Yeaw v. Boy Scouts of America

• Decision Date: 02 June 1997
• Docket Number: No. C023607,C023607
• Citation: 64 Cal.Rptr.2d 85,55 Cal.App.4th 607
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 55 Cal.App.4th 607 55 Cal.App.4th 607, 97 Cal. Daily Op. Serv. 4176, 97 Daily Journal D.A.R. 6963 Katrina YEAW, a Minor, etc., Plaintiff and Appellant, v. BOY SCOUTS OF AMERICA et al., Defendants and Respondents.

Page 85

64 Cal.Rptr.2d 85

Previously published at 55 Cal.App.4th 607

55 Cal.App.4th 607, 97 Cal. Daily Op. Serv. 4176,

97 Daily Journal D.A.R. 6963

Katrina YEAW, a Minor, etc., Plaintiff and Appellant, v. BOY SCOUTS OF AMERICA et al., Defendants and Respondents.

No. C023607.

Court of Appeal, Third District, California.

June 2, 1997.

As Modified on Denial of Rehearing July 2, 1997.

Review Granted Aug. 20, 1997.

Review Dismissed and Cause is Remanded July 8, 1998.

Allred, Maroko & Goldberg, Lisa Bloom, Los Angeles, for Plaintiff and Appellant.

Weintraub, Genshlea & Sproul, Michael L. Dillard, Amy J. Winn, Sacramento, Hughes, Hubbard & Reed, George A. Davidson, and Carla A. Kerr, Los Angeles, for Defendants and Respondents.

PUGLIA, Presiding Justice.

In this appeal we consider whether the Boy Scouts of America (Boy Scouts) is a business establishment within the meaning of the Unruh Civil Rights Act (Civ.Code, § 51; hereafter "the Act" or section 51) such that it is prohibited from discriminating against girls by excluding them from membership. We shall conclude the Boy Scouts is not a business establishment within the meaning of the Act. ¹ Accordingly, the Boy Scouts may lawfully exclude females from membership in its ranks. ²

Plaintiff Katrina Yeaw, an 11-year-old girl, brought this action by and through James Yeaw, her father and guardian ad litem, against the Boy Scouts of America and the Golden Empire Council. Plaintiff sought but was refused admission into Boy Scout Troop No. 349. It is undisputed plaintiff was denied membership solely because she is a girl.

In her complaint, plaintiff alleges the Boy Scouts is a business establishment within the meaning of section 51 and engages in prohibited discrimination by excluding girls from membership.

Pending trial, plaintiff sought a preliminary injunction enjoining the Boy Scouts to refrain from refusing to admit her to membership in a Troop. Plaintiff argued that because it could not be "seriously [ ] disputed" the Boy Scouts is a business establishment, there was a substantial likelihood she would prevail on the merits; furthermore, plaintiff argued, she would suffer irreparable damage if not admitted immediately into a Troop, because the longer the delay before she becomes a Boy Scout, the greater the likelihood she will be unable to complete the requirements to achieve the rank of Eagle Scout. Following hearing and argument the trial court denied a preliminary injunction. Plaintiff appeals. (Code Civ. Proc., § 904.1, subd. (a)(6).)

In denying the injunction, the court noted that because plaintiff was denied admission into a Troop, the Troop is the appropriate entity upon which to focus in addressing plaintiff's arguments under the Act. Relying principally on Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 42 Cal.Rptr.2d 50, 896 P.2d 776 (Warfield ), the trial court concluded each of the Warfield criteria for determining whether a private membership organization is a business establishment within the meaning of section 51 warranted finding a Scout Troop is not a business establishment.

Significantly, the Boy Scouts is a membership organization whose benefits derive primarily, if not exclusively, from the interpersonal associations among its members. The relationships in Scouting are gratuitous, continuous, personal and social, and "take place more or less outside 'public view.' " (Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 84, fn. 14, 219 Cal.Rptr. 150, 707 P.2d 212.) As we shall explain, the Act was never intended to apply to organizations of this type. (Warfield, supra, 10 Cal.4th at pp. 599, 618-620 and fn. 10, 42 Cal.Rptr.2d 50, 896 P.2d 776.) Accordingly, we shall affirm the trial court's order denying a preliminary injunction.

I

Defendant Boy Scouts of America is a private, nonprofit, congressionally chartered (36 U.S.C. §§ 21-29), volunteer organization which seeks to reinforce scouting skills and values in younger boys through the Cub Scouts and the Boy Scouts and in older teenagers through the Explorer Program. "These include citizenship, patriotism, self-reliance, courage, sportsmanship, respect for one's family, the ability to get along with others, involvement in the community, physical fitness, athletic and survival skills, an appreciation for nature, and the acknowledgment of a supreme being." (Welsh v. Boy Scouts of America (N.D.Ill.1992) 787 F.Supp. 1511, 1518, affirmed 993 F.2d 1267.)

The charter of the Boy Scouts of America states that Boy Scouts was founded as an educational program for boys:

"The purpose of the corporation shall be 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 values, using the methods which were in common use by Boy Scouts on June 15, 1916." (36 U.S.C. § 23; see generally Welsh v. Boy Scouts of America, supra, 787 F.Supp. at pp. 1514-1518.)

For more than 80 years, the Boy Scouts has offered Scouting as a program of moral education for boys. The program seeks to reinforce the values of the Scout Oath and Scout Law through a program which appeals to boys and teaches them Scouting values. All Boy Scouts must understand and agree to live by the Scout Oath and the Scout Law. ³

Defendant Golden Empire Council is chartered by Boy Scouts of America to provide program support for scouting volunteers in Northern California. The Council is self-financed through donations, fundraising activities, and income from endowment. The Council oversees those aspects of Scouting which are beyond the capacities of a Troop, such as maintaining Scout camps and providing adult leadership training.

The majority of adult volunteers who participate in bringing the Scouting program to boys serve at the Boy Scout Troop or Cub Scout Pack level. Troops typically meet in locations provided by churches or community organizations chartered by the Boy Scouts of America to sponsor a Scout Troop. A Troop is self-financed. Its budget derives from members' dues supplemented by various fundraising efforts.

One of the principal units through which the Boy Scouts accomplishes its goals is the Patrol. Every boy is, first and foremost, part of a Patrol, a group of three-to-eight boys within a Troop. Each Patrol has its own name, its own badge, its own meetings, its own elected leaders and its own sense of identity. The members lead, plan and organize their own activities, thereby gaining skills in leadership, planning and cooperation. The Patrol becomes a close knit group of boys who have learned to provide for each other's personal needs. (See Welsh v. Boy Scouts of America, supra, 787 F.Supp. at p. 1519-1520.)

II

Section 51 provides that "[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Italics added.) The decisive issue here is whether the Boy Scouts is a business establishment for purposes of section 51, such that it is prohibited from excluding girls from the "advantages" and "privileges" of membership.

The origins and background of the Unruh Act have been discussed extensively in a number of decisions and need not be repeated in detail. (E.g., Warfield, supra, 10 Cal.4th at pp. 607-609, 42 Cal.Rptr.2d 50, 896 P.2d 776 (Warfield ); Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1150-1154, 278 Cal.Rptr. 614, 805 P.2d 873; In re Cox (1970) 3 Cal.3d 205, 212-216, 90 Cal.Rptr. 24, 474 P.2d 992.) The general policy embodied in section 51 can be traced to the early laws concerning "public accommodations," i.e., "to the early common law doctrine that required a few, particularly vital, public enterprises--such as privately owned toll bridges, ferryboats, and inns--to serve all members of the public without arbitrary discrimination. [Citation.]" (Warfield, supra, 10 Cal.4th at p. 607, 42 Cal.Rptr.2d 50, 896 P.2d 776.)

As enacted in 1959, section 51 provided in relevant part: "All citizens within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Stats.1959, ch. 1866, § 1, p. 4424.) Subsequently, section 51 was amended to add "sex" and "disability" to the specified classes of persons against whom discrimination is prohibited. (See Stats.1974, ch. 1193, § 1, p. 2568; Stats.1987, ch. 159, § 1, p. 1094; Stats.1992, ch. 913, § 3, p.___.) In all other respects, section 51 is essentially as originally enacted.

Plaintiff asserts it has already been decided that the Boy Scouts is a business establishment subject to the Act. According to plaintiff, Curran v. Mount. Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 195 Cal.Rptr. 325 "squarely held" the Boy Scouts is a business establishment within the meaning of the Act. We disagree. Curran is a pleading case in which the only issue before the court was the sufficiency of a complaint alleging the Boy Scouts was a business establishment within the meaning of section 51. (See, Curran, supra, 147 Cal.App.3d at p. 719, 195 Cal.Rptr. 325 [" 'Our only concern in this case is whether plaintiff has succeeded in stating a cause of action.' "].) Curran stands for the proposition that a complaint alleging the Boy Scouts has "businesslike aspects" is sufficient to withstand demurrer despite an allegation the Boy Scouts is a nonprofit organization. (See, Curran, supra, 147 Cal.App.3d. at p. 730, 195 Cal.Rptr. 325; see also Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711,...