Warfield v. Peninsula Golf & Country Club

MOSK, J., Concurring and Dissenting.

Although I concur in the majority’s result, I decline to accompany them over the whole length of the route they take to arrive there. Specifically, I part company with them when they reiterate with approval the misguided and illogical reasoning of Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72 [ 219 Cal.Rptr. 150 , 707 P.2d 212 ] (Isbister). The concept that a small “swim and gym” club for boys *631 is a “business establishment” was incomprehensible when proffered by a majority of this court (see dis. opns. of Mosk, J., id. at p. 93, & Kaus, J., id. at p. 98), and it has not gained stature or even plausibility with the passage of time.

Civil Code section 51 provides that regardless of “sex, race, color, religion, ancestry, national origin, or disability” all persons subject to California law “are entitled to . . . full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Italics added.) In defiance of that plain language, Isbister stands for a rule that this court may alchemically transform a nonbusiness into a business when it finds purported sex discrimination.

Of course, I share the majority’s disquiet about sex discrimination. The loss of human capital occasioned by centuries of mindless sex discrimination is beyond calculation. We can only estimate its magnitude as we witness women’s recent achievements in the worlds of work, politics and governance, the arts, and professional and amateur athletics, now that denial of opportunity and damage to self-esteem have somewhat diminished. Defendant country club’s treatment of plaintiff may well appear totally alien to future generations.

But regardless of the destructiveness of invidious sex discrimination, we cannot ordinarily dictate to private groups whom they must admit when the Legislature has chosen not to address the question. In this case the Unruh Civil Rights Act does provide plaintiff a remedy, because defendant country club appears to be operating as a business establishment. In the case of Isbister’s plaintiffs, however, the statute did not provide a remedy; indeed, a youngster’s 25-cent sidewalk lemonade stand is more a business establishment than was the Boys’ Club of Santa Cruz. The Isbister majority managed the rare feat of flouting the will of both the California Legislature and Congress when they concluded that an affiliate of an association congressionally chartered at the time “to promote the health, social, educational, vocational, and character development of boys” (former 36 U.S.C. § 693 , italics added; see now 36 U.S.C. §§ 691 , 693 [“Boys & Girls’ Clubs of America” chartered to promote these qualities in “youth[s]”]) would be an even worthier endeavor if it was required to do the same for girls. Maybe so, but that was not the law.

Because Isbister’s strained reasoning so evidently runs counter to the Unruh Civil Rights Act—the law proscribes discrimination in “accommodations” only in all “business establishments,” not wherever human beings may *632 choose to gather—that opinion is guaranteed to cause mischief in future cases. There is a vast array of voluntary associations, nonprofit organizations, and charitable groups of all kinds dependent on our interpretation of the Unruh Civil Rights Act. (See, e.g., the list of amici curiae who appeared on behalf of the Boys’ Club of Santa Cruz in Isbister, supra, 40 Cal.3d 72, 93 (dis. opn. of Mosk, J.).) Our interpretation must therefore rely on rigorous analysis of the legislative language and purpose, not on the personal views of individual judges regarding a preferred composition of a private noncommercial organization.

The majority in this case have no need to cite Isbister with approval. Instead of relying simply on the plain facts of this case, they dilute the persuasiveness of their conclusion by appearing to depend in part on that opinion’s obviously misguided reasoning.

I also note that the majority euphemistically refer to “gender” discrimination, as if plaintiff were refused membership because of her femininity rather than her sex. (See J.E.B. v. Alabama ex reí. T.B. (1994) 511 U.S _, _, fn. 1 [ 128 L.Ed.2d 89, 114 , 114 S.Ct. 1419 ] (dis. opn. of Scalia, J.).) In fact the Unruh Civil Rights Act says nothing about gender discrimination.

Nevertheless, I concur with the majority that the defendant country club in the case at bar appears to be operating as a business establishment, and hence that the Unruh Civil Rights Act bars it from discriminating on the basis of sex.