No. S039738 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
Plaintiff and Appellant,
MOUNT DIABLO COUNCIL OF THE BOY SCOUTS OF AMERICA,
Defendant and Respondent
Review Of A Decision By The Court Of Appeal Second Appellate District, Division Seven, Case No. 2 Civ. B061869 On Appeal From The Los Angeles County Superior Court, The Honorable Sally Grant Disco, Judge
ANSWER BRIEF ON THE MERITS
HUGHES HUBBARD & REED
GEORGE A. DAVIDSON
CARLA A. KERR
One Battery Park Plaza
New York, New York 10004
Telephone: (212) 837-6000
HUGHES HUBBARD & REED
LOIS MOONITZ JACOBS
(State Bar No. 106537)
350 South Grand Avenue, 36th Floor
Los Angeles, California 90071-3442
Telephone: (213) 613-2800
Attorneys for Respondent Mount Diablo Council Of The Boy Scouts of America
INTRODUCTION This case has nothing to do with the state's interest in ensuring equal access to commercial or business opportunities. Rather, Timothy Curran asks that the state confirm his view as to the morality of homosexual conduct and thus take his side in one of the principal moral debates of the day.
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.
A Scout is trustworthy... loyal... helpful... friendly... courteous... kind... obedient... cheerful... thrifty... brave... clean... reverent.
As the court of appeal and the trial court both recognized, it is not the role of the courts to rule on the validity of Scouting's moral views that homosexual conduct is not "morally straight" within the meaning of the Oath or "clean" within the meaning of the Law. JA at 3015-16; Curran v. Mount Diablo Council, No. B061869, slip op. at 3(7th Dist.), review
granted, 31 Cal. Rptr. 2d 126, 874 P.2d 901 (Cal. 1994).1 Rather, the question presented is whether the state may constitutionally require an expressive association to accept as a moral teacher for its youth members an adult expressing a moral view contrary to that of the association. The courts below correctly decided that the state could not do so.
The decision of the Supreme Court in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 115 S. Ct. 2338 (1995), confirms the First Amendment decisions of the courts below in this case. In Hurley, the Court expressly reaffirmed the right of a membership group to exclude anyone, including persons in a protected class, whose expressed moral views conflict with the views of the group. In that case, the sponsor of Boston's St. Patrick's Day/Evacuation Day Parade was permitted by the First Amendment to exclude from the parade a gay, lesbian and bisexual contingent. A unanimous Court held that the parade sponsor was constitutionally free to shape its own message by excluding the contingent since the First Amendment protects a speaker's choice not only of what to say, but also of "what not to say." Id. at 2347. In reaching its decision, the Court likened the right of the sponsor to the right of a private club to exclude members with contrary views, and held that the parade sponsors could exclude the contingent with the unwanted message "just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members." Id. at 2351.
Mount Diablo Council of the Boy Scouts of America ("Mount Diablo Council") is a California non-profit, volunteer-run organization which is chartered by Boy Scouts of America to support Boy Scout Troops and other Scouting groups in Alameda and Contra Costa counties. JA at 2020; Ex. 14 at 4. The Boy Scouting program takes place at the Troop level. JA at 2031. Individual Troops are almost entirely self-financed and self-run; the Council's role is to perform those support functions which individual Troops cannot perform themselves. JA at 2029; see Ex. 272 at 5.
The Mission of Scouting is 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." JA at 3005. The values Scouting seeks to instill are those found in the Oath and Law. JA at 3008-09.
Prior to seeking to become an Assistant Scoutmaster, Timothy Curran gave an interview to the press in which he told the public that he was "proud of being gay -- someone who didn't just say it, but who acted on it." Ex. 287. When he sought to be an Assistant Scoutmaster shortly afterward, he did so in part because of his desire to show there was "not anything wrong with" a homosexual lifestyle. RT at 669:25-670:3. Curran sought to change Scouting's views by advancing what he called the "revolutionary" idea that an Eagle Scout, "the epitome of what is good and wholesome and moral in American Society. . is willing to publicly admit that he is homosexual." Ex. 316 at 46; RT at 1042:15-20 (Curran).
When Mount Diablo Council told Curran that it would not approve him as an adult leader of Boy Scouts, Curran filed suit. In his original complaint, Curran cited his desire to be both a Scouter and a homosexual advocate:
"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 Mount Diablo Council of the Boy Scouts of America Troop 37."
Ex. 310 at 6. See Ex.312at101-02.
The trial court separately tried the Unruh Act and the First Amendment issues. The court held that the available Unruh Act precedents could be stretched to cover Scouting, but that given the clash in moral views the Council could not constitutionally be required to accept Curran as a Boy Scout leader. Finally, the trial court held that the right of intimate association would not have justified Curran's exclusion.
Upon Curran's appeal of the decision as to Scouting's right of expressive association and the Council's cross-appeal of the decision as to the Unruh Act and intimate association issues, the court of appeal ruled in favor of Mount Diablo Council on every issue.
1. Phase I of Trial: The Unruh Act
In its November 6, 1990 decision on the applicability of the Unruh Act, the trial court recognized that it was extending the Unruh Act beyond any previously reported case:
1. Not only is the Council non-profit, but it also has no commercial purpose: "Unlike all the cases, except Isbister, which have been decided to date, the Council has no substantial, or even significant, business purpose." (JA at 2031.)
2. Second, unlike the only case to hold that the Unruh Act can regulate a non-profit and non-commercial organization, Scouting does not exist to operate a traditional place of public accommodation: "Unlike the Boys Club in Isbister, Mount Diablo Council is not a single purpose organization operating a traditional 'public accommodation."' (JA at 2032.)
3. Third, unlike any other case, the Unruh Act here would regulate those types of personal relationships which Isbister noted were not subject to regulation: "Unlike 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." (JA at 2032.)
4. Fourth, the benefits derived by Scouts and adult volunteers from their membership are not commercial: "The benefits which the scouts and scouters receive from participation in the program are overwhelmingly personal and non-economic." (JA at 203l-32.)
5. Fifth, Curran had failed to prove that there was any economic advantage to be derived from membership in Scouting: "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." (JA at 2032 n.5.)
Finally, the court set forth what it then believed to be a policy reason for applying the Unruh Act to Scouting by quoting the plaintiffs, who maintained that Scouting "'[s]tands for what is best in American values,"' and that for the court not to enforce the Act against Scouting "'would send a stark message about what the ideals of this country really mean."' JA at 2035. This statement, which expressed the court's intention to send a "message" through Scouting, foreshadowed the First Amendment problems the trial court later recognized. (See App. Br. 7, 25.)
2. Phase II of Trial: The First Amendment
Phase II of the trial considered whether using the Unruh Act to force Mount Diablo Council to install Curran as an adult leader would violate First Amendment rights of freedom of association.
The trial court found that Curran was not accepted as a leader because "the views and lifestyle that Mr. Curran had exhibited and advocated... were inconsistent with the basic principles of Scouting." JA at 3000. Curran had sought to join 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."' Id. at 3001.
The court found that the purpose of Scouting was "overwhelmingly expressive." Id. at 3005. While Scouting activities focus on camping and outdoor skills, this focus is "the means to an end," and the end is to "instill values in young people." The values "governing a Scout's conduct" are found in the Scout Oath and Law. Id.
The trial court also found that Scouting takes a moral position with respect to sexual conduct:
"Sexual morality is addressed in the Boy Scout Oath and Law under the rubric of 'morally straight' and 'clean.'
Not a great deal is explicitly spelled out in the scout literature directed at Boy Scout members regarding sexuality in general or homosexuality in particular. However, the 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 Mount Diablo Council has adopted this position, and that this is the view that is communicated whenever the issue comes Up.
* * *
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."
Id. at 3009-10 (emphasis added). The court went on to find that the view that homosexual conduct is immoral occupies a "significant place" in Scouting's "value system." Id. at 3010.
Relying on Roberts v. United States Jaycees, 468 U.S. 609(1984), the court examined whether application of the Unruh Act would "hamper the organization's ability to express its views," would "impede the organization's ability to engage in. . . protected activities or to disseminate its preferred views," or would "impose . . . restrictions on the organization's ability to exclude individuals with ideologies or philosophies different from those of its existing members." Roberts, 468 U.S. at 624, 627.
The court found that Mount Diablo Council had established by a preponderance of the evidence that forced inclusion of a Scout leader such as Curran would "substantially interfere with Mount 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." JA at
3015-16. Accordingly, the Unruh Act could not constitutionally be applied to require the Council to accept Curran as an adult leader.
With respect to the intimate association question, the trial court limited its review to "the organization as a whole" and did not believe that relationships across the entire Council fell within a "zone of privacy." RT at 610:11-13, 612:23-26.
3. The Decision of the Court of Appeal
The court of appeal ruled in favor of Mount Diablo Council on all issues, explicitly noting that its own 11-year old decision in Curran v. Mount Diablo Council of the Boy Scouts of America, 147 Cal. App. 3d 712, 195 Cal. Rptr. 325 (1983), appeal dismissed, 468 U.S. 1205 (1984), held only that the allegations of the complaint had been sufficient to withstand a demurrer.
The court began its analysis by noting, "Unlike all of the entities which have been found to be business establishments under the Unruh Act, Mount Diablo Council is an 'expressive association,"' Curran, slip. op. at 8, and that part of the "belief system" of the organization is its "stand against homosexual conduct." Id. at 21. The court ruled that forcing someone with Curran' s views into a leadership role in the organization would unquestionably interfere with its expressive activities:
"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."
Id. at 27. (emphasis added).
Responding to Curran's argument that there is a compelling state interest in enforcing the Unruh Act which is sufficient to overcome Scouting's First Amendment rights, the court held that "even limited regulation of associational activity" requires that the state's interest be both "'compelling"' and "'unrelated to the expression of ideas."' Id. at 38-39 (quoting Roberts, 469 U.S. at 623). The state's interest in this case was neither. First, the "core" of the state's interest, "insuring equal opportunity to commercial advantages and public accommodations," is "not implicated at all." Id. at 37. Second, "[i]n 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."
Id. at 43 (citing Gilmore v. City of Montgomery, 417 U.S. 556, 575 (1974) (emphasis added)).
Based on the United States Supreme Court decisions in Roberts, 468 U.S. at 621, and Board of Directors of Rotary International v. Rotary Club, 481 U.S. 537, 546 (1987), the court of appeal ruled that in determining whether members of a national organization composed of local groups are entitled to intimate association protection "the focus should be on the local organization where the personal relationships actually occur." Curran, slip op. at 51. Thus, the court focused on Scout Troops, described by the trial court as "'small, intimate, primary groups
where the relationships among the members can be characterized as continuous, close and personal,"' and held that a Scout Troop is an intimate association. Id. at 49-56.
The court of appeal held that the Unruh Act does not apply here for several reasons:
First, since an adult leader such as an Assistant Scoutmaster joins a Troop and not the Council, the Troop is the relevant entity for Unruh Act purposes. Curran conceded that a Troop is not a "business establishment." Id. at 53.
Second, Curran was not deprived of "advantages" in a business establishment because what he sought was the opportunity "to offer his services to the Boy Scouts in the Mount Diablo Council." Id. at 56 n.20. Following a decision of the Supreme Court of Connecticut, Quinnipiac Council v. Commission on Human Rights & Opportunities, 528 A.2d 352 (Conn. 1987), the court held that the refusal of an offer of volunteer services is not a denial of advantages and is thus not covered by the Unruh Act.
Third, because the Unruh Act forbids only arbitrary discrimination, and limiting leadership in Scouting to "those who agree with its moral viewpoints must be considered reasonable, not arbitrary," Mount Diablo Council could not be held liable. Curran, slip op. at 63 n. 22.
P.2d 212, 219 Cal. Rptr. 150 (1985); Welsh v. Boy Scouts of America, 787 F. Supp. 1511, 1522-34, 1539 (N.D. 111.1992), aff'd, 993 F.2d 1267 (7th Cir.), cert. denied, 114 5. Ct. 602 (1993).
From a policy perspective, the court of appeal noted that an extension of the Act to cover charitable organizations having distinct missions would be "particularly unwarranted," Curran, slip op. at 63, as such a reading would wreak havoc with volunteer charitable organizations throughout the state:
"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, 40 Cal. 3d at 98, 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.... 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."
Id. at 64-66 (emphasis added).
THE COURTS BELOW PROPERLY HELD THAT FORCED INCLUSION OF CURRAN AS A LEADER WOULD INFRINGE RIGHTS OF FREEDOM OF SPEECH AND FREEDOM OF EXPRESSIVE ASSOCIATION
From the perspective of the First Amendment, Curran, a homosexual advocate who sought to be a leader of a Boy Scout Troop, is in precisely the same position as the gay, lesbian and bisexual contingent which sought to march in the parade in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 115 5. Ct. 2338 (1995). Forcing Mount Diablo Council to make Curran an adult leader not only would infringe First Amendment rights of free speech under Hurley, it would infringe First Amendment rights of expressive association under Roberts v. United States Jaycees, 468 U.S. 609 (1984).
A. Since Curran Has Taken a Position at Odds With Scouting's, the Council May Exclude Him Under Hurley
Because Curran's "manifest views" are "at odds" with "a position taken by" Scouting, Scouting has the right to exclude Curran under Hurley.
Mount Diablo Council proved that the organization had long held the belief that homosexual conduct was immoral. Curran's own Petition for Writ of Mandate alleged that Scouting 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."' JA at 3005; Ex. 310 at 8. Volunteers and Scout professionals called by Mount Diablo Council testified uniformly that homosexual conduct was inconsistent with the Scout Oath and Law
* The volunteer President of
the Mount Diablo Council at the time Curran expressed interest in
becoming 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. RT at 1193:19- 1194:11, 1215:6-10.
* Richard Krieger, a veteran Scoutmaster who had trained the majority of Scoutmasters in the Mount Diablo Council and had visited the majority of its Troops, testified that the immorality of homosexuality was "an agreed understanding by all those who are training people in the Boy Scout Ways. · . . We consider it immoral and unclean." RT at 650:17-18, 652:6-12.
* Quentin Alexander, the Scout Executive for the Mount Diablo Council, testified that Boy Scouts of America had taken a consistent stand against homosexuality, and continued to emphasize it in a consistent manner. JA at 3010. See RT at 711:5-712:1, 730:9-17.
* Julian Dyke, with more than half a century of experience as a volunteer and a professional, testified to a general historical understanding that "homosexuality was an immoral behavior and had no place in Scouting." RT at 781:7-9; see RT at 786:12-24. He testified that the leaders in Scouting "hold those values and they hold them strongly." RT at 781:11-12.
* 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." JA at 3011.
Clearly, more than substantial evidence supported the findings regarding the "belief system of the organization." See also JA at 3010; RT at 643:20-28, 673:27-674:16.
That the handbooks for Scouting youth contain no list of sexual practices which are not morally straight, such as homosexual conduct, is of no significance. The method of teaching adopted by Scouting is to emphasize how a boy should behave; the Scout Oath and Law is "a positive code of life. It's not a litany of negatives." RT at 672:23-25. However, contrary to Curran's assertion that Scouting has no "teachings regarding... non-gay sexual conduct" (App. Br. 9), the Boy Scout Handbook describes for Scouts their "sexual responsibility" in terms of marriage and fatherhood. Ex. 202, 1990 ed., at 526. It also counsels against pre-marital 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."
Ex. 202, 1979 ed., at 526 see Ex. 202, 1990 ed., at 527. At every meeting, Scouts promise to keep themselves "morally straight" and "clean." The Boy Scout Handbook advises 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." Ex. 202,1979 ed., at 40-41.2
The trial court did not credit Curran's attempt to rebut the Council's factual showing. Curran's witnesses,3 including Curran himself, were unwilling to state directly that Scouting viewed homosexuality as morally straight. JA at 3010.4
Curran's numerous references to Curran's "sexual orientation" or the fact that "he is gay" cannot re-make this case into a case of discrimination on the basis of orientation. Scouting does not ask what sexual orientation its volunteer applicants have. RT at 706:5-9. Scouting's membership policy is not directed at the status or orientation of an individual, but it is directed at individuals who would teach that homosexual conduct is moral or who model a homosexual lifestyle. RT at 691:19-692:7. As Curran pointed out, the policy is directed to
persons like himself "who [are] not going to shut up about it." RT at 993; Ex. 355 at 1. A heterosexual who counseled the boys that homosexual conduct was moral would be subject to dismissal. RT at 691:27-692:22, 708:13-16.
Curran portrayed himself to the public as an "avowed homosexual" and "gay youth activist." Ex. 307 at 2. In an Oakland Tribune article which reported on 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." Ex. 287. 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.
Ex. 342 at 1.
A few months later, Curran advised Quentin Alexander, Mount Diablo's Council's Scout Executive, that he wanted to be an adult Scout leader. RT at 666:10-23. In the meantime several Scouters had brought Curran's statements in the media to Alexander's attention. RT at 687:14-688:23. Curran's counsel asked Alexander at trial, "What was it about Tim's homosexuality that would make it -- that you could not accept an application from him?" Mr. 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..."
RT at 689:14-21. As the trial court found: "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." JA at 3000.
Indeed, homosexuals, as opposed to those of a particular race or sex, are identified as such only by their own conduct or affirmation; in other words, expressive activity. Equality Foundation v. City of Cincinnati, 54 F.3d 261, 267 (6th Cir.) ("Those persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them as homosexual, bisexual or heterosexual."), petition for cert. filed, (U.S. Aug. 10, 1995); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) ("Homosexuality is... behavioral and hence is fundamentally different from traits such as race, gender, or alienage...") Cf Steffan v. Perry, 41 F.3d 677, 688-90 (D.C. Cir. 1994) (en banc) (a declaration of homosexuality may be taken as admitting to engaging in homosexual conduct or an intent to do so). Thus, the act of affirming that one is a homosexual is an expressive act. David Cole & William N. Eskridge, Jr., From Hand-holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct, 29 Harv. Civil Rights - Civil Liberties L. Rev. 319,325 (1994) ("An admission of sexual identity is expressive in the strictest sense of the word.") Indeed, such an act is advocacy Gay Law Students Association v. Pacific Telephone & Telegraph Co., 24 Cal. 3d 458, 488, 595 P.2d 592, 156 Cal. Rptr. 14 (1979) ("[T]he struggle of the homosexual community for equal rights... must be recognized as a political activity.... One important aspect of the struggle for equal rights is to induce individuals to 'come out of the closet."'); Evan Wolfson & Robert S. Mower, When the Police Are in Our Bedrooms, Shouldn't the Courts Go in After Them?: An Update On the Fight Against 'Sodomy' Laws, XXI Fordham Urb. L. J. 997, 1049 n. 100 (1994) ("there are. . . inherently political dimensions to being openly gay or lesbian").
The Hurley Court made it quite clear that a private organization has a constitutional right to refuse membership to persons who hold views contrary to those the organization advances. The Massachusetts courts had required the sponsor of Boston's St. Patrick's Day/Evacuation Day Parade to admit a group of gays, lesbians and bisexuals who wished to march in the parade as a contingent, the Irish-American Gay, Lesbian and Bisexual Group of Boston ("GLIB"). The United States Supreme Court unanimously reversed, holding that "the requirement to admit a parade contingent expressing a message not of the private organizers' own choosing violates the First Amendment." Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 115 S. Ct. 2338,2343 (1995).
Contrary to Curran's dismissive characterization of Hurley as solely applicable to parade sponsors, the First Amendment principles set forth in Hurley are applicable to a variety of "mediums of expression," including "the press," "business corporations," "publishers" and "ordinary people," and are not limited to the parade context. Id. at 2347. Indeed, in reaching the result in Hurley, the Court expressly applied the analysis from the prior cases involving club or group membership. Citing Roberts v. United States Jaycees, 468 U.S. 609 (1984), and New York State Club Association v. City of New York, 487 U.S. 1(1988), Justice Souter explained that the law of expressive association prohibited courts from forcing clubs to admit as members persons "whose views were at odds with positions espoused by the general club memberships." Hurley, 115 S. Ct. at 2351. The Court expressly recognized that the constitutional right was the same in the parade context and in the associational context. The fight of the parade organizers to exclude GLIB was the same right that a private club had to exclude as members those holding contrary views: "GLIB could... be refused admission as an expressive contingent with its own
message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members." Id.
Although he avoids mention of the Oath and Law or of the terms "morally straight" and "clean," Curran does admit that "some of Respondent's activities are expressive" and involve "teach[ing] boys the importance of values such as patriotism, courage and self-reliance." (App. Br. 27-28.) Curran suggests, however, that since Scouting does not deliver a message to boys that explicitly mentions homosexual conduct, it cannot claim First Amendment protection.
jiurky disposes of this suggestion. GLIB had argued that the parade sponsor was not protected by the First Amendment because the parade was "eclectic," in that it contained a wide variety of "'patriotic, commercial, political, moral, artistic, religious, athletic, public service, trade union, and eleemosynary themes,' as well as conflicting messages." 115 S. Ct. at 2342. The Supreme Court rejected this argument, holding that "a narrow, succinctly articulable message is not a condition of constitutional protection," and that a speaker which had failed "to isolate an exact message as the exclusive subject matter" of its speech was nevertheless constitutionally protected. Id. at 2345.
Furthermore, Hurley specifically refutes the notion that Scouting's expression would receive protection only if Scouting set forth "teachings" regarding gay sexual conduct and required Scoutmasters to engage in "formal instruction regarding sexual matters." (App. Br. 9.) Noting that "'all speech inherently involves choices of what to say and what to leave unsaid,"' the Supreme Court in Hurley held that freedom of speech protects a speaker's choice not only of what to say but also of "'what not to say."' 115 S. Ct. at 2347 (quoting Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1, 11, 16 (1986)). Public accommodations laws
cannot constitutionally be applied to "require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own." 115 S. Ct. at 2350. Scouting simply does not have to provide formal lessons to Scouts about homosexual conduct in order to prevent Curran from providing his own.
B. Since Curran's Admission As an Adult Leader Would Interfere With Scouting's Associational Expression, the Council May Exclude Him Under Roberts
1. Associational Rights Under Roberts
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. NAACP v. Alabama ex. rel. Patterson, 357 U.S. 449, 460 (1958); Britt v. Superior Court, 20 Cal. 3d 844, 852, 574 P.2d 766, 143 Cal. Rptr. 695 (1978). See 7 B. E. Witkin Summary of California Law, Constitutional Law § 271 at 388 (9th ed. 1988).
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 the United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981).
Without the freedom to exclude persons who disagree with the association's shared beliefs, the freedom of expressive association would be an "'empty guarantee."' Id. at 122 n.22 (quoting Lawrence Tribe, American Constitutional Law 791(1978)). As the Supreme Court stated in Roberts:
"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."
468 U.S. at 623 (emphasis added); see also New York State Club Association v. City of New York, 487 U.S. 1, 13 (1988). In sum, the Court has made it quite clear that freedom of expressive association protects the right of any group, whether expressing minority or majority views, or religious or secular views, to protect the strength of its message by excluding individuals with "ideologies or philosophies" opposed to those of its existing members. Roberts, 468 U.S. at 627; see Board of Directors of Rotary International v. Rotary Club, 481 U.S. 537, 548 (1987).
Contrary to Curran's argument that expression must be a "public position" or be "of a political character" to be protected (App. Br. 27-28), Scouting's messages to its own membership are as fully protected as messages directed to society at large. The First Amendment does not require that Scouting become a noisy political opponent of homosexual rights, i.e. an "anti-gay organization" (App. Br. 30), for its expression to be protected. See Roberts, 468 U.S. at 636 (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); New York State Club Association, 481 U.S. at 13 (private viewpoints protected).
2. Boy Scouting Is an Expressive Association
As the trial court found, "All Boy Scout activities are designed to further [the Boy Scout] mission," which is to instill the values of the Oath and Law in 11 to 18 year old boys. JA at 3005, 3008-09. The "outdoors skills, crafts, and athletic, recreational and social activities" are only the means to an end. (See App. Br. 28.) In the words of Robert S.S. Baden Powell, founder
of the Scouting movement, "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." RT at 812:27-813:7.
The Scout Oath is the Boy Scout's moral credo. Ex. 202, 1979 ed., at 27. The Scout Law is "the foundation on which the whole Scouting movement is built," Ex. 202, 1979 ed., at 30. 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. RT at 204:5-9, 502:22-24. 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." RT at 504:12-13; Ex. 201 at 306-19. 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. RT at 511:3-20; Ex. 201 at 227-30.
Scouting could not be more different from the Jaycees or the Rotary. While those organizations had civic-minded purposes on paper, they were found to have very different purposes in their everyday activities. See Roberts, 468 U.S. at 612, 626 (while bylaws stated civic and educational objectives, club actually offered to members leadership skills, business contacts and advancement opportunities); Rotary, 481 U.S. at 543, 545, 546 n.5 (while clubs perform community service, their expressive activities are "quite limited" and the "'business benefits"' of membership are enjoyed by members and their employers). Scouting is not, on paper or in practice, a business club or a social club. Curran's effort to liken the Scouting movement -- the quintessential expressive association -- to the haphazard collection of strangers in a dance club and to the expression of telephone operators for an escort service is ludicrous.
(See App. Br. 26.) Indeed, Curran himself does not believe that Scouting is comparable to any such group, despite what his counsel may write in a brief Curran viewed Scouting in moral terms, RT at 221:27-222:3, and described the Eagle award as a moral statement -- "one of the few awards in American society that shows how moral you are." RT at 223:7-11.
The test for First Amendment protection established by Roberts is whether application of the state statute would "impose . . . restrictions on the organization's ability to exclude individuals with ideologies or philosophies different from those of its existing members." Roberts, 468 U.S. at 624, 627. As Curran concedes, Scouting's rights would be violated if Curran's speech "would change the content or impact of the organization's speech." Roberts, 468 U.S. at 628. (See App. Br. 29.) Forced inclusion of a homosexual advocate such as Curran as a Scout leader would undeniably and, in fact, intentionally change the content or impact of Scouting's expression as to what is "morally straight" and "clean" conduct.
a. An adult Scout leader is a teacher
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." JA at 3012. The Scoutmaster may be the most influential adult in a boy's life other than the boy's own parents. RT at 454:13-19. Even after the Scouts leave the Troop, Scouts often remain close to the Scoutmaster and continue to discuss ethical issues with him. RT at 516:5-8. The Assistant Scoutmaster, which is what Curran sought to become, must perform all the duties of the Scoutmaster when the Scoutmaster is not there. RT at 546:4-24.
As the trial court found, 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."
JA at 3013 (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." RT at 643:20-28, 644:11-13, 645:5-7. 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." Ex. 201 at l33; see Ex. 208 at 13.
Curran's experts conceded the impact of moral teachings in discouraging homosexual conduct. Dr. Judd Marmor, former President of the American Psychiatric Association, testified that a variety of personal or sociological influences, such as religious convictions or the demands and restrictions of the culture, influence whether a person engages in homosexual behavior. RT at 1281:11-1282:4; see RT at 1278:14-24. Curran's other expert likewise acknowledges that moral teachings influence decisions regarding sexual behavior. See RT at 1130:7-16.
b. An adult Scout leader is a role model
Even in the absence of direct teaching, the role model of an avowed homosexual adult leader would have an effect on the sexual values and conduct of Boy Scouts. RT at 1119:12-22, 1125:28-1126:6 (Curran's expert). Mount Diablo Council's expert evidence showed that having an avowed homosexual Scoutmaster would impact boys' sexual mores and behavior. RT at 750:6-752:11, 924:3-23, 943:8-944:2. The Scoutmaster develops a close, personal relationship with each boy. Ex. 201 at 24 (Scoutmaster Handbook). Scoutmasters "directly
influence ethical decision-making by Scouts" through "[p]ersonal example as an ethical person." Ex. 208 at 20 (emphasis in original). A Scoutmaster is a model in and out of the program. The Scouts "will attempt to emulate everything that he stands for." RT at 646:15. Once the homosexuality of the leader were known, it would become something that "every boy would have to deal with." RT at 924:17-18.
As a result of Scouting's commitment to God in the Oath and Law, 65 percent of Boy Scout Troops in America are chartered directly by religious organizations. RT at 786:25-28. In 1980, religious organizations sponsored half of the Troops in the Mount Diablo Council. RT at 1192:10-18. The Mormon Church sponsored between 25 and 30 percent of the troops. Id. at 1192:19-23. The Presbyterian, Lutheran, Roman Catholic and Methodist Churches also sponsored Troops. Id. at 1192:24-27. As the evidence showed, 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 to be 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. JA at 3010-11. 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. RT at 790:15-791:26.
C. The Compelling State Interest Underlying the Unruh Act Does Not Override Scouting's First Amendment Rights
In Roberts, the Supreme Court held that even limited regulation of expressive associational activity could be justified only by a state interest that was both (1) "compelling," and (2) "unrelated to the expression of ideas." Roberts, 468 U.S. at 623; see NAACP v. Claiborne Hardware Co., 458 U.S. 886, 912 n.47 (1982).
Curran's arguments that the Unruh Act is not on its face directed at expression and that the state's interest in securing access for its citizens to commercial establishments is compelling are beside the point. No one is arguing here that the Unruh Act is unconstitutional on its face.
A public accommodations statute may be constitutional on its face yet unconstitutional when applied to a particular situation. That was the very situation in Hurley. The Supreme Court found that the Massachusetts public accommodation law "does not, on its face, target speech or discriminate on the basis of its content" and that "the focal point of its prohibition... [is] rather on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services on the prescribed grounds." Hurley, 115 S. Ct. at 2347.
However, as the Hurley Court held, the fact that a legislature may have had compelling reasons to enact a law does not mean that those compelling reasons can excuse an application of the law so as to modify the contents of expression:
"When the law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own."
Id. at 2350. (See App. Br. 37-38.) An interest in eliminating bias did not justify stifling speech; the Hurley Court explicitly rejected Curran's theory that a state interest in ending discrimination could justify infringement on First Amendment rights:
"It might, of course, have been argued that a broader objective is apparent: that the ultimate point of forbidding acts of discrimination toward certain classes is to produce a society free of the corresponding biases. Requiring access to a speaker's message would thus be not an end in itself; but a means to produce speakers free of biases, whose expressive conduct would be at least neutral toward the particular classes, obviating any future need for correction. But if this indeed is the point of applying the state law to expressive conduct, it is a decidedly fatal objective."
115 S. Ct. at 2350 (emphasis added).
It is thus apparent that Curran has failed to satisfy either branch of the Roberts test. The compelling interest typically found in public accommodation cases -- "equal access to economic opportunity or economic advantage," is not involved here. JA at 3016. Compare RT at 638 (no economic interest at stake) with Roberts, 468 U.S. at 626 ("'business contacts"' and "'employment promotions"' at stake); see NAACP v. Claiborne Hardware Co., 458 U.S. at 913-15. The only other interest that Curran has identified -- altering biases -- is directly related to the expression of ideas and, as Hurley squarely holds, cannot justify infringement of expression.
THE COURT OF APPEAL PROPERLY HELD THAT FORCED APPOINTMENT OF CURRAN AS A LEADER OF A SCOUT TROOP WOULD VIOLATE THE RIGHT TO FREEDOM OF INTIMATE ASSOCIATION OF SCOUTING MEMBERS
Curran's brief does not accurately represent the record as to his proposed relationship with a Troop: Curran had been a youth member of Troop 37 (RT at 1003:3-14,
1009:6-8, 1042:27-1043:3) and sought to be an Assistant Scoutmaster in Troop 37. RT at 131:27-132:4; 666:10-23. To become an adult leader of a Troop, the Troop sponsor's representative, the Scouting Coordinator, must approve the application. (Ex. 274 at 2-3.) When the Scouting Coordinator appointed by Troop 37's sponsor, the North Congregational Church, was asked at trial whether he would have approved Curran as a Scout leader, he replied "absolutely not." RT at 848:2-9. The Scouting Coordinator testified that he crossed Curran's name off the Troop roster before submitting it to Mount Diablo Council. RT at 847:17-22.
B. Troops Are Intimate Associations
Freedom of intimate association protects the personal relationships among the Boy Scouts, Scout leaders, parents and the representatives of the North Congregational Church involved in Troop 37 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, 232 Cal. App. 3d 60, 72, 283 Cal. Rptr. 287 (1991). Groups protected by 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, 468 U.S. 609, 618-20(1984). In examining an organization, the relevant factors include "size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent." Id. at 620. The Boy Scout Troops to which the relief sought is directed are concededly small and intimate, and qualify for such protection.
The court of appeal correctly held that the trial court's focus on Mount Diablo Council on an overall basis was erroneous. JA at 2033, 3002-03; Curran, slip op. at 49. The court of appeal followed the precedents of Roberts and Rotary in focusing on the groups in which the personal relationships actually occur. JA at 2032. See Roberts, 468 U.S. at 621 (local chapter and not the national organization considered); Board of Directors of Rotary International v. Rotary Club, 481 U.S. 537, 546(1987) (relationship among Rotary Club members in local chapter considered, not relationships among members of Rotary International).
The court of appeal similarly had followed these Supreme Court precedents in Hart v. Cult Awareness Network, 13 Cal. App. 4th 777, 16 Cal. Rptr. 2d 705 (2d Dist.), review denied, 1993 Daily Journal D.A.R. 2515 (Apr. 21, 1993). Hart had sought admission into the Los Angeles chapter of the Cult Awareness Network, an anti-cult group, to "voice [his] side of the story of Scientology." 13 Cal. App. 4th at 784. Hart believed his purpose in joining the Network was compatible with the Network's purpose of "'hear[ing] and be[ing] informed on all sides of religious issues."' Id. When his membership application was refused, Hart brought suit under the Unruh Act.
The national Cult Awareness Network permitted "five or more unrelated persons wishing to form an affiliate organization" to form a local chapter of the Network. Id. at 783 (emphasis added). The Los Angeles local chapter at issue in Hart ("CAN-LA") held meetings in a local bank and was open to "'families and former members of destructive groups and others committed to exposing these groups."' Id. at 788.
Focusing primarily on the factor of membership "based on shared opinions, thoughts and concerns with respect to 'destructive cults,"' the Court in Hart held that application of the Unruh Act to CAN-LA, the most local "'well-defined subgroup,"' would violate "its
members' rights of private association." Id. at 788-89 (quoting Isbister v. Boys' Club of Santa Cruz. Inc., 40 Cal. 3d 72, 89, 707 P.2d 212, 219 Cal. Rptr. 150 (1985)). Relying on Rotary and Roberts, the Court found that the Los Angeles Chapter was an intimate association because, among other things, membership applications required applicants to agree to "'promote the principles of CAN-National and CAN-LA."' Id. at 788. Accordingly, to avoid constitutional difficulties, the Unruh Act was held not applicable. Id. at 792-93.
The record overwhelmingly supports the conclusion that the right of intimate association protects Boy Scout Troops. Troops are undeniably small groups: three to eight boys make up each Patrol; Troops are made up of several Patrols and "consist of between 12 and 30 boys, led by a Scoutmaster and an Assistant Scoutmaster." JA at 2032.
With respect to purpose, Troop leaders are to fulfill the Scouting Mission of seeking to instill values in young people. Ex. 205, Ex. 203, art. X, § 1 at 19. 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." RT at 513:23-27.
In addition, Troops are undoubtedly selective. All boys must subscribe to the Scout Oath and the Scout Law and agree to live by them. RT at 506:11-20. 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. With this common commitment to promote the principles of Scouting, the members of the Troop form an intimate association just as the CAN-LA chapter members' common commitment formed an intimate association. As the Seventh Circuit held in Welsh v. Boy Scouts of America 993 F.2d 1267 (7th Cir.), cert. denied, 114 5. Ct. 602 (1993), the requirement of the Oath or Promise establishes that Scouting is
selective. Even though Scouting admits boys of "diverse backgrounds," the Seventh Circuit held that "admission to membership is not without the exercise of discretion and judgment," as is evident from the Constitution and By-laws as well as the Boy Scouts Oath." Id. at 1276. The Oath, which "reflects the commitment of each member," "offers a clear statement of the beliefs, principles and purpose of the Scouts, i.e., to nurture belief in God, respect for one's country and his fellow man, and being of good moral character. In order to maintain these principles, it is essential that the Scouts exercise selectivity." Id. Like CAN-LA, Scouting membership is selective on the basis of the values that bind its members together.
Moreover, the troops are clearly selective with respect to their adult leadership, who will have the responsibility of caring for other people's children away from home; adult applicants must pass screening by the Troop's adult leadership as well as subscribe to the Oath, the Law, and Scouting's Declaration of Religious Principle. Exs. 272, 273; RT at 469:7-11 ("Most of the responsibility of selecting adult volunteers is really at the unit level."). See also RT at 526:25-527:7, 528:5-529:15.
Furthermore, Troops are exclusive in critical aspects. Troop meetings are usually attended only by members of the Troop. RT at 317:1-13; RT at 200:6-18 (Curran). When the Troop attends one of the occasional events where other Troops are present, the Boy Scouts generally function as a Troop. RT at 395:1-13; RT at 210:28-211:4,212:1-9 (Curran). Likewise, most of the adult volunteers function at the level of Boy Scout Troops or Cub Scout Packs. RT at 458:16459:13. And as the trial court found, the relationships in Troops are personal and "intimate." JA at 2032.
That parents choose a Boy Scout Troop to reinforce values in their children strongly reinforces the claim to intimate associational protection. The Supreme Court has
repeatedly emphasized that it is not the role of the state to interfere with parental choices regarding education of their children concerning values. As the Court wrote in Wisconsin v. Yoder, 406 U.S. 205,232-33 (1972), the state is not empowered to "save" children from their parents' choice of education in "moral standards, religions beliefs, and elements of good citizenship." See Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Indeed, the Supreme Court in Roberts expressly identified the affiliations involved in "the raising and education of children" as among those that "exemplify" the considerations warranting intimate associational protection. Roberts, 468 U.S. at 619.
THE COURT OF APPEAL PROPERLY HELD THAT SCOUTING GROUPS SUCH AS TROOP 37 AND MOUNT DIABLO COUNCIL ARE NOT BUSINESS ESTABLISHMENTS UNDER THE UNRUH ACT
As the court of appeal found, Scouting groups are unlike all other groups previously found to be business establishments under the Unruh Act in that Scouting neither has a business or commercial purpose nor exists to offer a traditional public accommodation. Curran, slip op. at 57-58.
Despite Scouting's lack of any business purpose whatsoever, Curran extracts fragments from the trial court record to attempt to show that Mount Diablo Council should be considered a business establishment because it has an executive board of volunteers, some paid professional "Scouters" on its payroll, and an office with typewriters and a fax machine. In doing so, however, he disregards entirely Scouting's goals and mission, relying on incidental characteristics possessed by virtually any significant organization in California, whether a business establishment or not.
The court of appeal determined that because Curran sought to join Troop 37 as an Assistant Scoutmaster, the Troop was the relevant entity for purposes of the Unruh Act. Id. at 54-56. Mount Diablo Council's involvement in the application process was found to be of no consequence; the real issue was whether what Curran sought were the advantages "in" a business establishment:
"Even if Mount 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."
Id. at 55-56.
Since Curran conceded that Troop 37 was not a business
establishment, RT at 586:19-24, the trial court "could not properly
have found that
Curran was deprived of the advantages in a business establishment." Curran,
slip op. at 56.
B. The Council Is Not a Business Establishment Under Isbister
Even assuming that Mount Diablo Council were the proper entity to focus on for Unruh Act purposes, the court of appeal correctly found that the Council is not a business establishment. Id. at 56.
Prior to Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594, 896 P.2d 776,42 Cal. Rptr. 2d 50 (1995), this Court had applied the Unruh Act to non-profit organizations in only two limited circumstances: (1) when the organization had a business purpose, O'Connor v. Village Green Owners Association, 33 Cal. 3d 790, 796, 662 P.2d 427, 191 Cal. Rptr. 320 (1983); or (2) when the organization existed to offer a traditional public accommodation, Isbister v. Boys' Club of Santa Cruz. Inc., 40 Cal. Sd 72,76,219 Cal. Rptr. 150, 707 P.2d 212(1985).
The court of appeal correctly found that Mount Diablo Council had no business purpose Curran, slip op. at 58-59. Mount Diablo Council's purpose is to support the Scout Troops, Packs and Posts within its geographic area. As the trial court found (and the court of appeal expressly affirmed), Mount Diablo Council
"has no substantial, or even significant, business purpose. It exists simply as the infrastructure for delivering an effective scouting program at the troop level. The goals of scouting are predominantly expressive.... The benefits which the scouts and scouters receive from participation in the program are overwhelmingly personal and non-economic. The Council has no more of a business or commercial purpose than was found to be inconsequential in Isbister, supra."
JA 2031-2032; Curran,
slip op. at 58.
The court of appeal further held that the Council did not exist to offer a traditional public accommodation. Id. at 59-62. In Isbister, this Court applied the Unruh Act to the Boys' Club because its function was to provide "public" recreational facilities of the kind commonly thought to be a "public accommodation," the facilities were used on a "drop-in" basis, and the club lacked any "sense of social cohesiveness, shared identity, or continuity." Isbister, 40 Cal. 3d at 81 (quoted in Curran, slip op. at 60).
Scouting, on the other hand, is an organization "'which maintain[s] objectives and programs to which the operation of facilities is merely incidental."' Curran, slip op. at 60 (quoting Isbister, 40 Cal 3d at 76-77). See Welsh v. Boy Scouts of America, 787 F. Supp. 1511, 1539 (N.D. Ill. 1992) ("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."), aff'd, 993 F.2d 1267 (7th Cir.), cert. denied, 114 5. Ct. 602 (1993).
As the court of appeal noted:
"The relationships in scouting are 'continuous, personal, and social' and 'take place more or less outside "public view."' . . . [T]he 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.' ... [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."
op. at 61-62 (citations omitted); see
In addition, unlike the Boys Club, Scouting restricts access to membership "on the basis of personal, cultural or religious affinity." Isbister, 40 Cal. 3d at 81. To become a Scout, a boy must subscribe to the values of the Scout Oath and Law and tell his Scoutmaster he intends to live by them. RT at 506:2-20, 511:3-20. Similarly, adults who apply to be Scouters must agree to abide by the Scout Oath and Law, the Declaration of Religious Principle, and the Charter and Bylaws of the Boy Scouts of America.
Curran does not refute these findings. Instead, he focuses, as he has since early in this case, on certain characteristics that non-commercial entities such as Mount Diablo Council may share with commercial enterprises, such as having a governing board, offices with desks, typewriters and a fax machine, and expenses for payroll, supplies, insurance and taxes. (App. Br. 21-22.) All kinds of groups, from the large to the small, from the well-funded to the precarious, from the structured to the informal, conduct various types of economic activities without being business establishments. To the extent Mount Diablo Council has certain activities in common
with businesses, they are not ends in themselves but are merely a means to carry out its purpose of supporting Troops and Packs. See JA 2029.
None of the cases cited by Curran
construes the Unruh Act to cover a
non-commercial group merely because it possesses these or other
incidental elements in
common with commercial enterprises. At most, these elements may lend
makeweight to a
finding that an organization is a business establishment because it
serves a commercial
function or provides substantial business benefits to its members. See
Village Green Owners' Association, 33 Cal. 3d at 796
(condominium owners' association
"performs all the customary business functions" of a commercial
acts to "protect and enhance the project's economic value); Rotary
Club of Duarte
v. Board of Directors of Rotary
International. 178 Cal. App. 3d
1035,1051, 1058, 224 Cal. Rptr. 213 (1986) (group's primary purpose was
business prospects of its members), aff'd, 481 U.S.
537 (1987); Pines v. Tomson,
160 Cal. App. 3d 370, 206 Cal. Rptr. 866 (1984) (Christian Yellow Pages
identical to telephone company's Yellow Pages). Without a business or
however, such "business-like attributes" are not determinative of
organization is a "business establishment" under the Unruh Act.
Act would sweep in all membership and religious organizations with
paid staffs and offices -- organizations which cannot by any stretch of
reasonably be considered business establishments.
This Court's recent decision in Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594, 615, 896 P.2d 776,42 Cal. Rptr. 2d 50(1995), reaffirmed that the Unruh Act
covers only those organizations that may "reasonably" be found to constitute business establishments.
In Warfield, the respondent permitted outsiders on payment of a fee to dine in the dining room with club members, to play golf on the same golf course the club members were using, and to play tennis on the tennis courts at the same time as club members. The extensive intermixture of this commercial activity with membership activity caused the country club to lose its private character. Since non-members were able to purchase the various advantages of club membership and enjoy these advantages alongside club members, the club membership itself had become a commercial product. Id. at 621-23.
Wholly insensitive to the context in which Warfield arose, Curran gives it a reading which would attribute to the 1959 California legislature a philosophy so statist in character as to be seldom seen outside the former Soviet republics. The fact that a non-believer purchases a postcard or piece of devotional literature in the back of a cathedral does not entitle him to become a member of the church and receive its sacraments. That the NAACP may sell T-shirts with its logo to anyone who wants one does not thereby open its membership to the Ku Klux Klan. Similarly, a club may lease an unneeded clubhouse to commercial tenants, or an association may rent out a camp or meeting hall to other not-for-profit or school groups without destroying the authority of the club or association to set its own membership requirements.
Numerous groups, especially those promoting religious, social or moral causes, sell literature or items containing logos in order to generate support for the values they espouse. Sales or other business activities ancillary to and supportive of the missions of these groups hardly suffice to turn these groups into public accommodations open to all comers.
It is absurd to suggest that because a citizen who chances to wander into the Mount Diablo Council office, notices that there is a trading post, and is permitted to purchase a Boy Scout Handbook means that he or anyone else has a statutory right to join a Scout Troop, wear the Scout uniform, attend weekly meetings in a church basement, go on monthly campouts at Scout Camp and elsewhere, and participate in Scouting ceremonies. RT at 133:23-26, 142:20- 22, 144:14-23, 177:5, 178:4, 179:2-9, 183:8-12, RT 318:3-14 (Alexander).
The notion that anything that is not a "private club" is therefore a "business establishment" is unsound. To be sure, some cases discuss these categories as alternative characterizations, but that is because many public accommodations laws have "private club" exceptions and because some respondents such as the country club in Warfield have characterized themselves as private clubs to avoid being classified as business establishments. There are literally thousands of associations in California which fall into neither category, ranging along a spectrum of size, organization and permanence from the Roman Catholic Church to a pickup basketball game.
There are at least three common types of associations which limit membership or benefits on grounds of sex, race or religion but which are not socially selective, in the sense that sponsorship of club members and formal interviews by an admissions committee are not required, yet likewise are not business establishments: proselytizing organizations, affinity organizations, and targeted social service organizations. Proselytizing organizations include organizations which seek to inculcate or reinforce values in the public, such as the NAACP, or in their membership, such as religious denominations and Alcoholics Anonymous. The category of affinity organizations includes organizations such as women's bowling leagues, ethnic clubs like Polish-American clubs, and social groups such as a weekly dance for Jewish singles. Social
service organizations are organizations which limit their assistance to persons in a particular target category, such as handicapped children or the homebound elderly. Organizations may have more than one of these characteristics. Scouting has all three: affinity among those subscribing to Scouting's values and among young males in the Cub Scout and Boy Scout programs, proselytizing to persuade more youth to accept Scouting's values, and targeted social services in attempting to help boys between 6 and 18 and young men and women from ages 14 to 21.
The factors which led this Court to find that the country club in Warfield was a business establishment are not present with respect to Mount Diablo Council.
Mount Diablo Council does not own or run any recreational facilities that are open to non-members. The essential activities of Scouting within the Council -- meetings of Boy Scout Troops and Cub Scout Packs -- are not open to the public. They are attended by Scouts, their families, and an occasional prospective Scout invited as a guest. RT at 199:5-200:18, RT at 317:1-17.
The Council's trading post, which Curran argues is the equivalent of a commercial camping or hobby store (App. Br. at 19), is a tiny area, about two-thirds the size of the trial court's jury box, RT at 190:11-191:14, 468:6-10,473:25-474:3, hidden within Council headquarters, and does not turn a profit. RT at 330:21-331:7. The trading post exists to make Scouting literature, advancement badges and other materials supporting the Scouting program available to Scouts and Scout leaders. RT at 190:11-191:14, 330:21-331:7. It does not advertise
or seek sales to the general public. In fact, there is no sign on the building in which the trading post is located indicating that it is inside. RT at 556:3-5.
Mount Diablo Council does not regularly earn income from the sale of food or beverages to non-members. Curran's attempt to transform Council charitable fund raising events into business transactions is to stand the concept of business activity on its head. In a business transaction, one pays for value received. Someone who pays $100 to eat $4.50 worth of scrambled eggs at an annual Sports Breakfast is not engaging in a business transaction, he is making a charitable contribution.
Unlike country club members, Boy Scouts and adult leaders procure no direct or indirect financial benefit from Mount Diablo Council's intermittent interactions with non- members. RT at 557:13-19. If anything, serving as an adult leader is an economic burden. RT at 505:5-18 (devotes 3,000 hours per year to Scouting with no financial reward); RT at 557:9-19 (not aware of any volunteer who receives a financial reward for scouting activities and it would be improper to do so).5 Any funds garnered through the Council's fund-raising efforts are
funneled entirely into carrying out the Scouting program. RT at 278:25-279:3, 275:10-13, 251:1 -5. The only tangible, though non-monetary, benefit conferred on Scout members by such fund-raising is the continuation of the Scouting program in the Council. JA 2031-32 ("The benefits which the scouts and scouters receive from participation in the program are overwhelmingly personal and non-economic.").
With the caveat that the question whether Mount Diablo Council is a private club is statutorily irrelevant, we have reviewed the private club factors discussed by Curran solely for whatever indirect light they may cast on the question whether it is reasonable to characterize Mount Diablo Council as a "business establishment." These criteria -- selectivity, size, degree of membership control over governance, degree of use of facilities by non-members, and purpose -- were the same criteria used by the United States Court of Appeals for the Seventh Circuit to hold that Boy Scouts is outside the reach of federal public accommodations laws. See Welsh v. Boy Scouts of America, 993 F.2d 1267, 1276-77(7th Cir.), cert. denied, 114 5 Ct 602 (1993)6
Selectivity. This Court in Warfield noted that a private club would be expected to "'attempt to select or restrict membership or access on the basis of personal, cultural or religions affinity."' 10 Cal. 4th at 617 (quoting Isbister, 40 Cal. 3d at 81). While any boy between 11 and 17 can apply, only those who are willing to accept the Scout Oath and Law can become Scouts. Curran, slip op. at 53; Ex. 202 at l1.7
Prospective adult leaders are carefully selected by Troop leadership.8 Besides disclosing considerable personal information, an adult leader must accept the Scout Oath, the Scout Law and the Declaration of Religious Principle, as well as the policies and principles of the Boy Scouts of America. Ex. 272 at 10,16; RT at 469:7-11. The organization chartered to operate the Troop, the Mount Diablo Council and Boy Scouts of America must approve the applicant.
Size. The Scouting program is run primarily at the Troop and Patrol level. The Patrol (3 to 5 boys) and the Troop (12 to 30 boys) are characterized by the "continuous, personal and social" relationships among the Scouts. Curran, slip op. at 61-62; JA at 2032. Likewise,
nearly all adult volunteers serve at Scouting at the level of Troops, Packs and Patrols. RT at 458:16-459:13. See Curran, slip op. at 52.
Control. Scouting groups themselves select and screen Scout leaders, with Mount Diablo Council serving Scouting groups in a support role. JA at 2029. The Council itself is run by volunteers. Most of the Council's members are representatives of the organizations that sponsor Scouting groups, RT at 239:10-240:3, and the volunteer members elect the Executive Board which governs the Council. RT at 240:16-27,264:3-8. The Council has a paid full-time staff of 22 (11 of whom are professional Scouters) to serve the Scouts and adult volunteers in its area, but the staff does not "govern" the Council.
Openness. The essential activities of the Scouting program are not generally open to the public. RT at 199:5-18 (Curran); RT at 317:1-7. In any event, the law does not require a private club to be a secret society. As shown above, the Council's interactions with the public are intermittent, and primarily involve seeking donations used to carry out the Scouting program. RT at 199:5-18.
All volunteer organizations also depend on private citizens (also known as members of the public) to serve on boards and in other roles. Those individuals necessarily look elsewhere for their economic support, and that means that they must engage in their own business activity.
to others is an essential Scouting value that is practiced throughout the program and demonstrates Scouting's non-commercial purpose.
* * *
Unlike a commercial enterprise, Mount Diablo Council's purpose is to promote the shared values of members in local Scouting groups and to support the efforts of adult volunteers in transmitting these values to the youth members of Scouting within the Council's purview. As the trial court found and the court of appeal affirmed, the Council "exists simply as the infrastructure for delivering an effective scouting program at the troop level," which is "predominantly expressive." JA 2031. See Welsh, 787 F. Supp. at 1518 (the "central purpose" of Scouting "is to foster the development of certain skills and values in male youths"). The term a "business establishment" cannot "reasonably" be read to cover Mount Diablo Council.
For the foregoing reasons, the decision of the court of appeal should be affirmed in all respects.
Dated: October 23, 1995.
HUGHES HUBBARD & REED
GEORGE A. DAVIDSON
CARLA A. KERR
LOIS MOONITZ JACOBS
George A. Davidson
Attorneys for Mount Diablo Council
1. The parties' Joint Appendix is cited as "JA at [page no.]," the trial exhibits as "Ex. [no.]," and the trial transcript as "RT at [page no.]:[line no.]" with names of witnesses noted parenthetically where appropriate.
2. The 1981 edition of the Scoutmaster Handbook warns Scoutmasters that "It is important to distinguish between youthful acts of innocence, and the practices of a homosexual who may be using his Scouting association to make contacts." Ex. 25 at 134.
Curran did not present
evidence of a single Boy Scout leader who modeled or advocated
4. The credibility of Curran's witnesses was successfully attacked at trial: (1) Mr. Potter admitted that the Scoutmaster Handbook he had used warned against homosexuals using their scouting associations to make contacts. RT at 1163:15-27. When asked whether he viewed sexual experimentation between the boys as inconsistent with the Scout Oath and Law, he answered "Potentially. Yes." RT at 1163:15-27. Furthermore, Mr. Alexander testified that in 1980 Potter acknowledged that he understood and would abide by Boy Scouts' policy regarding homosexuality. RT at 669:14-23. (2) Mr. 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. Compare RT at 1054:8-24, with RT at 202:11-22,204:1-9, 218:14-21. O'Hehir's statement that "sexuality did not come up ever," RT at 1055:22-23, 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 even less believable claim that he "definitely did not possess" this version of the handbook. RT at 1063:25-26. O'Hehir admitted that his testimony, 11 or 12 years after his last involvement with Scouting, was not probative. RT at 1064:7-8. (3) Mr. 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. RT at 1081:3-10.
5. Curran seeks to portray a number of aspects of the Scouting program as "financial benefits" received by members. (See App. Br. at 17 n.25.) The record does not support him. The trial court explicitly stated that it "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 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." JA at 2032 n.5. Training is offered to Boy Scouts and adult volunteers to make them better Boy Scout leaders, not to make them better corporate managers. RT at 204:19-25, 492:8-494:13, 574:6-7, 575:11-17.
6. Numerous other federal and state courts throughout the country have refused to apply public accommodations laws to Scouting groups. See Seabourn v. Coronado Area Council, 891 P.2d 385 (Kan. 1995) (Boy Scouts is not a public accommodation under the Kansas Act Against Discrimination); Schwenk v. Boy Scouts of America, 551 P.2d 465, 469 (Or. 1976) (Boy Scouting is not a public accommodation within the meaning of the Oregon public accommodations statute); Quinnipiac Council v. Commission on Human Rights & Opportunities, 528 A.2d 352, 360 (Coun. 1987) (Scouting's refusal to accept offer of adult volunteer service does not constitute denial of access to accommodations within the meaning of that state's public accommodations law); Department of Human Rights v. Boy Scouts of America, No. MX 92-07717, slip op. at 12 (Minn. Dist. Ct. Aug. 6, 1992) (Boy Scouts is not a public accommodation under Minnesota Human Rights Act); see also Mankes v. Boy Scouts ofAmerica, 137 F.R.D. 409, 411 (S.D. Fla. 1991) (dismissing for lack of subject matter jurisdiction but noting that there is nothing inherently discriminatory about Boy Scouts' goals).
7. Curran's criticism that Scouting is unselective because it does not exclude members on the basis of race, religion or disability is flatly inconsistent with his expressed concern that the Council would be free to exclude on these grounds if the Unruh Act did not apply. (Compare App. Br. at 14 with 24-25.) With or without application of the Unruh Act, Scouting is non-sectarian and non-dominational and does not discriminate on the basis of race, ethnicity or disability.
8. Curran's argument that the review process is "perfunctory" focuses entirely upon the relatively small number of applications rejected by the Council. (See App. Br. at 15.) RT at 307:10-308:22. However, screenings for Scoutmasters and other adult leaders are done by Troops. RT at 572:9-573:13.