Welsh v. Boy Scouts of America

Decision Date17 May 1993
Docket NumberNo. 92-1853,92-1853
Citation993 F.2d 1267
PartiesMark G.A. WELSH, a minor, and Elliott A. Welsh, his father and next friend, Plaintiffs-Appellants, v. BOY SCOUTS OF AMERICA and Boy Scouts of America West Suburban Council # 147, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Richard Grossman (argued) Dannen, Crane, Heyman & Simon, Chicago, IL, for plaintiffs-appellants.

Thomas D. Allen, Thomas E. Patterson, Wildman, Harrold, Allen & Dixon, Chicago, IL, George A. Davidson (argued), Carla A. Kerr, Hughes, Hubbard & Reed, New York City, for defendants-appellees.

Before CUMMINGS and COFFEY, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

COFFEY, Circuit Judge.

Elliott Welsh and his seven year-old son Mark have brought suit asking the United States Courts to force the Boy Scouts of America to accept Mark as a member despite the fact that he refuses to comply with its Constitution and By-laws and affirm his belief in God. The Scouts refused Mark admission to membership in the scout troop and denied his father the opportunity to act as an adult partner. In their complaint, the plaintiffs allege that the defendant organization is a place of public accommodation practicing unlawful religious discrimination under Title II of the Civil Rights Act of 1964. 42 U.S.C. § 2000a (1988) (barring discrimination in places of public accommodation). This case presents a matter of first impression for the federal courts concerning the scope of Title II. See Welsh v. Boy Scouts of America, 787 F.Supp. 1511 (N.D.Ill.1992) ("Welsh II ".) 1 We affirm.


The facts are undisputed: the district court opinion details fifty-two separate stipulated facts as well as twelve factual findings. Because the appellant does not challenge any of the trial court's factual findings, we accept those facts as true and decide only the issues of law.

The question before the court is whether Title II of the Civil Rights Act of 1964 bars the Boy Scouts of America from denying membership to any person who refuses to profess a belief in and duty to a Supreme Being. The plaintiffs sued the Boy Scouts alleging that a local Scout organization in the Chicago, Illinois area denied them membership because of the Welshes' refusal to recite the Boy Scout Membership Oath which requires scouts to express among other things a belief in God. The Oath states:

"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."

The plaintiffs argue that the defendant's exclusion of them from the Boy Scouts constitutes impermissible discrimination on the basis of religion in violation of Title II. Title II prohibits discrimination in public accommodations and states:

" § 2000a. Prohibition against discrimination or segregation in places of public accommodation.

(a) Equal access. 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.

(b) Establishments affecting interstate commerce or supported in their activities by State action as places of public accommodation; lodgings; facilities principally engaged in selling food for consumption on the premises; gasoline stations; places of exhibition or entertainment; other covered establishments. Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title 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(a)-(b).

A. Place of Public Accommodation

The initial question before the court is whether Congress intended to govern organizations like the Boy Scouts within the statutory language "place of public accommodation" or "other place of ... entertainment?" 42 U.S.C. § 2000a(b). A reading of the statute for its plain meaning renders but one conclusion: Congress when enacting § 2000a(b) never intended to include membership organizations that do not maintain a close connection to a structural facility within the meaning of "place of public accommodation." The statute clearly governs only an entity that: (1) "serves the public" and (2) may be classified as an "establishment," "place," or "facility." Id.

Title II delineates the entities included therein as places, establishments, lodgings, and facilities. The statute also provides fifteen specific examples of regulated facilities, including inns, hotels, motels, restaurants, cafeterias, lunch rooms, lunch counters, soda fountains, retail establishments, gas stations, movie houses, theaters, concert halls, sports arenas, and stadiums. 42 U.S.C. § 2000a(b). None of the listed entities remotely resembles a membership organization. Despite this fact, the plaintiffs argue that the defendant organization is included under the language "other place of exhibition or entertainment." Id. § 2000a(b)(3). They claim that "the fact that [the Boy Scouts] offer entertainment to the public at various locations, all of which are 'places', ... subjects them to the strictures of Title II." Appellants' brief at 10. The clear language of the statute mandates a different conclusion, for we must always be cognizant of the fact that "the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962). The statute in listing several specific physical facilities, sheds light on the meaning of "other place of exhibition or entertainment." This list reveals Congress' intent to regulate facilities as opposed to gatherings of people. Additionally, subsection (b)(4) refers only to physical structures such as buildings: "any establishment ... which is physically located within the premises of any establishment otherwise covered by this subsection, or ... within the premises of which is physically located any such covered establishment, ..." Id. § 2000a(b)(4). While the statute repeatedly refers to physical facilities it fails to refer to, much less delineate, anything resembling a membership organization or an association. The phrase "other place of exhibition or entertainment" does include facilities such as bowling alleys, golf courses, tennis courts, gymnasiums, swimming pools and parks, see, e.g., United States v. Lansdowne Swim Club, 713 F.Supp. 785 (E.D.Pa.1989), aff'd, 894 F.2d 83 (3rd Cir.1990) (applying Title II to a community swimming pool), but even a broad reading of the statute, as required in Daniel v. Paul, 395 U.S. 298, 308, 89 S.Ct. 1697, 1702, 23 L.Ed.2d 318 (1969), fails to encompass membership organizations whose purpose is not closely connected to a particular facility.

Consider as an analogy a hypothetical city ordinance requiring "the licensing of all dogs." It would be foolish to argue that the language of the ordinance also includes the licensing of cats. The plaintiffs' interpretation of Title II reaches out to include not another type of facility but rather a completely different type of entity (an organization of young boys in a group setting under adult leadership to foster respect for God, their country and their fellow man). The Boy Scouts is as different from the facilities listed in Title II as dogs are from cats.

Despite the clarity and specificity of the statute, the plaintiffs would have us believe that even though Congress focused on physical facilities, it also intended to regulate a wide spectrum of consensual human relationships. The plain meaning of the words in the statute renders this interpretation of Title II untenable. "The 'strong presumption' that the plain language of the statute expresses congressional intent is rebutted only in 'rare and exceptional circumstances,' when a contrary legislative intent is clearly expressed." Ardestani v. I.N.S., --- U.S. ----, ----, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991) (citation omitted). Congress has not expressed a contrary legislative intent regarding the scope of Title II. In fact, the United States Supreme Court, when interpreting the statute, stated that "the overriding purpose of Title II [is] 'to [re]move the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.' " Daniel, 395 U.S. at 307-08, 89 S.Ct. at 1702 (quoting H.R.Rep. No. 914, 88th Cong., 1st Sess., 18) (emphasis added). It is only in this context--denial of access to public facilities--that courts must interpret Title II broadly. Id.

The dissent argues that because the 1990 Americans with Disabilities Act, 42 U.S.C.A. § 12,181 (West Supp.1992) (involving public...

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