holding that the Unruh Act does not prohibit Boy Scouts from excluding plaintiffs from membership or participation because of plaintiffs’ refusal to participate in the religion-based elements of the scout program
How later courts described this case
- holding that the Unruh Act does not prohibit Boy Scouts from excluding plaintiffs from membership or participation because of plaintiffs’ refusal to participate in the religion-based elements of the scout program
- reciting that, in defending its right to exclude atheists, the Boy Scouts introduced “evidence intended to establish that requiring the inclusion of nonbelievers ... would interfere with the organization’s ef *1042 forts to convey its religious message”
Written by the judges who cited it.
The opinion
MOSK, J.
I concur in the result.
Through its Orange County Council, the Boy Scouts of America refused to permit Michael and William Randall, who were then Cub Scouts, to advance as members of the organization because of their religion—or, more precisely, because of their lack of religion.
*745 Thereupon, the Randalls brought an action in the superior court against the Boy Scouts, specifically, the Orange County Council, claiming in substance that, by refusing to permit them to advance as members, it violated section 51 of the Civil Code (hereafter section 51), the so-called Unruh Civil Rights Act, which prohibits discrimination on bases including religion. Determining that section 51 covered the Boy Scouts in the formulating and implementing of membership policies as to members and potential members, and that its application would not infringe, inter alia, its members’ right of expressive or intimate association under the First Amendment to the United States Constitution, the superior court rendered judgment in favor of the Randalls and against the Orange County Council.
The Court of Appeal affirmed in pertinent part. It agreed with the superior court as to both the coverage of section 51 and the noninfringement of the First Amendment right of expressive and intimate association. It gave judgment accordingly.
I agree with my colleagues that, in pertinent part, we must reverse. I am of the view that section 51 does not cover the Boy Scouts in the formulating or implementing of membership policies as to members or potential members.
As I explain in my concurring opinion in Curran v. Mount Diablo Council of the Boy Scouts (1998) 17 Cal.4th 670, 702-722 [ 72 Cal.Rptr.2d 410 , 952 P.2d 218 ], section 51 expresses a policy against discrimination, on certain bases, in the general area of relationships between private persons and entities: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” The phrase “business establishments” means areas of activity encompassing proprietor-patron relationships, which involve the providing of goods or services, nongratuitously, for a price or fee, in the course of relatively noncontinuous, nonpersonal, and nonsocial dealings.
It follows that section 51 does not cover the Boy Scouts, at any level of the organization, in the formulating or implementing of membership policies as to members or potential members. That is because at no level does it operate in that regard as a “business establishment”—that is to say, at no level does it occupy in that regard an area of activity encompassing proprietor-patron relationships. The record on appeal is unequivocal. For the relationship between the Boy Scouts and the member or potential member in the formulating and implementing of membership policies, at whatever level of the organization, does not, in actuality, involve the providing of goods or *746 services, nongratuitously, for a price or fee, notwithstanding the payment of dues; moreover, the dealings in question are not relatively noncontinuous, nonpersonal, and nonsocial dealings, but quite the opposite.
For the reasons stated above, I join with my colleagues in reversing the judgment of the Court of Appeal to the extent that it affirms the judgment of the superior court in favor of the Randalls and against the Orange County Council.