*1 24, February Argued affirmed June SCHWENK, Appellant,
v.
AMERICA,
BOY SCOUTS OF
Respondent.
Fredric A. Miller, Anderson, Nash, Yerke of Yerke Wiener, & Portland, A. Philip Lacovara Hughes, Reed, D.C., Hubbard & Washington, argued the cause for respondent. With them on the brief were H. Anderson, Nash, Christie Wiater Miller, Yerke & Wiener, and John C. H. Eugene Zagat, Fontaine and Hughes, City, Jr. of Reed, & Hubbard New York New York. Biggs, Strayer,
Charles Davies, J. McMurchie of Boley, Stoel & Portland, filed a brief for amicus curiae Camp support respondent. Girls, Inc., Fire
Terry DeSylvia Black, Kendall, Tremaine, Higgins, Boothe Portland, & filed a brief for amicus curiae Girl Scouts of the United States America and Young support Association, Women’s Christian respondent. O’Connell, Justice,*
Before Denecke,** Chief Tongue, Bryson, Holman, Howell and Justices. TONGUE, J. * argued. Chief Justice when case was
**Chief Justice when case decided.
[ TONGUE, J. nine-year-old girl, brought by an action a
This is litem, to ad guardian her mother as her through the Public Accom- damages for the violation of recover (ORS from resulting 30.670 et seq.) modation Act refusal accept plaintiff’s application defendant’s to demurred as a cub scout. Defendant membership it that failed ground on the plaintiff’s complaint demurrer was sustained state a cause of action. The We affirm. plaintiff appealed. congres- defendant is a complaint alleges that (36 § 21 et sionally-chartered seq.); USCA corporation a operates program scouting of cub in Port- through its Columbia-Pacific Council located land; a open in the cub scouts is membership eight has or is person completed grade, who the second and who is of years age yet older but is not sex; registration male form plaintiff submitted requesting to defendant that she be admittеd Scouts of America her local cub scout but through pack *3 defendant, Council, that through its Columbia-Pacific rejected plaintiff’s registration ground form on the It that plaintiff alleged plain- is female. is further tiff all in qualifications meets for participation Boy Scouts of America is female except plaintiff male; rather than that defendant is a of "place public (within 30.675) accommodation” of ORS meaning in that it is an in organization sponsored part by scouting schools and funds and offers public public services and in programs public to members of Oregon; that defendant’s exclusion of from plaintiff the cub of scouting program policy and defendant’s limiting its of the male sex is a membership persons distinction, discrimination or restriction on account of in sex violation of ORS 30.680. Plaintiff prays $100 general damages and a that defendant’s declaration of America plaintiff Boy exclusion from the Scouts of constitutes a violation 30.675. of ORS defendant’s
Plaintiff makes no contention accept application constitutes a violation refusal to her rights United under either the her constitutional of Oregon Constitution, she contend nor does States or the Federal Civil defendant’s conduct violates that Rights (42 seq.). §§ Her 2000a et of 1964 USCA Act grant that defendant’s refusal contention is sole membership America violates in the Scouts of (ORS Oregon’s 30.670- Act Public Accommodation 30.685). provides as follows: The Act of this jurisdiction persons "30.670 All within equal accommoda- entitled the full and state shall be any place tions, of advantages, privileges facilities and distinction, accommodation, any dis- without public of race, religion, account of or restrictiоn on status, crimination sex, origin. national marital color or (1) accommodation, subject public A place "30.675 of (2) section, means of this in subsection exclusion public accommoda- offering to the any place or service tions, privileges whether advantages, facilities or services, lodgings, amusements or other- goods, nature of wise.
"(2) does However, place public accommodation institution, place or any bona fide club not include distinctly private. nature which is its accommodation distinction, any against All whom persons "30.680 race, religion, restriction on account discrimination or status, origin has been sex, or national marital color accommodation, as defined any place made such 30.675, acting on behalf of person in ORS or abetting place such by any aiding or person place or cause of have a of ORS 30.685 shall person violation damages punitive compensatory action to recover place or manager of such operator or from or the place such acting on behalf of employe person or In the action person. place of such or aider or abettor person employe manager place, such operator or or abettor or the aider place on behalf of such acting jointly severally be liable. person shall place such *4 section shall damages under this Any recovering person by determined attorney fees as reasonable be entitled to necessary disburse- to costs and in addition court ments. aid or abet any person to unlawful for It is
"30.685 ] [ 330 any place public аccommodation, as defined in ORS any person acting place 30.675 or on behalf such any distinction, make discrimination restriction on religion, race, color, sex, account of marital status or origin.” national contrary, among Defendant contends to the other things, legislative history of ORS 30.670 et seq. purpose shows that the of the Public Accommoda- Act tion is to bar discrimination in businesses goods legis- offer or services to the that "the * * * organizations lature did not intend to force like change long membership Scouts to established policies,” interpret and that to so law lead would "absurd, unreasonable results.” judgment,
In our this court need not decide whether interpretation the "broad” Accommoda- of the Public urged plaintiff tion Act would or would not lead applications by boys to such as a results flood partiсipate attend and in all girls "accommodations” provided oper- camps "services” ated in summer organizations Camp such Girls, as the Fire including dormitory accommodations, or whether such a result would be "absurd or unreasonable.” The "place reason, view, in our is that the term or service” "ambiguous,” legal at sense, least in a because the the "place” general words and "service” are terms and meaning any given intended of such words in context may depend upon the intent with which words such may properly used.1 reason, were consider the For that this court legislative history of ORS 30.675 for the purpose determining, possible, if intent legislature in the use of that term.2
The Public Accommodation Act was first enacted in County, 553-54, Allen 1See v. Multnomah 179 P2d 475 Or 173 (4th (1946); 1973). 4-5, Statutory § 2A ed Sutherland 45.02 Sands Construction (1968). Sisney, 198, 200-01, State 2See v. 250 Or 372 See also P2d Dairy al, 305, 317, 193 Sunshinе v. Peterson et Or P2d See generally Statutory Construction, supra 1, 181-227, 2A Sutherland ch note 48. [ *5 enacted, originally prohibited 1953. As discrimina- race, religion, tion "on account of color or national ori- accommodation,” any of gin” "place public was defined as follows:
"* * * hotel, court, any any place motel or motor offering public consumption to the food or drink for on premises, place offering public or to the enter- * * tainment, amusement; Oregon recreation or 1953, 872, 873, 495, § Laws ch 2.
According to a by statement one of principal sponsors that statute at a hearing its consid- during eration the State and Federal Affairs Committee of the Oregon House Representatives 7,1953, April on it appears that the intended purpose of bill was to prevent "operators owners of catering businesses to the general public to subject Negroes to oppression * * added) and humiliation *.” (Emphasis
In the law was amended to define a "place of public accommodation” as:
"(a) hotel, motel, Any court, park motor trailer or campground.
"(b) Any place offering the public food or drink for consumption premises. on the
"(c) Any place entertainment, offering public to the 1957, 1328, recreation or Oregon amusement.” Laws ch 724, § 1. Judiciary minutes of the Senate to the According Yturri 10, 1957, Anthony May Senator Committee for Field, spon- Shirley one asked Representative amendment, organiza- whether fraternal sors of that "private she replied be included and tions would would not be covered.” clubs or institutions In the definition a accom- "place public again was modation” amended to read: "(a) hotеl, motel, Any court, park motor trailer campground.
"(b) Any place offering drink for public to the food or consumption premises. on or off the
"(c) entertainment, Any offering place to the recreation amusement.
"(d) Any place offering public goods to the or ser- 1961, 301, 247, § vices.” Laws ch 1. According testimony Hill, E. Shelton Execu- tive Director of Portland, the Urban League of at hearing of Senate State and Federal Affairs Com- mittee on February 9,1961, and others who testified at time in support amendment, of that the purpose (d) subsection adding was to end discrimination salons, health and beauty barber and medical shops services.
The Public Accommodation Act was last amended in 1973 to include discrimination based sex and upon marital status and to define a "place public accom- modation” as: "* * * any place, or offering service public to the accommodations, advantages, privileges facilities or
whether goods, services, nature of lodgings, added) amusements (Emphasis otherwise.” ORS 30.675(1) In view of plaintiff’s contention that the legislature intended by this amendment to include such "services” as "the provision of scouting organiza- services” an tion such as the America, Scouts of the legislative history of this 1973 amendment particular also of significance.
On March Meyers, Eleanor M. Director of the Women’s Equal Employment Opportunity Pro- gram in the Civil Rights Division of the Bureau of Labor testified to the House Committee on State Federal Affairs that the 1973 amendment "* * * including in the public definition of a accom- 'any place modation offering to the public goods and ser-
vices’ would business literally phases include all soliciting public pаtronage, including granting of the use of credit and financing and loan services which is one of the widespread most areas of discrimination based on added) (Emphasis sex.” To the effect, same appears from audio records of the 2, 1973, March meeting of House Committee, ques- and Federal Affairs this
State tion considered: specifically was "I’m not certain of Representative:
Unidentified taken, but would role that the YMCA and YWCA have they segre- I are presume in fact affect them? [bill] gated by sex?” Meyers: "Well, they basically private are Eleanor organizations. membership I whether there don’t know distinctly private any questions being are their about
not, basically they organizations. private I think are but they open Now where facilities for accommoda- rights, thing. membership tion without that’s another I their But I facilities is most thеm do. that use of believe believe It is member- both sexes. open people ship equal open that is not on an basis.” [bill] And this wouldn’t Representative:
Unidentified them?” affect Meyers: "I it would as such.
Eleanor don’t believe It question depends needs further research. That’s a distinctly private.” on (Emphasis services be called what could added) It appear foregoing prim would from ary Oregon legislature concern purpose its enactment Accommodation Public Act business or com was to discrimination prohibit to the goods mercial which offer or services enterprises public. *7 by also the views supported
This conclusion the of the Civil by then Administrator expressed in a Rights Oregon of the Bureau Labor Division Act entitled summary of Public Accommodation — Laws Bill 2116 1973 Amendments to "House shortly and after Against Discrimination” prepared There, purpose of the Amendments.3 passage public оf the the definition "place amendment accommodation” was stated be as follows: " simplifies place public and definition Clarifies 'any offering to place to read or service accommodation CLE, Legis summary, Oregon Bar see State 3For the text of lation 186 accommodations, advantages, facilities or privileges services, whether in goods, lodg- the nature of ings, amusements or otherwise.’ legislative history clear that is intended to be a broad one definition apply and to to all types goods businesses which offer This includes the services of loans, public. and/or services to the credit, financing mortgages, well insurance as added) hotels, motels, sales, (Emphasis retail etc.” true, It may be as contended by plaintiff, Boy Scouts of America is not a place "bona fide club or of accommodation which is in nature distinctly its pri- vate,” so as to come within the exemption provided by 30.675(2) ORS from compliance with provisions of Oregon Public may Accommodation Act. The same also true be YMCA YWCA.
If, however, as would from the appear legislative history Act, of that the Oregon legislature intended that services by offered the YMCA and YWCA would (with not subject be to the provisions of the act possible exception of the operation of facilities for "public accommodation” without membership rights), it is difficult to see how the legislature could have intended different application of that Act to the Boy Scouts of America.
The Boy Scouts of by America has been chartered Act of Congress as an organization boys and is expressly exempt from federal laws relating to sex dis- 1681(a)(b). § crimination. 36 § USC 21 еt seq.; USC It be, may dissent, as stated that in of such spite statutes the Oregon legislature has the power require organization such an comply with statutes, including relating those to discrimination. It may true, also be dissent, as stated that similar statutes adopted by the legislatures of other states have been construed in such a manner applic- as to be able to the Boy not, Scouts need of America. We however, case, decide questions those in this because the issue presented in this case is whether the Oregon legislature intended this statute to have such an application. *8 ] fully
We are aware of the limitations which this recognized considering, part court has as a of the legislative history including statute, this sta hearings tute, statements made at committee statements made after the enactment of a statute.4 In opinion, legislative history however, our Oregon Act, Public Accommodation when taken as a sufficiently compel whole, is clear so as to the conclu "place public accommodation,” sion that the term defined as by 30.675, ORS as amended was not by Oregon legislature intended to include requiring America, Scouts of at it least to extent of accept applications by girls membership.5 plaintiff’s complaint allege It follows that failed to facts sufficient to constitute a cause of action and that properly the trial court sustained demurrer to that complaint.
Affirmed. specially concurring.
DENECKE, J.,C. specially statutory I concur to state a rule of con- preferable I struction which believe is to that stated in majority opinion. majority The states: «* * * rp^greas0I1) 'place view, in our is that the term 'ambiguous,’ legal sense, or servicе’is at least in a 'place’ general because the words terms 'service’are meaning any given and the intended of such words in Co., 649, 652-53, Thompson P2d v. Ins. 274 Or 4See IDS Life 203,209-10, Statutory §§48.06 and 2A Sutherland Construction Cf. (4th 1973). legislative weight his 48.10 ed to be accorded such Sands Thompson, tory evidence is different in this case than in where much better legislative contemporaneous of other intent was available in form Oregon statutes. by may properly affirmed on 5Because the decision the trial court be ground, necessary the additional it is not for this court to consider by interpret Public contentions defendant to the effect that to unconstitutional Accommodation Act cover would render the statute protected Rights and would violate constitutional as of Association Oregon, well of the United and the as the Constitution States State Statеs, Supremacy Clause of the the United as also discus Constitution of sed the dissent. [ may depend upon context the intent with which such *9 reason, may words were used. For that this pro- court perly legislative history the consider of ORS 30.675 for the purpose determining, possible, of if the intent of the (Footnotes deleted.) legislature in the use of that term.” I prefer the rule as in stated United States v. Ameri Trucking Association, 534, can 543-544, 310 US S60 1059, 1345, L 724, Ct 84 Ed rehr den 311 US 61 S Ct (1940): 53, 85 EdL * "* * When aid to of meaning construction the of words, statute, available, used certainly in there can use, be no 'rule of law’ which forbids its however may clear the appear words on 'superficial examination.’ » * * * Murphy,
See Old Maxims Never Die: The ’’Plain- meaning Rule” and Statutory Interpretation ”Modern” Courts, Federal 75 Colum L Rev 1299 (1975). J.,
O’CONNELL, dissenting. The majority holds that the plain thrust of Pub- lic Act Accommodation bar to discrimination in bus- iness аnd commercial activities. I find nothing in the Act nor in the legislative background of the Act which suggests that it was to to apply only business or com- mercial activities. The Oregon Public Accommodation Act is but one of a number of similar state statutes in the United States proscribing discrimination.1 (42 Civil Rights Act of 1964 USCA 2000a et seq.) appears to be aimed at essentially objective. same These comparable have, statutes for the most part, been construed to extend to non-commercial types of 1See, e.g., 41-1441; § § Ariz. Rev. Stat. Ann. Ann. Iowa Code A.2(10); 10:1-5; seq; § N. J. Ann. N. Stat. N. M. Stat. Ann. 4-33-1 et Y. Exec. §Ann. 951 292(9) 40; Pa. Stats. § 43 Consol. Law and N. Y. Rts. Law Civ. 13-7-2(a); 11-24-3; seq; § § Ann. et Utah Code R. I. Gen. Laws Ann. 9.91.010(1). § Wash. Rev. Code also, See additional Public Acts collected Heart Accommodation of 258, States, L S Ct 13 Ed2d Atlanta Motel v. 379 US United 259, n. 8
[ 337 Thus, been discriminatory the statutes have conduct. excluding females practice рreclude applied practice sports preclude competitive from applic- from the Y.M.C.A. withholding membership many There are also cases of their color.2 ants because challenge to sex discrimi- raising equal protection an this con- Although programs.3 in school athletic nation in the present issue has not been raised stitutional case, since analogy a fruitful cases are source such in Public many present of the issues they consider Act cases. Accommodation 30.680, points permits Defendant ORS recovery damages operator manager "from (of accommodation), place” arguing such commercial phrase management relates *10 to one who such services enterprise not performs boys as a of in Scout leading group young Cub It out to refer mаy activities. seem somewhat of focus kind performing any "operator to one services of or of But it to be noted that ORS manager” "place.” a that a of provides "place 30.675 accommodation * * * must, means or ORS 30.680 place service.” therefore, may to reco- say damages be read be [or "the or such operator manager place vered from of service, If it is operate manage service].” one can a why manage difficult see one a operate to cannot (5th Ass’n., Cir 2See, Young F2d 687 e.g., 404 Men’s Christian Stout v. N.C., Raleigh, 1968) Young 397 Christian Ass’n v. Men’s Nesmith of (4th 1968) (federal Rights prohibited discrimi racial Act 96 Cir Civil F2d Women, Chapter Y.M.C.A.); v. Organization Essex National nation mem., 33, 522, 318 Inc., 67 Baseball, Super League A2d N J 127 Little aff’d. (state (1974) 320, in prohibited sex discrimination A2d 198 statute N J 338 also, program). Tillman v. Wheaton-Haven League basеball See Little (1973) (federal 431, 1090, Ass’n., L 403 Ct 35 Ed2d 410 US 93 S Recreation community non-profit Rights prohibited racial discrimination Act Civil association). swimming pool 3See, (1974), e.g., cases in 19 S Dak L Rev 429 and in collected Syracuse L Rev teaching woodcraft, to service which consists how camp.4 knots, live in a tie or how to Cub Scout nothing wording Oregon There is about the of the suggests which that it Act was intended to be confined commercial activities or which to to those activities place particular geographical are carried inon a where goods, dispensed entertainment, services, etc. are public. a Whether nondiscrimination statute such seq. given applica- as ORS 30.670 et is to be a limited goods, accommodations, services, tion etc. which are marketplace found or a and more inclu- broader interprеtation depend upon objectives will sive which lation. adoption type legis-
motivated this original public sought accommodation acts religion, deter on "race, discrimination the basis of origin.”5 recently, color, or national More discrimina tion on the sex basis of or marital status is forbidden.6 type legislation The evil at which is aimed simply denying not the unfairness which results in group they certain material benefits to one when are at the same time made others; available is aimed practices deprive person at the elimination individuality by insisting stamp of his of his class. that he bear the observes, As Kenneth Karst in an article (Oct. Angeles 1974), in 49 Los Bar Bulletin likely terminology 4It is language some of and the thrust of the parts Oregon in some Public Act Accommodation does not fit com fortably parts in other of the Act because of the amendments made to the making Act ch Laws 714. It will be noted these legislature *11 designation specific "place” amendments the eliminated the of "hotel, (.e.g., motel, court, campground),” park, "[a]ny motor trailer or and place offering public "[a]ny place offering to the food or drink” and to the public entertainment, "[a]ny place offering recreation or and amusement” services,” public goods general to the a and substituted the definition of public place "any place offering accommodation as service to accommodations, advantages, privileges facilities or whether in the services, goods, lodgings, otherwise,” obviously nature amusements or expand scope an effort of the statute. 1953, 495, § 5E.g., Oregon ch 1. Laws 6E.g., Oregon 1973, Laws ch 714. ] 339 Law A Note on So Trivial”: "A Discrimination
entitled Dependency: of Women’s Symbolism and * * "* symbolism of sponsorship It is state * * * inferiority unconstitutional. that is chiefly on the impact harmful in its "Inequality is * ** really mat- [W]hat disadvantaged. psyches of something happens that inside inequality is ters about heads: our " * * * is deprivation 'The peculiar evil of a relative affront; moral; it is psychic or it of an consists immediately injurious per- taken insofar as resented or sonally, injurious insofar consequentially ”7 demoralizing.’ is seen interest at stake or moral psychic accom- equal separate but provision that principle objection a constitutional does not obviate modations the Four- Protection Clause Equal on the based that the so-called It is apparent teenth Amendment.8 merely expression an movement is not "women’s lib” goods of women because on thе part of dissatisfaction them to the are not made available and services They men. seek they are available same extent depend- image of women’s eliminate the traditional female to certain traditional relegation their ence and roles.9 Michelman, Protecting Through quote the Poor 7The is from "On 7, Amendment,”
Fourteenth L Rev 49 83 Harv See, Education, L Ed Ct US 74 S Brown v. Board (1954) school) 873, 526, Memphis, 373 US (public v. 38 ALR2d and Watson facilities). (1963) 1314, 10 529, 538 (public L recreational 83 S Ct Ed2d based that a classification proponents contend of this view do not 9The employed only with employed, be cannot upon never be but sex can Karst compelling interest. As societal justifying it the basis of some on out — — Inequality inequality. is built course, any implies law law "Of notes: necessarily sanctions; And legislation classifies. system into a of norms symbol symbols. law-аs-rules, necessarily system Some law, is at least system legal inescapable have law. A inequality if we are to thus ism legal symbolism is a constitutionally employing such disabled from remedy self-defeating However, system no such cannot function. sensitivity impact of judicial to the required special required. What is is a citizenship, on symbolism any person’s first-class legislative any sense of on Doctri- individuality, independence and self-worth. person’s sense of [ 340 *12 It is no answer high to a school who seeks to be girl as a accepted varsity member of the tennis team that the tennis facilities good women are as or better enjoyed by than those boys varsity; who on play — she recognition demands as an individual the oppor- tunity to demonstrate that whatever her image sex may denote as tradition, a result of she as an indi- vidual can do аs well as the males who have excluded her.
Reading Oregon Public Accommodation Act amend- the 1973 which relates against this backdrop, ment of the Act to the movement for women’s psychological independence, I cannot accept major- ity’s narrow interpretation Act, limiting commercial activities or to advantages material such as the obtention of credit.
The majority’s attempt "legislative derive intent” from a few oblique comments by witnesses at the committee hearings speculating about applica- bility the legislation is unproductive. For example, the testimony of Meyers Eleanor is relied upon by the in majority support of the conclusion that the YMCA (and America) and YWCA Boy therefore the Scouts of are not within the "public definition of accommoda- tions.” Apart from the fact the witness’ state- ments are ambiguous inconclusive, they seem clearly in error.10 It is difficult to believe that such testimony would convince the legislature YMCA, YWCA or similar organizations, including nally speaking, sensitivity conveniently expressed such in the notion that classification 'suspect’ requiring justification by on the basis of sex is compelling Karst, state interest.” "A Discrimination So Trivial”: A Note on Symbolism Law and the Dependency, Angeles of Women’s 49 Los Bar Bul- (Oct. 1974). letin Thompson Co., 649, 652, 10In v. IDS Ins. 274 Or 549 P2d Life recently 15, 1976, April decided as this court dismissed the same state Meyers ment upon majority present of Eleanor that is relied "* * * only [I]t case: the comment of one individual and of little or no help determining legislative intent.” "strictly organizations. private” Scouts, were majority’s interpretation the sta- is that effect of the if A would exclude be violated the YMC tute would not bring membership persons. I all cannot black from myself legislature the sta- that the intended to believe permit If discrimination in such circumstances. tute to my reason to belief, there is as much I am correct sex as well that discrimination on the basis of assume *13 proscribed. the basis of color was as on testimony majority’s of Eleanor reliance on the The following por- faulty respect. Meyers The in another quoted Meyers’ the statement Eleanor tion majority would A and YWCA indicates that the YMC public definition of under the 1973 Act included be accommodations "distinctly excep- private” unless the applied: tion Representative: Unidentified wouldn’t [bill] "and [YMCA YWCA]? them affect Meyers: as such. "I it would don’t believe Eleanor depends question It needs further research.
That’s a distinctly private.” would be called on what services majority’s with the сonclusion that This is inconsistent legislature public the intended the accommodations only apply enter- business or commercial act to prises. inconsistency majority’s use exists in The same testimony. Shirley Representative Field’s 1957 include fraternal whether the Act would When asked "private Representative replied, organizations, Field Represen- institutions would not be covered.” clubs or the non-commercial Field did not mention tative recurring organizations. most fraternal nature of history legislative is between in distinction public that which is which is a "distinctly private”; accommodation between
it is not the distinction upon in the relied and non-commercial commercial majority opinion.11 always con inception, 11Since has its Act the Public Accommodation 2; Laws, § "distinctly See, Oregon tained ch private” exception: a 1953 2; Oregon Oregon Laws, 724, 2; Laws, § § ch ch
Laws, ch 714. if was also contends that even defendant Defendant within the or a "service” "place” provided found to be Act, found exception it falls within the meaning institution, 30.675, "any bona in ORS excludes which is in its fide of accommodation place club distinctly nature private.” Boy organization Scouts of America does
Since usually be a term is not club as appear is an question is whether defendant employed, in which is "place "institution” accommodation distinctly Although its nature no evidence private.”12 (since present was adduced case it was decided commonly the demurrer to the it is upon complaint), America known that Scouts of membership any boy within the with- open specified age group It out other limitation whatsoever. is also a matter of common that defendant obtains its knowledge classify financial from support public sources.13 To "distinctly organization an with such private” open (within accessibility age to the at public large and with its financial on such a group) support resting base, broad would be to distort this phrase *14 beyond any attri- meaning conceivable which could be the drafter. buted to
A is made of the point fact the extension in the defen- membership require Scouts would dant and other similar the Girl organizations such as Scouts, Girls, the Camp Young Fire and the Women’s Christian Association either their pro- to restructure grams and some their facilities at consider- physical upon There are numerous cases in which the courts have been called "distinctly making private.” to decide whether a club is or is not In (1) employed determination the Whether the club is factors have included: (3) (2) selective; genuinely organization; whether the members control the (4) members; solely by supported whether the club is its whether there are (5) dues; payment privilege initiation fees and whether for the of member (6) (7) credit; advertises; ship or "dues” is cash or whether it whether is (8) club; private taxed and licensed as a whether the use of its facilities guests. limited to members their (a Way, support Public sources of financial include United Inc. com instances, munity and, raising organization) fund in have included some 1681(a)(6)(B)). programs (cf., § federal education USCS able inconvenience or to withdraw from the state. It is argued further the in any union of both sexes these organizations sacrificing would result in the spe- cial benefits now offered youth single to the of a sex. Recited as another reason limiting the membership as is the prеsently provided prospect supporters the existing programs their contribu- withdrawing tions. highly
It is doubtful crumbling that this of a spectre would organization assume real form. It is well known many in communities YMCA and YWCA organi- zations continue to flourish even though membership (as in each case open to both sexes well as to young non-Christian). and old and to Christian and But even assuming readjustments serious if necessary would be the interpreted Act is the requiring acceptance of both sexes in the I organization, regard do not this as a basis for holding statute The inapplicable. same considerations which apply testing constitution- ality of a statute alleged to deprive plaintiff equal are protection applicable testing the statute involved here. Frequently, equal protection cases, with the compliance court’s сommand to desist serious, from discrimination causes and sometimes costly, readjustments. part This is a of the we price pay equality guaranteed for the I constitution. assume that the legislature recognized that a similar would price existing have to be to remove dis- paid which did parities requirements not meet statute. reasons, I
Upon basis of would foregoing hold that the allegations of plaintiff’s complaint bring this case within the scope of the Public Accommoda- tion Act and therefore defendant’s demurrer should have been overruled. question presented has been court
on this "Did the intend the Public appeal: legislature proscribe girls Accommodation Act to the exclusion of some, will, from the Scouts of America?” for ) [ undoubtedly have the If ring facetiousness. is made inquiry simply right terms of the of a female spеcific person enjoy the benefits which are offered the Boy Scouts program, the obvious answer is that she can get similar by joining benefits the Girl Scouts, the Girls, Fire Camp or the Brownies. But this "separate but equal” argument loses its if the force specific female applicant is seen as the prototype of all women and the defendant’s refusal to admit her as a rejection all women simply they because fall within a particular class. The stake, then, interest at assumes — the form which I have identified above the interest which relates to one’s sense of individuality, independ- ence and self-worth.14 That interest is easier to identify when it put alongside the interest protected where color is the basis of the discrimination. If defendant were to set aup Boy Scout program exclusively for blacks and barred thеm from a separate organization whites, it would be obvious that the classification would be discriminatory. The reason that the classifi- cation is discriminatory is that each black person is entitled to be treated as a person and the classification fails to do this. The interest involved is described Morris, Punishment,” "Persons and 52 The Monist (1968), as follows: right "The to be person treated as a is a fundamental
right belonging to all beings by human virtue of their being human. It natural, is also a inalienable abso- right.” lute this, To Karst adds: "* * * It is basically more right to be treated as one who is free to make independent choices. It is this being
sense of person by legal is undermined rules symbolizing a dependency.”15 woman’s right 14"This to be person treated as a is a right belonging fundamental * * to all beings human Morris, Punishment,” “Persons and 52 The Monist Karst, 15K. "A Discrimination So Trivial”: A Note on Law and the Symbolism Dеpendency, 499,503, Angeles Women’s 49 Los Bar Bulletin (Oct. 1974). n. 22 *16 pro- this is seen as the interest intended to be When it becomes by the Public Accommodation Act tected subordinate necessary that becomes to apparent in fulfill the purpose interests order to other Thus, that, as a strongly one feel although may Act. son learn the he should be entitled to have his parent, exclusively of male surround- scouting principles scouting where the luxury enjoyed cannot be ings, There as a accommodation. is offered program course, is, the of a nothing prevent of to creation organization offering scouting pro- strictly private boys only.16 gram for it, the ring
If this has a and unreal to strange all of the women’s symbolism depen- is that of explanation in our ingrained tradition so dency deeply has been it is difficult our views thinking readjust woman’s rеcognition with the of comport growing equality independence. of the Act argues
Defendant a construction Scouts requiring acceptance girls of into right guaranteed of association would violate First I, § 26 and the Article of Constitution the United States and Fourteenth Amendments defendant "governing principle,” Constitution. asserts, following dissenting opinion is found Irvis, 107 v. Douglas Lodge Mr. Justice Moose No. (1972): 627, 92 S Ct 32 L Ed2d 407 US "* * * system our rights which associational brown, black, white, and all all all all permit honors Catholic, all They permit also to be formed. yellow clubs established. Jewish, to be agnostic all clubs all Government his or her woman who may tell a man or not as as selective can be must be. The individual associates only Lodge allows the Moose So the fact that he desires. constitutionally guests as join or come Caucasians the Act if in addition seem to be a violation there Nor would boys girls, a open program to both offering public accommodation one boys separate program for offered and a separate program was offered girls.
[ 346 irrelevant, decision of Black Muslims to only admit to their services members of their race.” Taking literally "governing principle,” as a flagrant pro- most form of discrimination would be right under the mantle free associa- tected is, course, The answer with a com- tion. that those may exclusively mon interest associate with whom they only please if it is the kind of association § 26, I, was intended to be embraced within Art. Ore- gon and the Fourteenth Constitution First and Amendments of the United Constitution. States provisions
These constitutional were not intended legislature enacting to restrain the anti- from *17 where, discrimination laws as in the case of the Ore- gon strictly private Act, Public Accommodation institutions are not affected.17 argues
Defendant also
that the enforcement of the
against
Boy
of
Public Accommodation Act
the
Scouts
Supremacy
the
America would violate the
Clause of
Constitution,
VI,
United
pointed
It
States
Art.
Cl. 2.18
Boy
America,
out
the
Scouts of
the Girl
organizations
America,
Scouts of
and similar
have
(36
§
granted
by
interprets
Congress
been
charters
Act of
USCA
seq.).
21 et
Defendant
this as a declaration
policy
goals
Boy
precepts
that the
of
and
of the
Scouts
by
encouraged
participation
of America can best be
See, Annotation,
right
is not absolute.
to freedom of association
17 The
may
7[b],
§§
therein. States
6[a] and
and cases collected
33 L Ed2d 865
compel
a
constitutionally
in furtherance of
freedoms
limit associational
subject
power to
regulation
within the state’s
ling
in the
of a
state interest
equally well
long
compelling
served
regulate,
interest cannot be
as the
so
Party
See,
regulation.
American
through significantly less burdensome
of
(1974).
744,
1296,
White,
767,
The
L Ed2d
760
39
v.
415 US
94 S Ct
Texas
compelling state
of a
in furtherance
Accommodation Act is
Public
inhe
power
regulate
of the evils
the state’s
interest within
—elimination
sex,
race,
religion,
status or
marital
the basis of
rent in discrimination on
significantly less
regulation
made
origin
could not be
the
national
—and
equally well.
interest
and still serve the state
burdensome
be
Constitution,
which shall
the United States
the Laws of
and
18"This
* * *
Land;
supreme
the
Law
shall be
thereof
made in Pursuance
any Thing
thereby,
every
Judges
be bound
State shall
the
and
notwithstanding.”
Contrary
any
to the
State
or Laws
Constitution
sex. Assum-
limited to
of thе same
persons
programs
the method
the
to so limit
Congress
power
has
ing
out,19 there is
carried
which such
are to be
programs
Boy
intended to authorize
Congress
indication
no
in violation
sex discrimination
practice
Scouts
fact,
Boy
the
Scouts char-
language
law. In
the
state
intent:
contrary
demonstrates
ter
chapter
created
corporation
"The name of
America’,
it
'Boy
by that name
be
Scouts of
and
shall
*
*
*
*
* *
by-laws,
power
adopt
make and
shall have
rules,
with the laws
regulations
not inconsistent
* *
America,
any
State
the United States
thereof
added.)
§
(Emphasis
36 USCA 22.
since Con-
is no
Clause
Supremacy
problem,
There
if
girls
exclude
did not authorize
Scouts to
gress
be inconsistent with state law.20
do so would
League
Women,
Chapter
Organization
v. Little
Essex
19 InNational
(1974),
Baseball, Inc.,
Super
defendant
A2d
127 N J
Baseball,
by Congress,
League
argued
Inc. was chartered
that since Little
legislation.
precluded
The court stated:
state
inconsistent
<>** * Moreover,
beyond
any purpose
policy
ascription
Congress’
incompatible
grant
with
charter would be
mere
of a federal
power
corporations.
limited
to create
corporations.
power
“Congress
explicit power
to create
has no
clause,
means,
necessary
proper
only
to effec
as a
under
exists
government.
expressly
upon
powers
the national
conferred
tuate
Fletcher,
(1819);
316, 4
Maryland, 4
L. Ed. 579
see
Wheat.
M’Cullochv.
Corporations, §
conceiveof
Cyclopedia
Since it is difficult to
incorpora
congressional
underlying
express power
charter of
Baseball,
League
exercise
is itself a tenuous
Littlе
charter
tion for
power,
Moreover,
being
underlying express
power.
there
no
of federal
the charter cannot be
policy
any substantive
deemed intended to effectuate
*18
purpose.
purpose
being
charter-
views as to the intent and
"These
our
act,
Against
ing
Discrimina-
determine whether the Law
it remains to
Division,
tion,
is whether
applied
with it. The test
conflicts
accomplishment and execution of
latter 'stands as an obstacle to
Davidowitz,
objectives Congress,’
312 US
purposes
Hines v.
full
52,
(1941)
67-68,
399, 404,
quoted
approval in
with