finding the Boy’s Club of Santa Cruz to be a “business establishment” in part because “[t]here is no attempt to select or restrict membership or access on the basis of personal, cultural, or religious affinity, as a private club might do”
How later courts described this case
- finding the Boy’s Club of Santa Cruz to be a “business establishment” in part because “[t]here is no attempt to select or restrict membership or access on the basis of personal, cultural, or religious affinity, as a private club might do”
- finding that Boys’ Club — a membership organization which centered around a physical facility — was a “place of public accommodation or amusement” and thus a "business establishment
- holding that female children excluded from membership in the Boys’ Club could bring claims against the organization
- explaining The Unruh Act’s coverage in terms of "business establishments” includes "places of public accommodation’ ’
Written by the judges who cited it.
The opinion
BIRD, C. J.
I concur.
Justice Poché wrote an excellent dissenting opinion in the Court of Appeal. In most respects, his analysis was identical to that of today’s lead opinion. Indeed, this court granted a hearing largely due to the persuasive force of Justice Poché’s arguments. The inevitable but unfortunate consequence was to wipe out the published record of his excellent contribution.
It is worthwhile to reproduce here selected passages from Justice Poché’s opinion. Their value extends beyond historical interest. In these passages, Justice Poché pinpointed the wider implications of this case. In the process, he offered a forceful refutation of the views expressed by today’s dissenters, particularly Justice Mosk.
*92 Justice Poché recognized that much more is at stake here than the fate of sex-segregated children’s swimming pools. The reasoning of the vacated majority opinion in the Court of Appeal below—like that in Justice Mosk’s dissent here—would exclude “the Boys’ Club of Santa Cruz and therefore most nonprofit charitable service organizations from the operation of the Unruh Civil Rights Act (Civil Code, § 51.) What this means is that services such as the Salvation Army lunch line or free legal advice offered by nonprofit law offices may be restricted on the basis of race, sex, religion, or any other arbitrary classification. [Fn. omitted.]”
In terms which apply with equal force to Justice Mosk’s dissent, Justice Poché criticized the vacated Court of Appeal opinion as a source of two convenient guidelines for “those who wish to engage in arbitrary discrimination without running afoul of the Unruh Civil Rights Act: (1) nonprofit volunteer, fraternal, sectarian, charitable or cultural organizations are not within the ambit of the statute; and (2) a business-like purpose cannot be found if such a nonprofit group is merely offering programs and facilities for a nominal fee to its members.
“The first test allows the Ku Klux Klan or neo-Nazis to engage in the nonprofit, volunteer and fraternal offering of athletic facilities to some white children to combat the rise in juvenile delinquency. I find it difficult to believe that was or is the legislative intent behind the Unruh Civil Rights Act.
“The second touchstone seems to center upon whether the fee is nominal. Thus the wealthy organization which can afford to discriminate will be allowed to do so. But only those clubs which like the Boys’ Club of Santa Cruz have wealthy patrons who prefer to confer largess in a sexually discriminatory fashion will be free ... to discriminate. Unless we are to presume that the Unruh Civil Rights Act was meant to insulate a select few from the 20th century, it is impossible in my judgment to come to [that] interpretation of the statute ....
“The trial court understood the clear meaning of the Unruh Civil Rights Act: community services regardless of their source are to be provided in accordance with the legislative mandate of equal treatment for all. Perhaps the violation would be clearer if the Boys’ Club of Santa Cruz had discriminated on the basis of race, not sex. But that lack of clarity is not the fault of the language of the statute. Instead, the difficulty is the long and well ingrained tradition of women’s dependency which even today causes statutory recognition of the equality of women to have a strange and unreal ring to it.”
*93 On the basis of my full concurrence with these remarks, I agree that the judgment should be affirmed.