Welsh v. Boy Scouts of America

• Citation: 742 F. Supp. 1413
• Decision Date: 09 August 1990
• Docket Number: No. 90 C 1671.,90 C 1671.
• Parties: Mark G.A. WELSH, a minor, and Elliott A. Welsh, his father and next friend, Plaintiffs, v. BOY SCOUTS OF AMERICA and Boy Scouts of America West Suburban Council # 147, Defendants.
• Court: U.S. District Court — Northern District of Illinois

742 F. Supp. 1413

Mark G.A. WELSH, a minor, and Elliott A. Welsh, his father and next friend, Plaintiffs, v. BOY SCOUTS OF AMERICA and Boy Scouts of America West Suburban Council # 147, Defendants.

No. 90 C 1671.

United States District Court, N.D. Illinois, E.D.

August 9, 1990.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard Grossman, Dannen, Crane, Heyman & Simon, Chicago, Ill., for plaintiffs.

George A. Davidson, Kevin M. Crotty, Hughes, Hubbard & Reed, New York City, Thomas D. Allen, Wildman, Harrold, Allen & Dixon, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

I. INTRODUCTION

Plaintiffs have been denied membership in the Boy Scouts on the sole ground that they are unwilling to profess a belief in a Supreme Being or God. In their attempt to gain membership in the Boy Scouts, they have brought this lawsuit pursuant to Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, which prohibits places of public accommodation from discriminating on the basis of certain criteria, including religion, which Congress has determined are inappropriate.¹

This case is currently before the Court on defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The purpose of such a motion is to challenge the sufficiency of the complaint's factual assertions to state a legal claim for relief. Accordingly, for purposes of deciding the motion, the Court is required to assume that the factual allegations of the complaint are true. Banner Industries v. Central States Pension Fund, 875 F.2d 1285, 1287 (7th Cir.1989). Defendants argue that the Boy Scouts is beyond the scope of Title II, which applies only to places of public accommodations, and alternatively that application of Title II to the Boy Scouts would be unconstitutional. For the reasons described below, defendants' arguments are not sufficient to warrant dismissal at this preliminary stage of the proceedings, and their motion must therefore be denied.

The Court notes that defendants do not argue that lack of belief in God is a viewpoint which is not protected against religious discrimination. See EEOC v. Townley Engineering & Mfg. Co., 859 F.2d 610, 614 n. 5 (9th Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1527, 103 L.Ed.2d 832 (1989); Young v. Southwestern Savings and Loan Ass'n, 509 F.2d 140 (5th Cir. 1975).² Thus the issue in this case is not whether individuals who do not believe in God are entitled to be treated under antidiscrimination laws the same as individuals who hold any other beliefs concerning religion, but rather whether the Boy Scouts is an organization which is entitled to discriminate among membership applicants on the basis of religion.

II. FACTS

Plaintiff Mark Welsh is the seven-year-old child of plaintiff Elliott Welsh and Donna Arsenoff. He lives with his parents in Hinsdale, Illinois, where he attends first grade. Neither plaintiff is a member of any organized religion, nor does either of them "firmly believe in a Supreme Being (God)." (Complaint ¶ 3(b).)³

Defendant Boy Scouts of America ("BSA") is a voluntary, charitable membership organization chartered by Congress in 1916 pursuant to 36 U.S.C. §§ 21-29. The purposes of the organization, as stated by Congress, are:

to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues, using the methods which were in common use by Boy Scouts on June 15, 1916.

36 U.S.C. § 23.

BSA is a civic organization which promotes, inter alia, good citizenship, physical fitness and camping for boys seven years of age and older. It encourages or requires adult family members of minor applicants to join BSA as supervisors. On plaintiffs' information and belief, BSA has over 4,000,000 members nationwide. Defendant West Suburban Council Boy Scouts of America ("Council")⁴ is a local chapter of BSA located in LaGrange, Illinois. (BSA and the Council shall be referred to collectively as the "Boy Scouts.")

The Tiger Cubs is a BSA program for boys who are seven years old or in the first grade. On or about September 11, 1989, at Anne Jeans Grade School, Mark Welsh was supplied with a flyer inviting students to join BSA Tiger Cub Scout Pack 56. The flyer stated that a recruitment meeting for the Tiger Cubs would take place on September 15, 1989 at the Palisades School in Burr Ridge, Illinois.⁵

Mark Welsh attended the September 15 meeting along with Elliott Welsh, intending to enroll in the Tiger Cubs. At the meeting, Elliott Welsh was given an application to fill out for himself and his son.⁶ At that time, plaintiffs learned that application to join BSA requires the applicant to "recognize an obligation to God" and to take an oath to do one's "duty to God." Elliott Welsh discussed these requirements with the scout leader in attendance, Tom Bannon, who informed him that an applicant would have to agree with the statements regarding God or be barred from participating in BSA.

Plaintiffs left the meeting without applying, but Elliott Welsh subsequently sent a completed application and fees to the Council. On the application, he noted that he could not subscribe to BSA's Declaration of Religious Principle and the other references to God. The application was returned to him on September 28, 1989, along with a letter from BSA official Richard Corwin, who explained that the application could not be accepted unless the applicants agreed with the Declaration of Religious Principle set forth on the application.

On October 7, 1989, Elliott Welsh wrote a letter to BSA headquarters in Irving, Texas, reaffirming his and his son's desire to join BSA and suggesting that BSA should not exclude applicants based on religion. On October 30, 1989, plaintiffs received a reply from Harold Sokolsky, Assistant to the Chief Scout Executive, stating that in order to participate in BSA, adult leaders must sign the Declaration of Religious Principle and youth members are required to acknowledge a duty to God.⁷

BSA has also issued a "Reaffirmation of the Position of the Boy Scouts of America on `Duty to God'" ("Reaffirmation") which emphasizes the importance of belief in God to the Boy Scouts.⁸ There is no indication in the record of the circumstances which surrounded publication of the Reaffirmation.

Plaintiffs brought this lawsuit on March 21, 1990, alleging that the exclusion from BSA of individuals who are unwilling to subscribe to BSA's religious principles violates Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. As relief, plaintiffs seek an injunction prohibiting BSA from maintaining a policy of refusing to admit persons who do not believe in God and requiring the Council to admit Mark Welsh as a youth member and Elliott Welsh as an adult partner. Defendants have moved to dismiss the complaint, arguing that even assuming the facts alleged by plaintiffs, the Court must find that Title II does not apply to the Boy Scouts and, alternatively, that it would be unconstitutional to apply Title II to the Boy Scouts. The Court cannot accept either of these arguments without giving plaintiffs an opportunity to gather and present factual evidence.

III. SCOPE OF TITLE II

A. Place of Public Accommodation

42 U.S.C. § 2000a(a), the centerpiece of Title II of the Civil Rights Act of 1964, provides:

(a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

Defendants argue that the Boy Scouts is not a "place of public accommodation," and that the Boy Scouts is therefore not subject to the restrictions of Title II. The statute defines "place of public accommodation" as follows:

Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

42 U.S.C. § 2000a(b) (emphasis added). Plaintiffs contend that the Boy Scouts is a "place of public accommodation" by virtue of § 2000a(b)(3) because it is a "place of entertainment." Defendants argue that the Boy Scouts is not a "place," is not an "accommodation," and does not provide "entertainment." Defendants also argue that Congress specifically excluded the Boy Scouts from the reach of Title II.

1. "Place"

Initially, the Court addresses defendants' argument that the Boy Scouts cannot be a place of public accommodation because it is not a "place" but rather is a membership organization. Place, according to defendants, refers to a "physical facility." Boy Scout groups, on the other hand, can meet in a variety of...