Welsh v. Boy Scouts of America

CUMMINGS, Circuit Judge,

dissenting.

As everyone (or almost everyone) knows, Boy Scouts must be trustworthy, loyal, helpful, friendly, courteous, 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 organiza *1279 tion’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, 42 U.S.C. § 2000a (“Title II”). The majority’s interpretation of Title II would leave the Boy Scouts and other like organizations free to discriminate not just against atheists — or those whose beliefs arguably conflict with the group’s most central philosophy — but against anyone at all on sheer whim. Under the majority’s analysis, a group such as Rotary International or the Jaycees or Little League is, absent a more comprehensive state statute, perfectly free to exclude blacks, Jews, Catholics, etc. Rather than unduly narrow the reach of Title II, I would hold that the statute does prevent discrimination by membership organizations. This does not necessarily mean that the Boy Scouts could be forced to admit atheists, however, because the First Amendment protects organizations from having to accept those who do not share its most elementary beliefs. 1 Yet the majority never reaches the constitutional question because of its treatment of Title II. As a result, I dissent. 2

Title II holds that “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.” 42 U.S.C. § 2000a(a). 3 Included in the definition of public accommodations are “placets] of * * * entertainment,” 42 U.S.C. § 2000a(b)(3), a definition I believe encompasses membership organizations including the Boy Scouts.

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. Filbum, 317 U.S. 111 , 63 S.Ct. 82 , 87 L.Ed. 122 (1942); Katzenbach v. McClung, 379 U.S. 294 , 85 S.Ct. 377 , 13 L.Ed.2d 290 (1964).

*1280 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 Justice 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

*1281 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 Homick 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 chefs home are not free to discriminate because the proprietor lives upstairs — 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; ie., 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 *1282 deny service to people based on skin color. This cannot be so. The majority eventually rests on the notion that people join 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 Homick 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 “place” 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 selec-tiveness, United States v. Lansdowne Swim *1283 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. Age 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 refer- *1284 enees 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. Act of June 14, 1954, ch. 297, 68 Stat. 249 (codified at 36 U.S.C. § 172 ). The Boy Scout oath is so central that former Scouts, years after they have forgotten how to tie a knot or start a fire with scraps of wood, can still recite its lines from memory. Third, there are genuine differences of belief between those who do not believe in God’s existence and those who do; these differences are basic enough that a group may choose to define itself in some measure by this distinction. In this sense, the discrimination by the Scouts against atheists is less heinous than the unexamined sexual stereotypes behind the exclusion of women from the Jaycees in Roberts and from Rotary International in Rotary.

Because the Boy Scouts 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.

.Curiously, the district court wrote two lengthy and strongly worded, even passionate, opinions which come to completely opposite conclusions. At the pre-trial stage the judge found as a preliminary matter that "case law makes it clear that Title II does apply to membership organizations,” that defendants satisfy the "place of public accommodation” clause, and that the Boy Scouts are subject to the anti-discrimination provisions of Title II. 742 F.Supp. 1413, 1422 (N.D.Ill.1990). Nefarly two years later, after a bench trial, the district court found that the Scouts do not qualify as a place of public accommodation under the statute because "they do not operate from or avail their members of access to a particular facility or location.” 787 F.Supp. 1511, 1541 (N.D.Ill.1992). Since this case involves primarily legal not factual questions, it is unclear what occurred during the trial to cause such a remarkable change in the district court's reasoning.

. This dissent disagrees with the "place” analysis in the majority opinion but does not disturb the result reached in the district court.

. Since Title II does not address sexual discrimination, the result I advocate would not force the Scouts to admit females.

. The Minnesota public accommodations law provided:

It is an unfair discriminatory practice: To deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex.

Roberts, 468 U.S. at 615 , 104 S.Ct. at 3248 (quoting MINN.STAT. § 363.03, subd. 3 (1982)).

. The California Act provides in part:

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 (quoting Cal.Civ.Code Ann. § 51 (West 1982)).

.A number of slate courts and district courts interpreting state laws have considered the meaning of "place” in public accommodation statutes. See, e.g., National Organization for Women, Essex County Chapter v. Little League Baseball, Inc., 127 N.J.Super. 522 , 318 A.2d 33 (1974), affirmed, 67 N.J. 320 , 338 A.2d 198 (1974) (little league baseball is "place of accommodation"); United States v. Slidell Youth Football Ass’n, 387 F.Supp. 474 (E.D.La.1974) (football league is “place of accommodation”); Quinnipiac Council, Boy Scouts of America, Inc. v. Commission on Human Rights and Opportunities, 204 Conn. 287 , 528 A.2d 352 (1987) (Boy Scout organization is "place of accommodation”); but cf, United States Jaycees v. Massachusetts Commission Against Discrimination, 391 Mass. 594 , *1281 463 N.E.2d 1151 (1984) (Jaycecs organization is not "place of accommodation”); Kiwanis Intern. v. Ridgewood Kiwanis Club, 806 F.2d 468 (3d Cir.1986), certiorari dismissed, 483 U.S. 1050 , 108 S.Ct. 362 , 97 L.Ed.2d 812 (1987) (Kiwanis organization is not "place of accommodation”). Since these cases are not binding, they need not be discussed in detail.

In 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 42 U.S.C. § 12181 . This latest example of congressional drafting does not reveal whether the Boy Scouts meet at a "place" under Title II any more than do the Supreme Court’s decisions in Roberts and Rotary. However, it is instructive that in the ADA Congress has taken note of the broader interpretations given Title II in many courts and seemingly approved the thrust of this case law by offering its own expanded definition of public accommodations.

. Bryant v. Zimmerman, 278 U.S. 63 , 49 S.Ct. 61 , 73 L.Ed. 184 (1928), is inapposite. That case upheld a New York statute requiring any incorporated association which demanded an oath as a condition of membership to, among other things, disclose its membership. However, the statute in Bryant was directed at the Ku Klux *1284 Klan and the decision was "based on the particular character of the Klan’s activities, involving acts of unlawful intimidation and violence.” NAACP V. Button, 371 U.S. 415, 465 , 83 S.Ct. 328, 354 , 9 L.Ed.2d 405 (1963).