotyping that underlies appellee's contention that, by allowing women to vote, application of the Minnesota Act will change the content or impact of the organization's speech.   [Citations.]”

The high court concluded (At pp. 626–627, 104 S.Ct. at 3254–3255):

“The Jaycees has failed to demonstrate that the Act imposes any serious burdens on the male members' freedom of expressive association.   See Hishon v. King & Spalding, 467 U.S. 69, 78 [104 S.Ct. 2229, 2235, 81 L.Ed.2d 59] (1984)․  [¶] [N]o basis in the record for concluding that admission of women as full voting members will impede the organization's ability to engage in these protected activities or to disseminate its preferred views.”

VI

The second of the trilogy is in Board of Directors of Rotary International v. Rotary Club of Duarte, (1987) 481 U.S. 537, 548, 107 S.Ct. 1940, 1947, 95 L.Ed.2d 474, where the United States Supreme Court followed the same reasoning and rationale and reached the same conclusions as in Roberts, supra.   In Duarte, the state anti-discrimination law in issue was the California Unruh Act.   It was contended, as here, the Unruh Act was in conflict with the Rotary Club's right of expressive association.   The Duarte defenses urged were the same as here.

The Duarte Supreme Court said (At p. 548, 107 S.Ct. at p. 1947):

“In this case, however, the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members' ability to carry out their various purposes.  [¶] As a matter of policy, Rotary Clubs do not take positions on ‘public question,’ including political or international issues.   Manual 115, App. 58–59.   To be sure, Rotary Clubs engage in a variety of commendable service activities that are protected by the First Amendment.   But the Unruh Act does not require the clubs to abandon or alter any of these activities.   It does not require them to abandon their basic goals of humanitarian service, high ethical standards in all vocations, good will, and peace.   Nor does it require them to abandon their classification system or admit members who do not reflect a cross section of the community.”

The Supreme Court continues at p. 549, 107 S.Ct. at p. 1948:

“Even if the Unruh Act does work some slight infringement on Rotary members' right of expressive association, that infringement is justified because it serves the State's compelling interest in eliminating discrimination against women.   See Buckley v. Valeo, 424 U.S. 1, 25 [96 S.Ct. 612, 637, 46 L.Ed.2d 659] (1976) (per curiam) (right of association may be limited by state regulations necessary to serve a compelling interest unrelated to the suppression of ideas).   On its face the Unruh Act, like the Minnesota public accommodations law we considered in Roberts, makes no distinctions on the basis of the organization's viewpoint.   Moreover, public accommodations laws ‘plainly serve compelling state interests of the highest order.’․   We therefore hold that application of the Unruh Act to California Rotary Clubs does not violate the right of expressive association afforded by the First Amendment.”  (Emphasis mine.)

VII

In New York State Club Association v. City of New York, 487 U.S. 1, 108 S.Ct. 2225, the United States Supreme Court again, in the context of a contention that the City of New York Local Law No. 63 infringed on every club members' right of “expressive association”, declared (at p. 13, 108 S.Ct. at p. 2234):

“The ability and the opportunity to combine with others to advance one's views is a powerful practical means of ensuring the perpetuation of the freedoms the First Amendment has guaranteed to individuals as against the government․  This is not to say, however, that in every setting in which individuals exercise some discrimination in choosing associates, their selective process of inclusion and exclusion is protected by the Constitution.  Hishon, supra, [467 U.S.] at 78 [104 S.Ct. at 2235];  Norwood v. Harrison, 413 U.S. 455, 470 [93 S.Ct. 2804, 2813, 37 L.Ed.2d 723] (1973) Railway Mail Ass'n. v. Corsi, 326 U.S. 88, 93–94 [65 S.Ct. 1483, 1487, 89 L.Ed. 2072] (1945).

“On its face, Local Law 63 does not affect ‘in any significant way’ the ability of individuals to form associations that will advocate public or private viewpoints.  Rotary, 481 U.S., at 548 [107 S.Ct., at 1947].   It does not require the clubs ‘to abandon or alter’ any activities that are protected by the First Amendment.  Ibid.  If a club seeks to exclude individuals who do not share the views that the club's members wish to promote, the Law erects no obstacle to this end.   Instead, the Law merely prevents an association from using race, sex, and the other specified characteristics as shorthand measures in place of what the city considers to be more legitimate criteria for determining membership.   It is conceivable, of course, that an association might be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion.   In the case before us, however, it seems sensible enough to believe that many of the large clubs covered by the Law are not of this kind.”  (Emphasis mine.)

From the United States Supreme Court decisions (the trilogy) I would distill the following rules not honored by the majority opinion.  (1) The application of Unruh to Mount Diablo does not require the organization to “alter or abandon its activities.”  (2) California's compelling interest “of the highest order” is “unrelated to the suppression of ideas”.  (3) The evidence is totally lacking to show that Mount Diablo was organized for the specific expressive purpose of opposing homosexuality.  (4) The discrimination against Curran rests upon acceptance of unsupported generalizations and use of prohibited “stereotypical evidence” to prove an impingement upon the claimed but unproved expressive purpose.  (5) This associational right to privacy is not without qualification (Evans v. Newton (1966) 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373) and is subject to a balancing process.

“The right to associate for expressive purposes is not, however, absolute.   Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”

As noted by the Rotary Club court:

“The ill effects of discrimination against the individual as well as on society as well recognized.   Our nation's Supreme Court in Roberts v. United States Jaycees (1984) 468 U.S. 609 [104 S.Ct. 3244, 82 L.Ed.2d 462], succinctly stated that it ‘has frequently noted that discrimination based on archaic and overbroad assumptions about the relative needs and capacities of the sexes forces individuals to labor under stereotypical notions that often bear no relationship to their actual abilities.   It thereby both deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life.’  (Id., at p. 625 [104 S.Ct. at p. 3253].)”  (Rotary Club of Duarte v. Board of Directors, supra, 178 Cal.App.3d at p. 1062, 224 Cal.Rptr. 213.)  (Warfield v. Peninsula Golf & Country Club, supra, 17 Cal.App.4th 1662, 1673, 16 Cal.Rptr.2d 243.)

VIII

The specie of organization which has been found to possess the right of “expressive association” bears no factual resemblance to the Mount Diablo organization.

In New York State Club, supra, the Supreme Court speculated it was “conceivable” that an association might be able to show that it was organized for a specific expressive purpose that it would not be able to advocate the desired viewpoint nearly as effectively if it could not confine its membership to those who share the same sex, for example, or the same religion.  (487 U.S. at p. 13, 108 S.Ct. at p. 2234.)

The Invisible Empire of the Knights of the Ku Klux Klan v. Mayor of Thurmont, (Dist.Ct.Md.1988) 700 F.Supp. 281, 289, is such a case.   It relies upon the language of New York State Club.   The Ku Klux Klan argued that the nondiscrimination required would have compelled the Ku Klux Klan to allow nonwhites and nonchristians to march in the Klan parade thus violating its First Amendment Rights to “expressive association”.   The district court agreed declaring that if there ever was a case where the membership and the message were co-extensive, it was here.   The group's primary purposes was to advocate one main concept, to wit:  that Blacks and whites should not mix.   Allowing Blacks to march with the KKK would change the primary message that the KKK advocates.  (At p. 289.)

The dictum in the New York State Club is applicable in New York County Ancient Order of Hibernians v. Dinkins (S.D.N.Y.1993) 814 F.Supp. 358, 368.   Also, as an example of “expressive association” rights is Hart v. Cult Awareness Network, 13 Cal.App.4th 777, 16 Cal.Rptr.2d 705, which involved the CAN–LA organization, with an “expressive purpose” of “deprogramming” disturbed former cult members.   This court held:

“[T]he relationship among CAN–LA members are the type of intimate and private relationship that warrants constitutional protection.   CAN–LA is not a ‘large and basically unselective” group, as were the local chapters of the Jaycees in Roberts.  (Roberts v. United States Jaycees, supra, 468 U.S. at p. 621 [104 S.Ct. at p. 3251, 82 L.Ed.2d at p. 473].)   In fact, according to CAN–LA's bylaws of August 1991, membership is only open to ‘families and former members of destructive groups and others committed to exposing these groups.’   Membership in CAN–LA must be approved by the membership committee, and individuals who are not members of CAN–LA will be permitted to attend meetings at the discretion of the officers (chairman, vice-chairman, secretary, treasurer, and POCUS coordinator).   The lack of any other guidelines for membership specified in the bylaws indicates that membership is largely discretionary with the membership committee.   A written membership application requires prospective members to list three references, to explain in detail their interest in CAN membership, and to adopt in writing a statement that ‘I am not now a member of a destructive group ․,’ and that ‘I will promote the principles of CAN–National and CAN–LA.   I will not use any information I learn to harm CAN–National or CAN–LA or its members.’ ”

Hart was an active scientology member who sought admission into CAN–LA.

In upholding CAN–LA's First Amendment Rights intimate association and refusing to apply the Unruh Act this court reasoned (13 Cal.App.4th at p. 790, 16 Cal.Rptr.2d 705):

“Unlike the situation in Roberts, there is a substantial basis in our record to support the conclusion that admitting appellant as well as other Scientologist as members of CAN–LA will impede its ability to engage in protected activities and to disseminate its preferred views.   Appellant plainly admits that his purpose is to inform CAN–LA about Scientology so as to challenge, if not change, CAN–LA's belief that Scientology is a destructive cult.   This purpose is incompatible with CAN–LA's work in counseling and providing support for ex-cult followers and the families of current cult followers.”

No evidence here forces the conclusion the boy scouts are in any way akin factually to the KKK, the anti-woman's club, or to CAN–LA, or the Ancient Order of Hibernians.   It defies reason and logic (and a total lack of competent evidence) to say that Mount Diablo is a group organized for the specific purpose to promote an anti-homosexual agenda.   Longstanding members and leaders of the group were entirely unaware the group follows such a philosophy.   I would conclude the boundaries of the “expressive association” rights do not factually encompass a group whose members are unaware of those expressive purposes.

IX

There is no doubt that California does have a “compelling ” state interest in ending discrimination on the basis of sexual orientation by all business establishments in this state including Mount Diablo.

The Duarte court declared:  The Unruh Act “plainly serve compelling state interest of the highest order ”.  (481 U.S. at p. 549, 107 S.Ct. at p. 1947.)   In California the Court of Appeal in Pines v. Tomson, 160 Cal.App.3d at p. 391, 206 Cal.Rptr. 866 declared:  “[G]overnment has a compelling state interest in eradicating discrimination in all forms”.

The lower court's justification for not giving effect to the state's compelling interest is not legally supportable.   The trial court's conclusion that the impact of the regulation “falls squarely on the protected expression ” is not the test of constitutionality.   The test is “substantial impact ” of an infringement on “expressive association” rights to express ideas and beliefs.

To the extent the lower court's decision rests upon the premise that the Unruh Act is directed at suppression of ideas, such a conclusion is foreclosed by the holdings of Pines, supra, 160 Cal.App.3d at 392;  Roberts, supra, and Rotary, supra.   California interest in eradicating discrimination on the basis of race or sex is unquestionably “compelling” and is “unrelated to the suppression of ideas ”.  (Emphasis mine.)  (Roberts, supra, 468 U.S. at p. 624, 104 S.Ct. at p. 3253;  Pines, supra, 160 Cal.App.3d at p. 392, 206 Cal.Rptr. 866;  Duarte, supra, passim.)

The court's conclusion that “the Boy Scouts of America as an organization has taken a consistent position that homosexuality is immoral and incompatible with the Boy Scout Oath and Law [and] that Mt. Diablo Council has adopted this position” if true, is irrelevant.   The critical question to be answered was:  Do defendant's members associate with one another at least in some significant part to convey the anti-homosexual views as a shared position?   No evidence supports such a conclusion.   Rather, the evidence indicates this could not be so.   The view that homosexuality is immoral has not been expressed publicly by Mount Diablo.

It is contended that the subject is by the code words “morally straight” expressed publicly by Mount Diablo.   It is strangely lacking in the Boys Scouts of America guiding documents or anywhere within its literature.   Moreover, such a view is inconsistent with the values of tolerance and respect for difference it does express.   Such a “hidden” purpose is contrary to expressed views regarding the view generally known to its members.   They were not shown to agree that homosexuality is immoral.   Defendant does not inquire into sexual preference.   Scouts are not even required to agree with the view that homosexuality is immoral in order to be a part of scouting.

The trial court speculated in accepting Mount Diablo's conclusion (without evidence) that excluding homosexuals from its organization was necessary in order to teach scouts homosexual conduct is immoral and to discourage such conduct among scouts.   This conclusion is not warranted for these reasons.   There is no evidence to indicate that such interference was a necessary consequence of enforcement of the Unruh Act in this case.   This conclusion rests upon the “stereotypical” thinking concerning what all lesbians and all gay persons think.  Roberts, Duarte and Mount Diablo I, supra, condemn this specie of reasoning.   Secondly, the trial court did not consider whether its expressive goals (if such were expressive goals of boy scouts) would be in conflict with its announced views as to how to handle the too common problem which arises in pubescent and pre-pubescent males, who are concerned and at sea regarding their budding sexuality.   Reference to outside counseling is the wise Boy Scouts of America answer—not a anti-homosexual diatribe.

Roberts, Duarte, supra, require evidence of a “substantial impairment ” of the achievement of expressive purpose.   There is no evidence that Mount Diablo would be required to abandon or alter expressive activities if Curran were admitted to membership in the boy scouts.

X

Finally, the trial court committed further reversible error.   The determination of the issue of “expressive purpose” versus anti-discrimination law application requires a balancing process.   This the trial court did not perform.   It erroneously excluded evidence Curran proffered to demonstrate both the strength of California's compelling interest in eradicating discrimination against lesbians and gay men and to show the harmful effects of discrimination as practiced by defendants if allowed to continue.   The effect of this type of discrimination is not only upon Curran but the public generally.   The trial court refused to admit evidence to the effect of this discrimination upon gay youth;  evidence that young people are struggling with or because of this sexual identity appear to have a higher incidence of suicidal behavior.   If boy scout members are subject to rejection, discrimination or isolation from support groups all society is injured.   The evidence proffered would show the dramatic rise in assaults and hate crimes against lesbians and gay men.   The connection between suicide of gay youth and policies that make people hide and feel guilty add weight to the compelling nature of the state's purpose and need for enforcement of the anti-discrimination laws.

Because of Mount Diablo's public prominence and position, the feeling of vulnerability and injustice and the badge of inferiority created by Mount Diablo's acts of discrimination are not visited solely upon the individual directly discriminated against, but are shared by all other members of the group who identify with the individual against whom the discrimination is directly visited.  (See Brest, The Supreme Court 1975 Term—Forward:  In Defense of the Anti–Discrimination Principle (1976) 90 Harv.L.Rev. 1, 82:  “Decisions based on assumptions of intrinsic worth and selective indifference inflict psychological injury by stigmatizing their victims as inferior.   Moreover, because acts of discrimination tend to occur in pervasive patterns, their victims suffer especially frustrating, cumulative and debilitating injuries.”)   The state has a powerful interest in preventing such harms.

Although some people's ideal of human adjustment is unconditional conformity, the genius of American pluralistic society and the Boys Scouts of America (with rare exception) has been its ability to accept diversity and differences.   An appeal to this genius in the espousal of a cause and some degree of action to promote the acceptance of a possibly unpopular view is at the heart of the American way.

I would reverse the judgment with directions to the trial court to grant the writ and injunction as prayed.

FOOTNOTES

1.   Mt. Diablo Council has cross-appealed from the judgment “as to the issues of whether Mt. Diablo Council is a ‘business establishment’ under the Unruh Act, Civil Code sections 51 et seq., and whether application of the Unruh Act to the membership policies of Mt. Diablo Council violates its members' constitutional right of intimate association under Roberts v. United States Jaycees (1984) 468 U.S. 609 [104 S.Ct. 3244, 82 L.Ed.2d 462].”   As hereafter discussed in part V of this opinion, we agree with Mt. Diablo Council on this issue and disagree with the holding of the trial court thereon.

2.   We agree with the judgment of the trial court that a compelled hiring of Curran would be violative of Mt. Diablo's rights to freedom of expressive association.   As stated in footnote 1, we disagree, however, with the conclusion of the court that Mr. Diablo is constrained by the Unruh Act as a business establishment.  (See Part V of this opinion.)

3.   Plaintiff did not request such findings pursuant to California Rules of Court, rule 232(a).  (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133–1134, 275 Cal.Rptr. 797, 800 P.2d 1227.)

4.   “Petitioner is the appropriate party to assert these rights, because it and its members are in every practical sense identical.   The Association, which provides in its constitution that ‘[a]ny person who is in accordance with [its] principles and policies ․’ may become a member, is but the medium through which its individual members seek to make more effective the expression of their own views.”  (Emphasis added.)   (N.A.A.C.P. v. Alabama, supra, 357 U.S. at p. 459, 78 S.Ct. at p. 1170.)

5.   In argument, Curran's counsel conceded to the court that “the way one tells [what an organization believes] is seeing what the membership has stated and seeing what the organization has adopted as an institutional policy.”

6.   Curran's insistence now on “individual” understandings is inconsistent with his stance at trial given that his counsel objected at trial to testimony of an individual understanding of the “clean” and “morally straight” values, claiming that he did not understand “what this gentleman's understanding of those terms could be relevant to.”   The court pointed out that Mt. Diablo Council had introduced evidence of a general understanding of its members which it wished to confirm by testimony of the individual understanding of representative members.  (See New York State Club Ass'n. v. New York City, supra, 487 U.S. at p. 10, fn. 4, 108 S.Ct. at p. 2232 fn. 4 [“[T]he necessary proof could be presented ‘in a group context.’ ”].)

7.   Plaintiff did not present evidence of a single Boy Scout leader, other than himself, who modeled or advocated homosexual conduct.

8.   Potter admitted that the Scoutmaster Handbook he had used warned against homosexuals using their scouting associations to make contacts.   When asked whether he viewed sexual experimentation between the boys as inconsistent with the Scout Oath and Law, he answered “Potentially, yes.”   Potter's credibility was further undermined by Alexander's testimony that in 1980 Potter acknowledged that he understood and would abide by Boy Scouts' policy regarding homosexuality.O'Hehir lost credibility when he tried to argue that the Scout Oath and Law came up “scarcely at all,” a point conclusively disproven by the testimony of Curran and his other witnesses.   O'Hehir's statement that sexuality did not come up ever, was contradicted by the version of the Boy Scout Handbook in use during his scouting years.   O'Hehir tried to resolve this inconsistency with the questionable claim that he “definitely did not possess” this version of the handbook.   O'Hehir admitted that his testimony, eleven or twelve years after his last involvement with scouting, was not probative:  “I am not familiar with the interpretations of the Scout law.”Kaake admitted that the “clean” requirement related to not telling dirty stories, not looking at pornographic literature, and not swearing or committing unlawful sexual acts.

9.   In an effort to downplay the severity of the interference with expressive association, Curran distorts the record below by claiming that “Tim simply wanted to attend the National Jamboree.”   We note in Curran's original complaint, Curran alleged that his scoutmaster submitted his name for approval as an “adult ‘Scouter,’ in order that the plaintiff could assist his Scout Master in a leadership capacity.”  (Emphasis added.)   As part of its ruling on Curran's initial complaint, the superior court stated that “it is unclear how plaintiff has or can state a cause of action to ‘go to the Jamboree.’ ”   In response, Curran filed an amended complaint that dropped all mention of the jamboree and based his claims simply on the alleged denial of “scouter status.”Curran made no objection to the court's opinion after Phase I of the trial, in which the court found that Curran “wished to become a ‘Scouter’, the Boy Scouts' term for an adult troop leader.”   Moreover, Curran did not dispute that the scouter position required that he be a role model.   As Curran's counsel commented, “We don't dispute that.   Sure, Adult Scouters have to be models.   No one disputes that.”

10.   Expressive rights are protected from interference even if the infringement is not “direct.”“But the Constitution's protection is not limited to direct interference with fundamental rights․  ‘Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.’ ”  (Healy v. James (1972) 408 U.S. 169, 183, 92 S.Ct. 2338, 2347, 33 L.Ed.2d 266.)

11.   A Scout pledges to “do my Duty to God.”   The twelfth point of the Scout Law is “A Scout is reverent.”

12.   Prior to the issuance of the Phase II decision, the legislature amended Code of Civil Procedure section 437c to “stop the practice of adjudication of facts or adjudication of issues that do not complete dispose of a cause of action or a defense.”  (Stats.1990, c. 1561, § 1.)   When Curran moved for summary judgment a third time in 1989, the court ruled that there was a “material triable controversy” with respect to all issues submitted for decision.

13.   As the court noted, the validity of the Boy Scouts policy was not in issue.

14.   The claim that scouting approves of or tolerates homosexual conduct is not supported by any of the references to testimony.   One reference merely indicates that a boy would not be excluded for having a homosexual as a best friend, “provided he met the other standards.”   The second reference establishes that a heterosexual who would tell the boys “there is nothing wrong” with homosexual conduct “would not be acceptable.”   The third reference shows that a member's statement that he wanted to “ ‘espouse homosexuality’ ” “would rule them out as a member.”   Curran relies on a general statement that members were free to make individual statements on “political” issues.   The fourth reference concerns the recollections of a witness regarding Curran's former scoutmaster.   This witness recalls that the scoutmaster “wasn't vehemently against [homosexuality],” and then added that “[h]e wasn't for it.”   The fifth reference notes that Curran's scoutmaster had given a general to whom it may concern letter of support to Curran.   In the sixth reference a witness responded to a labyrinthine question by stating that a person who was “tolerant of others” who are homosexual would not be disqualified.   This witness clarified that anyone teaching the boys that homosexual conduct was moral would not be recommended as a leader because that would be inconsistent with the Scout Oath and Law.

15.   Curran's brief defensively argues that the expressive association rights of the KKK should be protected while those of Boy Scouts should be disregarded.   Our constitution, however, does not make this choice between value systems.

16.   As a result, Mt. Diablo Council did not present rebuttal evidence on this point.

17.   In any event, the reports were not subject to judicial notice under section 452, subdivision (c) of the Evidence Code, which only permits judicial notice of an official act of the State or its subdivisions.   Even if the court had taken judicial notice of these reports, they remained inadmissible since judicial notice “does not establish the truth” of statements in a document.  (1 Witkin, Cal. Evidence (3d ed. 1986), § 98, p. 85.)

18.   As noted by the court below, the decision in Isbister, as well as the decision in Roberts, “might have affected the outcome” of Curran I.

19.   Troops and local councils (such as Mt. Diablo Council) receive their charters from Boy Scouts of America.   A representative of each troop serves as a member of the local council, and each local council has three or more representatives on the national council.

20.   Actually, what Curran sought was the opportunity to offer his services to the Boy Scouts in the Mt. Diablo Council, another circumstance not covered by the Act.   The Unruh Act applies to discriminations by a business establishment made in the course of furnishing goods, services or facilities to its clients, patrons or customers.  (Alcorn v. Anbro Engineering Inc. (1970) 2 Cal.3d 493, 500, 86 Cal.Rptr. 88, 468 P.2d 216.)   The denial of an opportunity to offer the volunteer services of a prospective scoutmaster is not a denial of a public accommodation.  (See Quinnipiac Coun. v. Com'n on Human Rights (1987) 204 Conn. 287, 528 A.2d 352, 360, [“[A] statute that addresses a discriminatory denial of access to goods and services does not, on its face, incorporate an allegedly discriminatory refusal by an enterprise to avail itself of a claimant's desire to offer services.”  (Original emphasis.) ].)

21.   In Welsh, the court held that scouting's operation of facilities was merely incidental to its central associational activity:“The kinds of activities in which Boy Scout, Cub Scout, and Tiger Cub groups typically engage are not dependent upon the accoutrements of any particular location, let alone of a facility one would normally think of as a place of public accommodation.   Rather, the success of the Boy Scouts, and the attraction to boys and their parents alike, lies in the sense of community among its participants.”  (Welsh v. Boy Scouts of America, supra, 787 F.Supp. at p. 1539.)

22.   The Unruh Act forbids only arbitrary discrimination.  (See Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d 1142, 1162–1165, 278 Cal.Rptr. 614, 805 P.2d 873.)   Under the Unruh Act, the reasonableness of a regulation normally is established by consideration of the “legitimate business interests” of the organization.  (Id., at p. 1162, 278 Cal.Rptr. 614, 805 P.2d 873.)In this case, of course, the Unruh Act has been taken so far afield of its intended coverage that it is being applied to an organization that has no business interests at all.   Nevertheless, if the Unruh Act could be carried so far as to consider scouting as some kind of “business,” and to consider the opportunity to volunteer as a leader to be some kind of business product, then limiting leadership to those who agree with the goals of the organization would be reasonable.   Thus, a union's exclusion of a member who had helped to organize a rival union was “entirely reasonable.”  (Anderson v. Los Angeles County Employee Relations Com. (1991) 229 Cal.App.3d 817, 826, 280 Cal.Rptr. 415 [“ ‘An organization has the natural right of self preservation, and may with propriety expel members who show their disloyalty by joining a rival organization.’ ”;   citation omitted.].)   Viewed in this light, limiting leadership in scouting to those who agree with its moral viewpoints must be considered reasonable, not arbitrary.

1.   “§ 51.   The Unruh Act provides:“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, or national origin or blindness or other physical disabilities are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.