Curran v. Mount Diablo Council of the Boy Scouts of America

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 sexual orientation. 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 of assembly privilege.

On 23 March 1998, the California Supreme Court voted unanimously that the Boy Scouts organization was not a business establishment within the scope of the Unruh 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 it he 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 a large segment of the public. Comparing the case to Warfield v. Peninsula Golf & Country Club (1995), the court noted that the Boy Scouts is not like a private country club that permits nonmembers to use its facilities. Although the BSA engages in business transactions, its primary function is the inculcation 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 Orange County, 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 from participating in scouting, requiring them to use the word "God," or from requiring their participation in religious events or requirements. On 20 November 1992, 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 Rights Act. 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.