Curran v. Mount Diablo Council of the Boy Scouts

Citation952 P.2d 218,17 Cal.4th 670,72 Cal.Rptr.2d 410
Decision Date23 March 1998
Docket NumberNo. S039738,S039738
CourtUnited States State Supreme Court (California)
Parties, 952 P.2d 218, 98 Cal. Daily Op. Serv. 2034, 98 Daily Journal D.A.R. 2802 Timothy CURRAN, Plaintiff and Appellant, v. MOUNT DIABLO COUNCIL OF THE BOY SCOUTS OF AMERICA, Defendant and Appellant.

Jon W. Davidson, Mark D. Rosenbaum, Paul L. Hoffman, Los Angeles, Richard H. Green, Beatrice Dohrn, New York City, Mei Lin Kwan-Gett and Taylor Flynn, Los Angeles, for Plaintiff and Appellant.

Eisen & Johnston, Jay-Allen Eisen, Marian M. Johnston, Karen Leaf, Sacramento, Ann Perrin Farina, Elk Grove, Hedges & Caldwell, Mary Newcombe, Ian L. Kramer, Morrison & Foerster and Dennis M. Perluss, Los Angeles, as Amici Curiae on behalf of Plaintiff and Appellant

Hughes, Hubbard & Reed, George A. Davidson, New York City, Carla A. Kerr, John Kralick IV and Lois Moonitz Jacobs, Los Angeles, for Defendant and Appellant.

Paul A. Hoffman, Los Angeles, as Amicus Curiae on behalf of Defendant and Respondent.

GEORGE, Chief Justice.

Plaintiff is a former Eagle Scout whose application to become an assistant scoutmaster was rejected by defendant, a regional council of the Boy Scouts of America, after plaintiff publicly stated that he is a homosexual and publicly expressed his commitment to communicating to others his view as to the acceptability and morality of homosexuality, a view defendant maintains conflicts with its official position that homosexuality is immoral. Plaintiff unsuccessfully sought an injunction prohibiting defendant from rejecting his application.

We emphasize at the outset that the resolution of this matter does not turn on our personal views of the wisdom or morality of the actions or policies that are challenged in this case. Instead, this case presents two legal issues: First, does defendant, in acting to admit or exclude members, come within the definition of those entities--i.e., "all business establishments of every kind whatsoever"--covered by California's public accommodation statute (Civ.Code, § 51, commonly known as the Unruh Civil Rights Act)? 1 Second, if defendant's membership decisions are subject to the Unruh Civil Rights Act, would enforcement of the statute, so as to prohibit defendant from rejecting plaintiff's application for the position of assistant scoutmaster, violate defendant's (or its members') right of association under the First and Fourteenth Amendments of the federal Constitution?

After conducting a bifurcated trial on these two issues, the trial court concluded that (1) under the applicable judicial precedents interpreting the Unruh Civil Rights Act, defendant is a type of organization whose membership decisions are covered by the Act, but (2) application of the Act to prohibit defendant from rejecting plaintiff for the position of assistant scoutmaster would violate defendant's members' federal constitutional right of expressive association. Accordingly, the trial court entered judgment in favor of defendant.

On appeal, the Court of Appeal, in a two-to-one decision, affirmed the judgment rendered by the trial court, agreeing with that court's determination that application of the Unruh Civil Rights Act to preclude defendant from rejecting plaintiff's application would violate the members' federal constitutional right of association. Contrary to the conclusion reached by the trial court, however, the Court of Appeal majority also determined that defendant does not fall within the category of "business establishments" subject to the Act, and held that judgment in favor of defendant was sustainable on this ground as well. The dissenting Court of Appeal justice disagreed with the majority's conclusion on both issues and concluded that the trial court's judgment in favor of defendant should be reversed.

In a second decision--Randall v. Orange County Council--filed almost contemporaneously with the appellate court's decision in the present case, the Court of Appeal in another district, ruling in a case arising out of the exclusion of two 9-year-old Cub Scouts from scouting because of their refusal to affirm a belief in God, held that a regional council of the Boy Scouts is an organization whose membership decisions come within the Unruh Civil Rights Act, and affirmed a trial court judgment rendered against the council based upon a violation of the Act.

In light of the conflict in the Court of Appeal decisions on the question whether the membership decisions of local affiliates of the Boy Scouts generally are subject to the provisions of the Unruh Civil Rights Act, as well as the potential importance of the issues relating to the constitutional right of association, we granted review in both matters.

For the reasons discussed below, we conclude that, with regard to its membership policies and decisions, defendant does not fall within the category of "business establishments" as that language is used in the Unruh Civil Rights Act. As we shall explain, the Boy Scouts differs in a number of significant respects from each of the entities that previously has been found to be subject to the Act, and we conclude that neither the language of the Act, its legislative history, nor the reasoning of past California decisions applying the Act supports plaintiff's argument that the Boy Scouts properly should be considered a business establishment whose membership decisions are subject to the statute. Because our conclusion on this statutory issue is sufficient to resolve the matter, we have no occasion to address defendant's further claim that enforcement of the Act to require it to accept plaintiff's application would violate its constitutional right of association under the First and Fourteenth Amendments.

Accordingly, we conclude that the judgment of the Court of Appeal in favor of defendant should be affirmed.

I

From 1975 to 1979, when he was 14 to 18 years of age, plaintiff Timothy Curran was a member of a Boy Scout troop (Troop 37) within the jurisdiction of defendant Mount Diablo Council of the Boy Scouts of America (Mt. Diablo Council). During that period, plaintiff attained the rank of Eagle Scout, the highest rank a Boy Scout can reach. In addition to becoming an Eagle Scout, plaintiff received numerous other scouting honors, being selected to participate in a troop leadership development program run by defendant, elected by his troop to two honor camping organizations, and chosen as one of only thirty-five scouts from defendant's district (which included more than thirteen thousand five hundred scouts) to attend the Boy Scouts of America National Jamboree in 1977. At that jamboree, plaintiff received practical training in journalism through work on scouting publications, and was encouraged by one of the adult leaders in the journalism program to participate again at a subsequent jamboree. Under the applicable policies of the Boy Scouts, plaintiff remained a member of Troop 37 until his 18th birthday, October 29, 1979. After that date, although plaintiff no longer was an official member of the Boy Scouts, he apparently continued to have contact with, and to participate in some of the activities of, Troop 37.

During the summer of 1980, between June 29, 1980, and July 1, 1980, the Oakland Tribune published a three-part article on gay teenagers in the San Francisco Bay Area, based upon interviews with more than twenty teenagers who openly identified themselves as gay. Plaintiff was one of the teenagers who agreed to be interviewed for the article.

The first installment of the Oakland Tribune article began with a description of how, several years earlier, when plaintiff was 16 years of age, he first had told his parents that he was gay, and reported his parents' supportive reaction to his disclosure. The article commented that "Curran was better equipped for the confrontation [with his parents] than a lot of gay teenagers. He had a gay social life apart from life at school, and he was starting to get involved with the active gay youth underground in the Bay Area. In a little more than a year, he'd be calling himself a gay youth activist. And his parents were trying hard to understand."

The third installment of the article reported that in May 1980 plaintiff had attended his high school senior prom with a male date, and quoted plaintiff's own description and explanation of the event. The article stated: "Several months earlier, Curran had decided that the prom was the place to come out to the people at school: 'The way I saw it,' Curran says, 'I wanted to go to my prom. I wanted to go with someone I liked. I didn't want to go with a girl, and I wasn't about to listen to the tyranny of the majority saying, "You're ruining our prom." It was just as much my prom as it was theirs.' [p] 'But I had another, nobler reason. I thought it was about time some of these people opened their eyes. If you look at [Dr. Alfred] Kinsey's statistics, it would follow that there'd be a lot of other gay young men and women there who were going with dates of the opposite sex. It would be doing them good to see someone at the prom who was proud of being gay--someone who didn't just say it, but who acted on it.' " (Bracketed material in quoted article.) The article also explained that "Curran had agreed beforehand, at the request of the school principal, that he and [his date] wouldn't dance slow dances, and that they wouldn't 'openly display affection.' " Finally, the article noted that Curran said that when he returned to school on the Monday following the prom, " 'it was business--believe it or not--as usual.' " Nothing in the article mentioned Curran's former membership in or relationship to the Boy Scouts.

Quentin Alexander, the executive director of defendant Mt. Diablo Council, testified that a number of persons brought the Oakland Tribune article to his attention. He stated that after reading the article and "knowing that Tim had been active at one time in scouting," he asked another...

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