RANDALL v. ORANGE COUNTY COUNCIL BOY SCOUTS OF AMERICA

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Court of Appeal, Fourth District, Division 3, California.

Michael RANDALL et al., Plaintiffs and Respondents, v. ORANGE COUNTY COUNCIL, BOY SCOUTS OF AMERICA, Defendants and Appellants.

No. G012797.

Decided: February 28, 1994

Hughes Hubbard & Reed, George A. Davidson, Carla A. Kerr, John Kralik IV, and Lois C. Moonitz, New York City, for defendant and appellant. Jon W. Davidson, Paul L. Hoffman, and James Grafton Randall, Los Angeles, for plaintiffs and respondents.

OPINION

Does the Unruh Civil Rights Act (Civ.Code, § 51, et seq.1 ) apply to the Orange County Council of the Boy Scouts of America?   Yes. May the council, the only named defendant, discriminate on the basis of religious beliefs or lack of religious beliefs?   No.

I

This is an appeal from an action for injunctive relief and statutory damages ($250) on behalf of eleven-year-old twin brothers, plaintiffs Michael and William Randall, who were members of Cub Scout Den 4, Pack 519, located in Anaheim Hills.   The boys prevailed at trial, obtaining an injunction barring defendant Orange County Council, Boy Scouts of America or any packs or dens from excluding them from scouting or advancing in the organization based on their religious beliefs.

Den 4 has five or six members who attend the same neighborhood school.   Pack 519 is comprised of Den 4 and a half dozen others and affiliated with defendant Orange County Council, Boy Scouts of America.   The pack has no assets, but is operated by a parents' committee chartered by the county council.

The Randalls had advanced several scouting ranks when their family moved to the Den 4 neighborhood in 1990.   At the boys' fourth or fifth meeting in the new den, the den mother read the first “achievement” in the Bear Book, the instruction manual for the next Cub Scout ranking, the Bear Badge.   Quoted directly from the book, it reads as follows:  “We are lucky.   The people who wrote and signed our Constitution were very wise.   They understood the need of Americans to worship God as they choose.   A member of your family will be able to talk with you about your duty to God.   Remember, this achievement is part of your Cub Scout Promise:  ‘I, _, promise to do my best to do my duty to God and my country․’

“REQUIREMENT

“Practice your religion as you are taught in your home, church, synagogue, mosque, or other religious community.

“I worship God:  in song[,] in prayer[,] in study[,] and by kind and thoughtful acts toward others.”

Alternatively the achievement could be attained in the following way:  “Many signs remind us of God.   Among them are a 6–pointed star, a cross, and a crescent.   There are many other religious symbols.   One of them may appear on a special emblem you may earn to wear on your uniform.

“Learn more about your faith from your rabbi, minister, priest, imam, elder, or other religious leader.

“REQUIREMENT

“Earn the religious emblem of your faith.”

According to defendant, Michael and William responded that they would have a problem because they did not believe in God and were atheists.   This caused some commotion among the other boys, and the den mother removed the twins from the room.   She asked what they did believe in;  and they replied, “themselves.”   The boys testified the word “atheist” was not in their vocabulary and was suggested by the den mother.   They denied disrupting the meeting.

In any event, the boys' parents were informed of the religion achievement requirement and told their sons could not continue in scouting if they did not believe in God.   With their mother as guardian ad litem, the boys' attorney father soon brought suit.

II

 It has long been the law of California that the Boy Scouts, on the national and council levels, are businesses subject to regulation under the Unruh Act.  (Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 717, 195 Cal.Rptr. 325.) 2  Nothing in the evidence produced below calls the Curran decision into question.   Indeed, the facts established at trial strongly support its conclusion.3

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, 219 Cal.Rptr. 150, 707 P.2d 212, footnote 8.4  More recently, the court refused to jettison Curran in Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155, 278 Cal.Rptr. 614, 805 P.2d 873;  and Harris may be 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, the same division of the Second District distinguished, but did not overrule, its decision in Curran.

Relying on Hart, however, defendant claims application of the Unruh Act would violate its constitutional right of free association.   It made the same argument in Curran;  and the court answered, “Taking this principle [the right to free association] literally as ‘governing’ would afford protection to the most flagrant form of discrimination under the canopy of the right of free association.   The answer is, of course, that those with a common interest may associate exclusively with whom they please only if it is the kind of association which was intended to be embraced within the protection afforded by the rights of privacy and free association.  (See Note, Association, Privacy and the Private Club:  The Constitutional Conflict (1970) 5 Harv.C.R.–C.L.L.Rev. 460, 466–467.)  ‘The character and extent of any interference with the freedom of association must be weighed against the countervailing interests.’  (Noe, Sex Discrimination in Private Clubs (1977) 29 Hastings L.J. 417, 422.)  [¶]  Accordingly, these constitutional provisions only restrain the Legislature from enacting antidiscrimination laws where strictly private clubs or institutions are affected.”  (Curran v. Mount Diablo Council of the Boy Scouts, supra, 147 Cal.App.3d at pp. 730–731, 195 Cal.Rptr. 325.)

Were we writing on a clean slate, the Hart opinion (refusing to require the Cult Awareness Network to admit members of the Church of Scientology) might give pause.   But the specific issues before us concerning application of the Unruh Act to the Boy Scouts were resolved over a decade ago.   Sound principles of stare decisis, particularly in view of the reaction (or lack thereof) to Curran by the Legislature and the appellate courts, persuade us it should be followed.5  A settled rule in an area of sensitive social policy should not lightly be brought into question.

III

 The council does have one point, though.   Oddly, the superior court drew an injunction specifically naming packs and dens, while recognizing in the statement of decision that none was before the court.   That portion of the injunction must be annulled accordingly.   It is axiomatic that only parties to actions may be enjoined.   Packs and dens are not merely companies and platoons in the same army;  they are loosely led and virtually autonomous in the community.6

Randall père probably appreciated the distinction because neither the pack nor the den was made a party.  (See Roberts v. United States Jaycees (1984) 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462.) 7  And, as noted in footnote 7, they have different legal positions.   No pack or den should have been enjoined who had not been named in the complaint or intervened in the action.

To summarize, the Orange County Council, Boy Scouts of America can hardly be considered the religious organization the dissent proclaims, since any creed will meet its requirements.   The county council is a business, a fairly big business.8  But businesses entertaining religious preferences may not discriminate on that basis.  (Pines v. Tomson (1984) 160 Cal.App.3d 370, 206 Cal.Rptr. 866.) 9  The council could have no compelling justification for discriminating against children because of their current notions concerning the subject of God.   Indeed, such discrimination would appear to contradict a variety of the principles of the congressionally chartered Boy Scouts of America.

The judgment is affirmed in part and reversed in part with directions to delete all references to packs and dens from the permanent injunction.   Each side shall bear its own costs.

To read the majority opinion, one would think we are writing about a pizza parlor where the proprietor requires prayers before serving a medium pepperoni with anchovies.   It may come as a surprise to my colleagues, but there are those who still seek membership in an organization which teaches duty to God and country and the virtues of order and discipline.   The Scouts believe these values breed character and help young men to survive hardship and adversity, whether it be on a cold windswept hill or in the last few miles of a long hike.

The Boy Scouts are not a church in the traditional sense, but that does not mean they do not have their ideals—or that the government may force them to disregard those ideals.   Almost certainly, if the Scouts were an organization of only Catholics or only Jews, the religious connection would be so unmistakable that no one would question their right to First Amendment protection.   Because they are somewhat less sectarian and require only a belief in the concept of God rather than a full set of religious doctrines does not mean they forfeit the right to associate based on common beliefs and values.

The Boy Scouts were founded in the early part of the 20th Century by a British cavalry officer, Lieutenant General Robert Baden–Powell, for whom devotion to God, patriotism and military duty were inseparable.   One need only tour St. Paul's Cathedral in London where Nelson and Wellington are buried to understand the close association between these ideas which still provide for Scouting an ideological undergirding.   Scouts wear military style uniforms, salute each other and receive and wear medals for meritorious achievement.   An oath to God is required for promotion to all ranks from the Bear Badge of Cub Scouts to the coveted Eagle rank or Order of the Arrow.   Duty to country, family and religion are all part and parcel of the ethic and fabric of Scouting from cub to explorer.

The Scout law or creed specifies 12 commandments.   A Scout must be trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean and reverent.   This “law” tells us that “A Scout is reverent toward God.   He is faithful in his religious duties.   He respects the beliefs of others.”   Scout meetings and camp-outs end with a benediction:  “May the Great Master of all Scouts be with us until we meet again.” 1  No less than 25 religions are formally affiliated with Scouting—Catholic, Jewish, Baptist, Islamic and Zoroastrian to name a few.

Idealism about God and country may be considered passé in some circles, who regard it as a kind of unholy “civil religion.”   Indeed, Mark Twain once skewered the tendency of soldiers to pray for victory in battle as wholly inconsistent with any idea of a benevolent supreme being.2  But it is not the validity of such ideals that is before us.   The question is simply whether the Boy Scouts have the right to associate based upon those ideals.   Hard as my colleagues may find this to believe, the Boy Scout oath is an important expression of those common beliefs.   It descended from a military code which has come down to us from antiquity.   It is not coincidence that both the Boy Scouts and American Legion honor God and country.   Today's opinion callously ignores this tradition and its importance in all phases of Scouting.

My colleagues may question why the Boy Scouts think duty to God and country are important to the development of young men's character.   My colleagues may think the requirement of an oath silly—no doubt they may also think requiring young Scouts to wear uniforms or salute to be silly.   So what.   These things are an important part of the Scouts' common beliefs.   It is not within government's province to interfere.   The Boy Scouts have the right to believe in whatever philosophy they are convinced builds character, and if that means enforcing their own internal oath to God and country, so be it.3

The majority rests its decision on Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 195 Cal.Rptr. 325.   My colleagues seem to think that Curran etched into California law the proposition that the Boy Scouts are “a business subject to regulation under the Unruh Act.”  (maj. opn. at p. 55.)   This is by far too broad a reading of the case.   All it really established is that for purposes of a demurrer, the mere fact that an organization is nonprofit does not automatically exempt it from the Unruh Act when there are allegations that the organization has “businesslike aspects.”

As noted, and unlike the present case, Curran reached the appellate court on demurrer, without the benefit of a full airing of the facts.   The appellate court was thus bound to accept the factual allegations of the plaintiff as true.   The portion of the opinion addressing the coverage of the Unruh Act to the Boy Scouts is primarily found at pages 727 to 733, under a subheading entitled, “ ‘Business Establishments' Include All Entities, Whether Carried on for Profit or Not, Which Are Open to and Serving the General Public.”   The actual decision of the court to hold that the Boy Scouts were a business for purposes of reviewing the demurrer is set out, almost as an afterthought, and only obliquely, on page 730 of the opinion.   After having taken several pages (147 Cal.App.3d at pp. 727–730, 195 Cal.Rptr. 325) trying to show that organizations such as homeowner associations might still be “businesses” under the Unruh Act even though they are nonprofit and noncommercial, the court then casually slipped in the idea, in the first full paragraph on page 730, that in the case before it the “same situation” existed as did a previous case regarding a homeowner's association held to be a “business.”   The reason?   There were “allegations showing that defendant has certain ‘businesslike attributes.’ ”  (147 Cal.App.3d at p. 730, 195 Cal.Rptr. 325.)   The court did not articulate what the “businesslike” attributes of the Boy Scouts were—except perhaps to make an inscrutable reference to the “non-commercial aspects” of a “business establishment.”   Nor did the court explain how the Boy Scouts were like a homeowner's association.4

And that was it, as regards whether the Boy Scouts were a business.   After that paragraph the court immediately shifted its attention to a different question:  not whether the Boy Scouts are a business, but whether holding them to be a business would be constitutional.  (See 147 Cal.App.3d at pp. 730–733, 195 Cal.Rptr. 325.)   Not only is that a different problem, but it is answered not by Curran but by a decision of the United States Supreme Court.  (See below.)

The most, then, that one can assume from Curran is that allegations that a nonprofit organization has “businesslike attributes” are sufficient to show that the organization is a business under the Unruh Act for purposes of demurrer.   Of course, most churches also have “businesslike attributes”—they have payrolls to meet (sometimes multi-million dollar payrolls), property to maintain, insurance to buy, and even sell things—such as books, magazines and emblems.  Curran only demonstrates that if a plaintiff alleges such organizations have “businesslike attributes” in his or her complaint, the organization cannot claim it is automatically not a business because of its nonprofit status.   The Curran opinion on this point is as applicable to the Roman Catholic or Mormon religions as it is to the Boy Scouts.   It hardly establishes as a matter of law that the Boy Scouts have been adjudicated to be a “business establishment.” 5

Even assuming that Curran did somehow establish that the Boy Scouts were a business, the decision is not binding on this court.   If Curran was not correctly decided, we are not bound to perpetuate the error.   My colleagues do not even attempt to show the case was correct.6

The Curran court did not bother to explain what precisely were the “businesslike attributes” which the Boy Scouts are alleged to have which makes them a “business establishment” as the term is used in the Unruh Act.   It did not even bother to explain what it is about the Boy Scouts that is so like that of a homeowner's association that makes the Boy Scouts a business.

The crux of the Curran decision on the point boils down to three sentences which came at the tail end of the court's description of the Supreme Court's opinion in O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427.   The sentences are quoted above in footnote 4.   The first sentence sneaks in the illogical idea that the words “business establishment” as used in the Unruh Act entails “non-commercial aspects.”   Here is the sentence:

“Although the Supreme Court found [in O'Connor ] the owners association had ‘businesslike attributes' to come within the scope of ‘business establishment,’ we construe this to mean that the association fits both the commercial and non-commercial aspects of the meaning of ‘business establishment.’ ”

Puzzle over these words for a while and it becomes clear that the court is assuming the words “business establishment” encompass within them both “commercial” and “non-commercial” aspects.   As the logicians say, the assumption is a non sequitur.   It does not follow—in fact it flies in the face of common sense—to say that business organizations are defined in part because of their non commercial aspects.   It is one thing to show—as the Curran court had just spent several pages doing—that a noncommercial organization might be a business establishment despite its “noncommercial aspects.”   It is something altogether different to believe that an organization's noncommercial aspects help show that it is a business establishment.   Indeed, the effect of the latter is nonsense.  “Non commercial aspects” most certainly do not make something a business.   Unless the Unruh Act is to be extended to every church and social club who hires a janitor or a bookkeeper, Curran's assumption is ludicrous.

The second sentence incorporates the illogical conclusion of the first, and tries to leap from the case of a homeowner's association to the Boy Scouts by sheer conclusory innuendo:  “Here, the same situation exists.”   We are not told why;  we are not told how.   We are just expected to take the court's word for it.

It is left to the third sentence to support the conclusion to which the second has jumped:  “There are allegations showing that defendant has certain ‘businesslike attributes.’ ”   We are not told what precise attributes the Boy Scouts have that are “businesslike.”   We are not told why having undefined businesslike attributes makes some entity a business establishment.   Yet the entire conclusion rests on unknown attributes which have only been alleged.7

The best the reader can derive from Curran is that the opinion is saying Boy Scouts are like a homeowner's association merely because both share certain businesslike attributes.   Having derived this, Curran's conclusion is utterly unconvincing because the attributes are not specified, and the Curran court made no attempt to show how these unspecified attributes make the Boy Scouts a business.

Worse, the conclusion devolves into absurdity.   If all it takes is the mere allegation of unspecified businesslike attributes to render an entity a business, then, under Curran, churches are businesses for purposes of the Unruh Act.   They too have businesslike attributes, as do most fraternities, lodges and political clubs.   Of course, the legislative history of the act is devoid of any indication that it was directed at such organizations.8  A fire storm of public protest would have descended on the Legislature had it considered passing a law which was clear that voluntary associations such as the Catholic Church and the Boy Scouts would be affected.   The Curran decision was judicial activism at its worst.

Further, even assuming that the Boy Scouts were a business for purposes of the Unruh Act, it does not follow that they do not have a First Amendment right under the federal Constitution to refuse membership to those who do not share their ideals.   As my colleagues seem to have forgotten, the rights guaranteed by the First Amendment take precedence over state statutes.

Immediately after rejecting the idea that the nonprofit status of the Boy Scouts was enough to exempt them from the coverage of the Unruh Act, the Curran court turned its attention to whether application of the act would violate the Boy Scouts' “rights of privacy and free association as a membership organization.”  (Curran, supra, 147 Cal.App.3d at pp. 730–732, 195 Cal.Rptr. 325.)   The court rejected the privacy and free association claims of the Boy Scouts essentially because they are too large and unselective.   It was not a “strictly” private club.  (See id. particularly at pp. 730–731, 195 Cal.Rptr. 325.)   The bottom line was that “organizational membership per se cannot place an entity outside the scope of the Unruh Act unless it is shown that the organization is truly private.”  (Id. at p. 732, 195 Cal.Rptr. 325.)

Curran was decided in 1983.   In 1984 its ruling concerning the Boy Scouts' rights of association and privacy was effectively superseded in Roberts v. United States Jaycees, supra, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462.  Roberts concerned whether a state civil rights act could require chapters of the Junior Chamber of Commerce to admit women as members.   The chapters claimed the state law infringed on their right of freedom of association implicit in the federal First Amendment.  (See id. at p. 622, 104 S.Ct. at p. 3252;  “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.”)

The Supreme Court decided the case by dividing the freedom of association into two parts, freedom of intimate association and freedom of expressive association.  (Id. at p. 618, 104 S.Ct. at p. 3249.)   The court decided Roberts by separately analyzing the effect of the state civil rights law on each part.  (Cf. parts II A & II B of the opn., id. at pp. 618–622 & 622–629, 104 S.Ct. at pp. 3249–3252 & 3252–3255.)   The Jaycees lost because they failed both parts of the test.

Obviously, the Jaycees did not come within the purview of the freedom of intimate association.   Their local chapters were neither small nor selective.  (Id. at p. 621, 104 S.Ct. at p. 3251.)   As to the freedom of expressive association, the court decided that the state's goal of “eradicating discrimination against its female citizens” justified the “impact” of the civil rights statute in that case (see id. at p. 623, 104 S.Ct. at p. 3252) because the statute did not seriously burden the freedom of the organization to “disseminate its preferred views.”  (See id. at p. 627, 104 S.Ct. at p. 3254.)   The Jaycees do not exist to promote misogyny as an ideology—they are a business service organization whose (previous) exclusion of women had only the most “attenuated” relationship with any expressive purpose of the group.   Significantly, the court said:

“The [state civil rights] Act requires no change in the Jaycees' creed of promoting the interests of young men, and it imposes no restrictions on the organization's ability to exclude individuals with ideologies or philosophies different from those of its existing members.”  (Id. at p. 627, 104 S.Ct. at p. 3254, italics added.)

In contrast with Roberts, the Curran decision never reached the problem of expressive association.   For the Curran court, it was enough that the Boy Scouts offered their “membership to the general public.”  (See Curran, supra, 147 Cal.App.3d at p. 732, 195 Cal.Rptr. 325.)   Not only was the premise inaccurate, but it was only relevant to the freedom of intimate association.   The John Birch Society, the NAACP, and Common Cause are all open to the general public (and certainly open to a greater proportion of it than the Boy Scouts), but that does not mean these organizations must admit members who take diametrically opposite views from the ideologies and ideals which they espouse.   Must the Women's Christian Temperance Union admit card-carrying members of the Beer Drinkers of America?   Because the Curran opinion never addressed freedom of expressive association, it has nothing to tell this court on that issue.

The majority effectively ignore the issue of the Boy Scouts' freedom of expressive association.   As already shown, the Boy Scout oath is central to the ideals and principles of Scouting.   Duty to God and country is central to Scout thinking—ideology if you will.   As Justice O'Connor said in a separate concurring opinion in Roberts, the “training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement.”  (Roberts, supra, 468 U.S. at p. 636, 104 S.Ct. at p. 3259 (conc. opn. of O'Connor, J.).)   If the survival skills of the Scouts can be indirectly expressive, how much more so are the ideals articulated in their oath, which are directly expressive of the Scout creed.9  These ideals are far more important to the Scouts than the disinclination to admit women was to the Jaycees in Roberts.   My colleagues may not think the references to God in the oath important, but, as the money they have spent litigating this case shows, the Boy Scouts do.

My colleagues have also ignored the freedom of expressive association as it interfaces with the Unruh Act.   Even when the Unruh Act applies to a business, it only precludes the arbitrary exclusion of persons from the “services” provided by that business.  (See In re Cox (1970) 3 Cal.3d 205, 216, 90 Cal.Rptr. 24, 474 P.2d 992.)   Thus even if the Boy Scouts are a business establishment as the Unruh Act uses the phrase, they may still exclude those who refuse to take their oath as long as the exclusion is not arbitrary.

The record before us is clear—not only is Scouting an organization with significant and historic religious underpinnings, but Scouting as an organization has historically believed religion plays an important role in the training, education and development of young men.   The oath goes to Scouting's basic philosophy.   The exclusion of the plaintiffs here is clearly not arbitrary.

My colleagues have not thought through the implications of their reasoning in today's decision.   If the Unruh Act applies to force the Boy Scouts to admit those who refuse to subscribe to the Boy Scouts' basic shared beliefs, it must also force the Campfire Girls and Girl Scouts to admit boys.   Perhaps my colleagues are not bothered.   I am.   The Unruh Act was never intended to coerce private groups like the Boy Scouts into lockstep conformity with the same rules that govern hotels and pizza parlors.   In genuflection to currently fashionable ideas as to what is politically correct, today's decision steamrolls over Scouting's basic beliefs.

Ironically, today's decision effectively tramples on the rights of atheists as well as believers.   Times change.   Fashions in ideas change.   If the First Amendment will not stop the government from effectively dictating the content of the Boy Scouts' oath today, it will not stop the government from requiring prayer tomorrow.   The great 19th Century agnostic lecturer and lawyer Robert Ingersoll once wrote that force should never interfere with an individual's religious opinions.10  Unfortunately, that is precisely what today's opinion does by restricting the right of private groups to express their own beliefs.   If today's decision stands our society will be less free and less diverse.   I would reverse the judgment.

FOOTNOTES

1.   Civil Code section 51, as pertinent here, provides, “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

2.   Packs and dens were not involved in Curran.

3.   Before it denounces Curran, the dissent purports to distinguish it on the basis that it was decided on demurrer;  but what was pleaded in Curran was proved in the trial here.   The Orange County Council has over $9 million in assets and an annual budget in excess of $4 million.   Its 1989 revenue approached $5 million, including $77,639 in commissions from product sales alone.   The council has 55 regular employees and 12 part-timers and pays annual salaries of about $2 million, including $95,000 and a car allowance for its director.   It owns or operates a corporate headquarters, two retail stores, and three large recreational facilities.   The council leases camping facilities from the federal and county governments at nominal fees and sells scouting paraphernalia at the camps.

4.   The dissent suggests we should follow the lead of the Seventh Circuit rather than the Supreme Court in Isbister.  (Dis. opn., p. 59, fn. 5.)   We decline.   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.   There, the court observed in holding the Boys' Club of Santa Cruz, Inc. to be a business, “Courts in other jurisdictions have consistently held that broad-based non-profit community service organizations like the Boys' Club are ‘public accommodations'․   For example, ․ title II of the federal Civil Rights Act of 1964 (42 U.S.C.A. § 2000a et seq.) grants ‘all persons' the right to ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.’  ․ Title II has been applied to private, nonprofit recreational organizations which offer memberships to the public at large and exclude only a particular class of person protected by the statute.  (E.g., Smith v. Young Men's Christian Ass'n of Montgomery (5th Cir.1972) 462 F.2d 634, 649;  Nesmith v. Young Men's Christian Ass'n of Raleigh, N.C. (4th Cir.1968) 397 F.2d 96, 100;  United States v. Slidell Youth Football Ass'n (E.D.La.1974) 387 F.Supp. 474, 482–484;  cf., Daniel v. Paul (1969) 395 U.S. 298, 306–308 [23 L.Ed.2d 318, 325–327, 89 S.Ct. 1697].)”  (Isbister v. Boys' Club of Santa Cruz, Inc., supra, 40 Cal.3d at pp. 79–80, 219 Cal.Rptr. 150, 707 P.2d 212.)   If the council can exclude boys from membership on religious grounds, it effectively bans them from the use of the three large recreational facilities it operates.   The dissent fails to explain how this can be permitted.

5.   Our dissenting colleague unjustifiably suggests we may question the importance of duty to God and country, the value of the Boy Scout Oath, and the usefulness of uniforms and salutes.  (Dis. opn., pp. 57–58, 61.)   Today's decision is a legal opinion, not a moral polemic on scouting.

6.   Compare White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222 and Long v. Valentino (1989) 216 Cal.App.3d 1287, 1298–1299, 265 Cal.Rptr. 96.

7.   The dissent's reliance on Roberts is surprising.   There, in upholding Minnesota's application of its civil rights statute to require the Jaycees to admit women, the Supreme Court stated, “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.”  (Roberts v. United States Jaycees, supra, 468 U.S. at p. 623, 104 S.Ct. at p. 3252.)   Whether the right of “expressive association” could overcome the “compelling state interests” embodied in the Unruh Act is a false issue in this case because such a right would most strongly exist at the pack and den levels, but hardly at all as between two youngsters and the Orange County Council.

8.   The notions that today's decision will somehow reduce diversity in the country and somehow lead to government required prayer (dis. opn., p. 11) are the sheerest nonsense, of course.   Our opinion does not suggest the state has any business sticking its nose in religious tents or forcing others to do so, quite the contrary.

9.   Pines is ignored by our dissenting colleague, probably because it is essentially indistinguishable.   There, the Court of Appeal held the Unruh Act prohibited the Christian Yellow Pages from discriminating against customers on religious grounds.   That decision, like Curran, has stood for a decade despite various legislative opportunities to overturn it.

1.   The Boy Scout Handbook (1990) at page 561.

2.   See Twain, The War Prayer, published in 1923 after his death.

3.   As Justice Brennan noted in Roberts v. United States Jaycees (1984) 468 U.S. 609, 623, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462, “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.”

4.   Here is the critical paragraph in Curran.   The court is in the midst of discussing O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427, a case which held that a condominium homeowner association could not exclude anyone under the age of 18.   The reader will note how the court just slides from the discussion of O'Connor to the conclusion that the “same situation” exists as regards the Boy Scouts without explaining why:“Moreover, the Supreme Court further concluded that ‘[n]othing in the language or history of [the] enactment [of the Unruh Act] calls for excluding an organization simply because it is nonprofit.’  (Id., at p. 796, 191 Cal.Rptr. 320, 662 P.2d 427.)   Although the Supreme Court found the owners association had ‘businesslike attributes' to come within the scope of ‘business establishment,’ we construe this to mean that the association fits both the commercial and non-commercial aspects of the meaning of ‘business establishment.’   Here, the same situation exists.   There are allegations showing that defendant has certain ‘businesslike attributes.’ ”  (147 Cal.App.3d at p. 730, 191 Cal.Rptr. 320, 662 P.2d 427.)

5.   The majority opinion's reference to dicta in Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 79–80, 219 Cal.Rptr. 150, 707 P.2d 212, which noted that certain community service organizations have been held to be “public accommodations” under the federal civil rights laws is undercut by the recent decision of a federal appellate court which specifically held that the Boy Scouts—not to be confused with the Boys Club—were not a “public accommodation” under the federal civil rights laws.  (Welsh v. Boy Scouts of America (7th Cir.1993) 993 F.2d 1267.)

6.   In previous cases my colleagues have not hesitated—and properly so—to refuse to follow decisions of the Court of Appeal when those decisions were incorrect.  (E.g., In re Joshua R. (1992) 6 Cal.App.4th 1252, 1254–1255, 8 Cal.Rptr.2d 412;  Troupe v. Courtney (1985) 169 Cal.App.3d 930, 934, 215 Cal.Rptr. 703.)

7.   In its recitation of the facts some pages earlier, the Curran opinion mentioned these allegations in the complaint:  membership in the Boy Scouts has “considerable financial value,” the organization derives financial revenue from the franchising of its emblem and uniform, it engages in the “book publishing business” and it has a retail shop where it engages in “extensive commercial activities.”  (147 Cal.App.3d at pp. 718–719, 195 Cal.Rptr. 325.)   However, none of these facts were adduced in the court's oblique reference to “businesslike attributes.”   Moreover, things like emblems and uniforms and book publishing are hardly the sort of attributes which are distinctively “businesslike.”   They are common to many religious, political and ideological groups.   Indeed, perhaps it was because such attributes are not distinctively businesslike that the Curran opinion omitted to discuss them in the critical text on page 730.

8.   In the penultimate paragraph in the subsection dealing with the definition of “business establishments,” the Curran court pointed out that two other civil rights acts were passed during the same session of the Legislature which specifically exempted religious, fraternal and other such organizations.   From this the Curran court derived an additional reason for concluding the Boy Scouts were a business.   While the reasoning was not sound—the use of the words “business establishment” does the job without the need for a specific exemption for certain obvious nonbusiness organizations—the clear implication of the reasoning is that churches are businesses under the Unruh Act.  (They too might have been excluded, like they were in the other acts, but were not.)   Even if one buys this conclusion, it shows how necessarily limited the Curran decision is for purposes of stare decisis.   It did not establish that the Boy Scouts are a business;  it only showed they—like any organization—might be for purposes of demurrer if there are allegations of “businesslike attributes.”

9.   Indeed, even the Boy Scout's involvement with nature, conservation and ecology is inseparable from their common belief in duty to God.   As the Boy Scout Handbook, supra, tells its readers at page 561:  “The word reverence refers to a profound respect for God.   The wonders of the world remind us of our God's creative power.   We find it in the tiny lines of a leaf and the great mysteries of the universe.   It exists in the kindness of people and in the teachings of our families and religious leaders.”

10.   XI The Works of Robert G. Ingersoll (Dresden Memorial Edition, 1900) at page 131.

CROSBY, Associate Justice.

SONENSHINE, J., concurs.

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