Randall v. Orange County Council

• Decision Date: 23 March 1998
• Docket Number: No. S039161,S039161
• Citation: 952 P.2d 261,72 Cal.Rptr.2d 453,17 Cal.4th 736
• Court: California Supreme Court
• Parties: , 952 P.2d 261, 98 Cal. Daily Op. Serv. 2054, 98 Daily Journal D.A.R. 2798 Michael RANDALL, a Minor, etc., et al., Plaintiffs and Respondents, v. ORANGE COUNTY COUNCIL, BOY SCOUTS OF AMERICA, Defendant and Appellant.

Page 453

72 Cal.Rptr.2d 453

17 Cal.4th 736, 952 P.2d 261, 98 Cal. Daily Op. Serv. 2054,

98 Daily Journal D.A.R. 2798

Michael RANDALL, a Minor, etc., et al., Plaintiffs and Respondents, v. ORANGE COUNTY COUNCIL, BOY SCOUTS OF AMERICA, Defendant and Appellant.

No. S039161.

Supreme Court of California.

March 23, 1998.

Rehearing Denied May 13, 1998.

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

Paul A. Hoffman, Los Angeles, Lacy & Lacy and James V. Lacy, Laguna Niguel, as Amici Curiae on behalf of Defendant and Appellant.

Jon W. Davidson, Paul L. Hoffman, Los Angeles, James Grafton Randall, Anaheim, Mark D. Rosenbaum, Taylor Flynn, Karl Manheim, Morrison & Foerster and Dennis M. Perluss, Los Angeles, for Plaintiffs and Respondents.

Eugene N. Stuart III, Sausalito, as Amicus Curiae on behalf of Plaintiffs and Respondents.

Daniel E. Lungren, Attorney General, and Tracey Buck-Walsh, Assistant Attorney General, as Amici Curiae.

GEORGE, Chief Justice.

Plaintiffs were prohibited from continuing their membership and advancing in the Cub Scouts by defendant, a regional council of the Boy Scouts of America, because of plaintiffs' failure or refusal to participate in religion-related elements of the scout program and because of plaintiffs' refusal to affirm a belief in God. Plaintiffs successfully sought an injunction barring defendant from excluding them from scout activities on religious grounds.

As does the companion case of Curran v. Mount Diablo Council of the Boy Scouts of America (Curran ) (1998) 17 Cal.4th 670, 72 Cal.Rptr.2d 410, 952 P.2d 218, this case presents two issues: First, does defendant, in admitting or excluding members, come within the definition of those entities 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 application of the Act to prohibit defendant from excluding plaintiffs from membership or advancement in the scout organization violate defendant's (or its members') right of intimate or expressive association under the First and Fourteenth Amendments of the federal Constitution?

For the reasons set forth in Curran, supra, 17 Cal.4th 670, 72 Cal.Rptr.2d 410, 952 P.2d 218, we conclude that defendant's membership decisions are not subject to the provisions of the Unruh Civil Rights Act. Accordingly, we need not reach defendant's contention that application of the Act, to prohibit it from excluding plaintiffs from membership on the basis of their refusal to affirm a belief in God, would violate its constitutional right of intimate or expressive association.

I

Plaintiffs Michael and William Randall, twin brothers, joined the Cub Scouts when they were seven years of age. They participated in a Cub Scout pack in Culver City for two years, advancing from "Tiger Cub" to "Bobcat" to "Wolf" rank. They testified at the trial below that on the rare occasions when they repeated the Cub Scout Promise, they did not say the word "God," and that when they explained their lack of belief in God to their den leader in Culver City, he permitted them to omit any reference to God. The den leader, on the other hand, testified that the boys had recited the entire promise in his den and never had raised any question regarding their belief in God.

When the family moved to Anaheim Hills in Orange County, the boys joined Cub Scout Den 4, which was affiliated with Pack 519, a part of defendant Orange County Council. While the boys were working on the requirements for advancement to the "Bear" rank in 1990, a problem arose. One of these requirements has a religious component, which was stated in the following terms in the materials provided to boys seeking advancement: "We are lucky the people who wrote and signed our constitution were very wise. They understood the need of Americans to worship God as they choose. A member of your family will be able to talk with you about your duty to God. Remember, this achievement is part of your Cub Scout Promise. 'I, ____, promise to do my best to do my duty to God and my country.' " Further, the Cub Scout seeking advancement to the "Bear" rank is instructed to: "Practice your religion as you are taught in your home, church, synagogue, mosque or other religious community." Religious emblems provided by the scout's own religious institution also may be earned at this point.

At a den meeting, the Randall boys stated they would have a problem with the religion requirement, and stated that they did not believe in God. The den leader observed that she thought belief in God was necessary to complete the religion requirement. After consulting with officials in defendant Orange County Council, the pack leader confirmed to the boys' mother that this was the policy.

Initially, defendant's position was that the boys could remain in the den, but that they could not advance in the Cub Scout ranks until they promised to do their duty to God. At trial, officials of defendant council stated that the boys may not participate at all as Cub Scouts if they do not believe in God, because such a state of disbelief is inconsistent with the Cub Scout Promise to perform a duty to God. Officials of the national scouting organization, Boy Scouts of America, made similar statements.

Plaintiffs, through their mother as guardian ad litem, filed a complaint for injunctive relief, naming the Orange County Council as defendant. The complaint alleged that defendant and its agents informed plaintiffs that they no longer were permitted to participate in or advance in scouting activities or be active members of the Boy Scouts of America, because plaintiffs refused to take part in religious requirements or activities, use the word "God" in the Boy Scout Pledge, worship God in song, prayer, or study, or earn religious medals or emblems as provided in the Big Bear Cub Scout Book. The complaint alleged a violation of the Unruh Civil Rights Act, in that plaintiffs claimed they were denied equal access to an organization covered by the Act because they had no religious beliefs. The complaint sought injunctive relief prohibiting further exclusion or impediment to participation in scouting activities, attorney fees according to proof, and statutory damages of $250.

Plaintiffs secured a temporary restraining order on February 21, 1991. It prohibited the Orange County Council and its agents from refusing plaintiffs membership in the Boy Scouts of America, from conditioning their advancement upon religious components, and from requiring them to use the word "God" in any pledge or vow. The court granted a preliminary injunction on April 25, 1991, affording the same relief and adding a prohibition against defendant's refusing to advance plaintiffs to the higher ranks of the Cub Scouts on the basis of such requirements.

Defendant appealed from the issuance of the preliminary injunction. The Court of Appeal stayed enforcement of the preliminary injunction and ultimately granted defendant's petition for writ of supersedeas. Accordingly, plaintiffs ceased participation in Cub Scout Den 4 pending trial.

Before the appeal from the order granting the preliminary injunction was decided, the matter went to trial.

At trial, plaintiffs presented evidence intended to establish that the Orange County Council operated as a business establishment within the meaning of the Unruh Civil Rights Act because of its substantial holdings in real estate, its large-scale revenue-raising and revenue-earning activities (a portion of which are directed at the general public), its operation of commercial establishments open to the public, and its employment of 55 full-time and 12 part-time employees. ²

With respect to the constitutional questions, plaintiffs introduced evidence of the recreational and social quality of Cub Scout activities, and sought to establish that religion plays a minimal role in the Cub Scout program. In addition, plaintiffs introduced evidence of the nonsectarian, nonexclusive policies of the Boy Scouts of America and pointed to elements of the program materials provided by the Boy Scouts of America indicating that Cub Scouts are expected to learn about religion at home and through their religious organizations, rather than through their den leaders.

Plaintiffs also pointed out that defendant had accepted funds from the United Way charitable organization on the condition that any program so funded would not be limited to individuals of any particular religious belief, that such programs would be open to any individual regardless of religious belief, and that no individual served by any United Way program would be required to participate in any religious activity as a condition of receiving such service.

In responding to plaintiffs' evidence, defendant first presented evidence relevant to the issue of its status as a business establishment, demonstrating that most of its programs are carried out by volunteers rather than by its paid employees, who are employed to serve the volunteers; that its board of governors consists of volunteers; that much of its income is derived from charitable contributions; that its stores exist to serve the members and do not produce a profit; and that rental of camp facilities to nonmembers is for a nominal fee. Defendant also stressed that it has a noncommercial, exclusively charitable purpose, namely to promote certain skills and moral values in its youth membership.

Defendant also produced extensive evidence regarding the nature and extent of its expressive function. It produced evidence intended to demonstrate that it does, in fact, have a religious message, as well as evidence intended to show how that message is meant to be conveyed to Cub Scouts.

It was stipulated by the parties that the Boy Scouts of...