Mаrk G.A. WELSH, a minor, and Elliott A. Welsh, his father and next friend, Plaintiffs-Appellants, v. BOY SCOUTS OF AMERICA and Boy Scouts of America West Suburban Council # 147, Defendants-Appellees.
No. 92-1853.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 13, 1992. Decided May 17, 1993.
993 F.2d 1267 | 61 USLW 2719
Thomas D. Allen, Thomas E. Patterson, Wildman, Harrold, Allen & Dixon, Chicago, IL, George A. Davidson (argued), Carla A. Kerr, Hughes, Hubbard & Reed, New York City, for defendants-appellees.
Before CUMMINGS and COFFEY, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
COFFEY, Circuit Judge.
Elliott Welsh and his seven year-old son Mark have brought suit asking the United States Courts to force the Boy Scouts of America to accept Mark as a member despite the fact that he refuses to comply with its Constitution and By-laws and affirm his belief in God. The Scouts refused Mark admission to membership in the scout troop and denied his father the opportunity to act as an adult partner. In their complaint, the plaintiffs allege that the defendant organization is a place of public accommodation practicing unlawful religious discrimination under Title II of the Civil Rights Act of 1964.
The facts are undisputed: the district court opinion details fifty-two separate stipulated facts as well as twelve factual findings. Because the appellant does not challenge any of the trial court‘s factual findings, we accept those facts as true and decide only the issues of law.
The question bеfore the court is whether Title II of the Civil Rights Act of 1964 bars the Boy Scouts of America from denying membership to any person who refuses to profess a belief in and duty to a Supreme Being. The plaintiffs sued the Boy Scouts alleging that a local Scout organization in the Chicago, Illinois area denied them membership because of the Welshes’ refusal to recite the Boy Scout Membership Oath which requires scouts to express among other things a belief in God. The Oath states:
“On my honor I will do my best to do my duty to God and my country and to obey the Scout law, to help other people at all times, to keep myself physically strong, mentally awake and morally straight.”
The plaintiffs argue that the defendant‘s exclusion of them from the Boy Scouts constitutes impermissible discrimination on the basis of religion in violation of Title II. Title II prohibits discrimination in public accommodations and states:
” § 2000a. Prohibition against discrimination or segregation in places of public accommodation.
(a) Equal access. All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
(b) Establishments affecting interstate commerce or supported in thеir activities by State action as places of public accommodation; lodgings; facilities principally engaged in selling food for consumption on the premises; gasoline stations; places of exhibition or entertainment; other covered establishments. Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such сovered establishment, and (B) which holds itself out as serving patrons of such covered establishment.”
II. DISCUSSION
A. Place of Public Accommodation
The initial question before the court is whether Congress intended to govern organizations like the Boy Scouts within the statutory language “place of public accommodation” or “other place of ... entertainment?”
Consider as an analogy a hypothetical city ordinance requiring “the licensing of all dogs.” It would be foolish to argue that the language of the ordinance also includes the licensing of cats. The plaintiffs’ interpretation of Title II reaches out to include not another type of facility but rather a completely different type of entity (an organization of young boys in a group setting under adult leadership to foster respect for God, their country and their fellow man). The Boy Scouts is as different from the facilities listed in Title II as dogs are from cats.
Despite the clarity and specificity of the statute, the plaintiffs would have us believe that even though Congress focused on physical facilities, it also intended to regulate a wide spectrum of consensual human relationships. The plain meaning of the words in the statute renders this interpretation of Title II untenable. “The ‘strong presumption’ that the plain language of the statute expresses congressional intent is rebutted only in ‘rare and exceptional circumstances,’ when a contrary legislative intent is clearly expressed.” Ardestani v. I.N.S., --- U.S. ----, ----, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991) (citation omitted). Congress has not expressed a contrary legislative intent regarding the scope of Title II. In fact, the United States Supreme Court, when interpreting the statute, stated that “the overriding purpose of Title II [is] ‘to [re]move the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.’ ” Daniel, 395 U.S. at 307-08, 89 S.Ct. at 1702 (quoting H.R.Rep. No. 914, 88th Cong., 1st Sess., 18) (emphasis added). It is only in this context--denial of access to public facilities--that courts must interpret Title II broadly. Id.
The dissent has failed to point us to a single word in the statute that supports its theory that Congress intended to cover membership organizations lacking a close connection to a particular facility. Our colleague merely comments that, “if it is open to the public, it must be open to all the public.” Dissent at 1281. This begs the question of whether the Boy Scouts “serve the public,” and are to be considered an “establishment,” “place,” or “facility.”
If the plaintiffs wish to change the law, the proper forum is the Congress of the United States where all interested parties will be entitled to engage in the full panoply of hearings and arguments before the congressional and senatorial committees. Only after Congress has had the opportunity for deliberation and reflection should a radical change of the nature the plaintiffs propose be enacted. See, e.g., In re Grabill Corp., 976 F.2d 1126, 1127 (7th Cir.1992) (Coffey, J., concurring); Wangen, 294 N.W.2d at 469 (Coffey, J., dissenting). Certainly, federal judges must not reach out and grasp at straws in an attempt to rewrite the laws duly enacted by the legislative branch of government, the Congress.
The trial court‘s thorough and well-reasoned opinion reviewed the state law cases interpreting state public accommodation statutes and discussed four cases holding that the Jaycees, a membership organization like the Boy Scouts, was not considered a “place of public accommodation.” See Welsh II, 787 F.Supp. at 1523 (citing United States Jaycees v. Iowa Civil Rights Commission, 427 N.W.2d 450 (Iowa 1988); United States Jaycees v. Massachusetts Comm‘n Against Discrimination, 391 Mass. 594, 463 N.E.2d 1151 (1984) (“MCAD “); United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983); United States Jaycees v. Bloomfield, 434 A.2d 1379 (D.C.App.1981)). The Massachusetts Supreme Court best summarized the reasoning of these cases with the following language:
“The MCAD‘s interpretation of [the statute] as including the U.S. Jaycees does not call for the mere addition of another physical ‘site’ to the statutory language, but instead it requires the addition of a type of ‘conduct’ (a non-profit organization‘s membership policy). Such an interpretation cannot be derived from the plain language or a reasonable construction of [the statute].”
MCAD, 463 N.E.2d at 1159. The Massachusetts Supreme Court and other courts have also made clear the difference between membership organizations such as Little League sports and the YMCA where membership merely serves as a means of access or a “ticket” to a physical location or a facility, and membership organizations such as the Jaycees and the Boy Scouts where membership entitles one to participate in group interactive activities irrespective of a facility. MCAD, 463 N.E.2d at 1159; Welsh II, 787 F.Supp. at 1524, 1530.
Several federal court opinions have held that Title II governs membership organizations that are closely connected to a facility or structure, but we have been unable to find, any case holding that Title II governs a membership organization like the Scouts whose purpose is not closely connected to a particular facility. See Smith v. YMCA of Montgomery, 462 F.2d 634, 636 (5th Cir.1972) (the YMCA operated gymnasiums, a health club and swimming pools); Nesmith v. YMCA of Raleigh, N.C., 397 F.2d 96, 99-100 (4th Cir.1968) (same); United States v. Lansdowne Swim Club, 713 F.Supp. 785, 790 (E.D.Pa.1989), aff‘d, 894 F.2d 83 (3rd Cir.1990) (club operated a swimming pool); Durham v. Red Lake Fishing & Hunting Club, Inc., 666 F.Supp. 954, 959 (W.D.Tex.1987) (club owned 400 acres of land for hunting and fishing); United States v. Slidell Youth Football Ass‘n, 387 F.Supp. 474 (E.D.La.1974) (a youth football league owned a recreational facility with fields, grandstand and a concession stand); Auerbach v. African Am. Teacher‘s Ass‘n, 356 F.Supp. 1046, 1048 (E.D.N.Y.1973) (organization held public meetings in a public school auditorium); Wesley v. City of Savannah, 294 F.Supp. 698, 701-02 (S.D.Ga.1969) (city operated a public golf course and was barred from hosting a racially discriminatory golf tournament); Williams v. Rescue Fire Co., 254 F.Supp. 556, 563 (D.Md.1966) (a non-profit association operated a swimming pool and skating rink). In each of these cases, Title II was found applicable because the organization conducted public meetings in public facilities or operated facilities open to the public like swimming pools, gyms, sports fields and golf courses. In contrast, the trial court in the case before us found that the typical Boy Scout gathering involves five to eight young boys engaging in supervised interpersonal interaction in a private home. Welsh II, 787 F.Supp. at 1516. As previously explained, the plaintiffs seek not to add an additional facility within the scope of Title II but rather to add an activity, MCAD, 463 N.E.2d at 1159, and we have been unable to locate any case law suggesting that we construe the reach of Title II so expansively.
In an argument not advanced by the plaintiffs, the dissent relies on Hornick v. Noyes, 708 F.2d 321 (7th Cir.1983), cert. denied, 465 U.S. 1031, 104 S.Ct. 1295, 79 L.Ed.2d 696 (1984), for the proposition that Title II is applicable to the case before us. In Hornick, we held that Title II covers a YWCA that offered both permanent and temporary housing. Id. at 324. The dissent somehow twists this holding to mean that Title II regulates every imaginable membership organization. See Dissent at 1280 (“[t]his court has held that the Young Women‘s Christian Association is covered by Title II“). Just because Title II covers one YWCA which provides both permanent and overnight lodging does not ipso facto mean every YWCA is covered, much less every membership organization. Hornick does not even discuss membership, sharply distinguishing it from the case before us.5 Moreover, the Hornick YWCA operated a building that served both as a permanent residence and also as an overnight hotel; this type of facility is expressly covered by Title II. See
I agree that Title II applies in the majority of tenancy situations as in Hornick, but Title II does not apply to a voluntary membership organization like the Boy Scouts in a factual situation of this nature. The dissent‘s interpretation of Hornick is much too broad and an exchange at oral argument underscores the radical implications of such an interpretation of Title II. The plaintiffs’ counsel admitted that his reading of Title II would include an organization that was open to the public but met in a private home. He went so far as to state that his interpretation of the parameters of Title II would require an organization that studied Israeli culture and history to admit into their group (meeting in a private home) a neo-nazi who believed in, and was dedicated to, the destruction of Israel. Such absurd results can only be avoided by recognizing that a public accommodation as Congress defined in the statute must “serve the public.”
The dissent also argues that because any member of the particular scout troop is welcome in the private home of the troop leader on the evening of a meeting, for Title II purposes, that private home is no different than a restaurant. I assume the dissent is referring to a restaurant licensed to sell food and beverages, and with that I must take issue because a restaurant is expressly listed as being included within Title II. See
The Welshes and the dissent also maintain that merely because the Scouts move from one location to another is insufficient to exclude the organization from Title II. The dissent analogizes the Scouts to various modes of transportation such as airplanes, buses and trains and to a restaurant that transfers its licensed premises to set up a temporary booth in a park during a festival. See Dissent at 1280-81. We are not in agreement with this argument. First, the analogy lacks merit because a restaurant is expressly listed in subsection (b)(2) and thus covered by Title II as are forms of transportation under various provisions of the Civil Rights Act, whereas an organization of individuals with a qualified membership such as the Boy Scouts is not covered in Title II. Second, reference to airplanes, buses, trains and restaurants undermines the dissent‘s argument because each of those is a physical facility or structure whereas the Boy Scouts is a social membership organization and not a physical facility. The dissent goes on to argue that our holding requires the courts to assess a person‘s motive for joining an organization. This likewise is inaccurate. The question before the court is not “why did a person join?” but rather, “what did the person join?” In the case of the “Y,” the Little League, and/or оther organizations with a close connection to a physical facility, the person joins an entity that provides access to a recreational or residential facility (i.e., gymnasium, baseball field, housing or meeting hall). In the case of the Boy Scouts, a person joins a membership organization lacking a close connection to any physical facility. Congress made a clear distinction between entities that require a close connection to a particular facility to achieve their objective (such as hotels, restaurants, theatres, and sports arenas) and those that do not require such a connection. We are not at liberty to disregard that distinction. While it is true that “people” and not “places” are the source of discrimination, in Title II Congress focused exclusively on prohibiting discrimination in places of public accommodation and not in every conceivable social relationship. In various other legislative enactments, Congress has addressed discrimination in places other than public accommodations such as housing, employment, education, and public transportation. The only question before this court, however, is whether a membership organization such as the Boy Scouts of America is covered by Title II.
B. Private Club Exception
As explained above, the Boy Scouts organization is excluded from the operation of Title II because subsection (b) does not cover a membership organization whose purpose is not closely connected to a particular facility. The district court declined to extend its analysis beyond this inquiry because it found that “[m]embership organizations per se, which do not operate from or supply access to a particular facility or location, do not qualify as ‘places of public accommodation’ within the meaning of Title II.” Welsh II, 787 F.Supp. at 1541. Because we conclude that the defendant organization does not constitute a public accommodation, it should be unnecessary to discuss whether it satisfies the private club exception. However, the dissent has argued that the Boys Scouts is not a private club, thus we are compelled to respond to its analysis.
The inquiry into the private club exception involves a consideration of several factors. The Welshes and the Boy Scouts as well as the district court (Welsh I ) have relied on Lansdowne Swim Club, 713 F.Supp. at 796-97, which provides a list of seven factors to weigh in determining whether an entity qualifies as a private club. The seven factors are: (1) the genuine selectivity of the group; (2) the membership‘s control over the operations of the establishment; (3) the history of the organization; (4) the use of facilities by nonmembers; (5) the club‘s purpose; (6) whether the club advertises for members; and, (7) whether the club is nonprofit or for profit. Id. We, likewise, will examine these factors.
In construing the private club exception of Title II, courts have properly placed great wеight on the first factor, that of selectivity. See, e.g., Tillman v. Wheaton-Haven Rec. Ass‘n, 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973). The dissent deduces that the Boy Scouts of America is not truly a private club because it has over five million members and advertises for new members through the public school system. This type of analysis casts aside an important aspect of selectivity that the Supreme Court has emphasized. The Supreme Court requires that there be a “plan or purpose of exclusiveness. ” Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 236, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969) (emphasis added). The Court has applied this analysis on several occasions and held that racial discrimination of itself does not constitute a “plan or purpose of exclusiveness.” For instance, in Sullivan the Court determined that a community park permitting only white “members” was not truly private because “[i]t is open to every white person within the geographic area, there being no selective element other than race.” Id.; see also Tillman, 410 U.S. at 438, 93 S.Ct. at 1094 (denying private club status to nonprofit corporation operating a community swimming pool). In Daniel, 395 U.S. 298, 89 S.Ct. 1697, the Supreme Court reviewed a whites-only “club” that required a twenty-five cent membership fee and had admitted over 100,000 “members.” The Court concluded that the ” ‘membership’ device seems no more than a subterfuge designed to avoid coverage of [Title II].” Id. at 302, 89 S.Ct. at 1699. Such is not the case of the Boy Scouts. Although the Scouts intentionally admit a large number of boys from diverse backgrounds, admission to membership is not without the exercise of sound discretion and judgment. This is evident from the Constitution and By-laws as well as the Boy Scouts Oath and Scout Law. The Oath reflects the commitment of each member, and has remained unchanged since the publication of the Scouts first handbook in 1911. The Oath reads:
“On my honor I will do my best to do my duty to God and my country and to obey the Scout law, to help other people at all times, to keep myself physically strong, mentally awake and morally straight.”
This Oath offers a clear statement of the beliefs, principles and purpose of the Scouts, i.e., to nurture belief in God, respect for one‘s country and his fellow man, and being of good moral character. In order to maintain these principles, it is essential that the Scouts exercise selectivity. No one argues that the Oath of membership was adopted as a “subterfuge” to avoid the effects of Title II. Indeed, such an argument would be foolish given the longevity of the Oath. Moreover, the Oath evidences both a plan and purpose of selectivity. Sullivan, 396 U.S. at 236, 90 S.Ct. at 404. The distinction between the Scouts’ selectivity and that of the park or swimming pool that excludes non-Caucasians is self-evident. The purpose of a swimming pool or tennis court is to allow one to participate in recreation, and both Caucasians and non-Caucasians are capable of swimming and playing tennis. The purpose of Scouting, however, is to equip youth of all races, colors and creeds to fulfill their duty to God, to mature personally, and to help others. This can only be achieved by a boy who believes in God. How does one who denies the very existence of a Supreme Being presuppose to follow the Oath of the Boy Scouts of America? We hold therefore that the Scouts organization not only is selective, but that its very Constitution, By-laws and doctrine dictate that it remain selective.
The importance and longevity of the principles enunciated in the Scout Oath are also dispositive of two other Lansdowne Swim Club factors. The fourth factor considers the history of the club. The Scouting organization was founded in 1907 in England. The Constitution and By-laws of the World Organization of the Scout Movement contain three tenets: duty to God, duty to one‘s fellow man, and duty to oneself. Welsh II, 787 F.Supp. at 1515. The Constitution requires all members to adhere to the Scout Oath and to the Scout Law. Based on well-reasoned precedent, we refuse to construe Title II to require that an organization such as the Boy Scouts of America abandon its principles which have stood the test of time, having endured for more than eighty some odd years. The very purpose of the private club exception is to preserve the right of truly private organizations to maintain their unique existence.
The fifth factor addresses thе purpose of the organization‘s existence. As previously discussed, the purpose of the Scouts is to train young boys to live according to the principles of duty to God, duty to others, and duty to oneself. The Boy Scouts of America would be unable to carry out its very purpose if the government, through Title II, required it to accept members who deny a condition of membership, that is, the belief in God. Finally, the seventh Lansdowne Swim Club factor also favors the private club status of the Scouts: they are a nonprofit organization. Thus four of the seven Lansdowne Swim Club factors strongly support the conclusion that the Boy Scouts indeed is a private club entitled to exception from Title II.
Obviously the discussion of the Boy Scouts’ purpose and its right to determine whom to admit into membership impacts a constitutional right to Freedom of Association. However, because we decide this matter on the statutory grounds, we need not, and indeed should not, address the constitutional questions presented. “Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the court will decide only the latter.” Indiana Port Comm‘n v. Bethlehem Steel Corp., 835 F.2d 1207, 1210 (7th Cir.1987) (quoting Ashwander v. Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936)).8
III. CONCLUSION
We hold that Title II does not apply to the Scouting organization because it is not an “establishment” that “serves the public,” thus it is not a “place of public accommodation.” Likewise, the Boy Scouts does not constitute a “place of exhibition or entertainment” in the sense Congress envisioned when drafting Title II. Man is a human being who has a sociological need to join with others in order to develop his full being and to fulfill his need for companionship as well as enjoyment. Congress, in drafting Title II certainly did not intend to interfere with the development of the whole man.
Even if we were to agree for the purpose of argument that the Boy Scouts is a public accommodation, Congress expressly excluded рrivate clubs such as the Scouts from the operation of the statute. The Boy Scouts of America qualify as a private club because its Constitution and Oath contain requirements that serve to purposefully exclude nonqualifying applicants. Because this dispute may properly be resolved on statutory grounds, there is absolutely no need to address the constitutional issues. Ashwander, 297 U.S. at 347, 56 S.Ct. at 483; Indiana Port Comm‘n, 835 F.2d at 1210.
It is interesting to note that the challenged Boy Scout Oath is strikingly similar to the one expressed by our Founding Fathers on July 4, 1776 in the Declaration of Independence which reads in part “And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” Certainly this Court must not upset such enduring principles by stretching beyond recognition a statute drafted to guarantee equal access to public facilities.
AFFIRMED.
CUMMINGS, Circuit Judge, dissenting.
As everyone (or almost everyone) knows, Boy Scouts must be trustworthy, loyal, helpful, friendly, courteоus, kind, obedient, cheerful, thrifty, brave, clean and reverent. They must also, according to the organization‘s constitution and by-laws, believe in God. This last requirement leaves out a seven-year old from Hinsdale, Illinois named Mark Welsh who wanted to join the Tiger Cubs but who, along with his father Elliott Welsh, refuses to recite an oath pledging allegiance to a Supreme Being. The question in this case, then, involves a membership organization‘s power to draw a circle around itself that excludes atheists and agnostics. Although the majority opinion arguably reaches the correct result, I believe it does so in a most unfortunate fashion: by imparting a stingy and narrow reading to the remedial statute at issue, Title II of the Civil Rights Act of 1964,
Before turning to the majority‘s analysis, it is worth noting the arguments that have not been offered to justify this discrimination against atheists. No one has suggested, for example, that non-believers are not protected under Title II‘s ban on religious discrimination. Indeed, the Supreme Court has held that:
the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support * * * from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects--or even intolerance among “religions“--to encompass intolerance of the disbeliever and the uncertain.
Wallace v. Jaffree, 472 U.S. 38, 53-54, 105 S.Ct. 2479, 2487-2488, 86 L.Ed.2d 29 (1985). Nor does the majority argue that Scouting operations do not affect commerce and so may not be regulated by the federal government. As the district court observed, the Boy Scouts supplied $13 million worth of uniforms, publications and other paraphernalia in one recent year, much of which moved in interstate commerce (including a Tiger Scout T-shirt and Scout leader‘s cap mailed to the Welshes through a J.C. Penney catalog). Welsh v. Boy Scouts of America, 787 F.Supp. 1511, 1520-1521 (N.D.Ill.1992). This is enough of a tie to interstate commerce under the Supreme Court‘s generous definition of the term. See Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942).
87 L.Ed. 122 (1942); Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964).As I understand the majority‘s analysis, there are four reasons why the Scouts are not covered by Title II. The first is that the statute, which delineates a series of establishments to be regulated (fifteen examples are given) and makes no mention of either the Boy Scouts or membership organizations, should be read as evidence of congressional intent to exclude rather than to include. With all respect, this substitutes the conclusion for the analysis. Of course the statute does not say “Boy Scouts“--if it did this case would be easy. The case is hard because the law is ambiguous and the precise question we must decide, which the majority manages to avoid by talking about “plain language,” is whether the phrase “place of * * * entertainment” includes membership organizations; that the rest of Title II is silent with respect to Boy Scout-like organizations hardly seems relevant.
The majority‘s second argument rests on the absence of case law, and Judge Coffey faults me for failing to find any federal appellate decision holding that a membership organization is covered by Title II. True enough. But neither has the majority pointed to any federal appellate decision holding that a membership organization is not covered. This proves only that the issue has not come up before; it gives no clues as to its proper resolution. In this case, a tie may well go to the plaintiff since we have been repeatedly instructed by the Supreme Court to interpret the statute liberally. Daniel v. Paul, 395 U.S. 298, 308, 89 S.Ct. 1697, 1702, 23 L.Ed.2d 318 (1969); Miller v. Amusement Enterprises, Inc., 394 F.2d 342, 349 (5th Cir.1968) (en banc). In Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), for example, a case not mentioned by the majority, the Supreme Court upheld the application of a Minnesota statute nearly identical to Title II to the Jaycees, although the Court was not called on to interpret the statute.4 And in Board of Directors of Rotary Intern. v. Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987), also not mentioned by the majority, the Court held that Rotary International must admit women as members under a broadly written California law.5 Again, the Court did not have to interpret the statute, but Justicе Powell‘s opinion for the Court emphasized that “public accommodations laws ‘plainly serv[e] compelling state interests of the highest order,’ ” id. at 549, 107 S.Ct. at 1948 (quoting Roberts, 468 U.S. at 624, 104 S.Ct. at 3253), and said that “[i]n Roberts we recognized that the State‘s compelling interest in assuring equal access to women extends to the acquisition of leadership skills and business contacts as well as tangible goods and services.” Id.; see also New York State Club Ass‘n, Inc. v. City of New York, 487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (upholding state public accommodation laws’ application to private clubs). Although these cases did not involve Title II, the Court clearly signalled that public accommodation statutes generally are to be interpreted broadly.6
The majority‘s third and meatiest argument is that the Boy Scouts cannot qualify as a “place of * * * entertainment” because they are not a “place.” This reasoning has a kind of facial, common sense appeal, but it simply cannot stand up under serious scrutiny. This Court has held that the Young Women‘s Christian Association is covered by Title II. Hornick v. Noyes, 708 F.2d 321 (7th Cir.1983), certiorari denied, 465 U.S. 1031, 104 S.Ct. 1295, 79 L.Ed.2d 696 (1984) (citing Nesmith v. YMCA of Raleigh, N.C., 397 F.2d 96 (4th Cir.1968) and Stout v. YMCA of Bessemer, Ala., 404 F.2d 687 (5th Cir.1968)). The majority contends that the key distinction between the Scouts and the Young Women‘s or Young Men‘s Christian Association (collectively the “Y“) is that the Y sometimes offers overnight accommodations and is much closer to the paradigmatic motel or restaurant covered by Title II. Yet Hornick did not emphasize this point and, indeed, there are many Y‘s that do not rent rooms by the night or serve food to the public. It is absurd to suggest that these Y‘s are free to violate Title II, or that the Y, though prohibited from discriminating in its overnight accommodations, could restrict access to its other facilities on the basis of race, religion, creed or national origin.
It should be incumbent on the majority to explain why our decision in Hornick does not dictate the same result in the case of the Boy Scouts, since the Y is also a membership organization. Admittedly, the Y has a set physical location. It owns a building and is a “place” as the word is commonly used. But of course the Scouts also meet in a place; meetings are not held in outer space (a place in its own right). The Scouts may not own the places at which they meet, yet a party‘s lack of ownership does not exempt an establishment from Title II. See, e.g., Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (motel is covered under Act without regard to ownership of property). Nor can it be significant that younger groups of Scouts may meet in private homes (but not always--monthly meetings are held in church basements and civic halls for which, presumably, rent has sometimes been paid). Since there is no talismanic significance to a house as opposed to a stand-alone commercial property--after all, restaurants operating out of the chef‘s home are not free to discriminate because the proprietor lives uрstairs--this argument must rest on the fact that no rent is paid. The significance of this distinction completely eludes me.
The concern about rent appears to be directed at a deeper and more legitimate concern; i.e., that the homes of Scout leaders are not truly open to the public in the same sense as, say, a shoe store. Yet a boy who belongs to a Scout den is, in fact, free to enter the Scout leader‘s home on the night of the meeting. In other words, a house where a troop meeting is held ceases to be a private dwelling; for that limited time, the house is as open to the public as the Scout organization itself. Just as a restaurant need not admit customers when the “closed” sign is hanging in the window, but must admit all customers when the “open” sign is displayed, so too must the Scout leader unlock his home to all qualifying members.
Another possible difference between the Scouts and the Y is that the Scouts move from one “place” to another. Yet to read the statute to require a fixed locale would exclude trains, buses, airplanes, traveling circuses--or anything that doesn‘t have pilings driven into the earth. Under this interpretation, a restaurant that sets up a booth in the park during a festival would be privileged to deny service to people based on skin color. This cannot be so. The majority eventually rests on the notion that people jоin the Y to use its facilities while children become Boy Scouts for “social interaction.” According to the majority, “[t]he key distinction between the Y in Hornick and the case before us is the Boy Scouts lack of a close connection to any physical facility.” The problem with this analysis is that courts are not in a position to figure out the motives of those who join organizations; that is, whether they belong only to use facilities or whether they seek social connections. Many people not otherwise given to exercise, for example, join the Y precisely because it is a center of social and business interaction. And what would the majority make of the motives of youngsters who enter Little League? That organization has no set location, like the Boy Scouts, and children benefit from the same kind of social interaction that binds the Scouts. But Little Leaguers need a facility too--baseball is not much of a game without a diamond.
In short, even assuming that the word “place” has the critical status and limiting importance in Title II suggested by the majority, I cannot identify a principled distinction between membership organizations such as the Boy Scouts that meet in varying locales and other organizations that use or own one facility. The word “place” simply cannot bear the stress that has been heaped on it by the majority. That Title II should turn on the definition of “placе” is irrational because places do not discriminate; people who own and operate places do. And there is no basis to believe that those who operate facilities at fixed locales, as opposed to those who operate membership organizations from varying locales, are more deserving targets of civil rights regulation. To put so much emphasis on this one word in isolation is to fall into the trap we recently warned against in Herrmann v. Cencom Cable Associates, Inc.:
Statutes have meanings, sometimes even “plain” ones, but these do not spring directly from the page. Words are arbitrary signs, having meaning only to the extent writers and readers share an understanding. * * * Language in general, and legislation in particular, is a social enterprise to which both speakers and listeners contribute, drawing on background understandings and the structure and circumstances of the utterance. Slicing a statute into phrases while ignoring their contexts--the surrounding words, the setting of the enactment, the function a phrase serves in the statutory structure--is a formula for disaster.
978 F.2d 978, 982 (7th Cir.1992). The more logical and contextual reading of Title II is that “place” is a mere “term of convenience, not of limitation,” because the word as it is commonly used does encompass most of what is open to the public. National Org. for Women, Essex County Chapter v. Little League Baseball, Inc., 127 N.J.Super. 522, 318 A.2d 33, 37 (App.1974), affirmed, 67 N.J. 320, 338 A.2d 198 (1974). The difficulty of drafting a statute without resort to the term “place” is obvious if one tries to find a suitable substitute in such phrases as “place of accommodation” and “place of * * * entertainment.”
The impetus behind Title II was to aid the black traveler in the South for whom “the road may be more like a desert and each inviting sign a mirage or, worse yet, a humiliating rebuff to him, his family or companions,” Welsh, 787 F.Supp. at 1535 (quoting 110 Cong.Rec. 1642 (February 1, 1964) (remarks of Rep. Ryan)). But it is also clear that Congress targeted discrimination well beyond that suffered by African Americans moving in inhospitable territories. Lawmakers sought to eradicate discrimination in all things open and available to the general population. The meaning, if not the language, of Title II is simple and unambiguous enough: if it is open to the public, it must be open to all the public.
The majority‘s final argument is that even if the Scouts are a “place” covered by Title II, they are exempt under the statute‘s exception for private clubs. Yet the majority is clearly swimming upstream in suggesting that an organization of five million people in the United States alone may qualify as a private club. There is no single test to determine whether a club or organization is private. Nesmith, 397 F.2d at 101. Courts look at many factors including an organization‘s size, the open-ended character of its membership rolls, its history, and its selectiveness, United States v. Lansdowne Swim Club, 894 F.2d 83, 85-86 (3rd Cir.1990); Wright v. Salisbury Club, Ltd., 632 F.2d 309, 312-313 (4th Cir.1980); Nesmith, 397 F.2d at 101-102, and judges must be skeptical in evaluating claims of private club status. See Tillman v. Wheaton-Haven Recreation Ass‘n, Inc., 410 U.S. 431, 438, 93 S.Ct. 1090, 1094, 35 L.Ed.2d 403 (1973) (swimming and recreational club is not private because membership is open to all whites in geographic area, despite membership cap and required approval of new applicants by existing members); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 236, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969) (hunting establishment is not private because it has “no plan or purpose of exclusiveness“); Daniel, 395 U.S. at 302, 89 S.Ct. at 1699 (recreational facility could not claim private status despite charging a membership fee).
Though there are no allegations in this case that the Scouts concocted requirements to avoid the civil rights laws as in Daniel, 395 U.S. at 302, 89 S.Ct. at 1699, the organization has few features that would mark it as a private club. Membership is not selective. Any child of the appropriate age (and of course sex) with a parent‘s permission can join so long as he is willing to recite an oath, pay a small fee, and pledge to attend meetings. As the flyer that sparked Mark Welsh‘s interest in the Scouts stated flatly, “YOU CAN JOIN TIGER CUBS, BSA, IF YOU ARE IN THE FIRST GRADE.” There is no limit on the number of boys who may join, unlike Tillman where the organization did offer a fixed number of memberships and still did not qualify as a private club. 410 U.S. at 438, 93 S.Ct. at 1094. In fact, the Scouts advertise for new members. See Wright, 632 F.2d at 312 (active solicitation of members belies private club claim). Other than the mention of God in the oath, which must exclude an extremely small--though indeterminate--number of children, the only substantive requirement for membership is age, which is not so much a matter of selectivity as a basic common denominator. Agе is similar to the geographic requirement in Tillman, 410 U.S. at 438, 93 S.Ct. at 1094, and Sullivan, 396 U.S. at 236, 90 S.Ct. at 404, that did not convert those associations into private clubs. Since the Boy Scouts have five million members in the United States and are committed to admitting as many boys as will join, the Scouts cannot be considered either selective or private. The majority‘s expansion of this exception is too extreme to be acceptable.
Though I believe the Boy Scouts are covered by Title II, the inquiry should not end there because the First Amendment protects groups from having to admit those who do not share their most fundamental beliefs. The right of association is among the most precious of liberties guarded by the Bill of Rights, United Mine Workers of America, District 12 v. Illinois State Bar Ass‘n, 389 U.S. 217, 222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426 (1967); De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937). In my opinion, the majority erred in failing to reach this constitutional issue.
My inclination would have been to hold that the Scouts could exclude atheists under a line of free association decisions suggesting that individuals may form groups in the pursuit of political, social, economic, educational, religious and cultural ends. Roberts, 468 U.S. at 622, 104 S.Ct. at 3252. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907, 102 S.Ct. 3409, 3422, 73 L.Ed.2d 1215. (1982). “[B]y collective effort individuals can make their views known, when, individually, their voices would be faint or lost.” Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 294, 102 S.Ct. 434, 436, 70 L.Ed.2d 492 (1981). The Scouts would suffer just the type of injury the First Amendment was designed to prevent if forced to admit members who refuse to subscribe to the organization‘s basic philosophy. This is so for three reasons. First, the reference to God in Scouting tradition is reflected in a series of oaths--the most basic expression of a group‘s principles. If anything should receive First Amendment protection, it is an oft-recited statement that reflects values deeply embedded in the organization.7 Second, the references to God in the Scout oaths seemingly are not proxies for a deeper and more base desire to exclude those who are different or threatening. The Boy Scout oath has since its inception eighty years ago included an affirmance of duty to God--unlike, for example, the Pledge of Allegiance, which garnered its reference to God in 1954.
Because the Boy Sсouts are not religious in any real sense, however, and belief in God is at best implicit in most Scouting activities, this case presents a particularly vexing challenge to the rights of free association. This is especially so after the Supreme Court‘s decisions in Roberts and Rotary, which undertook a searching and not terribly deferential review of the justifications organizations use to limit membership. I regret that the majority has avoided grappling with these issues, and particularly regret that it has done so by unduly constricting the reach of a remedial civil rights statute: Title II. For these reasons, I must respectfully dissent.
Notes
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
Rotary, 481 U.S. at 541-542 n. 2, 107 S.Ct. at 1943-1944 n. 2 (quotingIn addition, the latest public accommodation statute, found in the 1990 Americans With Disabilities Act, includes an expanded number of establishments in its definition of “places” of public accommodation. See