Boy Scouts May Not Discriminate (April 1994)

In The Court of Appeal of the State of California Fourth Appellate District Division Three

Michael Randall et al.,
Plaintiffs and Respondents,

v.

Orange County Council,
Boy Scouts Of America,
Defendants and Appellants.

Appeal from a judgment of the Superior Court of Orange County, Richard O. Frazee, Sr., Judge. Affirmed in part and reversed in part with directions.

Hughes Hubbard & Reed, George A. Davidson, Carla A. Kerr, John Kralik IV, and Lois C. Moonitz for Defendant and Appellant.

Jon W. Davidson, Paul L. Hoffman, and James Grafton Randall for Plaintiffs and Respondents.

Does the Unruh Civil Rights Act (Civ. Code, § 51, et seq.) apply to the Orange County Council of the Boy Scouts of America? Yes. May the council, the only named defendant, discriminate on the basis of religious beliefs or lack of religious beliefs? No.

I

This is an appeal from an action for injunctive relief and statutory damages ($250) on behalf of eleven-year-old twin brothers, plaintiffs Michael and William Randall, who were members of Cub Scout Den 4, Pack 519, located in Anaheim Hills. The boys prevailed at trial, obtaining an injunction barring defendant Orange County Council, Boy Scouts of America or any packs or dens from excluding them from scouting or advancing in the organization based on their religious beliefs.

Den 4 has five or six members who attend the same neighborhood school Pack 519 is comprised of Den 4 and a half dozen others and affiliated with defendant Orange County Council, Boy Scouts of America. The pack has no assets, but is operated by a parents’ committee chartered by the county council.

The Randalls had advanced several scouting ranks when their family moved to the Den 4 neighborhood in 1990. At the boys’ fourth or fifth meeting in the new den, the den mother read the first “achievement” in the Bear Book, the instruction manual for the next Cub Scout ranking, the Bear Badge. Quoted directly from the book, it reads as follows: “We are lucky. The people who wrote and signed our Constitution were very wise. They understood the need of Americans to worship God as they choose. A member of your family will be able to talk with you about your duty to God. Remember, this achievement is part of your Cub Scout Promise: ‘I, _____________, promise to do my best to do my duty to God and my country . . .’

“Requirement

“Practice your religion as you are taught in your home, church, synagogue, mosque, or other religious community.

“I worship God: in song[,] in prayer[,] in study[,] and by kind and thoughtful acts toward others.”

Alternatively the achievement could be attained in the following way: “Many signs remind us of God. Among them are a 6-pointed star, a cross, and a crescent. There are many other religious symbols. One of them may appear on a special emblem you may earn to wear on your uniform.

“Learn more about your faith from your rabbi, minister, priest, imam, elder, or other religious leader.

“Requirement

“Earn the religious emblem of your faith.”

According to defendant, Michael and William responded that they would have a problem because they did not believe in God and were atheists. This caused some commotion among the other boys, and the den mother removed the twins from the room. She asked what they did believe in; and they replied, “themselves.” The boys testified the word “atheist” was not in their vocabulary and was suggested by the den mother. They denied disrupting the meeting.

In any event, the boys’ parents were informed of the religion achievement requirement and told their sons could not continue in scouting if they did not believe in God. With their mother as guardian ad litem, the boys’ attorney father soon brought suit.

II

It has long been the law of California that the Boy Scouts, on the national and council levels, are businesses subject to regulation under the Unruh Act. (Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 717.) Nothing in the evidence produced below calls the Curran decision into question. Indeed, the facts established at trial strongly support its conclusion.

The Unruh Act has been amended three times since 1983; and while the Legislature is considered to be familiar with appellate opinions, it has not chosen to overturn Curran. Neither has the Supreme Court which recognized its appearance in passing in a similar holding in Isbister v. Boys’ Club of Santa Cruz, Inc (1985) 40 Cal.3d 72, 81, footnote 8. More recently, the court refused to jettison Curran in Harris v. Capital Growth Investors XIV(l991) 52 Cal.3d 1142, 1155; and Harris may be the most restrictive interpretation of the Unruh Act in the history of the Supreme Court. In Hart v. Cult Awareness Network (1993) 13 Cal.App.4th 777, 787, the same division of the Second District distinguished, but did not overrule, its decision in Curran.

Relying on Hart, however, defendant claims application of the Unruh Act would violate its constitutional right of free association. It made the same argument in Curran; and the court answered, “Taking this principle [the right to free association] literally as ‘governing’ would afford protection to the most flagrant form of discrimination under the canopy of the right of free association. The answer is, of course, that those with a common interest may associate exclusively with whom they please only if it is the kind of association which was intended to be embraced within the protection afforded by the rights of privacy and free association. (See Note, Association, Privacy and the Private Club: The Constitutional Conflict (1970) 5 Harv.C.R-C.L. L.Rev. 460, 466-467.) ‘The character and extent of any interference with the freedom of association must be weighed against the countervailing interests.’ (Note, Sex Discrimination in Private Clubs (1977) 29 Hastings L.J. 417, 422.) Accordingly, these constitutional provisions only restrain the Legislature from enacting antidiscrimination laws where strictly private clubs or institutions are affected.” (Curran v. Mount Diablo Council of the Boy Scouts, supra, 147 Cal.App.3d at pp. 730-731.)

Were we writing on a clean slate, the Hart opinion (refusing to require the Cult Awareness Network to admit members of the Church of Scientology) might give pause. But the specific issues before us concerning application of the Unruh Act to the Boy Scouts were resolved over a decade ago. Sound principles of stare decisis, particularly in view of the reaction (or lack thereof) to Curran by the Legislature and the appellate courts, persuade us it should be followed. A settled rule in an area of sensitive social policy should not lightly be brought into question.

III

The council does have one point, though. Oddly, the superior court drew an injunction specifically naming packs and dens, while recognizing in the statement of decision that none was before the court. That portion of the injunction must be annulled accordingly. It is axiomatic that only parties to actions may be enjoined. Packs and dens are not merely companies and platoons in the same army; they are loosely led and virtually autonomous in the community.

Randall pere probably appreciated the distinction because neither the pack nor the den was made a party. (See Roberts v. United States Jaycees (1984) 468 U.S. 609.) And, as noted in footnote 7, they have different legal positions. No pack or den should have been enjoined who had not been named in the complaint or intervened in the action.

To summarize, the Orange County Council, Boy Scouts of America can hardly be considered the religious organization the dissent proclaims, since any creed will meet its requirements. The county council is a business, a fairly big business. But businesses entertaining religious preferences may not discriminate on that basis. (Pines v. Tomson (1984) 160 Cal.App.3d 370.) The council could have no compelling justification for discriminating against children because of their current notions concerning the subject of God. Indeed, such discrimination would appear to contradict a variety of the principles of the congressionally chartered Boy Scouts of America.

The judgment is affirmed in part and reversed in part with directions to delete all references to packs and dens from the permanent injunction. Each side shall bear its own costs.

Crosby, J.; Concurring: Sonenshine, J.