NOTE: This document is offered purely for informational and educational purposes. For this reason, the Table of Authorities and Proof of Service have been ommitted. Because this document was scanned electronically from a copy of the original brief, it may contain transcription errors. The pagination of the original has been preserved (at the expense of some readability and proper HTML formatting) in order to facilitate reference among documents. If you require a completely accurate copy of the original brief, please contact the ACLU Foundation of Southern California.

Case No. S039738

2 Civil B061869
(Superior Court Case No. C365529)
  IN THE SUPREME COURT OF THE STATE OF CALIFORNIA  

  Appeal from the Los Angeles Superior Court The Honorable Sally Grant Disco, Judge  

APPELLANT'S REPLY BRIEF

BEATRICE DOHRN
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
666 Broadway, 12th Floor
New York, New York 10012
(212) 995-8585
 
MARK D. ROSENBAUM (State Bar No. 59940)
TAYLOR FLYNN (State Bar No. 159709)
ACLU FOUNDATION OF SOUTHERN CALIFORNIA
1616 Beverly Boulevard
Los Angeles, CA  90026
(213) 977-9500
 
JON W. DAVIDSON, Of Counsel (State Bar No. 89301)
6030 Wilshire Blvd., Suite 200
Los Angeles, CA  90036
(213) 937-2728, ext. 28

Attorneys for Appellant TIMOTHY CURRAN

TABLE OF CONTENTS

  1. INTRODUCTION
  2. SCOUTING IS NOT FREE TO DISCRIMINATE UNDER CALIFORNIA LAW
  3. APPLICATION OF THE UNRUH ACT IN THIS CASE WOULD NOT VIOLATE THE CONSTITUTION
    1. Prohibiting Discrimination on the Basis of Sexual Orientation Would Not Interfere with Rights of Expressive Association
    2. Prohibiting Respondents Discrimination against Appellant Would Not Impair Rights of Intimate Association
    3. Were There Any Infringement upon Rights of Association in this Case, It Would Be Justified by Compelling State Interests Not Aimed at Expression
  4. CONCLUSION

    I. INTRODUCTION

Appellant Timothy Curran ("Appellant" or "Mr. Curran") and Respondent Mount Diablo Council of the Boy Scouts of America ("Respondent") agree on at least one thing: "[I]t is not the role of the courts to rule on the validity of Scouting's moral views." (Respondent's Answer Brief on the Merits ("Resp. Br.") at 1.) What is required, instead, is that courts apply the laws adopted by the California Legislature, including California's law mandating that certain forms of discrimination are prohibited in this state, regardless of personal views on moral questions. Respondent's rhetoric to the contrary, Appellant seeks nothing more. Appellant absolutely does not seek to have the state or this Court take any position on the question of "the morality of homosexual conduct." (Resp. Br. at 1.) Instead, all that Mr. Curran seeks is a ruling that -- after he had been involved in Scouting for years and had been honored as an Eagle Scout (JA 263; RT 138:20 - 139:241) and in numerous other ways2 -- Respondent should not have excluded him from further participation in Scouting for the sole reason that Respondent had found out that he is gay, because such discrimination violates California's Unruh Civil Rights Act.

Respondent does not contest that the Unruh Act prohibits business establishments in California from discriminating based on sexual orientation. Instead, in various ways, Respondent attempts to exempt its operations from anti-discrimination laws altogether, so that it would be free to discriminate on any basis it might choose.3 Should that approach fail, Respondent additionally attempts to rip a gaping hole in anti-discrimination protections by trying to transform what unquestionably in this case was an act of discrimination based on a personal characteristic into a constitutionally protected form of expression. The Unruh Act does not prevent Scouting or its members from holding, teaching or expressing any views they wish about

1

the morality of homosexuality (or for that matter, Judaism, or racial intermarriage or any other subject). What the law does prevent is denying individuals the benefits of membership in the organization based on a personal characteristic like their sexual orientation (or their religion or race). On that issue, the Legislature has spoken within the permissible scope of its power. Respondent's arguments must therefore be rejected and the judgment in Respondent's favor below must be reversed.
 

     II. SCOUTING IS NOT FREE TO DISCRIMINATE UNDER CALIFORNIA LAW.

Recognizing the weakness of its statutory argument, Respondent relegates the initial, predicate question to be decided in this case -- whether Respondent's organization is a business establishment subject to the Unruh Act -- to the last quarter of its brief. (See Resp. Br. at 32-44.)4

In addressing this predicate issue, Respondent first asserts that Troop 37 is not a business establishment and that "therefore" Appellant could not have been deprived of advantages "in" a business establishment. As explained in Appellant's Brief on the Merits ("App. Br.") at page 11, fn. 16 (and totally unanswered in Respondent's Answer Brief), this position is untenable for numerous reasons. Most significandy, Respondent excluded Mr. Curran not only from Troop 37, but also from attending the 1979 BSA Jamboree and from participation in any aspect of Scouting within Respondent's jurisdiction (JA 263-64; 2999); Appellant therefore sought relief against the entity that excluded him from Scouting, not against a particular troop or even troops in general (JA 93, 540-41, 2790, fn.86). In addition, Troop 37 is not an independent legal entity; it is part of -- or "in" -- the Boy Scouts. Thus, Respondent's exclusion of Mr. Curran from Troop 37 did deny him advantages "in" the business establishment of Scouting, just as exclusion of a couple from a private booth in a restaurant denies them advantages "in" the restaurant, regardless of the answer to the question (equally nonsensical as Respondent's

2

contention that the troop is all that should be considered) of whether the private booth independently could be considered a business establishment. (See Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289 [20 Cal.Rptr. 217].)

Respondent next spurns this Court's guidance in Warfield v. Peninsula Golf & Country Club (1995)10 Cal.4th 594 [42 Cal.Rptr.2d 50, 896 P.2d 776] for interpretation of the Unruh Act5 as well as this Court's express statement in Warfield that the fact that an organization "is not generally thought of as a traditional business establishment is not, in itself necessarily determinative of whether such an entity falls with the aegis of the [UnruhJ act " (10 Cal.4th at p.616.) Respondent instead blithely argues -- although the statute does not say so, no prior case other than the Court of Appeal opinion vacated by the grant of review in this case has so held, and no rationale exists for such an oddly constructed rule -- that an organization cannot be subject to the Unruh Act unless it either has a "business purpose" or exists to offer "a traditional public accomrnodation." (Resp. Br. at 33-34.)6

In his Brief on the Merits, Appellant detailed at length how, as found by the trial court below and as previously held in the prior appeal in this case, Respondent's organization meets those tests for what is a business establishment under the Unruh Act that actually have been enunciated in prior Unruh Act cases. (See App. Br. at 20-24.) Rather than answer that

3

showing, Respondent either ignores what was argued in Appellant's Brief on the Merits7 or mischaracterizes and then snidely belittles Appellant's actual contentions.

Appellant does not contend that Scouting is a business establishment subject to the Unruh Act merely because Respondent has an executive board, paid employees, and an office with office equipment (Resp. Br. at 32), or simply because Scouting regularly sells goods to the genera] public (id. at 38), or that every organization that engages in any commercial activity with non-members is subject to the Unruh Act (id. at 37), or that every organization that is not "private club" is a "business establishment" (id. at 38). What Appellant does submit is that, as previously decided in this case, when the Legislature decided to require "all business establishments of every kind whatsoever" in California not to discriminate against individuals on the basis of their personal characteristics, the Legislature intended to include among the entities subject to that obligation an organization that has Respondent's combination of attributes. No one particular attribute is controlling. Rather, Respondent's organization is subject to the Unruh Act because of the combination of: the organization's size; its being structured and functioning similarly to a commercial business; its having a substantial paid staff and permanent administrative offices; its charging of fees for membership; its engaging in the sale of goods and services to the general public; its receipt of funding from the general public and not just its members; its being controlled by staff rather than members; its attempts to recruit an inclusive membership; its significant turnover in membership; its engaging in activities in public view and in public relations efforts; its extensive interactions with other businesses and the government; and its offering of advantages, facilities, privileges and services to its members. These are the tests of what will be considered among "all business establishments of every kind whatsoever" actually applied by prior case law, rather than Respondent's make-shift limiting rule. (See App. Br. at 20-24 and 21, fn. 34.)8

4


Sidestepping Appellant's evidence that Respondent regularly conducts business transactions with non-members (see App. Br. at 18-20) and therefore is subject to the Unruh Act even if it were to meet the test of being a truly private club,9 Respondent inaccurately reviews application of the factors that might make it a private club exempt from the Unruh Act. (Resp. Br. at 41-44.)10 Thus, Respondent persists in claiming that it is "selective" -- the most important test for being a truly private club -- even though the trier of fact found expressly below that it is not, that "[t]here is no general plan of exclusion," and that "Scouts and scouters are actively 

5


recruited, and membership is open to all." (JA 2030.)11 Respondent's discussion of the factors of size, membership control over the governance of the organization and the selection of new members, and openness to non-members reads like a "shell-game," with the focus of attention constantly shifting. Respondent argues that troops (which Appellant does not assert are themselves business establishments) are small (Resp. Br. at 42), without contesting that the membership in Scouting in its jurisdiction exceeded 13,000 and that Scouting as a whole is massive and that decisions affecting local chapters of the Rotary Club, which have between 20 and 900 members, have not been found so private as to be excluded from the Unruh Act. (See App. Br. at 16, fn. 24.) Next, Respondent presents a number of assertions about the operation of the Mount Diablo Council (Resp. Br. at 43) that do not refute the fact that Boy Scouts and adult Scouters (Scouting's members) have no control over the governance of Scouting or its policies and have no say whatsoever over the selection of new members in the organization or even in who may join a troop, who will be Scoutmaster or who will serve on their troop committee. (App. Br. at 16.) Respondent goes on to assert that its "essential activities" (a term not used by this Court in describing the characteristics of a truly private club in Warfield and a term not defined by Respondent) are not "generally" open to the public (Resp. Br. at 43), without contesting the facts that show that Scouting's numerous interactions with the public render the "truly private club" exception to the Unruh Act unavailable to Respondent. (See App. Br. at 16.)12

In sum, Respondent has failed to show that it meets the test of a truly private club or that it is unreasonable to apply the term "all business establishments of every kind whatsoever" to an organization of its size and with its structure, functioning, activities, and prominence. For

6

these reasons, this Court must accept the conclusion of the trial court and of the court of appeal in the previous appeal in this action that Respondent is a business establishment and is not free to discriminate on the basis of race, national origin, disability, sexual orientation or any other personal characteristic of those who seek to join it.
 

    III. APPLICATION OF THE UNRUH ACT IN THIS CASE WOULD NOT VIOLATE THE CONSTITUTION.

      A. Prohibiting Discrimination on the Basis of Sexual Orientation Would Not Interfere with Rights of Expressive Association.

Distorting both the facts of this case and the U.S. Supreme Court's recent ruling in Hurley v. Irish-American Gay. Lesbian and Bisexual Group of Boston (1995) ___ U.S.___ [115 S.Ct. 2338, 132 L.Ed.2d 487], Respondent seeks to establish a constitutional right to discriminate against anyone it learns is gay, a right that effectively would gut anti-discrimination protections.

Respondent greatly overstates the holding and impact of Hurley.13 In Hurley, the U.S. Supreme Court held that, when an anti-discrimination law is sought to be applied to the purely expressive activity of a parade in order to require admission of contingents engaged in expression the parade does not support, the law furthers no end but the direct regulation of the content of expression, which the First Amendment prohibits. (132 L.Ed.2d at p.507.) Hurley decidedly did not hold that anti-discrimination laws cannot be applied to prohibit those who condemn homosexuality from discriminating on the basis of sexual orientation.14 To the

  7


contrary, the Supreme Court was careful to emphasize in Hurley that that case -- unlike this one  -- "does not address any dispute about the participation of openly gay, lesbian, or bisexual individuals" in an organization or its activities. (132 L.Ed.2d at p. 503.) In Hurley, no individual claimed that he or she had been excluded based on his or her sexual orientation and the organization did not prohibit lesbians and gay men, even those who were open about their sexual orientation and known to be lesbian or gay, from participating in the parade. All that was prohibited was the participation of an lesbian and gay organization as a separate unit "carrying its own banner" in order to "impart[] a message the organizers do not wish to convey." (Id.; see 132 L.Ed.2d at p.495; see also Irish-American Gay, Lesbian and Bisexual Groun of Boston v. Boston (1994) 418 Mass. 238, 260 n.4 [636 N.E.2d 1293, 1304].) As the Utah Supreme Court recently explained in rejecting the argument that Hurley allows organizations that are not solely engaged in expression "to wholly exclude an entire class of society from participation":  "Hurley addressed only the right to control the content of a parade's 'message' under the First Amendment's guarantee of free speech; it specifically did not address the issue of participation of protected groups in the parade." (Elks Lodges #7191 (Ogden) and #2021 (Moab) v Dept of Alcoholic Beverage Control (Oct.23, 1995)1995 Utah LEXIS 66, at *17-*l8.)15

In addition, contrary to Respondent's suggestions, Hurley did not enlarge previous law about the scope of the right of expressive association or weaken previous rulings rejecting attempts to present a defense based on that right to the application of anti-discrimination laws

  8


to the membership decisions of organizations like Scouting.16 Hurley was concerned with the direct regulation of expression, where no state goal was being served other than affecting the content of the parade there at issue. (132 L.Ed.2d at p.507.) By contrast, in the present case, what is presented, at most, is a claim that being prohibited form excluding someone who is openly gay from being an adult Scouter will have an indirect or incidental effect upon the message Scouting claims to teach about homosexuality.17 In such a situation, as pointed out in Appellant's Brief on the Merits and unanswered in Respondent's Answer Brief, regulation is not altogether forbidden (as in Hurley); instead, the test is whether the effects upon expression are "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 First Amendment rights. (Roberts, 468 U.S. at p.623; see also United States v. O'Brien (1968) 391 U.S. 367, 376 [88 S.Ct. 1673, 20 L.Ed.2d 672] (government regulation that "is unrelated to suppression of free expression is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial government interest; ... and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.").)

In reaffirming cases like Roberts and New York State Club Association, the U.S. Supreme Court did not state that membership organizations could exclude anyone who holds views contrary to those "the organization" advances, as Respondent repeatedly claims. (See Resp. Br. at 18.)18 What the Court said, and what was stated in Roberts and New York State Club Association, is that "a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members." (Hurley, 132 L.Fd.2d at p.508 (emphasis added); see also id. ("positions espoused by the general club membership[]")

  9

(emphasis added).) There are two inescapable problems with Respondent's attempt to hide behind this statement of law.

First, as noted above and discussed at length in Appellant's Brief on the Merits, Scouting's policy does not exclude individuals based upon their holding a particular view about the morality of homosexuality. The policy prohibits membership of all "known homosexuals" and states nothing about individual's views about homosexuality or about the exclusion of heterosexuals who do not believe homosexuality is immoral. (Ex. 292.) Despite Respondent's repeated attempts to reinvent the facts and claim that Mr. Curran was excluded because of his views or his expressive advocacy, it was conclusively found below that that was not why Mr. Curran was excluded.19 Therefore, the permissibility of a policy or practice that excluded only on the basis of views is simply not presented by this case, which involved both a policy and an act of discrimination based on identity, not views.

Second, although the leadership of Scouting may believe that homosexuality is immoral, the members of the organization have not jointly taken and do not together espouse that position. Opposition to the morality of homosexuality cannot be a position that honestly can be said to be taken or espoused by Scouting's membership when prospective members are not asked about

  10

their views on the subject,20 when the membership application form says nothing about the subject,21 when many members are unaware that the organization has any position on the subject,22 and when there is not one single piece of Scouting literature available to members or applicants that takes that position. (See App. Br. at 9, fns. 14 and 15.) Moreover, the Brief Amicus Curiae submitted by the Unitarian Universalist Association to this Court demonstrates that not even all religious sponsors of Scouting units agree that homosexuality is immoral and that some actively oppose Scouting's discriminatory practices.23 An expressive association defense thus should not be recognized in this case. To do so would allow practically any organization to exclude racial, ethhic or other minorities based on self-serving testimony about the claimed (although little known) views of their management, not necessarily shared by their members or supporters, about who are appropriate leaders within their organization.24

Finally, Respondent has not shown how an inability to exclude individuals based on their sexual orientation would require Scouting to abandon or alter Scouting's expression of views. Although exclusion of individuals who proselytize in Scouting in opposition to its teachings in order to change those teachings might be allowed (see Hart, 13 Cal.App.4th at p.790), Mr. Curran was not excluded for doing this and Scouting's policy is not so limited. Moreover, other than through empty generalizations and misstatements of the record, Respondent has not shown that someone who is gay, for that reason alone, could not effectively discuss ethical issues or
11


even sexual matters with Scouts without interfering with what is taught in Scouting.25 This Court has long held that those who are gay cannot be subjected to different treatment based on that characteristic "without regard to their conduct." (Stoumen v. Reilly (1951) 37 Cal.3d 713, 716 [234 P.2d 969].) Respondent's exclusion of Mr. Curran based on his sexual orientation accordingly cannot be found to be protected under the First Amendment based on a claim that his being gay in itself will lead him to engage in expression or conduct Scouting wants to prohibit because of feared interference with its teachings or the beliefs of its members.26 Because Respondent has no other basis to claim any effect upon its expression of views, Respondent's expressive association defense must be rejected.
 

B. Prohibiting Respondent's Discrimination against Appellant Would Not Impair Rights of Intimate Association.

 
Respondent's assertions about the right of intimate association prove both too much and not enough. If Respondent were correct that the size and congeniality of troops constitutionally prohibits government regulation of who is associated with them, then Scouting would be able to exclude anyone on even the most invidious of grounds. The fact that some intimate association may take place within troops does not allow Scouting to exclude individuals from Scouting, however, just as a restaurant cannot exclude rninorities from eating there because some intimate association may be engaged in on the premises between some of the patrons. (See New York State Club Association, 487 U.S. at p.12; see also Rolon v. Kulwitzky, 153 Cal.App.3d 289.)

Moreover, in this case, no one who was or might have been engaged in intimate association through participating in Scouting with Mr. Curran ever objected to associating with him. The Supreme Court has defined relationships protected by intimate association as only

12


those that are "highly personal" in which one shares "distinctively personal aspects of one's life." (Roberts, 468 U.S. at pp.619-20.) This case might raise different issues if Mr. Curran had been excluded from a troop because of objections of fellow members of the troop or even their parents, but those are not the facts. Mr. Curran was excluded from participation in any aspect of Scouting by Respondent based upon its policy that no known homosexual can be a member of Scouting and notwithstanding support for Mr. Curran by the troop with whom he previously had been associated. (See RT 196:3-12; see also Ex. 103.)27 In this case, accordingly, no one's rights of intimate association could have been violated by a prohibition on Respondent's discrimination against Mr. Curran based on his sexual orientation, which is the relief sought through this case.
 

C. Were There Anv Infringement upon Rights of Association in this Case, It Would Be Justified by Compelling State Interests Not Aimed at Expression.

Once again wholly ignoring what is in Appellant's Brief on the Merits (see App. Br. 37- 39), Respondent dismissively asserts that the only state interest underlying anti-discrimination laws like the Unruh Act that can be considered compelling is "equal access to economic opportunity or economic advantage." (Resp. Br. at 27.) Respondent fails to explain why seeking to prevent "'the deprivation of personal dignity" that ... accompanies denials of equal access to public establishments"' (Heart of Atlanta Motel, 379 U.S. at p. 250) or why intervening to prevent the harms to children and others caused by Scouting's discriminatory conduct (see App. Br. at 39, fn. 52; see also Brief Amicus Curiae of the National Association of Social Workers at 1-20) should not also be considered compelling.

Respondent is right that the state does not have a legitimate interest in trying to change the content of expressive activity engaged in by Respondent or anyone else, but Mr. Curran does not seek an order that any organization or individual change their expression or even their "biases" (Resp. Br. at 27).28 What he seeks is an end to Respondent's exclusion of individuals

  13


who are learned to be gay because of the very real (even if not pecuniary) harm that exclusion does to them and to others, which harm California has a compelling interest in preventing. (See Roberts, 468 U.S. at pp.625-26 ("the state interest in assuring equal access [is not] limited to the provision of purely tangible goods and services" but is an interest that both the individual excluded and society as a whole have in "removing the barriers to ... political and social integration" (and not just "economic advancement") "that have historically plagued certain disadvantaged groups," "depriv[ing] persons of their individual dignity and den[ying] society the benefits of wide participation in political ... and cultural [in addition to economic] life.").)

To paraphrase the U.S. Supreme Court's words in Roberts, the "stigmatizing injury" caused by Respondent's exclusion of individuals from as important a public institution as the Boy Scouts "and the denial of equal opporttuities that accompanies it, is surely felt as strongly by persons suffering discrimination on the basis of their [sexual orientation] as by those [who might be] treated differendy because of their [sex or] race." (468 U.S. at p.625.) Thus, even were there some infringement of rights of association in this case, that would be justified by California's compelling interest in ending discrimination in organizations like Scouting, an interest that is not aimed at expression but at the wrongful denials of equality that the Unruh Act was enacted to prohibit.

  14

For the reasons set for above and in Appellant's Brief on the Merits, Appellant's Unruh Act claim should be permited in this case, the judgment of the trial court should be reversed, and this case should be remanded to the trial court, with instructions.

Dated: November 13, 1995
 


1     Appellant will use the same conventions in this brief to refer to the record as in Appellant's Brief on the Merits ("App. Br."). References to the Joint Appendix will he in the form "JA [page number(s)]." References to the Reporter's Transcript will be in the form "RT [page number:line number(s)]." References to trial exhibits will be in the form "Ex. [trial exhibit number:page number(s)]."

2     Respondent also honored Mr. Curran by choosing him to participate in Respondent's Troop Leadership Development Program (RT 188:13 - 189:13), electing him to honor camping organizations within Scouting such as the Wolfeboro Pioneers and the Order of the Arrow (RT 181:28 - 183:5, 1012:7-22), and selecting him as one of a small number of its representatives to the Boy Scout of America ("BSA") National Jamboree in 1977. (RT 177:5-24, 179:2-9.)

3     Respondent variously argues that (1) the only question that should be examined is whether a troop is a business establishment, which Appellant does not claim; (2) a novel test Respondent has constructed for what should be considered a business establishment does not apply to Scouting's operations; and (3) the right of intimate association precludes state interference with Scouting's membership decisions. None of these positions is limited in any way to sexual orientation discrimination. If any were adopted, Scouting would be free to discriaiminate invidiously at will, regardless of the group targeted or the harm inflicted.

4    Respondent effectively seeks to have this Court reach out to consider and decide the constitutional questions raised by application of the Unruh Act in this particular case (as did the Court of Appeal, below) in advance of the question of whether, as a general matter, Respondent is covered by that statute. Such an approach contravenes established, fundamental principles of jurisprudence and judicial restraint. As this Court explained in Palermo V. Stockton Theatres (1948) 32 Cal.2d 53, 65-66 [195 P.2d 1], courts should "not reach constitutional questions unless absolutely required to do so to dispose of the matter." (See also People v. Williams (1976)16 Cal.3d 663, 667 [128 Cal.Rptr. 888,547 P.2d 1000]; Spector Motor Co. v. McLaughlin (1944) 323 U.S. 101, 105 [105 S.Ct. 1785, 85 L.Ed.2d 64] ("If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that [courts] ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.").)

5    See Warfield, 10 Cal.4th at pp.599 (noting "the very broad language" of the Unruh Act and referring to "the very broad category of 'business establishments' governed by the nondiscrimination mandate of section 51"), 611 (reaffirming that it was "'the Legislature's intent to use the term 'business establishments' in the Unruh Act in the broadest sense reasonably possible"'), and 621 (referring to the Unruh Act's 'broad reference to 'all business establishments of every kind whatsoever"').

6    Not only is Respondent's tendered rule without support, it contravenes the wording of the statute, which regulates "all business establishments of every kind whatsoever" regardless of whether or not they have a "business purpose" or offer a "traditional public accommodation." While Respondent would like this Court to apply cases from other jurisdictions that do not prohibit discrimination by "all business establishments of every kind whatsoever" (Resp. Br. at 41, fn. 6), California has chosen to act with a significantly broader reach than those other states or the federal government. (See Welsh v. Boy Scouts of America (7th Cir. 1993) 993 F.2d 1267, 1271, cert. den. 114 S.Ct. 602 (relied upon by Respondent to argue that other courts have refused to apply public accommodations laws to Scouting, even though the court in that very case noted that the court of appeal's previous ruling in the present case interpreted the Unruh Act "to cover organizations like the Boy Scouts" because of the broader wording of the Unruh Act than the federal public accommodations statute at issue in Welsh).) Indeed, other uses of term business establishment in California's codes highlight that the Legislature intended the Unruh Act to reach as far as reasonably possible. Compare Civ. Code § 51 ("all business establishments of every kind whatsoever") with Bus. & Prof. Code § 22203 ("retail business establishments"), Ins. Code § 670 ("commercial business establishment"); Pen. Code § 603.1 ("business establishment open to the public"). When the Legislature has wanted to craft a limitation on which business establishments were to be regulated,  it has had no problem finding modifiers for the term. Instead, in the Unruh Act, the Legislature used three expansive terms -- "all," "of every kind," and "whatsoever" -- each of which is inconsistent with the limitations upon the reach of the Unruh Act proposed by Respondent.

7    For example, Respondent fails to answer why the prior appellate decision's legal conclusion that it was the "Legislature's [intent] to include organizations such as the Boy Scouts within the scope of the Unruh Act" (Curran v. Mt. Diablo Council of the Boy Scouts of America (1983)147 Cal.App.3d 712, 732 [194 Cal.Rptr. 325), app. dism. (1984) 468 U.S. 1205 [104 S.Ct. 3574, 82 L.Ed.2d 873]) is not binding in this case under the doctrine of "the law of the case." (See App. Br. at 20, fn. 33.)

8    As a result, it is doubtful that the Unruh Act would regulate "a pickup basketball game," a "women's bowling league," a "weekly dance for Jewish singles" (Resp. Br. at 38) or large numbers of the other examples alluded to in Respondent's brief. Such activities or organizations are unlikely to have the size, lack of selectivity, formal structure, public operation, and interdependence on government and business that rightly make Scouting subject to the Unruh Act's obligation not to discriminate. Religious organizations, repeatedly resorted to by Respondent in its hyperbole (see, e.g., Resp. Br. at 37-38), present wholly different considerations, since regulation of their membership policies undoubtedly would be prohibited by concerns about government entanglement in the exercise of religion and the separation of church and state. Whether support organizations such as Alcoholic Anonymous, political organizations such as the NAACP (neither of which actually does exclude individuals from membership based on personal characteristics) or ethnic groups such as Polish-American clubs are subject to the Unruh Act and whether entities subject to the Unruh Act are prohibited from targeting social services to a particular segment of society (Resp. Br. at 38-39) are questions well beyond the scope of this case that need not and should not be decided here. In addition, support organizations may involve the exercise of rights of intimate association not implicated by this case. (See Hart V. Cult Awareness Network (1993)13 Cal.App.4th 777 [16 Cal.Rptr.2d 705].) Likewise, it is possible that the expressive activities of some political, ethnic, and social service organizations might be significantly impaired by forced membership of those whom they bar in ways that would not result from ending Scouting's exclusion of individuals who are known to be gay. (See Invisible Empire of the Knights of the Ku Klux Klan V. Mayor (D.Md. 1988) 700 F.Supp. 281.) What is undisputable, however, is that, notwithstanding Respondent's contentions, the Legislature did not altogether exclude from coverage under the Unruh Act non-profit social clubs and fraternal, charitable, educational, and religious associations and corporations, as the Legislature did when it enacted other anti-discrimination laws precisely the same term as the Unruh Act. (See Govt. Code §§ 12926(c) and 12927(d); Curran, 147 Cal.App.3d at p.732.)

9    In a stream of non-sequiturs, Respondent argues that some of the business transactions in which it regularly engages with non-members somehow do not make a profit (even though the court below found sales therein to exceed costs [JA 523, 527]), take place in a small physical space, or are not "really" business transactions because the money paid by non-members for goods or services received exceeds their value. (Resp. Br. at 39-40.) Respondent fails to rebut, however, that: (1) Respondent's organization does engage in business transactions with non-members, through activities that are functionally equivalent to running a camping equipment, hobby, and book store or of being a commercial provider of entertainment, recreation, food or advertising; (2) these activities occur repeatedly and regularly and cannot fairly be characterized as occasional or isolated, like a small, irregular fund-raising bake sale or carwash; and (3) these activities support "the Scouting program available to Scouts and Scout leaders" (Resp. Br. at 39) and bring in revenues that subsidize and reduce the amount of the dues and fees charged in order to belong to and participate in Scouting. (See App. Br. 18-20.) Similar facts were found to make the country dub at issue in Warfield subject to the Unruh Act, even if it were a private club, notwithstanding analogous objections by the dissent in that case. (See Warfield, 10 Cal. 4th at pp. 621-23, 634-36.)

10     Without explanation, Respondent asserts that "the question whether [Respondent] is a private club is statutorily irrelevant" to whether or not it is a business establishment subject to the Unruh Act. (Resp. Br. at 41.) This contention does not comport with this Court's ruling in Warfield that the Unruh Act was not intended to reach the membership decision of a truly private club. (10 Cal.4th at pp. 616-18.)

11     Respondent does not dispute in its Answer Brief Appellant's contention that these factual findings must be accepted on appeal given that Respondent has not shown them to be clearly erroneous. (See App. Br. at 14, fn. 20.) Instead, Respondent misrepresents Appellant's statement that, at present, Scouting overall is unselective as a "criticism" (which it is not) and as inconsistent with Appellant's concern that, absent application of the Unruh Act, Scouting would be free to discriminate on racial and other grounds, as it did in years past. (Compare Resp. Br. at 42, fn.8, with App. Br. 24-25.)

12    Respondent criticizes Appellant for not giving greater emphasis in his brief to the "purpose" factor under the "truly private club" exception. (Resp. Br. at 43.) Appellant discussed that factor in a footnote because the factor is not readily applicable to youth organizations like Respondent (just as it would not to the Boys Club, which has been held subject to the Unruh Act as opposed to being a truly private club) which have educational and recreational purposes, as opposed to goals of either individual financial profit or adult socializing. (See App Br. at 17, fn. 25.) Respondent, by contrast, fails to even mention (in a footnote or otherwise) the other factors the case law has indicated as being significant to the determination of whether an organization is a truly private club that were discussed in Appellant's Brief on the Merits. (App. Br. at 16-17.)
 
 13     For example, as explained below, while some of the First Amendment principles applied in Hurley are not limited to parades, Respondent is wrong in asserting that the same analysis applies to direct regulation of the content of a parade as to regulation of discrimination in providing members of an organization access to accommodations, advantages, facilities, privileges and services beyond joining in group expression and that is claimed to have an indirect impact upon expression. In  addition, as noted below, Respondent's paraphrase of Hurley's language repeatedly changes a key part of what that decision does say in order incorrectly to suggest that the Court in Hurley ruled in a way that would be helpful to Respondent, when that Court did not.

14     There is no more such a constitutional right than there is one permitting xenophobes to discriminate on the basis of national origin or religious zealots to discriminate against those of a different faith. (See Runyon V. McCrary (1976) 427 U.S. 160,176 [96 S.Ct. 2586, 49 L.Ed.2d 415] (advocacy that certain forms of discrimination are socially desirable may be protected by the right of expressive association, but "it does not follow that the practice of excluding ... minorities is also protected by the same principle").) Yet, this is precisely the import of Respondent's argument. Respondent claims that "homosexuals... are identified as such only by their own conduct or affirmation; in other words, expressive activity" (Resp. Br. at 17) and that exclusion on the basis of sexual orientation is "really" exclusion on the basis of "advocacy," as to which Respondent must be allowed to engage under the First Amendment. (Id.) Such reasoning would have the effect of overruling the cases cited with approval by this Court in Harris v. Capital Growth Investors XIV (1991)52 Cal.3d 1142,1155-56 [278 Cal.Rptr. 614,805 P.2d 873] which have held sexual orientation a personal characteristic, not reducible to only a viewpoint. Such reasoning also would undermine protection against numerous other forms of discrimination. Members of religious minorities also are "identified as such only by their own conduct or affirmation." (Resp. Br. at 17.) Contrary to Respondent's black-and-white view of the world (see id.), national origin and even race for many individuals (particularly those of mixed racial heritage) are identified as well only by individuals' activities or by what they say about themselves. This does not transform discrimination against those who do let others know their religion, national origin, race -- or sexual orientation -- into discrimination based on their expression.

15     In Warfield this Court itself likewise concluded that Hurley did not radically change the law about when organizations subject to the Unruh Act could exclude individuals on prohibited grounds. To the contrary, this Court explained that Hurley's "holding [was] that, under the First Amendment, a state public accommodation law may not be applied to require 'private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey."' (Warfield, 10 Cal.4th at p.629, n. 12 (emphasis added).)

16     Rather, the Court in Hurley went out of its way to affirm that public accommodations laws, including those that prohibit sexual orientation discrimination, "are well within the State's usual power to enact" (132 L.Ed.2d at p.502) and that its decision did not change the Court's previous rulings in New York State Club Association v. New York (1988) 487 U.S. l[108 S.Ct. 2225, 101 L.Ed.2d 1215], Roberts v United States Jaycees (1984) 468 U.S. 609 [104 S.Ct. 3244, 82 L.Ed.2d 462] or Heart of Atlanta Motel v. United States (1964) 379 U.S. 241 [85 S.Ct. 348, 13 L.Ed.2d 258]. (Id.; see also id. at p. 508)

17     See, e.g., Resp. Br. at 24 (arguing that "the role model of an avowed homosexual adult leader have a effect on the sexual values and conduct of Boy Scouts.") (Emphasis added.) This is not enough to create a "direct" regulation of expressive association. (See Lyng v. Automobile Workers (1988) 455 U.S. 360, 366 [108 S.Ct. 1184, 99 L.Ed.2d 380].)

18    See also Resp. Br. at 2 (referring to alleged conflict with purported moral views of "the association" or "the group"), 12 (referring to the position taken by "Scouting" and the belief of "the organization"), and 14 (referring to the "'belief system of the organization").

19    It was found below that Mr. Curran was excluded by Respondent "because he was a homosexual," that his "homosexuality was the only reason" for his exclusion, and that he would have been excluded regardless of his views or what he might ever have said or not said because "[t]he policy and practice of [Respondent] is that no homosexual may be an adult member" of Scouting and because "Respondent will not admit any homosexual into membership regardless of such person's qualifications." (JA 263-67 (emphasis added.) Respondent distorts the record by relying on statements that Appellant made after he was excluded by Respondent that could not have been the basis for Appellant's exclusion, since they had not been said at that time. (See Resp. Br. at 3, 4, 6, and 12.) Respondent then claims that Mr. Curran is trying to "re-make this case into a case of discrimination on the basis of sexual orientation" (resp. Br. at 15), when it is Respondent that has been laboring for years to "re-make" this case into one that it is not, at times even going so far to suggest that there is no such thing as discrimination based on sexual orientation (see discussion in fn. 14, above) and to miscite the record. (See Resp. Br. at 15, referring to RT at 691:19-692-7 as supporting its claim that Scouting's membership policy is not directed at sexual orientation but at "individuals who would teach that homosexual conduct is moral," when that testimony actually states that Respondent would exclude "a man who is sexually attracted to other men" if he were "actively teaching homosexual lifestyles" [sic] and when the same witness thereafter testified that a man who Respondent found out had engaged in sexual conduct with another man, but who did not tell other people about it, "would not be acceptable to the Boy Scouts of America," regardless of his expression. RT 693:9-20.) Scouting does not inquire into applicants' or members' views on the morality of homosexuality (RT 852:14-20,1176:22-26, 1177:4-7) and Respondent's President admitted at trial that a man who is not sexually attracted to other men and has never had sexual contact with other men but who believes that there is nothing wrong with other men having sexual contact with men "would not be disqualified" under Scouting's policy and practice. (RT 1206:9-21.) Hence, to represent that Scouting excludes based on moral views about homosexuality and not on sexual orientation is to tell a lie unworthy of those associated with Scouting.
 
20     See fn. 19 hereof, above.

21     See Ex. 274.

22     See JA 3010, fn. 27.

23     Appellant does not contend that all of Scouting's members must agree that homosexuality is immoral for that to be a position taken or espoused by the membership or that the position must be communicated to the public at large, but it cannot be enough that having a written policy distributed only to staff that takes the position that "avowed or known homosexuals" should be excluded from membership is all that it takes for a defense of expressive association to exist. As the federal district court explained at an earlier stage of the Welsh litigation, "Few would claim that the YMCA would be entitled to exclude blacks if the YMCA had a written policy that one of its purposes was to instill good morals in its members and that belief in white superiority was necessary to fulfill that purpose, even though expression of white concerns was not a major part of the YMCA's activities." (Welsh v. Boy Scouts of America (N.D.Ill. 1990) 742 F.Supp. 1413, 1432 n.28.)

24     See Breuner, Expression byAssociation: Towards Defining an Expressive Association Defense in Unruh-Based Sexual Orientation Discrimination Actions (1993) 33 Santa Clara L.Rev. 467, 517 (noting "potential for discriminatory abuse" if an expressive association defense is rendered too easy to establish).

25    The untenable nature of Respondent's contentions is illustrated by its assertion that Scouts "will attempt to emulate everything that [a Scoutmaster] stands for." (Resp. Br. at 25.) Sexual orientation of pre-adolescents and adolescents is not affected by interaction with those who are gay (see Brief Amicus Curiae of the National Association of Social Workers, at 15-16) and the preposterous view that Scouts will become gay because they have a gay Scoutmaster was not supported at trial. Furthermore, adoption of such reasoning wrongly would allow all youth organizations to exclude members of particular religions (regardless of what they might say about religion) from being any kind of role model for children based on a like claim that their unexpressed religious beliefs alone would cause the children to convert.

26     Scouting already advises those involved in its programs to "keep private the details of [their] life that are nobody's business but [their] own" (Ex. 102:1). Respondent never demonstrated (other than through quotes out of context or insupportable stereotypes) that Mr. Curran or anyone else who was gay would be unable or unwilling to teach whatever Scouting wanted, and nothing else.
 
27     The fact that the Scouting Coordinator appointed by Troop 37's sponsor said at trial that he would not have approved Mr. Curran as a Scout leader after be learned Mr. Curran was gay (Resp. Br. at 28) has no bearing on the right of intimate association since that individual was only a representative to the troop, never met Mr. Curran, and was not involved in any personal relationship with members of the troop. (See RT 839:17-18, 849:6-20; 853:17-20; 857:15-18; 858:19-28.)

28     Cf. Gay Rights Coalition v. Georgetown University (D.C.App. 1987) 536 A.2d 1 (finding compelling interest in ending University's discriminatory denial of funding and services to lesbian and gay student organization, but declining to order University formally to endorse the organization); Pines v. Tomson (1984)160 Cal.App.3d 370 [206 Cal.Rptr. 866] (finding compelling interest in prohibiting Christian Yellow Pages from refusing to accept advertising from those who were not 'born again," but overturning order that would have interfered with Christian Yellow Pages' expression of its views). In these cases, orders that Georgetown University or the Christian Yellow Pages not discriminate on prohibited grounds did not force them to "endorse" the views of those against whom they were not allowed to discriminate. Likewise, refusing to allow Respondent to exclude Mr. Curran from Scouting based on his sexual orientation would no more require Scouting to "endorse" his homosexuality than would refusing to allow Respondent to exclude a Buddhist applicant based on his religion force Respondent to "endorse" Buddhism.