Plaintiff
Timothy Curran
Defendant
Mount Diablo Council of the Boy Scouts of America
Plaintiff's Claim
That the Boy Scouts should not reject his application for the position of assistant scoutmaster just because he is a homosexual.
Chief Lawyer for Plaintiff
Jon Davidson
Chief Defense Lawyer
George Davidson
Justices for the Court
Ronald George (writing for the court), Ming W. Chin, Stanley Mosk, Marvin R.Baxter, Kathryn M. Werdegar, Joyce L. Kennard, Janice R. Brown
Justices Dissenting
None
Place
Sacramento, California
Date of Decision
23 March 1998
Decision
That the Boy Scouts is not a business establishment within the scope of the Civil Rights Act and therefore may exclude gays, atheists, and agnostics.
Significance
The California Supreme Court's decision that the Boy Scouts of America was not a business, allows the 5.8 million-member organization to deny admission tohomosexuals, agnostics, and atheists in California. The decision clarified some of the legal parameters that separate a business from a private organization.
Timothy Curran, now a television documentary producer in Miami, was a 19-year-old Eagle Scout in 1981 when the Boy Scouts refused to allow him to become an assistant scoutmaster because of his homosexuality. Curran belonged to a Contra Costa County Boy Scout troop from 1976 until 1980. He applied to becomean assistant scoutmaster. When an Oakland, California newspaper featured Curran in an article about "growing up gay," the national office of the Boy Scouts sent him a letter stating that he had been banned from the organization.
Curran sued the Boy Scouts of America (BSA) in 1981, seeking an injunction that would prohibit the BSA from rejecting his application. After years of debate and pretrial motions, the first phase of the trial began on 20 September 1990. On 6 November 1990 the Los Angeles Superior Court ruled that the BSA wasa business under the state's civil rights law. On 25 July 1991, the same court ruled that the BSA was entitled to exclude homosexuals from its organization under the First Amendment, which includes the right of expressive association. The court also ruled that excluding homosexuals from the BSA was not a violation of the Fourteenth Amendment. On 29 March 1994, the court of appealsruled that the BSA was not a business and may deny membership to homosexualsin its efforts to form an intimate and expressive association.
Exclusion of Gays, Atheists, And Agnostics
On 5 January 1998, the California Supreme Court heard arguments in the case.Curran's American Civil Liberties Union (ACLU) lawyer, Jon Davidson, argued that the BSA is subject to California's Unruh Civil Rights Act, which bars discrimination on the basis of race, sex, national origin, religion, and sexualorientation. The BSA argued that it had the right to establish its own membership and leadership standards, it was not a business, and it should be allowed to set its own rules, including the exclusion of gay people. The right to exclude gays, it argued, was protected under the First Amendment's freedom ofassembly privilege.
On 23 March 1998, the California Supreme Court voted unanimously that the BoyScouts organization was not a business establishment within the scope of theUnruh Civil Rights Act of 1959 and could therefore exclude gays, atheists, and agnostics. The court held that given the Boy Scouts' overall purpose and function, the organization could not reasonably be found to constitute a business establishment. Chief Justice George wrote the court's lead opinion. In ithe stated, "Scouts meet regularly in small groups (often in private homes) that are intended to foster close friendship, trust, and loyalty. The Boy Scouts is an expressive social organization whose primary function is the inculcation of values in its youth members." Boy Scouts participate in many activities designed to teach the moral principles to which the organization subscribes. George noted that "nonmembers cannot purchase entry to pack or troop meetings, overnight hikes, the national jamboree or any portion of the Boy Scouts'extended training and educational process."
Comparing this case to Isbister v. Boys' Club of Santa Cruz (1985), the court noted that the Civil Rights Act applied to Boys' Clubs, which are a "place of public accommodation or amusement." But the Boy Scouts is not the functional equivalent of a place of public amusement. Membership into the Boy Scouts is not simply an admission ticket to a recreational facility open to alarge segment of the public. Comparing the case to Warfield v. Peninsula Golf & Country Club (1995), the court noted that the Boy Scouts is notlike a private country club that permits nonmembers to use its facilities. Although the BSA engages in business transactions, its primary function is theinculcation of values in its members. Its small social group structure and activities are not comparable to those of a traditional place of public amusement.
In a parallel case, Michael and William Randall sued the Boy Scouts of OrangeCounty, California, because they were barred from the organization in 1990 after they refused to declare a belief in God. The Randalls charged the Boy Scouts with religious discrimination. In 1991, a temporary restraining order and a preliminary injunction barred the BSA from prohibiting the Randalls fromparticipating in scouting, requiring them to use the word "God," or from requiring their participation in religious events or requirements. On 20 November1992, the trial began and on 7 May 1992 the Orange County Superior Court ruled that the Boy Scouts is a business and is subject to the state Civil RightsAct. The court of appeals affirmed this decision on 28 February 1994. The California Supreme Court heard the case on 5 January 1998 and rendered its decision on 23 March 1998. The ruling held that because the Boy Scouts is a private organization and not a business, it may exclude homosexuals, agnostics, and atheists.
Boy Scouts in New Jersey
In a related case in New Jersey, James Dale, a Boy Scout since the age of eight, who later became an Eagle Scout and assistant scoutmaster, sued after hewas expelled by the Monmouth Council of the Boy Scouts in 1990 for being gay.In 1995 a New Jersey superior court upheld the refusal of the Boy Scouts toadmit an avowed homosexual to a Scout leadership position. Dale alleged thathis dismissal violated New Jersey laws forbidding discrimination in places ofpublic accommodation. The court held that the Boy Scouts was not a place ofpublic accommodation, but a private entity promoting certain moral concepts and values. The court also noted that not everyone has the right to become a Boy Scout. Those who want to join must conform to the conditions of membership. Judge Patrick J. McGann called the Boy Scouts "a moral organization" and described homosexuality as "a serious moral wrong." The court said that becausethe group is a private organization, it has a constitutional right to decidewho can belong.
The appellate division of the state superior court overruled this decision on2 March 1998. The court held that the Boy Scouts must follow New Jersey's antidiscrimination law. The decision stated: "There is absolutely no evidence before us, empirical or otherwise, supporting a conclusion that a gay scoutmaster, solely because he is a homosexual, does not posses the strength of character necessary to properly care for, or to impart BSA humanitarian ideals tothe young boys in his charge." The BSA planed to file an appeal with the NewJersey Supreme Court.
Impact
In both the Curran and Randall cases, four justices of the California Supreme Court offered separate, concurring opinions, each of which pointed out the need to further clarify what constitutes a business establishment under the Unruh Civil Rights Act. The ruling in the two California cases will affect the court's decision in a similar case involving a teenager, Katrina Yeaw, of Rocklin, California. She contends that the Boy Scouts discriminated against her when it denied her admission based on gender.
The BSA is appealing the New Jersey case to the state's supreme court. If itloses, it will appeal the decision to the U.S. Supreme Court. A dozen other suits involving similar issues are making their way through the courts. If theNew Jersey case reaches the Supreme Court, much of the confusion surroundingthe BSA's right to exclude certain individuals from the organization will undoubtedly be cleared up.
Related Cases
Timothy Curran
Defendant
Mount Diablo Council of the Boy Scouts of America
Plaintiff's Claim
That the Boy Scouts should not reject his application for the position of assistant scoutmaster just because he is a homosexual.
Chief Lawyer for Plaintiff
Jon Davidson
Chief Defense Lawyer
George Davidson
Justices for the Court
Ronald George (writing for the court), Ming W. Chin, Stanley Mosk, Marvin R.Baxter, Kathryn M. Werdegar, Joyce L. Kennard, Janice R. Brown
Justices Dissenting
None
Place
Sacramento, California
Date of Decision
23 March 1998
Decision
That the Boy Scouts is not a business establishment within the scope of the Civil Rights Act and therefore may exclude gays, atheists, and agnostics.
Significance
The California Supreme Court's decision that the Boy Scouts of America was not a business, allows the 5.8 million-member organization to deny admission tohomosexuals, agnostics, and atheists in California. The decision clarified some of the legal parameters that separate a business from a private organization.
Timothy Curran, now a television documentary producer in Miami, was a 19-year-old Eagle Scout in 1981 when the Boy Scouts refused to allow him to become an assistant scoutmaster because of his homosexuality. Curran belonged to a Contra Costa County Boy Scout troop from 1976 until 1980. He applied to becomean assistant scoutmaster. When an Oakland, California newspaper featured Curran in an article about "growing up gay," the national office of the Boy Scouts sent him a letter stating that he had been banned from the organization.
Curran sued the Boy Scouts of America (BSA) in 1981, seeking an injunction that would prohibit the BSA from rejecting his application. After years of debate and pretrial motions, the first phase of the trial began on 20 September 1990. On 6 November 1990 the Los Angeles Superior Court ruled that the BSA wasa business under the state's civil rights law. On 25 July 1991, the same court ruled that the BSA was entitled to exclude homosexuals from its organization under the First Amendment, which includes the right of expressive association. The court also ruled that excluding homosexuals from the BSA was not a violation of the Fourteenth Amendment. On 29 March 1994, the court of appealsruled that the BSA was not a business and may deny membership to homosexualsin its efforts to form an intimate and expressive association.
Exclusion of Gays, Atheists, And Agnostics
On 5 January 1998, the California Supreme Court heard arguments in the case.Curran's American Civil Liberties Union (ACLU) lawyer, Jon Davidson, argued that the BSA is subject to California's Unruh Civil Rights Act, which bars discrimination on the basis of race, sex, national origin, religion, and sexualorientation. The BSA argued that it had the right to establish its own membership and leadership standards, it was not a business, and it should be allowed to set its own rules, including the exclusion of gay people. The right to exclude gays, it argued, was protected under the First Amendment's freedom ofassembly privilege.
On 23 March 1998, the California Supreme Court voted unanimously that the BoyScouts organization was not a business establishment within the scope of theUnruh Civil Rights Act of 1959 and could therefore exclude gays, atheists, and agnostics. The court held that given the Boy Scouts' overall purpose and function, the organization could not reasonably be found to constitute a business establishment. Chief Justice George wrote the court's lead opinion. In ithe stated, "Scouts meet regularly in small groups (often in private homes) that are intended to foster close friendship, trust, and loyalty. The Boy Scouts is an expressive social organization whose primary function is the inculcation of values in its youth members." Boy Scouts participate in many activities designed to teach the moral principles to which the organization subscribes. George noted that "nonmembers cannot purchase entry to pack or troop meetings, overnight hikes, the national jamboree or any portion of the Boy Scouts'extended training and educational process."
Comparing this case to Isbister v. Boys' Club of Santa Cruz (1985), the court noted that the Civil Rights Act applied to Boys' Clubs, which are a "place of public accommodation or amusement." But the Boy Scouts is not the functional equivalent of a place of public amusement. Membership into the Boy Scouts is not simply an admission ticket to a recreational facility open to alarge segment of the public. Comparing the case to Warfield v. Peninsula Golf & Country Club (1995), the court noted that the Boy Scouts is notlike a private country club that permits nonmembers to use its facilities. Although the BSA engages in business transactions, its primary function is theinculcation of values in its members. Its small social group structure and activities are not comparable to those of a traditional place of public amusement.
In a parallel case, Michael and William Randall sued the Boy Scouts of OrangeCounty, California, because they were barred from the organization in 1990 after they refused to declare a belief in God. The Randalls charged the Boy Scouts with religious discrimination. In 1991, a temporary restraining order and a preliminary injunction barred the BSA from prohibiting the Randalls fromparticipating in scouting, requiring them to use the word "God," or from requiring their participation in religious events or requirements. On 20 November1992, the trial began and on 7 May 1992 the Orange County Superior Court ruled that the Boy Scouts is a business and is subject to the state Civil RightsAct. The court of appeals affirmed this decision on 28 February 1994. The California Supreme Court heard the case on 5 January 1998 and rendered its decision on 23 March 1998. The ruling held that because the Boy Scouts is a private organization and not a business, it may exclude homosexuals, agnostics, and atheists.
Boy Scouts in New Jersey
In a related case in New Jersey, James Dale, a Boy Scout since the age of eight, who later became an Eagle Scout and assistant scoutmaster, sued after hewas expelled by the Monmouth Council of the Boy Scouts in 1990 for being gay.In 1995 a New Jersey superior court upheld the refusal of the Boy Scouts toadmit an avowed homosexual to a Scout leadership position. Dale alleged thathis dismissal violated New Jersey laws forbidding discrimination in places ofpublic accommodation. The court held that the Boy Scouts was not a place ofpublic accommodation, but a private entity promoting certain moral concepts and values. The court also noted that not everyone has the right to become a Boy Scout. Those who want to join must conform to the conditions of membership. Judge Patrick J. McGann called the Boy Scouts "a moral organization" and described homosexuality as "a serious moral wrong." The court said that becausethe group is a private organization, it has a constitutional right to decidewho can belong.
The appellate division of the state superior court overruled this decision on2 March 1998. The court held that the Boy Scouts must follow New Jersey's antidiscrimination law. The decision stated: "There is absolutely no evidence before us, empirical or otherwise, supporting a conclusion that a gay scoutmaster, solely because he is a homosexual, does not posses the strength of character necessary to properly care for, or to impart BSA humanitarian ideals tothe young boys in his charge." The BSA planed to file an appeal with the NewJersey Supreme Court.
Impact
In both the Curran and Randall cases, four justices of the California Supreme Court offered separate, concurring opinions, each of which pointed out the need to further clarify what constitutes a business establishment under the Unruh Civil Rights Act. The ruling in the two California cases will affect the court's decision in a similar case involving a teenager, Katrina Yeaw, of Rocklin, California. She contends that the Boy Scouts discriminated against her when it denied her admission based on gender.
The BSA is appealing the New Jersey case to the state's supreme court. If itloses, it will appeal the decision to the U.S. Supreme Court. A dozen other suits involving similar issues are making their way through the courts. If theNew Jersey case reaches the Supreme Court, much of the confusion surroundingthe BSA's right to exclude certain individuals from the organization will undoubtedly be cleared up.
Related Cases
- Isbister v. Boys' Club of Santa Cruz, 40 C. 3d 72 (1985).
- Warfield v. Peninsula Golf & Country Club, 10 C. 4th 594 (1995).
- Dale v. Boy Scouts of America, No. Mon-C-330-92 (1998).
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