TIMOTHY CURRAN, Plaintiff and Appellant, v. MOUNT DIABLO COUNCIL OF THE BOY SCOUTS OF AMERICA, Defendant and Appellant.
No. S039738
Supreme Court of California
Mar. 23, 1998.
17 Cal. 4th 670
Jon W. Davidson, Mark D. Rosenbaum, Paul L. Hoffman, Richard H. Green, Beatrice Dohrn, Mei Lin Kwan-Gett and Taylor Flynn for Plaintiff and Appellant.
Eisen & Johnston, Jay-Allen Eisen, Marian M. Johnston, Karen Leaf, Ann Perrin Farina, Hedges & Caldwell, Mary Newcombe, Ian L. Kramer,
Hughes, Hubbard & Reed, George A. Davidson, Carla A. Kerr, John Kralick IV and Lois Moonitz Jacobs for Defendant and Appellant.
Paul A. Hoffman as Amicus Curiae on behalf of Defendant and Appellant.
OPINION
GEORGE, C. J.---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 (
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.
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.
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
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 council executive to determine whether plaintiff was still active in the program. Alexander stated that when he was informed that plaintiff no longer was active, “we took no further action.”
Shortly thereafter, plaintiff submitted an application to defendant council seeking authorization to attend the 1981 Boy Scouts of America National Jamboree. Alexander testified that when the council‘s jamboree committee initially received plaintiff‘s application, the council attempted to ascertain in what troop within the district plaintiff currently was registered as an active member, but could not find plaintiff‘s name on the membership list of either of the two troops plaintiff had listed. Alexander testified that shortly after the district sent a letter to plaintiff indicating that his application could not be approved, he (Alexander) received a telephone call from plaintiff-who then was attending college in Los Angeles-inquiring about the status of the application.
In that conversation, Alexander told plaintiff that he was ineligible to attend the jamboree because he no longer was a registered member of the scouts; only those adults who had been admitted as “scouters“-adult scoutmasters or assistant scoutmasters-were eligible to attend the national jamboree. When plaintiff responded that “in that case, I will file an application,” Alexander told him: “Tim, I think we need to set an appointment to discuss this, but we can‘t accept that application.” When plaintiff asked “is it
The meeting was held on November 28, 1980.2 At trial, both plaintiff and Alexander agreed in substance as to what had occurred at the meeting. Plaintiff testified that Alexander gave plaintiff a copy of the Oakland Tribune article and asked “if [plaintiff] espoused that lifestyle still.” When plaintiff told Alexander that he did, Alexander indicated that he could not accept plaintiff‘s application and explained the procedure for appealing the decision. Alexander also testified that plaintiff stated at the meeting that “he specifically wanted to [be in the scouts]---because he so firmly believed personally in a homosexual lifestyle that there was, quote, not anything wrong with it, and he wanted to make sure that other kids understood that.”
Thereafter, plaintiff sought review of defendant‘s decision by the Western Region of the Boy Scouts of America, the next higher level in the Boy Scouts hierarchy. In response, counsel for the Boy Scouts informed plaintiff of the Boy Scouts’ willingness to conduct a hearing on his appeal, but that such a hearing would be pointless unless plaintiff “believes there is some misunderstanding of underlying facts.” The letter stated that “[o]nly if [plaintiff] now contends, and hopes to prove, that the facts previously provided by him are untrue could a hearing be productive.”
Following receipt of this letter, plaintiff filed the present action against defendant, alleging, among other matters, that defendant‘s rejection of his application to become an assistant scoutmaster violated the Unruh Civil Rights Act. The trial court sustained defendant‘s demurrer without leave to amend and dismissed the action. In the initial appeal in this matter, the Court of Appeal reversed the judgment and concluded that, on the basis of the allegations contained in the amended complaint, plaintiff had stated a cause of action under the Unruh Civil Rights Act. (Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712 [195 Cal.Rptr. 325, 38 A.L.R.4th 607] (Curran I).) The Court of Appeal remanded the matter for further proceedings before the trial court.
Upon remand, plaintiff filed a motion for summary judgment and, in the alternative, for summary adjudication of issues under the then applicable provisions of
Due to a series of events, including a stay of the action pending the United States Supreme Court‘s consideration and determination of related issues in Bd. of Dirs. of Rotary Int‘l v. Rotary Club (1987) 481 U.S. 537 [107 S.Ct. 1940, 95 L.Ed.2d 474] (Rotary Club), the trial in this matter did not begin until September 1990.3 At that time, pursuant to a stipulation of the parties and court order, the trial was bifurcated and the trial court conducted the first phase of the trial, which was limited to the issue whether defendant is a type of organization-“all business establishments of every kind whatsoever“-covered by the Unruh Civil Rights Act.
At the outset of the first phase of the trial, the trial court rejected plaintiff‘s contention that under the law of the case doctrine, the Court of Appeal‘s prior decision in Curran I, supra, 147 Cal.App.3d 712, conclusively established that defendant was a business establishment for purposes of the Act; the trial court permitted both parties to introduce evidence and present argument with regard to that issue. On the basis of the evidence presented, and the existing case law interpreting the term “business establishment” as used in the Unruh Civil Rights Act, however, the trial court nonetheless concluded that defendant is a business establishment for purposes of the Act and thus falls within the “regulatory ambit” of the Act.
In reaching this conclusion, the court relied upon a variety of circumstances relating both to the Boy Scouts in general and to the specific attributes and operations of defendant Mt. Diablo Council. The evidence established that the activities and objectives of the Boy Scouts are primarily educational (in the broadest sense) and recreational. In this regard, the Official Scoutmaster Handbook states that “[e]very Boy Scout activity and design strives toward the three aims of Boy Scouting: (1) building character, (2) fostering citizenship, and (3) developing mental, moral, and physical fitness.” Further, the evidence established that membership in the Boy
With respect to defendant Mt. Diablo Council, the trial court found that the council is a California nonprofit corporation chartered by the National Council of the Boy Scouts of America to oversee, facilitate, and administer the provision of an effective scouting program within the council‘s geographic area. There are approximately 13,500 scouts (in approximately 145 troops and packs) and 5,000 adult members within the jurisdiction of the council. Defendant owns and maintains a large physical plant, which includes a central administrative building and four camps, and also maintains and operates a summer camp facility leased from the National Forest Service.4 It has a paid staff of 22 full-time, year-round employees (11 professional and 11 clerical and other nonprofessional) and 30 summer employees, and an annual budget in excess of $1.7 million. It operates a small retail Boy Scout shop, sells T-shirts and patches bearing its name, and participates in the selection and sale of Boy Scouts of America uniforms, equipment, publications, and other official scouting paraphernalia.
The trial court also found that the council “engages in regular fund-raising activities, such as the annual Scout-A-Rama, the annual Sports Breakfast, and special events such as golf tournaments and auctions, to which the general public is invited,” and that it publicizes these events in the local media. Further, the council interacts extensively with the local community, recruiting and chartering the organizations that sponsor local troops from
In the course of its decision in the first phase of the trial, the trial court explicitly acknowledged that “Mt. Diablo Council differs in significant respects from the other nonprofit organizations that have been held to constitute ‘business establishments’ under the Unruh [Civil Rights] Act,” noting that defendant “has no substantial, or even significant, business purpose” and that “[t]he goals of the scouting program are predominantly expressive.” Further, the trial court recognized that “[t]he benefits which the scouts and scouters receive from participation in the program are overwhelmingly personal and non-economic” and that “scouting activities take place principally in small, intimate, primary groups where the relationships among the members can be characterized as continuous, close and personal.” Finally, the court observed that “[u]nlike the [Boys‘] Club in Isbister [v. Boys’ Club of Santa Cruz, Inc., supra, 40 Cal.3d 72], Mt. Diablo Council is not a single purpose organization operating a traditional ‘public accommodation,‘” explaining that although the council does own recreational facilities, “their operation is not the Council‘s ‘principal activity and reason for existence’ as the [Boys‘] Club‘s provision of gym and pool facilities was” and the facilities “are not used on a casual, drop-in basis as . . . the facilities in Isbister . . . were.”
Although the trial court thus recognized that “[t]he circumstances of this case do not fall squarely within the fact patterns of the cases that have been decided to date,” the court nonetheless concluded that “[d]efendant‘s public orientation and prominence in the community rightfully place it within the regulatory ambit of the Unruh [Civil Rights] Act. The public nature of the context in which discrimination occurs is a factor of overriding importance in assessing the interests served by regulation under the Act. The psychological injury to the individual is greater the more public the place or the circumstances of the discrimination. And Society‘s interest in preventing discrimination increases as the context in which it is practiced carries with it a greater suggestion of social tolerance or even acceptance. [Citation.] As plaintiff eloquently points out here: ‘Finding that [d]efendant is not a business establishment under Unruh would endorse a “right” to discriminate on the part of an organization serving a unique position in our society. The Boy Scouts stands for what is best in American values. . . . To rule that no
Finally, although acknowledging that “Mt. Diablo Council unquestionably has legitimate interests, as an expressive association, in being able to define its own mission and to adopt membership policies which enable it to achieve that mission,” the court noted that “[d]efendant‘s position [in the first phase of the trial], that it should not be subject to regulation under the Unruh [Civil Rights] Act because it is an expressive association, would mean that it could discriminate on any grounds and for any reason. A boy who was excluded from participating in the Scouts because of his race or religion, or because he was a homosexual, would have no opportunity to challenge the basis for his exclusion. Given the state‘s interest in eradicating invidious discrimination, the court concludes that it is appropriate that an organization of the size, non-selectivity, and visibility of Mt. Diablo Council be put to the burden of establishing the required nexus between its exclusionary policies and its expressive purpose.”
Having concluded in the first phase of the trial that defendant properly could and should be considered a business establishment for purposes of the Unruh Civil Rights Act, the court went forward with the second phase of the bifurcated trial, which, by stipulation of the parties, was directed to an issue raised by defendant as an “affirmative defense,” namely whether application of the Unruh Civil Rights Act-so as to preclude defendant from rejecting plaintiff as a scout leader-would violate its members’ constitutional rights of intimate or expressive association. After setting forth the basic facts surrounding defendant‘s rejection of plaintiff‘s application (which we have summarized above), and observing that “[i]t is undisputed that Mr. Curran‘s request to become a Scouter was rejected on the basis of the written policy which Mt. Diablo Council follows of excluding ‘avowed’ or ‘known’ homosexuals from adult leadership positions,”5 the court proceeded to determine whether an order prohibiting defendant from rejecting plaintiff‘s application
With respect to the right of intimate association, the trial court concluded that in light of the findings it had made in the first phase with regard to “the organization‘s size, the non-selectivity of its membership, and its public orientation and prominence within the community,” defendant had failed to establish a violation of its members’ right to intimate association. With respect to the right of expressive association, however, the court concluded that defendant had made the required showing to establish that application of the Unruh Civil Rights Act to prohibit defendant from excluding plaintiff as an adult leader would violate the members’ right to expressive association.
In reaching its conclusion with regard to the right of expressive association, the trial court first determined that the activities in which the Boy Scouts is engaged, “and upon which application of the Unruh [Civil Rights] Act would impact,” are “overwhelmingly expressive.” The court noted that “[a]lthough Scouting focuses on camping and outdoor skills, this is the means to an end.” Quoting from Boy Scout publications, the court found that the organization‘s mission is “to serve others by helping to instill values in young people and in other ways prepare them to make ethical choices over their lifetime in achieving their full potential.” Although recognizing that “[t]he fact . . . an organization is engaged in expressive activities does not necessarily mean that any exclusionary policy it might adopt is protected by the first amendment right to expressive association” and that “[a] nexus must be shown between the basis for the exclusion and the belief system which defines the organization,” the trial court went on to conclude that the required nexus was present here.
The court found in this regard that the values the Boy Scouts seeks to instill are grounded in the Boy Scout Oath and Law, that sexual morality is addressed in the Boy Scout Oath and Law under the rubric of “morally straight” and “clean;”6 and, finally, that although “[n]ot a great deal is explicitly spelled out in the Scout literature . . . regarding sexuality in general or homosexuality in particular,” the evidence introduced at trial demonstrated “that the Boy Scouts of America as an organization has taken
On the basis of the foregoing evidence, the trial court concluded that defendant had established “that forced inclusion of a Scout Leader who has publicly acknowledged his or her homosexuality and has expressed beliefs contrary to the Boys Scouts’ view regarding the immorality of homosexuality, as the evidence shows plaintiff has, would substantially impact the defendant‘s ability to get across its preferred message in its preferred way.” Emphasizing that “[t]he issue, of course, is not whether the defendant‘s view is correct, or enlightened, or even best calculated to achieve the organization‘s broader goals,” the trial court observed that “[t]he issue is simply whether application of the Unruh [Civil Rights] Act here would substantially interfere with Mt. Diablo Council‘s ability to achieve its expressive goals,” and concluded that application of the Act in these circumstances would constitute such an interference. The court explained: “Inclusion of a homosexual Scoutmaster who has publicly acknowledged his or her homosexuality and expressed beliefs in conflict with those of the Boy Scouts on this issue would either undermine the force of the Boy Scout view that homosexuality is immoral and inconsistent with the Scout Oath and Law, or would undermine the credibility of the Scoutmaster who attempts to communicate that view.”
In light of the conclusion it reached in the second phase of the trial-that application of the Unruh Civil Rights Act, to require defendant to accept plaintiff‘s application for assistant scoutmaster, would violate the members’ federal constitutional right of expressive association-the trial court entered judgment in favor of defendant.
Plaintiff appealed from the judgment in favor of defendant, and defendant appealed from the trial court‘s determinations that it was a business establishment within the meaning of the Unruh Civil Rights Act and that application of the Act would not violate the constitutional right of intimate association.
As noted, the Court of Appeal, in a divided decision, affirmed the judgment rendered by the trial court in favor of defendant. The majority
The dissenting justice in the Court of Appeal disagreed with the majority opinion on all issues, concluding that defendant is a business establishment within the meaning of the Unruh Civil Rights Act, and that prohibiting defendant from rejecting plaintiff‘s application for a leadership position on the basis of his homosexuality would not violate either the members’ right of expressive association or their right of intimate association.
We granted review to address the significant issues presented by this case.10
We turn first to the principal question of statutory interpretation presented, namely whether defendant constitutes a business establishment whose membership policies and decisions are subject to the Unruh Civil Rights Act. The statute reads in relevant part: “All 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.” (
A
At the outset, we reject plaintiff‘s contention that, under the law of the case doctrine (see generally, 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 895-916, pp. 928-953 and cases cited), defendant‘s status as a business establishment whose membership decisions are subject to the Unruh Civil Rights Act is definitively established for purposes of this proceeding by virtue of the Court of Appeal decision in Curran I, supra, 147 Cal.App.3d 712. As the trial court observed on remand, although the decision in Curran I concluded that the allegations in the amended complaint were sufficient to state a cause of action under the Unruh Civil Rights Act, a number of the allegations contained in the complaint concerning defendant‘s attributes and activities were not borne out by the evidence introduced at trial,11 and substantial additional evidence relating to defendant‘s activities, not referred to in the complaint, also was brought forth at trial. Under these circumstances, we believe the trial court was correct in concluding that its consideration of the question whether defendant constitutes a business establishment whose membership decisions are subject to the Act was not foreclosed by the law of the case doctrine. (See, e.g., Otten v. Spreckels (1920) 183 Cal. 252, 254 [191 P. 11]; Foley v. Northern Calif. P. Co. (1913) 165 Cal. 103, 106-107 [130 P. 1183]; see generally, 9 Witkin, Cal. Procedure, supra, Appeal, § 908, pp. 943-944.)
Similarly, the issue whether the membership decisions of the Boy Scouts are subject to the Unruh Civil Rights Act has not been resolved definitively
Accordingly, the specific issue whether the Boy Scouts is a “business establishment” whose membership decisions are subject to the Act has not been resolved by past decisions.12 Nonetheless, in determining this issue we properly are guided, of course, both by the language and legislative history of the Unruh Civil Rights Act, and by the principles set forth in prior California decisions construing the Act.
B
We most recently addressed the question of the proper interpretation of the term “business establishment” as used in the Unruh Civil Rights Act in Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594 [42 Cal.Rptr.2d 50, 896 P.2d 776] (Warfield). In addressing this issue in Warfield, we began by summarizing the origin and background of this legislation, and we believe it is helpful briefly to reiterate that history here.
As we explained in Warfield, “[a]fter the United States Supreme Court, in the Civil Rights Cases (1883) 109 U.S. 3 [3 S.Ct. 18, 27 L.Ed. 835], invalidated the first federal public accommodation statute, California joined a number of states in enacting its own initial public accommodation statute, the statutory predecessor of the current version of section 51. (Stats. 1897, ch. 108, § 2, p. 137.) Expanding upon the limited category of ‘public service enterprises’ to which the early common law doctrine applied, the 1897 statute, as amended in 1919 and 1923, provided that ‘[a]ll citizens within the jurisdiction of this state are entitled to the full and equal accommodations,
As we further explained in Warfield: “In 1959, in apparent response to a number of appellate court decisions that had concluded that the then-existing public accommodation statute did not apply to the refusal of a private cemetery, a dentist‘s office, and a private school to make their facilities available to African-American patrons (see Long v. Mountain View Cemetery Assn. (1955) 130 Cal.App.2d 328 [278 P.2d 945]; Coleman v. Middlestaff (1957) 147 Cal.App.2d Supp. 833 [305 P.2d 1020]; Reed v. Hollywood Professional School (1959) 169 Cal.App.2d Supp. 887 [338 P.2d 633]), the Legislature undertook, through the enactment of the Unruh Civil Rights Act, to revise and expand the scope of the then-existing version of section 51. As initially introduced, the bill that ultimately was enacted into law proposed to revise the first paragraph of section 51 to provide: ‘All citizens within the jurisdiction of this State, no matter what their race, color, religion, ancestry, or national origin, are entitled to the full and equal admittance, accommodations, advantages, facilities, membership, and privileges in, or accorded by, all public or private groups, organizations, associations, business establishments, school, and public facilities; to purchase real property; and to obtain the services of any professional person, group, or association.’ [Citation.] Thereafter, the bill underwent a series of amendments in both houses of the Legislature.13 As ultimately enacted in 1959, the relevant paragraph of section 51 provided: ‘All citizens within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national
After briefly summarizing the origin and legislative history of the Unruh Civil Rights Act, we went on in Warfield to review three prior California Supreme Court cases-Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463 [20 Cal.Rptr. 609, 370 P.2d 313] (Burks), O‘Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790 [191 Cal.Rptr. 320, 662 P.2d 427] (O‘Connor), and Isbister v. Boys’ Club of Santa Cruz, Inc., supra, 40 Cal.3d 72 (Isbister)---that specifically had considered the question whether a particular entity fell within the reach of the Act. Because of the significance of those decisions for the resolution of the present case, we believe it is appropriate to review them, as well as the decision in Warfield, in some detail.
Burks, supra, 57 Cal.2d 463, handed down in 1962, was the first decision of this court to address the proper application of the Unruh Civil Rights Act. In Burks, the plaintiffs alleged that the defendant real estate developer was violating the Unruh Civil Rights Act by engaging in racial discrimination in the sale of tract homes. The defendant in Burks contended that it should not be subject to the Act on a number of grounds. First, the defendant-noting that unlike the ordinary places of public accommodation or amusement covered by the earlier public accommodation statute, it had no fixed place of business-argued that it was not a “business establishment” to which the Act applied. Second, the defendant pointed out that although the initial version of the bill that ultimately was enacted into law had referred specifically to the right “to purchase real property” and to obtain “professional” services among the activities to which the statutory prohibitions applied, those specific references were eliminated in the version of the legislation that ultimately was enacted into law. The defendant contended that the exclusion of those terms in the final enactment evidenced a legislative intent not to cover its activities.
In Burks, supra, 57 Cal.2d 463, this court rejected both of those contentions. With regard to the first claim, the court emphasized that the legislation, as enacted, applies to “‘all business establishments of every kind whatsoever,‘” language indicating that the Legislature intended the term “business establishments” to be interpreted in the “broadest sense reasonably
With regard to the second claim, the court in Burks noted that although the final version of the bill did not include the references to the right “to purchase real property” and to obtain “professional” services that had been included in the initial version of the bill, “[t]hese deletions can be explained on the ground that the Legislature deemed specific references mere surplusage, unnecessary in view of the broad language of the act as finally passed.” (57 Cal.2d at p. 469.) The court pointed out, in this regard, “that in the original bill the general term ‘business establishments’ was not, as now, followed by the words ‘of every kind whatsoever’ and that those words were added in the draft that deleted the specific reference to the purchase of real property.” (Ibid.)
Accordingly, the court in Burks held that the defendant real estate developer in that case was clearly subject to the Unruh Civil Rights Act.
The question of the proper interpretation and application of the “business establishments” clause of the Unruh Civil Rights Act again came before this court in 1983, in O‘Connor, supra, 33 Cal.3d 790. A year earlier, the court had determined, in the case of Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721 [180 Cal.Rptr. 496, 640 P.2d 115, 30 A.L.R.4th 1161] (Marina Point), that the Unruh Civil Rights Act generally prohibits an apartment complex from excluding would-be residents on the basis of their age or the age of their children. The issue before the court in O‘Connor was whether the holding in Marina Point applied to a similar age-restriction policy embodied in the “covenants, conditions and restrictions” of a condominium development that were enforced by a nonprofit homeowners association--
The homeowners association maintained in O‘Connor that the holding in Marina Point was inapplicable to its actions or regulations because it was not a business establishment within the meaning of the Unruh Civil Rights Act. In support of its position, the defendant emphasized that it was a nonprofit association of private homeowners and not a traditional business establishment.
The court in O‘Connor rejected the defendant‘s contention and concluded that the defendant properly should be considered a “business establishment” for purposes of the Unruh Civil Rights Act. In reaching this conclusion, the court first determined that the nonprofit nature of the defendant was not controlling, explaining that “[n]othing in the language or history of [the Unruh Civil Rights Act] calls for excluding an organization from its scope simply because it is nonprofit. [Citation.] Indeed, hospitals are often non-profit organizations, and they are clearly business establishments to the extent that they employ a vast array of persons, care for an extensive physical plant and charge substantial fees to those who use the facilities.” (33 Cal.3d at p. 796.)
After concluding that its nonprofit status did not demonstrate that the homeowners association was not a business establishment for purposes of the Act, the court in O‘Connor went on to examine the specific activities engaged in by the association and concluded that its responsibilities were comparable to those of a landlord and were undertaken for the purpose of enhancing the value of the property of the members of the association.14 Under these circumstances, the court in O‘Connor concluded that the defendant homeowners’ association fell within the category of “all business establishments of every kind whatsoever” as that term is used in the Unruh Civil Rights Act.
In Isbister, the plaintiff maintained that the defendant‘s policy of excluding girls from membership in the club (and, as a consequence, from the use of its recreational facilities) violated the Unruh Civil Rights Act. As in O‘Connor, supra, 33 Cal.3d 790, the defendant claimed that it was not subject to the Unruh Civil Rights Act because it was not a business establishment within the traditional meaning of that term, emphasizing that it was a nonprofit, charitable membership organization that did not have a commercial purpose.
The court in Isbister, supra, 40 Cal.3d 72, rejected the defendant‘s argument and found that the local Boys’ Club at issue in that case constituted a business establishment within the meaning of the Act. In reaching this conclusion, the court explained that the origin and legislative history of the Unruh Civil Rights Act demonstrated that the Legislature, in enacting the Act in 1959, intended the new provision to cover at least all of the places of public accommodation or amusement that had been subject to the California public accommodation statute that preceded the Act. The court in Isbister then found that the attributes of the Boys’ Club of Santa Cruz, Inc., demonstrated that it constituted a place of public amusement to which the statute was intended to apply. The court reasoned that in view of its prominent recreational facilities, the club was plainly a “place of amusement” comparable to those traditionally covered by public accommodation statutes, and further explained that the club was “classically ‘public’ in its operation [because it] . . . opens its recreational doors to the entire youthful population of Santa Cruz, with the sole condition that its users be male . . . .” (40 Cal.3d at p. 81, citation omitted.) In the course of reaching the conclusion that the Boys’ Club of Santa Cruz should be considered a place of public accommodation and hence a “business establishment” for purposes of the Unruh Civil Rights Act, the court in Isbister pointed out, among other things, that a line of cases decided under title II of the federal Civil Rights Act of 1964 had reached a similar conclusion in finding a number of local recreational facilities owned and operated by local affiliates of the Young Men‘s Christian Association (YMCA) to be places of public accommodation and amusement and enjoining those entities from continuing their policy of
Although the court in Isbister concluded that the Boys’ Club of Santa Cruz, Inc., came within the Unruh Civil Rights Act‘s category of “all business establishments of every kind whatsoever,” the court at the same time was careful to point out that its holding in that case did not necessarily mean that the membership decisions of an organization—like the Boy Scouts—that is generally open to a large segment of the public, but whose primary function is not to operate a recreational facility for use on a drop-in basis, would fall within the reach of the Unruh Civil Rights Act. Thus, although the majority opinion in Isbister took note of the then recent Court of Appeal opinion in Curran I in which the appellate court had found that the Boy Scouts’ “extension to the youthful public of a membership invitation limited only by sex made it a ‘public’ organization covered by the Unruh Act” (40 Cal.3d at p. 81, fn. 8), the court in Isbister did not embrace or endorse the ruling in Curran I, but instead explicitly “reserve[d] judgment as to whether any organization or entity serving a substantial segment of the public on a nonselective basis is a ‘business establishment’ within the Act‘s meaning.” (Ibid., italics added and omitted.) Furthermore, in response to the suggestion in a dissenting opinion that the court‘s decision in Isbister “threatens many traditionally sex-segregated institutions, such as fraternities, sororities, private schools, and scouting organizations” (id. at p. 84, fn. 14, italics added), the court in Isbister expressly declared that ”[n]othing we have said compels that result” (ibid., italics added) and explained that “we have stressed that the statute was intended to include those kinds of recreational facilities traditionally deemed ‘accommodations’ [and] . . . have not suggested that noncommercial groups which do not operate such facilities are covered ‘business establishments.‘” (Ibid., original italics.) Finally, in the concluding passage of the decision, the court in Isbister once again made clear the limited scope of the decision, expressly stating that “[w]e caution again . . . that our holding is based on the particular nature and function of the [Boys’ Club of Santa Cruz]. Nothing we say necessarily requires a similar result in the case of other single-sex youth organizations.” (Id. at p. 91.)
Finally, as noted above, this court most recently addressed the question of the proper interpretation and application of the “business establishments” provision of the Unruh Civil Rights Act in Warfield, supra, 10 Cal.4th 594, decided in 1995. In Warfield, the defendant was a private golf and country club that excluded women from the membership category (“Regular Family
In analyzing the parties’ contentions in Warfield, the court first addressed the question whether “private social clubs, as a general matter, constitute ‘business establishments’ within the meaning of section 51.” (10 Cal.4th at p. 614, original italics.) After acknowledging that the decisions in O‘Connor and Isbister demonstrate that “the reach of section 51 cannot be determined invariably by reference to the apparent ‘plain meaning’ of the term ‘business establishment‘” (10 Cal.4th at p. 616), the court in Warfield—viewing the matter from a historical perspective—observed that “[t]raditionally, statutes prohibiting discrimination in places of public accommodation have not been applied to the membership policies of private social clubs” (ibid.), and found that nothing in the language or legislative history of either California‘s original 1897 public accommodation statute or the Unruh Civil Rights Act suggested that the Legislature intended to alter that situation. (Id. at p. 617.) The court in Warfield stated: “Although the 1959 enactment of the current version of section 51 clearly was intended to expand the reach of the 1897 statute, the Legislature‘s adoption of language making the statute applicable to ‘all business establishments of every kind whatsoever’ does not indicate that the contemplated expansion was intended, as a general matter, to encompass private social clubs.” (Ibid.)
Although the court in Warfield thus concluded that the Unruh Civil Rights Act was not intended to encompass the membership decisions of private social clubs as a general matter, the court at the same time went on to explain that an entity or organization is not necessarily exempt from the Act simply because it has some of the attributes or characteristics of a private club. Referring initially to the United States Supreme Court‘s decision in Daniel v. Paul (1969) 395 U.S. 298 as presenting “perhaps the clearest and most obvious illustration of this principle” (10 Cal.4th at p. 619), we noted that in rejecting the defendants’ contention in that case that their recreational facility—Lake Nixon—was a private club exempt from the public accommodation provisions of the federal Civil Rights Act of 1964, the high court declared: “‘Lake Nixon is
The defendant in Daniel v. Paul was an entity that was operated for profit, but we noted in Warfield that a number of other cases decided by the United States Supreme Court “demonstrate that the same principle applies to nonprofit entities. In Tillman v. Wheaton-Haven Recreation Assn. (1973) 410 U.S. 431, 438, for example, the United States Supreme Court held that a nonprofit recreational association that was open to all Caucasian residents in a designated geographic area was not a ‘private club’ exempt from the federal public accommodation law, because the association had ‘no plan or purpose of exclusiveness.’ Similarly, in Sullivan v. Little Hunting Park (1969) 396 U.S. 229, 236, the Supreme Court confirmed that the defendant community park could not properly be considered a ‘private social club’ exempt from the federal Civil Rights Act, because ‘it is open to every white person within the geographic area, there being no selective element other than race.‘” (Warfield, supra, 10 Cal.4th at pp. 619-620.)
In Warfield, the question was raised whether, under the standards that generally had been applied in federal cases and in other jurisdictions in determining the proper reach of those jurisdictions’ public accommodation statutes, the attributes of the defendant country club at issue in Warfield rendered the defendant a “truly private club” or, instead, a public accommodation. Although the parties vigorously debated that matter, we ultimately found that there was no need to determine “whether defendant constitutes a ‘private club’ rather than a place of public accommodation under the multi-pronged standard developed in the out-of-state cases, because we conclude that the business transactions that are conducted regularly on the club‘s premises with persons who are not members of the club are sufficient in themselves to bring the club within the reach of section 51‘s broad reference
In reaching this conclusion, the court in Warfield relied upon a number of aspects of the club‘s operations disclosed by the record in that case. The court noted first that “the club regularly (on the average of once a week) permits nonmembers to use its facilities, for a fee, in connection with ‘sponsored events.’ In conducting such events, the club receives funds from nonmembers for the use of the club‘s golf course, tennis courts, and dining and bar facilities, and also obtains revenue from the sale (at a markup) of food and beverages to nonmembers at the club‘s snack bar and other dining facilities on the club‘s premises.” (10 Cal.4th at p. 621.) We explained in Warfield that “[i]n carrying on such activities for a fee, the club operates as the functional equivalent of a commercial caterer or commercial recreational resort—classic forms of ‘business establishments‘—and, indeed, presumably competes with business entities that offer comparable services and that clearly are subject to the strictures of section 51.” (Ibid.)
Furthermore, the court in Warfield noted that “the club also obtains income, on a regular basis, from fees charged for the use of its facilities, and the purchase of food and beverages on its premises, by nonmember ‘invited guests‘” (10 Cal.4th at p. 621), and reasoned that “[t]o the extent the club obtains payment from nonmembers for meals served to guests in the club‘s dining room, for drinks obtained by guests from the club‘s bar, and for the guests’ use of the club‘s golf course or other facilities, the club, once again, appears to have been operating in a capacity that is the functional equivalent of a commercial enterprise.” (Id. at pp. 621-622.)
Finally, the court in Warfield pointed out that the record in that case demonstrated that “the club also obtains a significant, albeit indirect, financial benefit from the regular business transactions with nonmembers conducted at the golf and tennis pro shops located on its premises” (10 Cal.4th at p. 622), shops that the court concluded “realistically must be viewed as an integral part of the club‘s overall operations.” (Ibid.)
Taking into consideration all of these activities, the court in Warfield found that “because of the involvement of defendant‘s operations in the variety of regular business transactions with nonmembers discussed above, the club must properly be considered a business establishment within the meaning of section 51. Although the club is a nonprofit organization, and there is no suggestion that the activities in question were intended to generate a profit that might be distributed to members, the direct and indirect financial benefits that the club derived from its business transactions with
C
Plaintiff argues that under the holdings and reasoning of this court‘s past decisions in Burks, O‘Connor, Isbister, and Warfield, defendant in this case properly must be considered a business establishment for purposes of the Unruh Civil Rights Act. Defendant disagrees, asserting that the Boy Scouts is clearly distinguishable from the entities involved in each of our past decisions, and that in light of the governing language and legislative history of the Act, the Court of Appeal was correct in concluding that the Act is not applicable here. As we shall explain, we conclude that, with regard to its membership decisions, defendant is not a business establishment within the meaning of the Unruh Civil Rights Act.15
We begin with the applicable statutory language. As we have seen, in expanding the reach of California‘s prior public accommodation law through the enactment of the Unruh Civil Rights Act in 1959, the Legislature chose to bring within the reach of the Act “all business establishments of every kind whatsoever.” As plaintiff properly emphasizes, our past decisions have stressed that this language indicates that the term “business establishments” must properly be interpreted “in the broadest sense reasonably possible” (Burks, supra, 57 Cal.2d 463, 468), and, adhering to that principle, we have applied the Act to a variety of entities—like the nonprofit condominium owners association in O‘Connor, supra, 33 Cal.3d 790—that ordinarily
As plaintiff correctly points out, of course, this court‘s decision in Isbister, supra, 40 Cal.3d 72, concluded that in light of the legislative history demonstrating that the Unruh Civil Rights Act was intended to extend the reach of California‘s prior public accommodation statute, the very broad “business establishments” language of the Act reasonably must be interpreted to apply to the membership policies of an entity—even a charitable organization that lacks a significant business-related purpose—if the entity‘s attributes and activities demonstrate that it is the functional equivalent of a classic “place of public accommodation or amusement.” (40 Cal.3d at p. 83.)
Contrary to plaintiff‘s further contention, however, we do not believe that the circumstance that the Boy Scouts is generally nonselective in its admission policies, and affords membership to a large segment of the public, is itself sufficient to demonstrate that the organization reasonably can be characterized as the functional equivalent of a traditional place of public accommodation or amusement. The record establishes that the Boy Scouts is an organization whose primary function is the inculcation of a specific set of values in its youth members, and whose recreational facilities and activities are complementary to the organization‘s primary purpose. Unlike membership in the Boys’ Club of Santa Cruz, Inc., membership in the Boy Scouts is
As we have seen, in Isbister the court made clear that the holding in that case was based upon the circumstance that the Boys’ Club of Santa Cruz possessed the attributes of a traditional place of public amusement and that membership in the club was equivalent to admission to a place of public amusement, and expressly disavowed the suggestion that the ruling in that case compelled the conclusion that the Unruh Civil Rights Act applied to the membership decisions of scouting organizations or other groups that, while open to a broad segment of the public, are not the functional equivalents of places of public accommodation or amusement. (See Isbister, supra, 40 Cal.3d at p. 84, fn. 14.) Plaintiff has cited no authority, and we are aware of none, that suggests an organization like the Boy Scouts would have been considered a place of public accommodation or amusement under California‘s earlier public accommodation law,17 and the majority of courts in other jurisdictions that have addressed the question whether membership in the Boy Scouts is covered by the particular jurisdiction‘s public accommodation statute have concluded that the Boy Scouts does not fall within the reach of their law.18 Accordingly, we conclude that neither the holding nor the reasoning of the decision in Isbister supports plaintiff‘s argument that defendant properly must be considered a business establishment whose membership decisions are subject to the Unruh Civil Rights Act.
Plaintiff contends, however, that even if the cases preceding this court‘s recent decision in Warfield, supra, 10 Cal.4th 594, do not demonstrate that
As discussed above, the defendant in Warfield, supra, 10 Cal.4th 594, was a private golf and country club whose primary functions providing recreational facilities (a golf course, a driving range, putting greens, tennis courts, and a swimming pool) and food and drink to its members in return for the payment of dues and fees were comparable to the functions performed by commercial entities that unquestionably constitute places of public accommodation or amusement. Although the country club in Warfield argued that it was not subject to the Unruh Civil Rights Act because its facilities generally were not open to the public and because its membership process was quite selective, we concluded that the defendant should be considered a business establishment within the meaning of the Unruh Civil Rights Act in light of “the business transactions that are conducted regularly on the club‘s premises with persons who are not members of the club.” (10 Cal.4th at p. 621, italics omitted.) As we have seen, the business transactions with nonmembers at issue in Warfield involved the country club‘s practice of permitting, on a regular basis, nonmembers to use the various recreational and dining facilities of the club for a fee, a practice that generated a substantial amount of revenue for the club and provided a financial benefit to club members by permitting them to enjoy their preferred access to the club‘s facilities through the payment of lower dues and fees. As noted above, we explained in Warfield that “[i]n carrying on such activities for a fee, the club operates as the functional equivalent of a commercial caterer or a commercial recreational resort—classic forms of ‘business establishments‘—and, indeed, presumably competes with business entities that offer comparable services and that clearly are subject to the strictures of section 51.” (10 Cal.4th at p. 621.)
Although the record in this case indicates that the Boy Scouts, like the country club in Warfield, engages in business transactions with nonmembers on a regular basis (through the operation of retail shops and the licensing of the use of its insignia), the Boy Scouts’ business activities differ from those of the defendant in Warfield in a very significant respect. As we have seen, the Boy Scouts is an expressive social organization whose primary function is the inculcation of values in its youth members, and whose small social group structure and activities are not comparable to those of a traditional place of public accommodation or amusement. Unlike those involved in
Accordingly, taking into consideration the language, legislative history, and purpose of the Unruh Civil Rights Act, and this court‘s prior decisions interpreting the Act, we conclude that defendant is not a business establishment whose membership policies or decisions fall within the reach of the Act.20
D
As noted above, in reaching a contrary conclusion, the trial court expressed concern that if it did not interpret the “business establishments” provision of the Unruh Civil Rights Act to apply to the membership decisions of the Boy Scouts, the Boy Scouts would be free to discriminate in its membership decisions on any basis, and that no remedy would be available even if, for example, the Boy Scouts were to exclude a boy from scouting on the basis of his race. For a number of reasons, we do not believe that the
To begin with, even though the provisions of the Unruh Civil Rights Act do not apply to the membership policies of the Boy Scouts, it does not follow, as the trial court assumed, that the Boy Scouts are therefore free to exclude boys from membership on the basis of race, or on other constitutionally suspect grounds, with impunity. The Unruh Civil Rights Act is not the only legislative measure that is aimed at curbing discrimination on the basis of race, and in other contexts courts have upheld the imposition of a variety of sanctions—including the denial of tax-exempt status—upon an otherwise qualified nonprofit entity that engages in racial discrimination. (See, e.g., Bob Jones University v. United States (1983) 461 U.S. 574 [103 S.Ct. 2017, 76 L.Ed.2d 157] [upholding denial of federal tax-exempt status to private school that engaged in racial discrimination].)
Moreover, even if other potential remedies against invidious discrimination by an organization like the Boy Scouts are considered inadequate, that circumstance cannot justify extending the scope of the Unruh Civil Rights Act further than its language reasonably will bear. Whether or not the members of this court share the view of the trial court that, as a matter of sound public policy, the membership policies of “an organization of the size, non-selectivity, and visibility” of the Boy Scouts properly should be subject to the nondiscrimination restrictions embodied in the Unruh Civil Rights Act, that question presents a policy issue that lies within the province of the legislative, rather than the judicial, branch. Subject, of course, to constitutional constraints, the Legislature remains free to extend the provisions of the Unruh Civil Rights Act to additional entities or organizations, or to enact new legislative measures to address any gaps or inadequacies that it finds in the current statutory provisions. For the reasons discussed above, however, we conclude that the existing language of the Unruh Civil Rights Act—applicable to “all business establishments of every kind whatsoever“—cannot reasonably be interpreted to bring the membership decisions of the Boy Scouts within the reach of the Act.
III
In light of our conclusion that the judgment in favor of defendant should be sustained on the basis of the initial statutory interpretation issue, we have no occasion to pass upon the merits of the constitutional claims also made by defendant.
The judgment of the Court of Appeal, upholding the judgment rendered by the trial court in favor of defendant, is affirmed.
Kennard, J., Baxter, J., and Chin, J., concurred.
Through its Mount Diablo Council, the Boy Scouts of America denied Timothy Curran membership as a “Scouter,” that is, an adult troop leader with the position of scoutmaster or assistant scoutmaster, because of his sexual orientation—specifically, because of his homosexual status and/or conduct and/or advocacy.
Thereupon, Curran brought an action in the superior court against the Boy Scouts, specifically, the Mount Diablo Council, claiming in substance that, by denying him membership, it violated
The Court of Appeal affirmed. It agreed with the superior court as to the infringement of the
I agree with my colleagues that we must affirm. For, as I shall explain, I am of the view that
My conclusion, I hasten to add, is compelled by
I
In part pertinent here,
By its terms,
But what does the phrase “business establishments” mean?
“It is common ground that, in ‘undertak[ing] to construe a statute,’ ‘courts “ask only what the statute means.“’ (Holmes, Collected Legal Papers (1920) p. 207.) And when they consider that question, they ask only what its words mean. For a statute, as it were, is a complete integration. Within its scope, it is the final and exclusive statement by the legislative body of its intent, superseding all prior and contemporaneous expressions and implications, not only those that are directly contrary but even those that are altogether consistent. Perhaps more accurately, it is the legislative body‘s final and exclusive enactment, displacing all terms and conditions of whatever sort that could, would, or might have been passed. To seek the meaning of a statute is not simply to look up dictionary definitions and then stitch together the results. Rather, it is to discern the sense of the statute, and therefore its words, in the legal and broader culture. Obviously, a statute has no meaning apart from its words. Similarly, its words have no meaning apart from the world in which’ “—and the purpose for which—” ‘they are spoken.‘” (People v. Hazelton (1996) 14 Cal.4th 101, 117 (conc. opn. of Mosk, J.), quoting Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 672-673 (conc. opn. of Mosk, J.), italics omitted.)
The phrase “business establishments” is not defined in
In 1905—as explained by Professor Harold W. Horowitz, its leading commentator (Horowitz, The 1959 California Equal Rights in “Business Establishments” Statute—A Problem in Statutory Application (1960) 33
In its original form,
The proximate source of
The ultimate source of
Hence, the purpose of
As a consequence,
In 1959,
In its present form,
The meaning of the phrase “business establishments” in
In order to determine what the phrase “business establishments” means in
In Evans v. Fong Poy (1941) 42 Cal.App.2d 320, the Court of Appeal concluded that a bar operated as a “place of public accommodation” under
In Suttles v. Hollywood Turf Club (1941) 45 Cal.App.2d 283, 286, the Court of Appeal similarly concluded that a racetrack operated as a “place of public accommodation” under
In Long v. Mountain View Cemetery Assn. (1955) 130 Cal.App.2d 328, the Court of Appeal concluded that a cemetery did not
In Coleman v. Middlestaff (1957) 147 Cal.App.2d Supp. 833, the appellate department of the superior court similarly concluded that a dentist‘s office did not operate as a “place of public accommodation” under
In Lambert v. Mandel‘s of California (1957) 156 Cal.App.2d Supp. 855, the appellate department of the superior court concluded that a shoe store operated as a “place of public accommodation” under
In order to determine what the phrase “business establishments” means in
As introduced on January 21, 1959, Assembly Bill No. 594 would have amended
“... of inns, restaurants, hotels, eating houses, places where ice cream or soft drinks of any kind are sold for consumption on the premises, barber shops, bath houses, theaters, skating rinks, public conveyances and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law, and applicable alike to all citizens.” (As printed in Horowitz, supra, 33 So.Cal.L.Rev. at p. 265, fn. 31.)
On March 24, 1959, Assembly Bill No. 594 was amended in this part through the addition of the language printed in italics:
“All citizens within the jurisdiction of this State, no matter what their race, color, religion, ancestry, or national origin, are entitled to the full and equal admittance, accommodations, advantages, facilities, membership, and privileges in, or accorded by, all public or private groups, organizations, associations, business establishments, schools, and public facilities, except those institutions organized primarily for the purpose of, and which practice, the furthering of a specific sectarian religious belief or a specific national culture, and which limit their membership or affiliations to only those persons with a corresponding religious belief or national derivation; to purchase real property; and to obtain the services of any professional person, group or association.” (As printed in Horowitz, supra, 33 So.Cal.L.Rev. at p. 266, fn. 32.)
On March 30, 1959, Assembly Bill No. 594 was further amended through the addition of the language printed in italics and the deletion of the language printed in strike-out:
”All citizens within the jurisdiction of this State, no matter what their race, color, religion, ancestry, or national origin[,] are entitled to the full and equal admittance, accomodations [sic], advantages, facilities, membership, and privileges in, or accorded by, all public or private groups, organizations, associations, business establishments, schools, and public facilities, except those institutions organized primarily for the purpose of, and which practice, the furthering of a specific sectarian religious belief or a specific national culture, , and which limit their membership or affiliations to only those persons with a corresponding religious belief or national derivation; to
”. . . 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 admittance, accommodations, advantages, facilities, membership, privileges, services or benefits set out, but not limited, by this section:
”(a) To all business establishments of every kind whatsoever;
”(b) To all schools of every kind whatsoever, except those schools organized for the purpose of, and which practice, the furthering of a specific sectarian religious belief;
”(c) To the benefits administered or offered by any organization or institution receiving any tax advantage or exemption, or receiving any form of assistance from the Federal Government, or the State of California, or any municipality or any political subdivision of either;
”(d) To membership in any and all business or professional organizations formed or maintained primarily for the protection or advancement of the business or professional interests of the members;
”(e) To obtain the services of any professional person, group or association licensed or certified by the State of California, any municipality or any political subdivision or agency of either.” (As printed in Horowitz, supra, 33 So.Cal.L.Rev. at pp. 266-267, fn. 33, except as to added brackets and bracketed material.)
On April 24, 1959, Assembly Bill No. 594 was again amended through the addition of the language printed in italics:
“. . . 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 admittance, accommodations, advantages, facilities, membership, privileges, services or benefits set out, but not limited, by this section:
“(a) To all business establishments of every kind whatsoever;
“(b) To all schools of every kind whatsoever, except those schools organized for the purpose of, and which practice, the furthering of a specific
“(c) To the charitable benefits administered or offered by any organization or institution receiving any tax advantage or exemption, or receiving any form of assistance from the Federal Government, or the State of California, or any municipality or any political subdivision of either;
“(d) To membership in any and all business or professional organizations formed or maintained primarily for the protection or advancement of the business or professional interests of the members;
“(e) To obtain the services of any professional person, group or association licensed or certified by the State of California, any municipality or any political subdivision or agency of either.” (As printed in Horowitz, supra, 33 So.Cal.L.Rev. at pp. 267-268, fn. 34, except as to added brackets and bracketed material.)
On May 12, 1959, Assembly Bill No. 594 was amended yet again as to the language quoted in the preceding paragraph through the addition of the language printed in italics and the deletion of the language printed in strike-out:
“. . . 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 admittance, accommodations, advantages, facilities, membership, privileges, services or benefits set out, but not limited by this section:
“(a) To all business establishments of every kind whatsoever;
”(b) To all schools of every kind whatsoever, except those
”(b) To all schools which primarily offer business or vocational training; schools organized for the purpose of, and which practice, the furthering of a specific sectarian religious belief, insofar as the facilities of any such school so organized and following such practice are made available primarily to persons who subscribe to such belief;
“(c) To the charitable benefits administered or offered by any organization or institution receiving any direct subvention tax advantage or exemption, or receiving any form of assistance from the Federal Government, or
“(d) To membership in In any and all business or professional organizations formed or maintained by licensees of the State of California primarily for the protection or advancement of the business or professional interests of the members;
“(e) To obtain the services of From any professional person, group or association licensed or certified by the State of California, any municipality or any political subdivision or agency of either.” (As printed in Horowitz, supra, 33 So.Cal.L.Rev. at p. 268, fn. 35.)
On June 11, 1959, Assembly Bill No. 594 was further amended as to the language quoted in the preceding paragraph through the deletion of language printed in strike-out:
“. . . 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 admittance, accommodations, advantages, facilities, membership, privileges, services or benefits set out by this section:
“(a) To all business establishments of every kind whatsoever;
“(b) To all schools which primarily offer business or vocational training[.]
”(c) To the charitable benefits administered or offered by any organization or institution receiving any direct subvention from any direct subvention from the Federal Government, or the State of California, or any municipality or any political subdivision of either;
”(d) In any and all business or professional organizations formed or maintained by licensees of the State of California primarily for the protection or advancement of the business or professional interests of the members;
”(e) From any professional person, group or association licensed or certified by the State of California, any municipality or any political subdivision or agency of either.” (As printed in Horowitz, supra, 33 So.Cal.L.Rev. at p. 269, fn. 36, except as to added brackets and bracketed material.)
On June 15, 1959, Assembly Bill No. 594 was amended as to the language quoted in the preceding paragraph through the addition of the language
”All This section shall be known, and may be cited, as the Unruh Civil Rights Act.
“. . . 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 admittance, accommodations, advantages, facilities, membership, privileges, services or benefits set out by this section:
”(a) To all business establishments of every kind whatsoever;
”(b) To all schools which primarily offer business or vocational training; accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (As printed in Horowitz, supra, 33 So.Cal.L.Rev. at pp. 269-270, fn. 37.)
To summarize: As introduced on January 21, 1959, Assembly Bill No. 594 “prohibited discrimination against citizens on the basis of race, color, religion, ancestry, or national origin” “(1) in the extension of facilities by ‘public or private groups, organizations, associations, business establishments, schools, and public facilities,’ ” “(2) with respect to the purchase of ‘real property,’ ” and “(3) in obtaining ‘the services of any professional person, group or association.’ ” (Horowitz, supra, 33 So.Cal.L.Rev. at p. 266.) Its March 24th version “introduced . . . a broad religious and ‘national’ exception. . . .” (Ibid.) Its March 30th version “eliminated the references to prohibition of discrimination by ‘private groups[, etc.]’ and with respect to the purchase of real property“; it also “prohibited discrimination . . . by ‘all business establishments of every kind whatsoever‘; ‘all schools of every kind whatsoever,’ except religious schools; ‘any organization or institution receiving any tax advantage or exemption,’ or ‘receiving any form of [government] assistance’ . . . ; ‘business or professional organizations’ formed primarily for the advancement of the business or professional interests of the members; and ‘any [licensed] professional person.’ ” (Id. at pp. 266-267.) Its April 24th version “more specifically defined” the “religious schools exception” and limited the prohibition of discrimination by ” ‘organization[s] or institution[s] receiving any tax advantage or exemption’ . . . or any form of [government] assistance” to “charitable” benefits. (Id. at pp. 267-268.) Its May 12th version “changed the prior reference to schools to include ‘all schools which primarily offer business or vocational training . . . ’ “; it changed its coverage from organizations or institutions receiving ” ‘any tax advantage or exemption . . . or any form of ’ ” government
In view of the background and genesis of section 51, we can arrive at the following conclusions bearing on the meaning of the phrase “business establishments.”
First, a comparison of the coverage of
Second, a comparison of the coverage of
Third, a comparison of the coverage of
It follows that the phrase “business establishments” in
Therefore, the purpose of
As a result,
But the fact remains, as we stated in Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 500 [86 Cal.Rptr. 88, 468 P.2d 216], and do well to restate here, “there is no indication that the Legislature intended to broaden the scope of
Over the years, we have considered
Thus, in Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463 [20 Cal.Rptr. 609, 370 P.2d 313], we concluded that a commercial developer and
In O‘Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790 [191 Cal.Rptr. 320, 662 P.2d 427], a majority of the court concluded that a condominium owners association operated as a “business establishment” within the meaning of
In Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72 [219 Cal.Rptr. 150, 707 P.2d 212] (hereafter sometimes Isbister), a majority of the court concluded that a private nonprofit charitable youth organization—in support of whose position the Boy Scouts appeared as amicus curiae—operated as a “business establishment” within the meaning of
Similarly, and most recently, in Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594 [42 Cal.Rptr.2d 50, 896 P.2d 776] (hereafter sometimes Warfield), a majority of the court concluded that a private social club operated as a “business establishment” within the meaning of
At the end of the day, the question comes down to this: What do we do with
In conclusion, the law is, and should be recognized to be, as follows: The phrase “business establishments” in
II
Turning from the construction of
At the threshold, we are presented with this question: On what level of the Boy Scouts as an organization do we focus—e.g., the local troop; the regional council, such as the Mount Diablo Council itself; or the national body?
It turns out, however, that, no matter what answer we may happen to give, we arrive at the same conclusion.
This, of course, does not negate the possibility that
But the fact that
III
The majority come to conclusions identical to those set out, viz., that
The majority, however, do not engage in identical analysis—or, despite their many pages, in any substantial analysis as an alternative. They do little more than attempt to distinguish Isbister and Warfield.10 They do so essentially by stating that the Boys’ Club of Santa Cruz and the Peninsula
IV
For the reasons stated above, I join with my colleagues in affirming the judgment of the Court of Appeal.
KENNARD, J., Concurring.—I join the majority in holding that the Boy Scouts of America is not a “business establishment” whose membership and policy decisions fall within the reach of California‘s Unruh Civil Rights Act. (
The Act uses the ambiguous term “business establishment.” A construction of that term as excluding the membership decisions of the Boy Scouts avoids grave constitutional difficulties posed by the First Amendment protections of freedom of speech and of association. Stated more specifically, it is highly doubtful that a state may, consistent with the First
I
The First Amendment to the federal Constitution provides: “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble, and to petition the government for redress of grievances.” By its terms, the First Amendment imposes a restriction directly on Congress; because of the due process clause of the Fourteenth Amendment, however, no state may violate the rights that the First Amendment protects. (
“The First Amendment to the federal Constitution prohibits government action abridging freedom of speech and assembly. The right to freely express one‘s beliefs or ideas, unpopular as they may be, is essential to ‘nearly every other form of freedom.’ (Palko v. Connecticut (1937) 302 U.S. 319, 327 [82 L.Ed. 288, 293, 58 S.Ct. 149].) ‘Full and free discussion has indeed been the first article of our faith. We have founded our political system on it.’ (Dennis v. United States (1951) 341 U.S. 494, 584 [95 L.Ed. 1137, 1191, 71 S.Ct. 857].) Our nation‘s historic vigilance against attempts to curtail the expression of speech ‘has been the one single outstanding tenet that has made our institutions the symbol of freedom and equality’ (id. at p. 585 [95 L.Ed. at p. 1191]) and ‘sets us apart from totalitarian regimes’ (Terminiello v. Chicago (1949) 337 U.S. 1, 4 [93 L.Ed. 1131, 1134-1135, 69 S.Ct. 894]).” (Planned Parenthood Shasta-Diablo, Inc. v. Williams (1995) 10 Cal.4th 1009, 1031 [43 Cal.Rptr.2d 88, 898 P.2d 402] (dis. opn. of Kennard, J.).)
The First Amendment guarantees the right of groups and their members to associate for expressive purposes: “An individual‘s freedom to speak, to worship, and to petition the government for redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. [Citation.] According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority. [Citations.] Consequently, we have long understood as implicit in
The First Amendment also guarantees the speaker‘s right to control the message being conveyed: ” ‘Since all speech inherently involves choices of what to say and what to leave unsaid,’ [citation], one important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say,’ [citation]. . . . Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid. . . . Its point is simply the point of all speech protection, which is to shield just those choices of content that in someone‘s eyes are misguided, or even hurtful.” (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) 515 U.S. 557, 573-574 [115 S.Ct. 2338, 2347-2348, 132 L.Ed.2d 487], original italics.)
II
In this case, an organization has excluded an individual who advances views contrary to those of the organization. The trial court found the Boy Scouts of America to be an organization whose activities are “overwhelmingly expressive“: The group promotes camping and other outdoor activities as a means of building character, fostering citizenship, and developing mental, moral, and physical fitness. Membership in the Boy Scouts is open to boys of all races and religions. But as the trial court expressly found, the official position of the Boy Scouts is that “homosexuality is immoral and incompatible with the Boy Scout Oath and Law.”
Plaintiff was a member of a Boy Scout troop and achieved the highest possible rank, that of Eagle Scout; his scout membership ended automatically when he turned 18 years old. Several months later, he was featured in an Oakland Tribune article on gay teenagers. The newspaper reported that plaintiff had a “gay social life” while he was still in high school, that he had been involved with the Bay Area “gay youth underground,” and that he considered himself to be “a gay youth activist.” Shortly thereafter, plaintiff filed an application with the Mount Diablo Council of the Boy Scouts of America to attend the 1981 Boy Scouts of America National Jamboree. The council‘s executive director, Quentin Alexander, rejected the application because plaintiff was not a member of any Mount Diablo troop.
A few days later, plaintiff telephoned Alexander and inquired about the status of his application. Alexander told him that only active scouts could
III
Were we to hold that the membership decisions of the Boy Scouts of America are subject to regulation under the Unruh Civil Rights Act, the organization would have a compelling argument that requiring it to accept plaintiff, or anyone else who espouses views contrary to its guiding precepts, violates the First Amendment rights of expressive association and free speech enjoyed by the organization and its members.
This case is unlike those in which the United States Supreme Court has rejected First Amendment challenges to state public accommodation laws by organizations seeking to exclude individuals on grounds unrelated to views advanced by the organizations. (See New York State Club Assn. v. New York City (1988) 487 U.S. 1, 13 [108 S.Ct. 2225, 2234, 101 L.Ed.2d 1] [rejecting facial challenge to city ordinance]; Bd. of Dirs. of Rotary Int‘l v. Rotary Club (1987) 481 U.S. 537, 549 [107 S.Ct. 1940, 1948, 95 L.Ed.2d 474] [no First Amendment violation in applying California‘s Act to require admission of women to California Rotary Clubs]; Roberts v. United States Jaycees, supra, 468 U.S. 609, 627 [no violation of right to expressive association in enforcing Minnesota Human Rights Act to compel Jaycees to admit women members].) In each case, the high court stressed that the law that withstood constitutional scrutiny either “require[d] no change in the [organization‘s] creed” and “impose[d] no restrictions on the organization‘s ability to exclude individuals with ideologies or philosophies different from those of its existing members” (Roberts, supra, 468 U.S. 609, 627), erected no obstacle to “a club seek[ing] to exclude individuals who do not share the views that the club‘s members wish to promote” (New York State Club Assn., supra, 487 U.S. 1, 13), or did “not require the clubs to abandon or alter” any expressive activities (Bd. of Dirs. of Rotary Int‘l, supra, 481 U.S. 535, 548). By contrast, here plaintiff does not share the views promoted by the organization he seeks to join; to require the Boy Scouts to
On point is Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., supra, 515 U.S. 557. There, the United States Supreme Court unanimously held that the Massachusetts courts could not apply that state‘s antidiscrimination law to compel the organizers of an annual St. Patrick‘s Day parade to admit a contingent of gay, lesbian, and bisexual marchers. The group, “GLIB,” had been formed for the express purpose of marching under its own banner in the parade “in order to celebrate its members’ identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants.” (Id. at p. 570 [115 S.Ct. at pp. 2345-2346].) Even though the parade lacked any “narrow, succinctly articulable message” (id. at p. 569 [115 S.Ct. at p. 2345]), enforcement of the antidiscrimination law to require the parade organizers to include the GLIB marchers, the high court said, would violate the organizers’ right of free speech and their right of expressive association.
Hurley pointed out that to require inclusion of the GLIB contingent as parade marchers would violate the parade organizers’ right of free speech because it would force the organizers to alter the message they wished their parade to convey. (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., supra, 515 U.S. 557, 572-573.) “Although the state courts spoke of the parade as a place of public accommodation [citation], once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts’ application of the statute had the effect of declaring the [organizers‘] speech itself to be the public accommodation. Under this approach any contingent of protected individuals with a message would have the right to participate in [the organizers‘] speech, so that the communication produced by the private organizers would be shaped by all . . . . But this use of the State‘s power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” (Id. at p. 573 [115 S.Ct. at p. 2347].) The court emphasized: “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” (Id. at p. 579 [115 S.Ct. at p. 2350].)
As an alternative basis for its decision, Hurley held that compelling GLIB‘s inclusion in the parade would violate the parade organizers’ right of expressive association: “Assuming the parade to be large enough and a source of benefits (apart from its expression) that would generally justify a
The high court‘s unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., supra, 515 U.S. 557, holding that an organization‘s right of free speech includes total control over the content of its message and that an organization‘s right of expressive association allows it to exclude applicants with “manifest views” at odds with those of the organization, is binding on this court. The breadth of the Hurley decision raises grave doubts whether California‘s Legislature could ever constitutionally enact, or this court enforce, a law requiring an organization like the Boy Scouts, whose mission is to instill in boys a certain philosophy of moral behavior, to admit an individual who advances contrary views.1
IV
Where, as here, enforcement of a statute would raise serious questions regarding its constitutionality, our rules of statutory construction require us
Thus, I agree with Professor William N. Eskridge of Georgetown University Law Center that the high court‘s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., supra, 515 U.S. 557, dictates a cautious approach to construing antidiscrimination laws. As he puts it: “General antidiscrimination statutes will not be read expansively, beyond their clear application, when the broad reading would directly burden protected First Amendment rights. Such a clear statement rule not only would ameliorate clashes between nondiscrimination and free speech norms but would appropriately place the burden on the legislature to consider First Amendment values when it adopts antidiscrimination laws.” (Eskridge, A Jurisprudence of “Coming Out“: Religion, Homosexuality, and Collisions of Liberty and Equality in American Public Law (1997) 106 Yale L.J. 2411, 2462-2463.)
Here, by construing the term “business establishment” in the Unruh Civil Rights Act as not encompassing the membership and policy decisions of the Boy Scouts, we avoid a statutory construction that could bring the act‘s antidiscrimination provisions into conflict with the free speech and expressive association rights that the Boy Scouts and its members have under the First Amendment.
What the First Amendment protects is not just “free thought for those who agree with us but freedom for the thought that we hate.” (United States v. Schwimmer (1929) 279 U.S. 644, 655 [49 S.Ct. 448, 451, 73 L.Ed. 889] (dis. opn. of Holmes, J.).) “The essence of our First Amendment‘s guarantee of freedom of expression . . . is the right of anyone to speak out. ‘[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.’ (West Virginia Bd. of Ed. v. Barnette (1943) 319 U.S. 624, 642 [87 L.Ed. 1628, 1639, 63 S.Ct. 1178, 147 A.L.R. 674].)” (Planned Parenthood Shasta-Diablo, Inc. v. Williams, supra, 10 Cal.4th 1009, 1039 (dis. opn. of Kennard, J.).)
Could the NAACP be compelled to accept as a member a Ku Klux Klansman? Could B‘nai B‘rith be required to admit an anti-Semite? If the First Amendment protects the membership decisions of these groups, must it not afford the same protection to the membership decisions of the Boy Scouts?
I have grave doubts that the First Amendment permits the state to compel an organization like the Boy Scouts to accept as members those who espouse contrary views. For this reason, as well as those expressed in the majority opinion, I agree that the Boy Scouts of America is not a “business establishment” whose membership and policy decisions are within the reach of the Unruh Civil Rights Act.
WERDEGAR, J.—I concur in the judgment. I write separately to express some concerns about this court‘s Unruh Civil Rights Act jurisprudence. (
The Unruh Civil Rights Act, which applies to “all business establishments of every kind whatsoever” (
As initially introduced, the bill that became the present act would have extended to “all public or private groups, organizations, associations, business establishments, schools, and public facilities,” as well as to the “purchase [of] real property” and “the services of any professional person, group or association.” (Assem. Bill No. 594 (1959 Reg. Sess.), as introduced Jan. 21, 1959, and as cited in Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 608 [42 Cal.Rptr.2d 50, 896 P.2d 776].) Evidently unable to achieve consensus on the aforementioned categories of facilities or specified entities, or on any particular combination thereof, the Legislature settled on the language we have today. In the ensuing years, it has been this court‘s challenging task to apply that language—“business establishments of every kind whatsoever” (
Virtually everyone knows something of the scouts. The image of youths pursuing outdoor and patriotic activities is entrenched in our culture. Sharing this background, many readers of the court‘s opinion will intuitively accept its conclusion that the Boy Scouts is not a “business establishment[]” (
This case arose because our past decisions supported a respectable argument that the Boy Scouts is a “business establishment[].” While we do not normally think of the scouts as an organization conducted for profit or as having a place of business, neither attribute has been required of a “business establishment[]” under our decisions. We have held the act applies to nonprofit (O‘Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 795-796 [191 Cal.Rptr. 320, 662 P.2d 427]) and charitable organizations (Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 76, 84 [219
It was these decisions that led the trial court to conclude the Boy Scouts is a “business establishment[]” subject to the act. While the court today rejects that conclusion, it was not irrational or irreconcilable with precedent: Our prior decisions pointed to such a result. Nevertheless, our task in the first instance is, as always, to construe the statute and, if possible, to implement the intent of the Legislature. Because it seems highly unlikely the Legislature intended the act to apply to the scouts, I concur in the judgment. I write separately to point out that the court‘s rationale for excluding the scouts from the act introduces three new elements into our Unruh Civil Rights Act jurisprudence.
First, the court suggests an organization can be broken down into its constituent functions for the purpose of deciding whether the act applies. Thus, the majority concludes that “with regard to its membership policies and decisions,” defendant is not a business establishment within the meaning of the act (maj. opn., ante, at p. 673, italics added; see also id. at pp. 685, 696, 698-699), while strongly disavowing any implication the act might permit discrimination in the Boy Scout‘s retail stores (id. at pp. 700-701). This piecemeal mode of analysis, however, seems at odds with the language of the act, which refers simply to “business establishments” (
Second, the court reasons that an organization may sell goods to the general public without becoming a “business establishment[],” so long as it
Third, the court seems to imply that an organization may not qualify as a “business establishment[]” in part because it is not a public accommodation. (See maj. opn., ante, at pp. 697-698.) The implication arises from the manner in which the court distinguishes Isbister v. Boys’ Club of Santa Cruz, Inc., supra, 40 Cal.3d 72. In Isbister, the court essentially held that all public accommodations were “business establishments” under the act. The court based this conclusion on the assumption the act was intended to apply more broadly than its statutory predecessor, which had expressly applied to ” ‘places of public accommodation.’ ” (40 Cal.3d at p. 83.) Isbister‘s conclusion can fairly be criticized on the ground that the term used in the present act—“business establishment[]“—neither refers to nor obviously includes all public accommodations. But assuming for the sake of argument Isbister correctly held all public accommodations are business establishments, it still does not follow that the failure of an organization to be “the functional equivalent of a traditional place of public accommodation” (maj. opn., ante, at p. 697) has a negative bearing on the act‘s applicability. To quote Isbister, the act “was intended at a minimum to continue the coverage of ‘public accommodations.’ ” (40 Cal.3d at p. 83, italics added.)
After three decades of decisions, including today‘s, addressing the question whether particular entities are “business establishments” subject to the act,1 a competent attorney in many foreseeable cases still would not be able to advise a client with a reasonable degree of certainty whether the act
BROWN, J.—I concur in the judgment.
In my view, however, the majority‘s analysis cannot sustain the result. Like Justice Werdegar, I find that our Unruh Civil Rights Act jurisprudence, including today‘s decision, fails to provide useful guidance in determining the act‘s coverage and that predictability in its application remains elusive. To put it bluntly, the law is a mess. In a state as marvelously diverse as California, the rules regarding discrimination should not develop ad hoc. Nevertheless, our prior decisions have almost universally failed to formulate a coherent and comprehensive interpretation of “business establishment.” This vice did not become pernicious until recently because the results appeared consistent with legislative intent to prohibit discrimination by those engaged in commercial activity regardless of its form. (See, e.g., Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463 [20 Cal.Rptr. 609, 370 P.2d 313] [Unruh Civil Rights Act applies to sale of real property notwithstanding lack of fixed place of business].) Beginning at least with Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72 [219 Cal.Rptr. 150, 707 P.2d 212], however, the lack of analytical substance began to take its toll, and the law is now desperately in need of critical reexamination.
Cal.App.3d 370 [206 Cal.Rptr. 866] (nonprofit religious publisher of Christian Yellow Pages a business establishment).
Given the Legislature‘s clear focus on discrimination arising in the context of commercial activities, Horowitz concluded “[m]embership clubs or organizations, e.g., country clubs owned by and operated for the benefit of the members, [which] should be held not to fall within the scope of the statutory principle, because the relationship between discriminator and discriminatee is essentially continuous, personal, and social.” (Horowitz, The 1959 California Equal Rights in “Business Establishments” Statute—A Problem in Statutory Application, supra, 33 So.Cal.L.Rev. at pp. 289-290, fn. omitted.) Likewise, coverage of nonprofit organizations would turn on whether the relationship between the establishment and other persons were “of a gratuitous, continuous, personal, and social sort . . . .” (Id. at p. 290.)
Justice Mosk‘s definition of business establishment faithfully distills the valuable insights of Professor Horowitz on which this court has frequently relied and provides a comprehensive, and comprehensible, standard. Doubtless, his conclusions require the overruling of Isbister v. Boys’ Club of Santa Cruz, Inc., supra, 40 Cal.3d 72, and Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594 [42 Cal.Rptr.2d 50, 896 P.2d 776]. That necessity should not call into question the soundness of the standard; it simply reflects how far our jurisprudence has strayed from the plain meaning of the statute and apparent legislative intent.
This explication of the Unruh Civil Rights Act also properly recognizes a distinction between an organization‘s formulation and implementation of membership policies and its commercial activities. Such recognition is not only consistent with the statutory language and legislative intent but, for the reasons cogently expressed by Justice Kennard in her concurrence, imperative when those policies implicate expressive association and free speech.
Notes
The court in O‘Connor stated in this regard: “Contrary to the association‘s attempt to characterize itself as but an organization that ‘mows lawns’ for owners, the association in reality has a far broader and more businesslike purpose. The association, through a board of directors, is charged with employing a professional property management firm, with obtaining insurance for the benefit of all owners and with maintaining and repairing all common areas and facilities of the 629-unit project. It is also charged with establishing and collecting assessments from all owners to pay for its undertakings and with adopting and enforcing rules and regulations for the common good. In brief, the association performs all the customary business functions which in the traditional landlord-tenant relationship rest on the landlord‘s shoulders. A theme running throughout the description of the association‘s powers and duties is that its overall function is to protect and enhance the project‘s economic value.” (33 Cal.3d at p. 796.)