MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plаintiffs have been denied membership in the Boy Scouts on the sole ground that they are unwilling to profess a belief in a Supreme Being or God. In their attempt to gain membership in the Boy Scouts, they have brought this lawsuit pursuant to Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, which prohibits places of public accommodation from discriminating on the basis of certain criteria, including religion, which Congress has determined are inappropriate. 1
This case is currently before the Court on defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The purpose of such a motion is to challenge the sufficiency of the complaint’s factual assertions to state a legal claim for relief. Accordingly, for purposes of deciding the motion, the Court is required to assume that the factual allegations of the complaint are true.
Banner Industries v. Central States Pension Fund,
The Court notes that defendants do not argue that lack of belief in God is a viewpoint which is not protected against religious discrimination.
See EEOC v. Townley Engineering & Mfg. Co.,
II. FACTS
Plaintiff Mark Welsh is the seven-year-old child of plaintiff Elliott Welsh and Donna Arsenoff. He lives with his parents in Hinsdale, Illinois, where he attends first grade. Neither plaintiff is a member of any organized religion, nor does either of them “firmly believe in a Supreme Being (God).” (Complaint II 3(b).) 3
Defendant Boy Scouts of America (“BSA”) is a voluntary, charitable membership organization chartered by Congress in 1916 pursuant to 36 U.S.C. §§ 21-29. The purposes of the organization, as stated by Congress, are:
to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues, using the methods which were in common use by Boy Scouts on June 15, 1916.
36 U.S.C. § 23.
BSA is a civic organization which promotes, inter alia, good citizenship, physical fitness and camping for boys seven years of age and older. It encourages or requires adult family members of. minor applicants to join BSA as supervisors. On plaintiffs’ information and belief, BSA has over 4,000,000 members nationwide. Defendant West Suburban Council Boy Scouts of America (“Council”) 4 is a local chapter of BSA located in LaGrange, Illinois. (BSA and the Council shall be referred to collectively as the “Boy Scouts.”)
The Tiger Cubs is a BSA program for boys who are seven, years old or in the first grade. On or about September 11, 1989, at Anne Jeans Grade School, Mark Welsh was supplied with a flyer inviting students to join BSA Tiger Cub Scout Pack 56. The flyer stated that a recruitment meeting for the Tiger Cubs would take place on September 15, 1989 at the Palisades School in Burr Ridge, Illinois. 5
Mark Welsh attended the September 15 meeting along with Elliott Welsh, intеnding to enroll in the Tiger Cubs. At the meeting, Elliott Welsh was given an application to fill out for himself and his son. 6 At that time, plaintiffs learned that application to *1418 join BSA requires the applicant to “recognize an obligation to God” and to take an oath to do one’s “duty to God.” Elliott Welsh discussed these requirements with the scout leader in attendance, Tom Ban-non, who informed him that an applicant would have to agree with the statements regarding God or be barred from participating in BSA.
Plaintiffs left the meeting without applying, but Elliott Welsh subsequently sent a completed application and fees to the Council. On the application, he noted that he could not subscribe to BSA’s Declaration of Religious Principle and the other references to God. The application was returned to him on September 28, 1989, along with a letter from BSA official Richard Corwin, who explained that the application could not be accepted unless the applicants agreed with the Declaration of Religious Principle set forth on the application.
On October 7, 1989, Elliott Welsh wrote a letter to BSA headquarters in Irving, Texas, reaffirming his and his son’s desire to join BSA and suggesting that' BSA should not exclude applicants based on religion. On October 30, 1989, plaintiffs received a reply from Harold Sokolsky, Assistant to the Chief Scout Executive, stating that in order to participate in BSA, adult leaders must sign the Declaration of Religious Principle and youth members are required to acknowledge a duty to God. 7
BSA has also issued a “Reaffirmation of the Position of the Boy Scouts of America on ‘Duty to God’ ” (“Reaffirmation”) which emphasizes the importance of belief in God to the Boy Scouts. 8 There is no indiсation in the record of the circumstances which surrounded publication of the Reaffirmation.
Plaintiffs brought this lawsuit on March 21, 1990, alleging that the exclusion from BSA of individuals who are unwilling to subscribe to BSA’s religious principles violates Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. As relief, plaintiffs seek an injunction prohibiting BSA from maintaining a policy of refusing to admit persons who do not believe in God and requiring the Council to admit Mark Welsh as a youth member and Elliott Welsh as an adult partner. Defendants have moved to dismiss the complaint, arguing that even assuming the facts alleged by plaintiffs, the Court must find that Title II does not apply to the Boy Scouts and, alternatively, that it would be unconstitutional to apply Title II to the Boy Scouts. The Court cannot accept either of these arguments without giving plaintiffs an opportunity to gather and present factual evidence.
III. SCOPE OF TITLE II
A.. Place of Public Accommodation
42 U.S.C. § 2000a(a), the centerpiece of Title II of the Civil Rights Act of 1964, provides:
(a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
Defendants argue that the Boy Scouts is not a “place of public accommodation,” and that the Boy Scouts is therefore not subject to the restrictions of Title II. The statute defines “place of public accommodation” as follows:
Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter if its oрerations affect commerce, or if discrimination or segregation by it is supported by State action:
*1419 (1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertain ment; and
(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.
42 U.S.C. § 2000a(b) (emphasis added). Plaintiffs contend that the Boy Scouts is a “place of public accommodation” by virtue of § 2000a(b)(3) because it is a “place of entertainment.” Defendants argue that the Boy Scouts is not a “place,” is not an “accommodation,” and does not provide “entertainment.” Defendants also argue that Congress specifically excluded the Boy Scouts from the reach of Title II.
1. “Place”
Initially, the Court addresses defendants’ argument that the Boy Scouts cannot be a place of public accommodation because it is not a “place” but rather is a membership organization. Place, according to defendants, refers to a “physical facility.” Boy Scout groups, on the other hand, can meet in a variety of places, and the groups are defined by membership rather than by a particular facility.
In support of this argument, defendants point out that the specific types of facilities identified in Title II all are centered around definite physical places of business. Defendants also rely on several cases which have found that state statutes which prohibit discrimination by a “place of public accommodation” do not apply to organizations which do not conduct business from a specific physical “place.”
See United States Jaycees v. Massachusetts Commission Against Discrimination
(“MCAD”),
Plaintiffs respond by emphasizing that Title II must be read broadly so as to effectuate its purpose of removing “the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.”
Daniel v. Paul,
*1420
All of these state court cases interpret state public accommodations statutes rather than Title II. However, the Court finds the reasoning in the cases cited by plaintiffs to be persuasive. The word “place” in the phrase “place of public accommodation,” as used in the federal and state statutes, is most naturally read to be intended not as restrictivе but rather as a convenient term to apply to organizations which sell or provide goods or services to the public. As stated in
Little League,
“[t]he statutory noun ‘place’ (of public accommodation) is a term of convenience, not limitation. It is employed to reflect the fact that public accommodations are commonly provided at fixed ‘places/
e.g.,
hotels, restaurants, swimming pools, etc.”
As the
Little League
court observed, an accommodation can have a moving situs and still be considered a “place,” as exemplified by a train.
For this reason, it simply would not make sense to intеrpret Title II as applying only to a physical facility rather than to a business or organization, which of necessity inhabits physical facilities, whether they be fixed and unitary or shifting and multi-
*1421
pie.
14
Defendants assert that “A Tiger Club [sic: Cub] group meets where it will: a church basement, a private house, or a backyard may be a Tiger Cub group meeting on a transitory basis.” (Mem. in Support at 11.) Defendants do not argue that a church basement, a house, or a backyard is not a “place.” Furthermore, it would be impossible in practice to draw a distinction between “places,” which defendants argue are covered by Title II, and “membership organizations,” which defendants argue are not covered by Title II. Many establishments are membership organizations which center their activities around certain definable places. When exclusionary practices of such organizations have been challenged pursuant to Title II, courts generally have focused more on the membership practices of the organizations (in particular, the selectivity of the membership process) than on the characteristics of the physical facilities involved (such as openness to the public).
See, e.g., Durham v. Red Lake Fishing and Hunting Club, Inc.,
Thus the distinction advocated by defendants would be arbitrary, unworkable in practice, and contrary to the statute’s remedial purposes. 15 The Court finds no basis for excluding from Title II’s reaсh organizations which do not operate a unitary, definite “place” of business but rather carry out their activities in a large number of temporary locations. Accordingly, the Court rejects defendants’ argument that the Boy Scouts cannot, as a matter of law, be subject to the provisions of Title II because it is not a “place.”
2. “Accommodation”
In order for an establishment to constitute a “place of public accommodation,” it must fit within one of the categories described in 42 U.S.C. § 2000a(b). See supra at 1419. Plaintiffs contend that the Boy Scouts is a “place of entertainment” and thus fits within § 2000a(b)(3).
Defendants dispute this characterization, arguing that the function of the Boy Scouts is education rather than entertainment. Plaintiffs respond by emphasizing the language in the Boy Scouts flyers, which seek to attract new members by emphasizing that members “have fun.”
(See
Appendix A.) Plaintiffs also point out that “places of entertainment” for purposes of Title II include establishments which provide participatory recreational activities as well as those which provide passive entertainment.
See Daniel, supra,
*1422
In light of the Boy Scouts’ own emphasis on recreational activities and having “fun,” as emphasized in the Boy Scouts literature attached to the complaint, the Court cannot conclude as a matter of law that the Boy Scouts is not a “place of entertainment.”
Defendants further argue that the Boy Scouts is not a “place of public accommodation” because a “role in a membership organization” is not an “accommodation.” Defendants rely on Webster’s Third New International Dictionary, which defines “accommodation” as “lоdging, food, and services (as at a hotel) or seat, berth, or other space occupied together with services available (as on a train)....”
For reasons beyond the principle that “one of the surest indexes of a mature and developed jurisprudence [is] not to make a fortress out of the dictionary,”
Cabell v. Markham,
Defendants further argue that at least certain roles in the Boy Scouts, such as Cubmaster and Scoutmaster, are not open generally to the public but rather are open only to individuals who are good role models. Therefore, defendants contend, these specific roles cannot be “accommodations,” and in turn no roles in the Boy Scouts can be “accommodations.” This argument suffers from at least two flaws. First, the question of whether a service is open to the general public does not affect whether it is an “accommodation,” but rather affects whether it is a “place of
public
accommodation” and whether it is a “private club”
(see infra
at 1424-1428). Second, the fact that some aspects of an organization may not be open to the gener
*1423
al public does not remove the entire organization from the scope of Title II. In fact, the converse is true; if part of an establishment is covered by Title II, the entire establishment is subject to its provisions.
See Daniel, supra,
The Court finds that defendants have not established, as a matter of law, that the Boy Scouts is not an “accommodation” for purposes of Title II.
3. Congressional Intent
Defendants also argue that Congress intended to exempt the Boy Scouts from the coverage of Title II. Central to this argument is the language of the 1916 act which chartered the Boy Scouts. That statute provided that a purpose of the Boy Scouts was to train boys “using the methods which were in common use by Bоy Scouts on June 15, 1916.” 36 U.S.C. § 23. Because the Boy Scouts had stated as early as 1911 that “no boy can grow into the best kind of citizenship without recognizing his obligation to God” (see Appendix C), defendants argue that Congress gave its stamp of approval to the Boy Scouts’ exclusion of individuals who could not subscribe to its religious principles. To now interpret Title II as requiring the Boy Scouts to surrender this policy would, defendants maintain, be a finding that Title II implicitly repealed that portion of the 1916 charter which endorsed the methods practiced by the boy Scouts in 1916. Because implicit repeals are not favored, Title II should not be interpreted in this manner.
In support of this argument, defendants rely on
Morton v. Mancari,
The argument that Congress sanctioned the Boy Scouts’ discriminatory policy is too attenuated to permit the extension of Morton to this case. The 1916 charter is not “a specific provision applying to a very specific situation” with respect to the Boy Scouts’ exclusion of individuals who did not believe in God. There is no indication that in recognizing the purposes of the Boy Scouts as including thе use of methods which were in use in 1916, Congress intended to adopt, or was even aware of, the Boy Scouts’ policy concerning religion. 17 Congress was not creating a new organization; it was merely providing official recognition to an existing organization. As the Little League court noted in an analogous context:
[T]he purpose clause of the Little League charter does not signify a congressional policy decision that only boys should play baseball. The statute rather represents only a determination that Little League Baseball, Inc., such as it is, should have a national charter_ Moreover, the ascription of any purpose or policy beyond the mere grant of a federal charter would be incompatible with Congress’ limited power to create corporations.
The Boy Scouts unsuccessfully made a similar argument in
Curran, supra,
in which the court found that California’s Un-ruh Act prohibited the Boy Scouts from excluding homosexual men. The Court held that the language of the charter did not sanction such discrimination and emphasized that in granting the charter Congress gave the Boy Scouts the power to “make and adopt by-laws, rules and regulations not inconsistent with the laws of the United States, or any State thereof....”
The Court concludes that the 1916 charter does not provide statutory authorization for the Boy Scouts to discriminate on the basis of religious belief, and that even assuming such an authorization can be inferred, it does not survive the enactment of Title II. 19
B. Private Club
Title II explicitly excludes “private clubs” from coverage as places of public accommodation:
The provisions of this subchapter shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b) of this section.
42 U.S.C. § 2000a(e). Defendants argue that the Boy Scouts is a private club and is thus exempt from the provisions of Title II. 20
In determining whether an organization is a private club for purposes of Title II, courts have weighed a number of factors. In
United States v. Lansdowne Swim Club,
1. The genuine selectivity of the group in the admission of its members.
2. The membership’s control over the operations of the establishment.
3. The history of the organization.
4. The use of the facilities by nonmembers.
5. The purpose of the club’s existence.
6. Whether the club advertises for members.
7. Whether the club is profit or nonprofit.
8. The formalities observed by the club, e.g., bylaws, meetings, membership cards.
The burden is on defendants to prove that the Boy Scouts is a private club.
Lansdowne,
With respect to selectivity of membership, plaintiffs allege that the Boy Scouts is open to all members of the public who subscribe to the Boy Scouts’ religious principles. Plaintiffs emphasize that the literature distributed- by the Boy Scouts appears to extend an open invitation to all boys and their adult relatives. One flyer states, for example, “You can join Tiger Cubs, BSA if you are in the first grade.” (See Appendix A.) The flyer further states:
Q. Who can be a Tiger Cub?
A. Any boy who is in the first grade (or is 7 years old) may join Tiger Cubs, BSA, with his adult partner.
Q. Who can be an adult partner?
A. Any adult 18 years of age or older can work with the boy in Tiger Cubs, BSA. This can be mom, dad, an aunt, uncle or grandparent, an older brother or sister,, or even a neighbor.
(See Appendix A.)
The Court also notes that there is no evidence in the record of any standards— other than the Declaration of Religious Principle — that the Boy Scouts use to screen membership applications. The lack of such standards is а significant factor weighing against a finding that an organization is a private club.
See, e.g., Lansdowne,
Over 2,000 applications by whites have been made since 1969 and all of them have been accepted. No interview is conducted, no recommendation is required, no evaluation of the youth is made, no discussion of the benefits the youth offers to SYFA occurs. In short, an application from a white youth is automatically accepted if he tenders the requisite fee, a waiver of liability signed by his parents, and is of a certain age and weight. These criteria reflect a total lack of genuine selectivity.
The fact that the Boy Scouts exercises some selectivity by rеquiring members to sign the Declaration of Religious Principle does not in itself show that the organization is a private club. This is illustrated by
Daniel, supra,
in which the Supreme Court found that a recreation club was not private even though it exercised some selectivity by excluding black persons from membership.
Another instructive example is Fraternal Order of Eagles, supra, in which the defendants moved to dismiss a Title II lawsuit on the basis that the organization was a private club. The court noted that the organization had formal membership requirements which included the following:
(1) “[e]very applicant for membership in any Local Aerie shall be recommended by two members of the Order”; (2) “[n]o person shall be eligible to be elected to membership in any Local Aerie unless such person is a male, is of good moral character, and believes in the existence of a Supreme Being, ...”; (3) “[n]o application for membership shall be considered if the applicant shall not reside within the jurisdiction of the Aerie to which such application is submitted”; (4) “[ejach person desiring to become a member of an Aerie must properly fill out and sign an application ... ”; (5) “[a]ll applications for membership ... shall be referred to the Investigating Committee”; and (6) “[ajfter the report of the Investigating Committee is submitted, the application shall be voted upon....”
Furthermore, the requirement that members believe in God is scarcely a restrictive criterion. There are countless individual interpretations of what “God” is or what it means to “believe in God.” Cf. H.P. Owen, “God, Concepts of,” 3 Encyclopedia of Philosophy at 344 (“It is very difficult — perhaps impossible — to give a definition of God that will cover all usages of the word and of equivalent words in other languages.”). The Boy Scouts chooses not to address this dilemma: “It is not the role of the Boy Scouts of America to give theological interpretations. Religion is the respon *1427 sibility of the Scout’s family and religious leaders.” (Appendix C.) Based on the Boy Scouts’ emphasis on its nonsectarian attitude (see also Declaration of Religious Principle, Appendix B), it apparently makes no difference to the Boy Scouts whether one believes that God is male, female, or neither; whether one believes that God consists of three entities or one; or whether one believes that God exists apart from the natural world or is synonymous with it. The Boy Scouts apparently believes, for instance, that Protestant members are willing to participate alongside of Catholics, Jews, Buddhists, Hindus, Unitarians, Deists, Hare Krishnas, and adherents to all religions known to humankind, but not atheists or agnostics. Indeed, the concept of “God” is sufficiently vague that it is difficult to understand how the Boy Scouts can actually use, in practice, belief in God as a criterion for membership. 21
Thus consideration of the most important factor in the private club analysis — selectivity of membership — does not, at this stage, support defendants’ position that the Boy Scouts is a private club. Although there is some meager evidence in the current record concerning the other relevant factors (supra at 23), the Court will not analyze those factors individually at this stage. Defendants do not argue that an application of those factors mandates a finding that the Boy Scouts is a private club, and in light of the factual nature of the inquiry and the literature quoted by plaintiffs such an argument would not have a realistic chance of succeeding in the context of a motion to dismiss. Rather, defendants emphasize the legislative history, which they maintain demonstrates that Congress intended to include the Boy Scouts in the concept of private club.
In support of this argument, defendants cite a passage from the floor debate concerning Title V of the Civil Rights Act of 1964. Representative George Meader was asked whether an exеmption for private clubs from Title Y’s provisions concerning the Civil Rights Commission’s authority to collect and distribute information 22 would cover “such organizations as the Boy Scouts of America, the Girl Scouts, the Future Farmers of America, the 4-H Clubs — that type of organization.” Representative Meader replied, “That would be covered by the term ‘private club’ like the Kiwanis Club, the Lions Club, and so forth.” 110 Cong.Rec. 2296 (Feb. 6, 1964). 23 From Representative *1428 Meader’s comment about Title V, defendants infer that Congress as a whole intended to include the Boy Scouts in the “private club” clause of Title II.
The Court cannot agree. Although statements of individual legislators may have some relevance to statutory interpretation, they are by no means controlling.
See Weinberger v. Rossi,
C. Conclusion
If the Boy Scouts were not a place of public accommodation, or if it were a private club, Title II would not only not prevent the Boy Scouts from excluding individuals who do not believe in God, it would also not prevent the Boy Scouts from engaging in other forms of discriminаtion as well. For instance, the Boy Scouts could exclude members of a racial minority or members of a particular sect of Christianity. Under such circumstances, the case would essentially be unchanged. If the visceral reaction would be different, it would serve only to demonstrate the persistence and depth of discrimination against atheists. See infra at 1433-1434. To argue that Title II does not prohibit the Boy Scouts from discriminating against atheists is to argue that Title II does not prohibit any type of discrimination by the Boy Scouts. As the Court has described above, defendants have not shown that the Boy Scouts are not subject to Title II. Further, if there is a principle which specifically allows the Boy Scouts to discriminate against individuals who do not believe in God, it must be that individuals who believe in God should not be required to associate with individuals who do not. That issue concerns not the scope of Title II, but the scope of the First Amendment. It is to the constitutional issues which are thus raised that the Court now turns.
IV. FREEDOM OF ASSOCIATION AND FREE EXERCISE
Defendants argue that application of Title II to the Boy Scouts would infringe on members’ freedom to associate, which is guaranteed by the First Amendment to the United States Constitution.
24
There are two types of freedom of association which have been afforded constitutional protection — freedom of intimate association and freedom of expressive association.
See Board of Directors of Rotary International v. Rotary Club of Duarte,
A. Intimate Association
The Supreme Court has recognized that the Bill of Rights, in order to “secure individual liberty,” must afford protection from unjustified governmental interference to “certain kinds of highly personal relationships.”
Roberts,
Although freedom of intimate association may extend beyond family relationships, it generally includes only relationships which, like family relationships, “are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.”
Id.
at 620,
In arguing that membership in the Boy Scouts is a form of intimate association protected by the Constitution, defendants contend that such membership involves the education of children. Defendants point out that in
Roberts,
the Court cited, as examples of cases recognizing that “highly personal relationships” must be protected from unjustified governmental interference, the cases of
Pierce v. Society of Sisters,
This is not a case where the government has directly impinged on the interests of parents or guardians to educate their children. Title II, as plaintiffs wish to apply it, does not affect the children’s schooling, and to the extent that the Boy Scouts may have an educational function in addition to traditional schooling, Title II does not forbid a parent from ensuring that a child is exposed to that function. Title II would merely require that to the extent the Boy Scouts educates children, it do so without excluding certain children on the basis of criteria which Congress has determined to be improper.
In arguing that Title II infringes on rights to intimate association, defendants do not even discuss the specific factors recognized by the Supreme Court as governing the determination of whether a particular relationship constitutes intimate association. Plaintiffs, on the other hand, argue that an examination of those factors precludes any finding that the Boy Scouts involve intimate association. As alleged in the complaint, the Boy Scouts has over 4,000,000 members in the United States. Furthermore, as evidenced by the Boy Scouts literature attached to the complaint, the Boy Scouts is not selective in its admission of new members.
(See supra
at 1425 -1427.) Assuming the truth of the complaint’s allegations, the Boy Scouts is thus very similar in structure to other groups which have been held not to involve intimate association.
See Rotary International,
B. Expressive Association
1. Engagement in Expressive Association
The right to associate for expressive purposes stems from an “individual’s freedom to speak, to worship, and to petition the government for the redress of grievances[, which] 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.”
Roberts,
Defendants argue that application of Title II to the Boy Scouts “not only would ... require a change in the Boy Scouts’ creed that ‘no member can grow into the best kind of citizen without recognizing an obligation to God’ ..., it would restrict Boy Scouts’ ability to 'exclude individuals with ideologies or philosophies different from those of existing members.’ ” (Reply Mem. at 8-9.)
This argument begs the question. Clearly application of Title II restricts the ability of a place of public accommodation to exclude individuals with different religious philosophies, just as it restricts the ability to exclude individuals on other grounds, such as race. However, while “[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, ... it has never been accorded affirmative constitutional protections.”
Norwood v. Harrison,
*1431 Defendants do not call the Court’s attention to specific expressive activities which the Boy Scouts conducts- — and indeed, consideration of such activities would be of dubious merit in the context of a motiоn to dismiss. 26 Furthermore, the Boy Scouts’ own literature states that “partisan political activities are prohibited.” (Appendix B.) To support the assertion that the Boy Scouts involves expressive association, defendants merely argue:
The Boy Scout movement is designed and intended to transmit moral, spiritual, and cultural values. One of the purposes of the Scouting program is to help boys become honorable men. The members of Boy Scouts believe that this objective is best accomplished when a boy is taught to believe in God and to acknowledge a duty owed to a Supreme Being.
... Teaching boys to become men by insisting on recognition of a duty to God is expressive association “intended to develop good morals, reverence, patriotism, and a desire for self-improvement.”
(Mem. in Support at 15.) Defendants appear to argue that because the Boy Scouts is bound by a common belief, it follows as a matter of law that it engages in expressive association. A whites-only athletic club might similarly argue that its members are engaged in expressive association merely because they are bound by a common belief that whites are better than blacks. Without more than such a common belief, the Court cannot find, as a matter of law, that an organization engages in expressive association. 27 Whether an organization engages in expressive association is a question of fact, and questions of fact are not appropriately considered in connection with a motion to dismiss. Further, even if the Court were able to engage in a factual inquiry at this stage, defendants have set forth no facts which could lead to a finding that the Boy Scouts engages in expressive activity.
2. Unjust Infringement of Right to Expressive Association
Even were it to assume that the Boy Scouts engages in expressive association, the Court would next need to inquire whether the Boy Scouts’ freedom to engage in that expressive association is unjustly infringed by application of Title II. “The right to associate for expressive purposes is not ... absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”
Roberts,
In this case, it is not clear how Title II infringes on any expressive association in which the Boy Scouts may engage. Although the record does not indicate what those expressive activities may be, it does appear that they would not relate to religion. The Tiger Cubs membership application makes it clear that religious expression is not central to the Boy Scouts’ activities:
The Boy Scouts of America recognizes the importance of religious faith and duty; it leaves religious instruction to the member’s religious leaders and family. Members who do not belong to a unit’s religious chartered organization *1432 shall not be required to participate in its religious activities.
(Appendix B.) Similarly, the Declaration of Religious Principle provides:
The Boy Scouts of America maintains that no member can grow into the best kind of citizen without recognizing an obligation to God and, therefore, recognizes the religious element in the training of the member, but it is absolutely nonsectarian in its attitude toward that religious training. Its policy is that the home and the organization or group with which the member is connected shall give definite attention to religious life.
(Appendix B.) It thus appears that the Boy Scouts does not engage in overtly religious activities or expression, and accordingly that requiring the Boy Scouts to admit individuals who do not believe in God would not require the organization to alter any of its activities. Again, resolution of this issue is a question of fact, but even if the Court could resolve questions of fact to decide the motion to dismiss, it could find no basis, on the present record, for concluding that acceptance by the Boy Scouts of members who do not believe in God would have any effect on expressive activity — just as in
Roberts
there was no basis for concluding “that admission of women as full voting members will impede the organization’s ability to engage in ... protected activities or to disseminate its preferred views.”
Perhaps the Boy Scouts believe that its ability to express its views on non-religious matters would be affected by admission as members of individuals who do not believe in God because such individuals may have a different agenda than that of those who do believe in God. Such an argument, although theoretically plausible, would be an uphill battle. As the Court stated in Roberts, where it found no support for such an argument in the record:
In claiming that women might have a different attitude about such issues as the federal budget, school prayer, voting rights, and foreign relations, or that the organization’s public positions would have a different effect if the group were not “a purely young men’s association,” the Jaycees relies solely on unsupported generalizations about the relative interests and perspectives of men and women. Although such generalizations may or may not have a statistical basis in fact with respect to particular positions adopted by the Jaycees, we have repeatedly condemned legal decision-making that relies uncritically on such assumptions. In the absence of a showing far more substantial than that attempted by the Jaycees, we decline to indulge in the sexual stereotyping that underlies appellee’s contention that, by allowing women to vote, application of the Minnesota Act will change the content or impact of the organization’s speech.
Furthermore, if the Boy Scouts does engage in expressive association which would be infringed by application of Title II, the Court would have to weigh that infringement against the governmental interests at stake.
(See supra
at 1431.) The governmental interests served by Title II are compelling and unrelated to suppression of ideas. “[T]he fundamental object of Title II was to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’ ”
Heart of Atlanta Motel, Inc. v. United States,
On its face, the Minnesota Act does not aim at the suppression of speech, does not distinguish between prohibited and permitted activity on the basis of viewpoint, and does not license enforcement authorities to administer the statute on the basis of such constitutionally impermissible criteria. Nor does the Jaycees contend that the Act has been applied in this case for the purpose of hampering the organization’s ability to express its views. Instead, as the Minnеsota Supreme Court explained, the Act reflects the State’s strong historical commitment to eliminating discrimination and [ensuring its citizens equal access to publicly available goods and services. That goal, which is unrelated to the suppression of expression, plainly serves compelling state interests of the highest order.
Like discrimination on the basis of sex, discrimination on the basis of religion— which Congress expressly included in Title II as an impermissible criterion—is “based on archaic and overbroad assumptions, ... deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life.”
Id.
at 625,
One could fill many volumes with the abuse and calumny contained in the writings of Christian apologists, learned no less than popular. The tenor of these writings is not simply that atheism is mistaken but also that only a depraved person could adopt so hideous a position and that the spread of atheism would be a horrifying catastrophe for the human race.... [According to Ralph Cudworth, for example, djownright atheists were beyond the pale, for they had “sunk into so great a degree of sottishness” that they evidently could not be reached.... “The prevalence of atheism in any land,” [Robert Flint] wrote, “must bring with it national decay and disaster.” The triumph of atheism in England would “bring with it hopeless national ruin.” ... All these quotations are from British *1434 Protestants. Very similar and frеquently more virulent remarks could be quoted from German, French, Italian, and American believers of the same periods.
In France until the Revolution and in most countries until some time later, it was illegal to publish works in defense of atheism, and in fact real or alleged atheists were subject to dire persecution throughout the times of Christian domination. Some of the world’s greatest philosophers were among those who advocated and in some instances actively promoted this persecution.... Plato divided atheists into several groups, all of which must be punished; but whereas the members of some groups required no more than “admonition and imprisonment,” those belonging to others deserved punishment exceeding “one death ... or two.” Aquinas ... had no doubt that unbelievers should be “shut off from the world by death.” ...
... “Promises, covenants, and oaths, which are the bonds of human society,” [John Locke] wrote, “can have no hold upon an atheist.” Moreover, since atheism is not a religion but, on the contrary, a position which is out to “undermine and destroy all religion,” it cannot come under the privilege of the toleration that is justly claimed by bona fide religions....
... When the poet Shelley was an undergraduate at Oxford, he published a short and very temperate pamphlet entitled The Necessity of Atheism. This at once aroused a violent protest which resulted in the burning of all undistributed copies and in the expulsion of Shelley and his friend Thomas Hogg from the university. Some years later Shelley was judicially deprived of the custody of his children on the ground that he was “likely to inculcate the same [atheistic] principles upon them.” As late as 1877 Annie Besant, the noted sоcial reformer, was judged to be unfit to take care of her children on the same ground, although the judge admitted that she had been a careful and affectionate mother. Until the passing of the Evidence Amendment Act of 1869, unbelievers in Great Britain were considered incompetent to give evidence in a court of law. Atheists were thus in effect unable to sue when they were the victims of fraud or slander.... In the United States there has not been similar legal discrimination against atheists, but there is perhaps to this day more de facto discrimination and prejudice than in any other Western country.
P. Edwards, “Atheism,” The Encyclopedia of Philosophy at 174-75 (ed. P. Edwards 1967). Modern thinking has tempered this discrimination. Thus:
there are relatively few people nowadays in whom the thought of atheism and atheists arouses unspeakable horror. It seems to be agreed that an atheist can be a good man and that his oaths and promises are no less trustworthy than those of other people, and in most civilized lands atheists have the same or nearly the same rights as anybody else. What is more, it appears to be generally realized that some of the world’s foremost philosophers, scientists, and artists have been avowed atheists and that the increase in atheism has gone hand in hand with the spread of education. Even spokesmen of the most conservative religious groups have in recent years conceded that atheism may well be a philosophical position that is adopted for the noblest of reasons.
Id. at 174. Title II’s prohibition of religious discrimination is consistent with this modern recognition that stereotyping on the basis of religious belief or the lack of belief in God is unwarranted. As the above passages illustrate, discrimination on the basis of religion is similar in its nature and effects to discrimination on the basis of other criteria which society has deemed inappropriate. The government’s interest in minimizing this discrimination should thus be equally compelling as its interest in minimizing other forms of discrimination.
Although defendants do not expressly raise this argument, there is one possible reason for finding that the interest of the government in eradicating religious discrimination is less compelling than its interest in eradicating other forms of discrimination. The exercise of religion, unlike conduct that discriminates on the basis of *1435 such grounds as race, sex, national origin, sexual orientation, or disability, has an express constitutional stamp of approval in the form of the free exercise clause of the First Amendment. Because the Constitution guarantees one’s right to freely exercise one’s religion, defendants might argue, the government does not have a substantial interest in forbidding discrimination based on religion.
Such an argument, however, would needlessly confuse the disparate rights of free exercise and freedom of association. Title II does not appear to infringe on free exercise rights, for it does not impede an individual’s ability to practice one’s religion. (Such interference would only occur, for example, if it were part of one’s religion to participate in large, public organizations which excluded a certain minority group. See also infra at 1435-1436.) Furthermore, Title II does not impede one’s ability to associate with other individuals for religious purposes. A group of people who share the same religiоus beliefs and gather for the purpose of expressing or acting on those beliefs would have a much stronger defense to a Title II action than a group which is composed of individuals of widely varying and inconsistent religious beliefs who leave religious instruction and practice to each member’s family and religious institutions.
The government’s interest in prohibiting religious discrimination by a sectarian organization which has a true religious purpose would indeed be minimal or nonexistent. However, the Supreme Court’s existing framework for analyzing freedom of association would protect such a group; application of Title II would directly and substantially infringe on the group’s right of expressive association. Such a scenario does not make the government’s interest in combatting religious discrimination in general any less compelling than its interest in combatting other forms of discrimination.
Defendants have not shown that the governmental interests served by Title II’s prohibition of religious discrimination in places of public accommodation are not compelling. Similarly, defendants have not shown as a matter of law that application of Title II to the Boy Scouts would infringe on its members’ ability to engage in expressive association. (See supra at 1431-1433.) Thus, the Court cannot conclude, on the present record, that any infringement of the Boy Scouts’ right of expressive association caused by application of Title II outweighs the governmental interests at stake.
C. Free Exercise of Religion
Defendants also argue that application of Title II to the Boy Scouts would violate members’ rights to the free exercise of religion. Defendants cite no case law for this proposition, nor do they specify precisely how a prohibition on religious discrimination would interfere with members’ ability to practice their religions. They simply argue that application of Title II “would prevent Scouts from joining together with others who, like themselves, believe in God in order to lead reverent lives in which a duty to God is acknowledged.” (Mem. in Support at 16.) However, they do not claim that the Boy Scouts engages in any religious activities, or that membership in a Boy Scouts organization which excludes individuals who do not believe in God is an important part of members’ religions. Furthermore, Title II clearly would not prevent religious individuals from associating with other religious individuals for the purpose of leading reverent lives. Title II may not even prevent such associations from excluding individuals who do not believe in God, for truly selective associations which have a genuine purpose of gathering to “lead reverent lives” may well qualify as private clubs which are beyond the reach of Title II.
Government actions may burden the free exercise of religion in a number of ways, some of which are permissible and some of which are not. First, the free exercise clause precludes governmental regulation of religious beliefs themselves. Accordingly» “[t]he government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side in controversies over religious authority or dogma.”
Employment Division, Depart-
*1436
merit of Human Resources of Oregon v. Smith,
— U.S.-,
Second, the government may not ban performance of physical acts (including assembling with others) if the ban is imposed only when the acts are performed for religious reasons or if the ban is imposed because of the religious beliefs displayed. Id. Here, defendants do not contend that Title II bans discrimination only when, or because, it is performed for religious reasons.
Third, government prohibitions of certain conduct may burden religious practices even though the practices may otherwise be legitimately prohibited aside from their religious aspects. However, the Supreme Court has “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”
Id.
Defendants have made no showing that, as a matter of law, application of Title II in this case infringes on their right to free exercise of religion in any manner that has been recognized by the case law. Accordingly, the free exercise clause does not warrant dismissal of the complaint.
V. CONCLUSION
Defendants have raised several grounds in support of dismissal of the complaint, but each of those grounds either is devoid of any substantial legal authority or raises questions оf fact which are unsuitable for resolution in the context of a motion to dismiss. The purpose of a motion to dismiss is not to decide the merits of the case, but to determine whether, assuming the facts alleged in the complaint to be true, the complaint states a cause of action. In this case, plaintiffs’ complaint states a cause of action for violation of Title II. Defendants’ motion is therefore denied.
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Notes
. Whether the Boy Scouts may exclude individuals who do not profess a belief in God is a highly emotional question. For this very reason, however, it is important to assess such a case in terms of reasoned legal principles. The emotional nature of the desire on the part of some to avoid association with those who are different may merely illustrate better than any statute or legal opinion ever can the extent to which certain types of discrimination have become ingrained in our culture. Furthermore, it is in just these types of cases, where the discrimination is so ingrained, that the effective utilization of civil rights laws is most important. Cases involving allegations of racial and gender-based discrimination, while now commonplace, rarely provoke the expressed defense that such discrimination is justified. In contrast, religious discrimination — including discrimination against those who do not believe in God — remains openly defended by some in a way that most of our society no longer tolerates with respect to other forms of discrimination. This is true even though the concerns underlying the prohibition of religious discrimination stem from the Bill of Rights itself. The United States of America was founded on the concept of tolerance for differing beliefs with respect to religion, and the survival of this concept was sufficiently important that it resulted in a constitutional amendment forbidding the government from establishing religion or interfering with the free exercise of religion.
. Cf. Wallace v. Jaffree,
. Defendants refer to plaintiffs as atheists, but that label does not appear in plaintiffs’ complaint and may not be accurate. An “atheist” is “one who denies the existence of Gоd," while an "agnostic” is "one who holds the view that any ultimate reality (as God) is unknown and probably unknowable." Webster’s Ninth New Collegiate Dictionary (1983). See also 1 Encyclopedia of Philosophy (ed. P. Edwards, 1967) at 56 ("agnosticism is the view that we do not know whether there is a God or not”); id. at 175 (an “atheist ... maintains that there is no God ... [or] rejects belief in God”). Plaintiffs’ complaint does not specifically characterize plaintiffs as adherents to either of these positions.
. The Council is sued under the name “Boy Scouts of America, West Suburban Council # 147.” Defendants represent that the organization’s correct name is that set forth in the text.
. The flyer is reproduced as Appendix A.
. Portions of the application form are reproduced as Appendix B.
. The letter stated in part:
Our membership requirements which were established at our inception in 1910 have been in effect since then, and we are determined to maintain our position. Adult leaders are required to sign our declaration of religious principle, and youth members must subscribe to the Cub Scout Promise or Boy Scout Oath which includes "duty to God."
While not intending to define what constitutes belief in God, we do reaffirm our religious principle. You have a valid point that we do not explain this qualification in our recruiting material and we are now studying ways to inform potential members of this fact.
. The Reaffirmation, which is included as an exhibit to the complaint, is reproduced as Appendix C.
. Defendants also cite
Schwenk v. Boy Scouts of America,
.
See also Miller v. Amusement Enterprises, Inc.,
. The state court cases cited by defendants all focus on specific textual considerations, and they all interpret state statutes which define "place of public accommodation" by reiterating the word "place.”
See MCAD,
*1420
(statute defines "place of public accommodation" as “a place which caters or offers its services, goods or facilities to the general public
Bloomfield,
In contrast, the statutes in the state cases cited by plaintiffs, as well as Title II, do not reiterate the word “place” when defining “place of public accommodation" but rather use arguably broader words such as "establishment" or "facility." (“Establishment" may refer not only to a "place of business or residence," but also, for example, to “a permanent civil or military organization,” according to Webster’s Ninth New Collegiate Dictionary (1983).)
See
42 U.S.C. § 2000a(b) (“Each of the following establishments which serves the public is a place of public accommodation ...”);
McClure,
.
Little League
was cited with apparent approval when the United States Supreme Court determined that application of Minnesota’s public accommodations statute to the Jaycees (see
McClure,
supra) would not infringe upon members' rights of association.
Roberts v. United States Jaycees,
.
Cf. Little League,
. Further guidance may be found in California court decisions interpreting the Unruh Civil Rights Act, California’s public accommodations statute. The Unruh Act originally applied to "places of public accommodation and recreation" and was later amended to apply to “all business establishments of every kind whatsoever.”
See generally Isbister v. Boys' Club of Santa Cruz, Inc.,
Also instructive is the opinion in
Kiwanis International v. Ridgewood Kiwanis Club,
. Furthermore, as discussed below (see infra at 1424-1425), Title II includes an exemption for "private clubs.” Such an exemption would be meaningless if Title II did not apply to any membership organizations, or clubs, in the first place.
. Defendants also rely on
Schwenk v. Boy Scouts of America,
. As plaintiffs point out, although the 1911
Handbook
emphasized the importance of recognizing an obligation to God as a prerequisite to good citizenship, there is no clear indication in the record that the 1911
Handbook
provided for the exclusion from the Boy Scouts of individuals who did not profess a belief in God. Furthermore, even if such a membership policy existed — and was known by Congress — the vague language of the 1916 charter does not clearly demonstrate that an objective of Congress was to perpetuate this policy.
Cf. Little League, supra,
. The
Little League
court also expressed a belief that "the charter is itself a tenuous exercise of federal power.”
. Defendants also rely on certain cases in which public accommodation statutes have not been applied to organizations with religion-based membership criteria. However, those cases did not hold that
all
organizations may exclude individuals on the basis of their religious beliefs; such a holding would conflict with Title II's express inclusion of "religion” as an impermissible basis for discrimination. Rather, they relied on factual evidence concerning such factors as the selectivity of the organizations to find that the organizations were not places of public accommodation. Thus in
Kiwanis,
the local organization had added as a membership requirеment that a candidate be willing to pray and recite the pledge of allegiance.
. Defendants argue that the Boy Scouts are excluded from Title II by an "express exemption.” (Mem. in Support at 9.) In support of this argument, defendants refer only to the "private club” exclusion, the application of which concerns questions of fact. This hardly constitutes an "express exemption."
. The requirement that applicants affirm their belief in God in order that they "can grow into the best kind of citizen (Declaration of Religious Principle, Appendix B) is similar to the requirement in
Brown, supra,
that an individual have "good moral character.”
. See 42 U.S.C. § 1975c(b): "Nothing in this chapter or any other Act shall be construed as authorizing the Commission, its Advisory Committees, or any person under its supervision or control to inquire into or investigate any membership practices or internal operations of any fraternal organization, any college or university fraternity or sorority, any private club or any religious organization.”
. In context, the passage reads as follows:
Mr. [George] Grant_ Mr. Chairman, I want merely to ask the author of this substitute amendment to be sure that this does include fraternities and sororities, and that is exactly why this amendment is here today. Regardless of what the gentleman from Illinois said, the amendment offered by the gentleman from Louisiana did include fraternities and sororities, and that is why I supported it. This Commission has no more base for planting these young boys and girls on the campuses of these universities, public or private, in America, than they would have on a church which was situated on the campus of the university. So I would like to ask the gentleman from Michigan [Mr. Meader] if this does cover college fraternities and college sororities.
Mr. Meader. Of course it does, but if the gentleman wants to pin that down, why not ask unanimous consent that that amendment be rereported, and everybody will hear it.
Mr. Grant. I understand it does. I certainly take the gentleman’s word for it.
Mr. [John] Williams. Mr. Chairman, will the gentleman yield?
Mr. Grant. I yield to the gentleman from Mississippi.
*1428 Mr. Williams. I think it also might be well to inquire of the gentleman from Michigan if under the language of his amendment the Commission is prohibited from meddling in the affairs of such organizations as the Boy Scouts of America, the Girl Scouts, the Future Farmers of America, the 4-H Clubs — that type of organization.
Mr. Meader. That would be covered under the term "private club,” like the Kiwanis Club, the Lions Club, and so forth.
. The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Defendants do not argue that Title II is unconstitutional on its face; such a claim would be unlikely to succeed in light of
New York State Club Ass'n v. City of New York,
. Thus, in
Runyon v. McCrary,
. In light of the Boy Scouts’ apparent tolerance for an innumerable variety of religious beliefs (see supra at 1426-1427), it is difficult to understand how the organization could — even if it so desired — present a unified expression on positions concerning religion.
. Defendants also rely on Justice O'Connor's concurrence in
Roberts:
“Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement.”
. By analogy, few would claim that the YMCA would be entitled to exclude blacks if the YMCA had a written policy that one of its purposes was to instill good morals in its members and that belief in white superiority was necessary to fulfill that purpose, even though expression of white concerns was not a major part of the YMCA’s activities.
.
See also New York State Club, supra,
.
Cf. Hishon
v.
King & Spalding,
. Such a contention would seem implausible in light of the Boy Scouts’ willingness to admit as members adherents of a wide variety of religions. (See supra at 1426-1427.)