Petition for Writ of Certiorari — Merino v. San Diego County Council of the Boy Scouts of America

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OFFICE -9F -FHe-ct ER

In The

Supreme Court of the United States

October Term, 1997

No.

CHARLES MERINO,

Petitioner,

SAN DIEGO COUNTY COUNCIL OF THE BOY

SCOUTS OF AMERICA and RONALD BRUNDAGE,

Respondents.

On Petition For A Writ Of Certiorari

To The Court Of Appeal Of The State Of California

PETITION FOR A WRIT OF CERTIORARI

Everett L. Bossitt

Counsel of Record

SANFORD A. TOYEN

Law Orrices oF Everett L. Bossitt

8388 Vickers St.

San Diego, CA 92111

Telephone: (619) 467-1199

Facsimile: (619) 467-1285

September 29, 1998

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

1. Whether the Equal Protection clause of the Four-

teenth Amendment to the United States Constitution is

violated when a public employee is removed from his

position based solely on sexual orientation.

PARTIES TO THE PROCEEDINGS

Charles Merino was the plaintiff in the Superior

Court of San Diego County, cross-appellant in the Court

of Appeals of the State of California, and petitioner in the

Supreme Court of California.

San Diego County Council of the Boy Scouts of

America and Ron Brundage were defendants in the Supe-

rior Court of San Diego County, cross-appellants in the

Court of Appeals of the State of California, and respon-

dent in the Supreme Court of California. City of San

Diego was a defendant in the Superior Court of San

Diego County, and was not a party in any other proceed-

ings.

Pass a. oe a

Pee aba ae eee

iii

TABLE OF CONTENTS

Page

COURSTIUIN. PRESENTED. .. 0.6.5.5. c ccc cccccccccee, i

PARTIES TO THE PROCEEDINGS ................. ii

WOU SP PA TE is. on ss ovis cccccgck... iv

I Ns 0) oss ho ome bieS oun oe eee 1

re ee ee ee 1

MRE WOME NOMD 65. ooo ono vos ones ccc ks ncen 2

STATEMENT OF THE CASE................00.0-. 2

REASONS FOR GRANTING THE WRIT ........... 5

I. THE SAN DIEGO COUNTY COUNCIL OF THE

_ BOY SCOUTS ASSUMED THE ROLE OF STATE

ACTOR WHEN IT REMOVED MERINO FROM

A POSITION WITHIN THE EL CAJON POLICE

WMURR MMMM Vi 058 1s hobs os claws bh dace’. 5

Ii. PETITIONER WAS DENIED EQUAL PROTEC-

TION WHEN HE WAS REMOVED FROM THE

POSITION OF EXPLORER POST LEADER

SOLELY BECAUSE OF HIS SEXUAL ORIENTA-

ME eee ao oi Sab ca oc eve oe lac 7

EEE Sree ictegt i nee en eee 10

Sg cae dh aD i ec aaa est ede Raa at App. 1

TABLE OF AUTHORITIES

Page

Cases

Burton v. Wilmington Parking Authority, 36 U.S. 715

| EPP ary ries Ae te treet, y Are Beer oe sy eee 6

Evans v. Newton, 382 U.S. 296 (1966) ................. 6

Georgia v. McCollum, 505 U.S. 42 (1992) .............. 6

Heller v. Doe, 509 U.S. 312 (1993)..........000eeee eee 7

].E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)...... 8

Lugar v. Edmondson Oil Co, Inc., 457 U.S. 922 (1982) ..... 6

Michael M. v. Superior Court, 450 U.S. 464 (1981)...... 9

Miller v. Johnson, 515 U.S. 900 (1995)................. 8

Nordlinger v. Hahn, 505 U.S. 1 (1992)................. 7

Romer v. Evans, 517 U.S. 520 (1996) ............... 8, 10

Terry v. Adams, 345 U.S. 461 (1953).............0000-. 6

United States v. Virginia, 511 U.S. 515 (1996).......... 8

PETITION FOR WRIT OF CERTIORARI

Petitioner, Charles Merino, respectfully prays that a

writ of certiorari issue to review the judgment and opin-

ion of the Court of Appeal for the Fourth Appellate

District, State of California, entered in the above proceed-

ing on May 21, 1997. The petition for review to the

California Supreme Court was granted on July 30, 1997,

and held pending resolution by the California Supreme

Court of the case, Curran v. Mt. Diablo Council of the Boy

Scouts of America., $039738. The California Supreme Court

dismissed Merino’s petition on July 8, 1988.

—©

OPINIONS BELOW

The opinion of the Court of Appeal for the Fourth

Appellate District is set forth in the Appendix to this

petition at App. 1-20. The judgment of the Superior Court

of California for the County of San Diego is set forth in

the Appendix to this petition on at App. 32-56.

& —

JURISDICTION

The decision of the Court of Appeal for the State of

California was entered on May 21, 1997. A timely petition

for review was filed with the Supreme Court of the State

of California. Review was granted, and later dismissed.

An order dismissing the petition for review, filed July 8,

1998, is set forth on page 89 of the Appendix. The juris-

diction of this Court is invoked under 28 U.S.C. section

1287(a).

STATUTES INVOLVED

This case involves the Fourteenth Amendment to the

Constitution of the United States.

e t

STATEMENT OF THE CASE

In May 1989, Petitioner CHARLES MERINO, a police

officer with the El Cajon Police Department (ECPD)

applied to Boy Scouts, through its chartered local council,

San Diego County Council of the Boy Scouts of America,

for an Explorer Post charter. MERINO, who was in charge

of the ECPD Cadet program, sought to convert the

Department's existing Cadet program into a law enforce-

ment Explorer Post, a scouting group within Boy Scouts.

In order to be the adult advisor of the Post, MERINO

applied to be an adult member of the Boy Scouts. Boy

Scours chartered the El Cajon Police Department as a

sponsor of Explorer Post 2245 and approved MERINO’s

application to be a volunteer adult member of the Boy

Scouts.

Exploring is the young adult program of the Boy

Scouts of America for men and women aged 14 through

20. The program is developed by local community organi-

zations, such as the El Cajon Police Department, which

match the interests of young adults with the program

resources of the chartered organization. The program,

leadership, and membership of the Explorer Post are

determined by the chartered organization within the

framework of the policies and standards of the Boy

Scouts of America. The Explorer Post charter agreement

between ECPD and Boy Scouts states, among other

things, that the Department agrees to “conduct the Scout-

ing program according to its own policies and guidelines

as well as those of the Boy Scouts of America” and Boy

Scouts agrees to “respect the aims and objectives of the

organizations and offer the resources of Scouting to help

in meeting those objectives.”

In approximately December 1991, MERINO became

involved in organizing a Citizens Patrol to patrol the

Hillcrest area of San Diego, where MERINO lived, to

assist police in the prevention of the numerous and

increasing assaults and batteries on homosexuals in the

Hillcrest area at the time. Boy Scouts learned of MER-

INO’S activities and determined that MERINO was an

avowed homosexual. Boy Scouts views homosexuality as

inconsistent with Scouting principles, specifically the

requirement in the Scout Oath to be “morally straight”.

Boy Scouts therefore does not permit known or avowed

homosexuals to be adult leaders. On the basis of his

homosexuality, Boy Scouts, by letter dated August 25,

1992, signed by Council President RONALD BRUN-

DAGE, suspended MERINO’S registration.

The El Cajon Police Department, as a public agency,

could not discriminate on the basis of sexual preference.

It was the opinion of then-Chief of Police Jack Smith that

it would be an unlawful adverse employment decision if

he were to remove MERINO from the position of Explorer

Post Advisor based on his sexual orientation. Chief Smith

therefore allowed the El Cajon Police Department's

Explorer program charter to expire. If MERINO is reins-

tated as the Explorer Advisor, the charter agreement will

be reinstated, with MERINO as the advisor.

MERINO filed suit on December 14, 1992. The suit

named as defendants SAN DIEGO COUNTY COUNCIL

OF THE BOY SCOUTS OF AMERICA, RON BRUNDAGE,

and the CITY OF SAN DIEGO. The complaint prayed for

a Writ of Mandamus ordering the BOY SCOUTS to reins-

tate MERINO to his membership in BOY SCOUTS and to

his position of Explorer Post Advisor, a permanent

injunction preventing BOY SCOUTS from expelling MER-

INO from membership solely on the basis of his homo-

sexuality, a writ commanding the CITY OF SAN DIEGO

to terminate its lease with the BOY SCOUTS, and Declar-

atory relief.

The Court granted Summary Judgment to the CITY

OF SAN DIEGO, holding that the relief sought against

the City was premature.

The case went to trial on March 21, 1994. On July 7,

1994, the trial court, Hon. Anthony C. Joseph, ruled that

the Boy Scouts had discriminated against MERINO in

violation of the Unruh Act, and that the San Diego

Human Dignity Ordinance did not apply since the

Explorer Post was in the city of El Cajon and therefore

“outside the jurisdiction of the Ordinance”. The Court

granted relief to MERINO as follows: $5000.00 in mone-

tary damages; attorneys fees; and a Mandatory Injunction

ordering the BOY SCOUTS to reinstate the Explorer Post

charter for the El Cajon Police Department, upon applica-

tion by MERINO, and to reinstate MERINO as the

Explorer Advisor of the El Cajon Police Department post.

BOY SCOUTS appealed the court's judgment. MER-

INO cross-appealed on the court’s ruling that the Human

Dignity Ordinance did not apply. After briefing and oral

argument, the Court of Appeal, on May 21, 1997, reversed

the judgment of the trial court with respect to the finding

that BOY SCOUTS violated the Unruh Act, and affirmed

the trial court’s findings that the San Diego Human Dig-

nity Ordinance did not apply.

Petitioner MERINO sought review from the Califor-

nia Supreme Court. The California Supreme Court issued

a “grant and hold” pending the cutcome of the Court’s

decision in Curran v. Mt. Diablo Council of the Boy Scouts.

On July 8, 1998, the California Supreme Court dismissed

MERINO’s appeal.

REASONS FOR GRANTING THE WRIT

THE SAN DIEGO COUNTY COUNCIL OF THE BOY

SCOUTS ASSUMED THE ROLE OF STATE ACTOR

WHEN IT REMOVED MERINO FROM A POSITION

WITHIN THE EL CAJON POLICE DEPARTMENT.

The Court of Appeal’s decision ignored a critical

point raised by MERINO: the fact that he was removed

from a position within a public agency solely because of

his sexual orientation. The Court of Appeal analyzed

MERINO’s claim solely according to California’s public

accommodation statute, the Unruh Act (California Civil

Code section 51), ignoring the fact that the Boy Scouts, in

overseeing an Explorer Post within the El Cajon Police

Department, were not purely private actors.

The decision of the Court of Appeal, if allowed to

stand, would severely weaken the Constitutional protec-

tions of public employees by allowing their rights to be

violated by private entities who perform government

functions. This Court has consistently held that private

entities, when performing public functions, assume the

role of government and are therefore subject to Constitu-

tional limitations. Georgia v. McCollum, 505 U.S. 42, 53

(1992); Terry v. Adams, 345 U.S. 461 (1953). The undis-

puted facts of this case demonstrate that the Boy Scouts

were performing a governmental function in overseeing a

law enforcement assignment within the El Cajon Police

Department. As such, they were subject to the limitations

placed on government entities by the Equal Protection

clause of the Fourteenth Amendment to the United States

constitution.

The fact that MERINO’s Explorer Post position was

within a public agency cannot be ignored. This operative

fact places the issue outside of standard public accom-

modation statute analysis, and into the area of Equal

Protection. To hold otherwise is to ignore decades of well-

developed law in this area holding that even private

entities can be considered “state actors” when they per-

form public functions. Burton v. Wilmington Parking

Authority, 365 U.S. 715 (1961); Evans v. Newton, 382 US.

296, 299 (1966); Lugar v. Edmondson Oil Co., Inc., 457 U.S.

922 (1982).

Although this Court has written numerous opinions

dealing with the Constitutional ramifications of private

entities performing public functions, it has never taken

up the issue in the context of what is perhaps the most

common joint venture between municipalities and a pri-

vate entity: the Explorer Post position. The Explorer pro-

gram is a nationwide program of the Boy Scouts of

America. The Boy Scouts have hundreds of Explorer

posts nationwide that operate primarily out of public

agencies.

What makes the Explorer program problematic is the

fact that it is the policy of the Boy Scouts that no avowed

homosexuals be allowed membership. The Boy Scouts

also require that Explorer post leaders become members

of the Boy Scouts. Additionally, Boy Scouts require that

the Explorer post will be operated within the bylaws of

the Boy Scouts. Absent any ruling to the contrary, the Boy

Scouts are thus free to operate an Explorer post within a

public agency, and free to discriminate on the basis of

sexual orientation in regard to who may hold the position

of Explorer post leader. The court should use this case as

an opportunity to further clarify the extent to which a

public agency may affiliate itself with a private entity

that practices discrimination.

II.

PETITIONER WAS DENIED EQUAL PROTECTION

WHEN HE WAS REMOVED FROM THE POSITION OF

EXPLORER POST LEADER SOLELY BECAUSE OF HIS

SEXUAL ORIENTATION.

Claims that an individual has been discriminated

against by the Government based on a particular classi-

fication are generally reviewed under a rational basis

standard. Heller v. Doe, 509 U.S. 312, 320 (1993). Under a

rational basis standard, the Court will uphold the classi-

fication if it is rationally related to a legitimate govern-

mental purpose. Nordlinger v. Hahn, 505 U.S. 1, 11 (1992).

However, when governmental activity is found to

discriminate on the basis of a suspect classification, the

Court's standard of review is not as deferential. When the

government has discriminated on the basis of gender, in

order for such discrimination to be permissible, the state .

has the burden of demonstrating an “exceedingly persua-

sive justification” for such discrimination. J.E.B. v. Ala-

bama ex rel. T. B., 511 U.S. 127, 152 (1994); United States v.

Virginia, 518 U.S. 515, 531 (1996). Moreover, “state actors

may not rely on ‘overbroad’ generalizations to make

judgments about people that are likely to . . . perpetuate

historical patterns of discrimination. United States v. Vir-

ginia, 511 U.S. at 542 (internal citations omitted).

Discrimination on the basis of race or national origin

is reviewed under an even more stringent standard. Such

governmental action is reviewed under a strict scrutiny

standard, whereby in order to be held valid, the action

must be narrowly tailored to uphold a compelling state

interest. Miller v. Johnson, 515 U.S. 900, 915 (1995).

However, the Court has never taken the opportunity

to define the proper standard of review for governmental

discrimination on the basis of sexual orientation. In Romer

v. Evans, 517 U.S. 520 (1996), the Court struck down an

amendment to the Colorado State Constitution which

nullified all anti-discrimination statutes as applied to

gays, lesbians, and bisexuals, and which prevented the

state from enacting any future legislation intended to

prevent and redress discrimination on the basis of sexual

orientation. However, the Court did not address the ques-

tion of what standard of review should be applied to

governmental discrimination on the basis of sexual orien-

tation. The court found that the Colorado amendment

defied conventional analysis and determined that it could

not withstand even a rational basis analysis. Romer, 517

U.S. at 632. Thus, the Court did not address the issue of

what standard of review would be applied to govern-

mental discrimination against homosexuals in a more

conventional equal protection case.

The issue is of particular significance in this case

because petitioner MERINO, at the trial court, offered

unrefuted evidence that his homosexuality was an immu-

table characteristic. MERINO offered the expert testi-

mony of Dr. Simon Levay, who testified that his research

confirmed the fact that homosexuality was not a “lifestyle

choice”, but rather a biological condition over which

people have no control. (Appendix 54, fn. 7). No contrary

evidence was offered.

The immutability of the trait of homosexuality is

important to the analysis because, not coincidentally, all

of the classifications which this court has found to be

“suspect” and therefore warrant greater scrutiny, involve

immutable characteristics. Classification based on race,

gender, and national origin all warrant some form of

heightened scrutiny. It is anathema to the concept of

Equal Protection that people be treated adversely because

of a trait based on their status, rather than their conduct.

“The Constitution is violated when government, state or

federal, invidiously classifies similarly situated people on

the basis of the immutable characteristics with which

they were born. Michael M. v. Superior Court, 450 U.S. 464,

477-478 (1981).

This Court could use this case to establish the appro-

priate standard of review for Equal Protection claims.

However, Petitioner MERINO’s claim is by no means

predicated on the requirement that belief that his removal

should be reviewed under a heightened standard. Peti-

tioner MERINO contends that the justification for remov-

ing him from his Explorer post position could not even

withstand a rational basis standard of review. “[E]ven in

the ordinary equal protection case calling for the most

deferential of standards, we insist on knowing the rela-

tion between the classification adopted and the object to

be attained.” Romer, 517 U.S. 620, 632 (1996). Boy Scouts

can establish no rational basis for removing MERINO

from his post solely because of his homosexuality.

CONCLUSION

For the reasons stated above, a Writ of Certiorari

should be granted to review the decision of the Court of

Appeal, State of California.

Respectfully submitted,

Law Orrices oF Everett L. Bossittr

Everett L. Bossitt

SANFORD A. ToYEN

Attorneys for Petitioner

Dated: September 29, 1998

BA LEE a Ta ai air ae

epee Ren . 4

App. 1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CHARLES MERINO,

Plaintiff and Appellant,

v. D021969

SAN DIEGO COUNTY COUNCIL

OF THE BOY SCOUTS OF

AMERICA, et al., (Supers, Ct.

No. 659236)

Defendants and Appellants.

D022829

CHARLES MERINO,

Plaintiff and Respondent,

(Filed

me May 21, 1997)

SAN DIEGO COUNTY COUNCIL

OF THE BOY SCOUTS OF

AMERICA, et al.,

Defendants and Appellants.

oe eal Nea Na? Ce Nt Nag lt Neal Seat, Sa? Saat Seat a? Sie? Seat Se? AS) ESO

APPEAL from a judgment and order of the Superior

Court of San Diego County, Anthony C. Joseph, Judge.

Affirmed in part and reversed in part.

In this action for declaratory and injunctive relief,

mandate, and damages, Charles Merino seeks reinstate-

ment to his former position of adult advisor to an

App. 2

Explorer Scout post chartered by the Boy Scouts of Amer-

ica (BSA), after BSA suspended him as an adult volunteer

after he publicly announced that he is a homosexual. The

superior court ruled in favor of Merino, concluding that

BSA constituted a business establishment within the

meaning of the Unruh Civil Rights Act (Civ. Code,! § 51

et seq.) (here, the Unruh Act or the Act). The court

further ruled that application of the Unruh Act would not

violate the First Amendment freedom of expression rights

of BSA, particularly freedom of association. (U.S. Const.,

Amend. I.) A mandatory injunction was issued to compel

reinstatement and rechartering of the Explorer post with

which Merino had been associated.

BSA now appeals, contending the trial court erred in

characterizing BSA as a business establishment and in

finding no undue burden on BSA’s constitutional rights

by applying the Unruh Act to this set of facts tc compel

reinstatement. Merino cross-appeals, arguing that the

trial court erroneously declined to apply a City of San

Diego ordinance, the Human Dignity Ordinance (San

Diego Mun. Code, § 52.9601 et seq.) (HDO or the local

ordinance) to compel reinstatement here.

In deciding these sensitive issues, we do not write on

a clean slate. The California Supreme Court now has

before it an Unruh Act case challenging the policy of BSA

to refuse to allow homosexual persons to serve as scout

leaders (Curran v. Mount Diablo Council of the Boy Scouts

(1994) 48 Cal.App.4th 670 (review granted June 2, 1994

1 All statutory references are to the Civil Code unless

otherwise specified.

App. 3

($039738)), and an Unruh Act case challenging the policy

of BSA to refuse to allow boys who do not believe in God

to become members (Randall v. Orange County Council

(1994) 47 Cal.App.4th 576 (review granted June 2, 1994

(S039161)). On the main Unruh Act issue, the Court of

Appeal majorities in those two cases reached opposite

results, the court in Curran concluding BSA does not

constitute a business establishment and the court in Ran-

dall concluding it does. The Supreme Court will resolve

the Unruh Act issues, but, at this writing, oral argument

is not yet scheduled. We therefore proceed to decide this

pending case pursuant to existing law.

In resolving the statutory and legal issues presented,

we follow the lead of the Supreme Court in Warfield v.

Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 598

(Warfield): Our analysis “does not turn upon our personal

views as to the wisdom or morality” of the policies under

challenge in this case. As well-stated by Chief Justice

Lucas in dissent in Warfield: “My personal views . . . are

irrelevant. Our judicial role is to apply the law, not to

make it.” (Id. at p. 632.) Thus, we do not address the

merits of the moral and social issues concerning homo-

sexuality and/or youth in our society. Nor need we reach

any issues concerning Merino’s personal fitness to serve

as an adult volunteer at the Explorer post at issue.

Rather, our task is to interpret the Unruh Act lan-

guage with regard to these facts. We conclude BSA cannot

properly be characterized as a business establishment

under the criteria set forth in Warfield, supra, 10 Cal.4th

594. We accordingly do not reach the issue of whether,

even if the Unruh Act could properly apply to these facts,

the First Amendment right of freedom of association

*- Neorg ~

am mas

App. 4

would preclude enforcement of the Act to require BSA to

include as an adult volunteer a person who would sub-

stantially inhibit the association’s message. We affirm the

judgment insofar as the trial court correctly concluded

the Human Dignity Ordinance has no applicability to

these facts, but reverse the judgment as to the dispositive

Unruh Act issues presented (except that our resolution of

the main issues makes it unnecessary for us to address

the reinstatement claim). The trial court will accordingly

be directed to enter a different judgment in favor of BSA.

Background

This case was tried on stipulated facts, a copy of

which we attach as appendix A to this opinion, and

discuss as appropriate in connection with each of the

substantive claims presented. In brief, these facts deal

with the organizational structure of scouting, the finan-

cial status and personnel organization of BSA, its mem-

bership statistics, and the text of the scout oath and the

scout law, as well as definitions of the crucially important

terms “morally straight” and “clean” as used in scouting

practice. BSA does not accept known or avowed homo-

sexuals as adult leaders because it believes that homosex-

ual conduct is inconsistent with the scout oath and law.

(Appen. A [App. 53].) This policy is set forth in 1978 and

1991 position statements promulgated by BSA and admit-

ted into evidence at trial. The 1978 position statement

says that an individual who openly declares himself to be

a homosexual may not be a volunteer scout leader, as

follows:

App. 5

“We do not believe that homosexuality and

leadership in Scouting are appropriate. We will

continue to select only those who in our judg-

ment meet our standards and qualifications for

leadership.”

The 1978 position statement continues: “IBSA] does

not knowingly employ homosexuals as professionals or

nonprofessionals.”

In the 1991 position statement, entitled “Homosex-

uality and the BSA,” instead of stating that homosex-

uality itself and leadership in scouting are inappropriate,

the emphasis is now placed upon homosexual conduct,

such that: “We believe that homosexual conduct is not

compatible with the aims and purposes of scouting and

that it does not present a desirable role model for the

youth in our program.” The following question is then

posed and answered:

“Q: Are you implying by your policy that

homosexuals do not have good moral or emo-

tional character?

A: Our position is that they do not present a

role model which we seek for our youth mem-

bers.”

The 1991 position statement further declares that BSA

has for more than 80 years brought the moral values of

the scout oath and scout law to American boys, and also

places strong emphasis on traditional family values as

being necessary components of a strong, healthy society.

It continues:

“We believe that homosexual conduct is incon-

sistent with the requirements in the Scout Oath

that a Scout be morally straight and in the Scout

, ere

Toh ay

i. fee

App. 6

law that a Scout be clean in word and deed, and

that homosexuals do not provide a desirable

role model for Scouts. [{] Because of these

beliefs, [BSA] does not accept homosexuals as

members or as leaders, whether in volunteer or

professional capacities. [{] Our position on this

issue is based solely upon our desire to provide

the appropriate environment and role models

which reflect Scouting’s values and beliefs.”

The stipulated facts go on to describe Merino’s expe-

riences in administering youth programs at the El Cajon

Police Department, where he has been employed since

1977, and his involvement with scouting from 1989

through 1992. The period of this involvement covered the

times when both the 1978 and 1991 position statements

were in effect.

At the conclusion of trial, the trial court determined

that BSA may not exclude or remove avowed homosex-

uals from membership in BSA unless the conduct of such

person is violative of BSA rules which apply equally to all

BSA members without regard to homosexuality. The

court found Merino had been expelled from BSA solely

based on his classification as an avowed homosexual,

which was found to be a status-based discrimination.

After first stating that BSA does not exist for an expres-

sive purpose, the court ruled that requiring BSA to end

discrimination against avowed homosexuals served a

compelling state interest to eliminate arbitrary discrimi-

nation, and thus the Unruh Act applied despite BSA’s

expressive associational rights, if any. Five thousand dol-

lars money damages was awarded, plus attorney fees and

costs, and a mandatory injunction was issued requiring

reinstatement and rechartering of the Explorer post. The

App. 7

writ of mandamus was denied and the City of San Diego

was thus not required to invoke the provisions of the

local ordinance. BSA appealed the judgment and Merino

cross-appealed regarding the local ordinance ruling.”

Standard of Review

We analyze this record with these standards in mind:

“T]he construction of statutes and the ascer-

tainment of legislative intent are purely ques-

tions of law. This court is not limited by the

interpretation of the statute made by the trial

court. ...’ [Citation.]” (Bravo Vending v. City of

Rancho Mirage (1993) 16 Cal.APP. 4th 383,

391-392.)

In Harris v. Capital Growth Investors XIV (1991) 52

Cal.3d 1142, 1159, the Supreme Court set forth the basic

rule: “In analyzing statutory language, we seek to give

meaning to every word and phrase in the statute to

accomplish a result consistent with the legislative pur-

pose, i.e., the object to be achieved and the evil to be

prevented by the legislation. [Citations.]”

2 BSA’s separate appeal, No. D022829, regarding fees and

costs awarded to Merino has been consolidated with this

appeal. Those issues, however, were never briefed and will not

be addressed here. In any case, due to our disposition, the fee

award becomes moot and will be vacated.

The Individual Rights Foundation has filed an amicus

curiae brief in support of BSA’s position on the appeal. (Cal.

Rules of Court, rule 14(b).

App. 8

As explained by the court in Beaty v. Truck Ins.

Exchange (1992) 6 Cal.App.4th 1455, 1460, we may take it

as a given that the term “sex” in the Unruh Act is inter-

preted to include “sexual orientation” as a protected cate-

gory.

With regard to the interpretation of another statutory

term the Supreme Court explained in Warfield, supra, 10

Cal.4th at p. 607, footnote 7 that the question whether the

particular defendant club constituted a-“business estab-

lishment” within the meaning of the Unruh Act was one

of law to be decided by the trial court, not one of fact to

be decided by the finder of fact. Whether a particular

kind of entity constitutes a business establishment for

purposes of section 51 is a question of statutory inter-

pretation to be decided by the court. (Warfield, supra, at p.

607, fn. 7.)

With all these rules in mind, we apply the criteria of

Warfield to this record, and then turn to the issues raised

by the cross-appeal concerning the local ordinance.

Ill

Unruh Act: Business Establishment Criteria

“’Enacted in 1959, the Unruh Act secures equal

access to public accommodations and prohibits discrimi-

nation by business establishments.’ [Citation.] Amended

at various times since 1959, Civil Code section 51 now

Provides in pertinent part: ‘All persons within the juris-

diction of this state are free and equal, and no matter

what their sex, race, color, religion, ancestry, national

App. 9

origin, or blindness or other physical disability are enti-

tled to the full and equal accommodations, advantages,

facilities, privileges, or services in all business establish-

ments of every kind whatsoever.’” (Beaty v. Truck Ins.

Exchange, supra, 6 Cal.App.4th at p. 1461.)

What is the intended scope of the language of section

51 with regard to the definition of “business establish-

ment”? The court in Hart v. Cult Awareness Network (1993)

13 Cal.App.4th 777 set out this summary of the law

defining this term: .

“The Legislature used the words “all” and “of

every kind whatsoever” in referring to business

establishments covered by the Unruh [] Act

(Civ. Code, § 51), and the inclusion of these

words, without any exception and without spec-

ification of particular kinds of enterprises,

leaves no doubt that the term “business estab-

lishments” was used in the broadest sense rea-

sonably possible. The word “business” embraces

everything about which one can be employed,

and it is often synonymous with “calling, occu-

pation, or trade, engaged in for the purpose of

making a livelihood or gain.” [Citations.] The

word “establishment,” as broadly defined

includes not only a fixed location, such as the

“place where one is permanently fixed for resi-

dence or business,” but also a permanent “com-

mercial force or organization” or “a permanent

settled position (as in life or business).” ° ,

[Citation.]}

“ An organization is not excluded from the scope

of Civil Code section 51 simply because it is

nonprofit. [Citation.] However, ‘the statute

does not govern relationships which are truly

App. 10

private - .. . those which are “continuous,

personal, and social” [citation] and take place

more or less outside “public view.” [Citation.]

“Private” groups and institutions do not fall

prey to the Act simply because they operate

“nongratuitous” residential or recreational facil-

ities for their members or participants; an

“accommodation” must be “public” to be cov-

ered. Conversely, we have stressed that the stat-

ute was intended to include those kinds of

recreational facilities traditionally deemed

“accommodations.” We have not suggested that

noncommercial groups which do not operate

such facilities are covered “business establish-

ments.” (Isbister v. Boys’ Club of Santa Cruz, Inc.

(1985) 40 Cal.3d 72, 84, fn. 14, original italics.)”

(Hart v. Cult Awareness Network, supra, 13

Cal.App.4th at pp. 786-787.)

A nonprofit organization is subject to the Unruh Act

only where it has a business purpose (e.g., maintenance

of condominium property, O’Connor v. Village Green

Owners Assn. (1983) 33 Cal.3d 790, 796) or where the

organization offers a traditional public accommodation

(e.g., pool and gymnasium, Isbister v. Boys’ Club of Santa

Cruz, Inc. (1985) 40 Cal.3d 72). In Isbister, the Supreme

Court majority opinion included these cautionary com-

ments in connection with issuing its ruling that the Boys’

Club of Santa Cruz was a public accommodation subject

to the Unruh Act because there was no attempt to restrict

membership or access to that facility on the basis of

personal, cultural or religious affinity:

“In a similar vein, Justice Mosk [in dissent] com-

plains that our interpretation threatens many

traditionally sex-segregated institutions, such as

App. 11

fraternities and sororities, private schools, and

scouting organizations. Nothing we have said

compels that result. The Act covers ‘business

establishments’ of every kind, and these include

traditional ‘public accommodations.’ Yet we have

emphasized that the statute does not govern relation-

ships which are truly private — to paraphrase

Horowitz’ words, those which are ‘continuous, per-

sonal, and social’ [citation] and take place more or

less outside ‘public view.’ [Citation.] ‘Private’

groups and institutions do not fall prey to the Act

simply because they operate ‘nongratuitous’ residen-

tial or recreational facilities for their members or

participants; an ‘accommodation’ must be ‘public’ to

be covered.” (Isbister v. Boys’ Club of Santa Cruz,

Inc., supra, 40 Cal.3d at p. 84, fn. 14, italics

added, citing Horowitz, The 1959 California

Equal Rights in “Business Establishments” Stat-

ute (1960) 33 So.Cal.L.Rev. 260.)

To decide if BSA and its operations constitute this

type of public accommodation, we apply the criteria set

out in Warfield, supra, 10 Cal.4th 594 for determining

whether a particular entity properly should or should not

be considered a private club whose membership deci-

sions are exempt from a generally applicable public

accommodation law:

“(1) the selectivity of the group in the admission

of members, (2) the size of the group, (3) the

degree of membership control over the gover-

nance of the organization (and particularly the

selection of new members), (4) the degree to

which club facilities are available for use by

nonmembers, and (5) whether the primary pur-

pose served by the club is social or business.

App. 12

[Citations.] Although no single factor has been

viewed as controlling, many decisions consider

the selectivity or lack of selectivity in the admis-

sion process to be of prime importance.” (War-

field, supra, 10 Cal.4th at p. 620.)

These criteria may be grouped into three major cate-

gories, which we discuss separately: purpose, member-

ship and economic activities. As a threshold matter,

however, we note that Merino is incorrect in stating that

the “Curran I” (Curran v. Mount Diablo Council of the Boy

Scouts (1983) 147 Cal.App.3d 712) decision (see Annot.,

Exclusion or Expulsion from Association or Club as Vio-

lation of State Civil Rights Act (1985) 38 A.L.R.4th 628)

definitively established that BSA is a business establish-

ment. That decision reviewed a ruling on demurrer and

was thus a pleading case where the allegations of the

complaint were being assumed to be true.

3 In Warfield, the court applied these factors to conclude

that “the Court of Appeal erred in affirming the trial court’s

determination that the country club here at issue does not

constitute a ‘business establishment’ within the meaning of

section 51. As we have explained, although a truly private social

club generally would not constitute a ‘business establishment’

for purposes of this provision, the club in question in the case

now before us — because it engaged in a variety of ‘business

transactions’ with nonmembers on a regular basis — properly

must be found, in light of this court’s prior decisions, to fall

within the very broad terms of section 51, which extend the act

to ‘all business establishments of every kind whatsoever.’ (Italics

added.)” (Warfield, supra, 10 Cal. 4th at p. 630.) The court also

concluded that application of the Unruh Act to the membership

policies of the club did not violate its members’ rights of

association and privacy under the federal and California

Constitutions. (Ibid.)

—-

App. 13

“It is a foundational principle that: ‘ “[Tlhe lan-

guage of an opinion must be construed with

reference to the facts presented by the case, and

the positive authority of a decision is coexten-

sive only with such facts.” ’ [Citations.] ‘A liti-

gant cannot find shelter under a rule announced

in a decision that is inapplicable to a different

factual situation in his own case, nor may a

decision of a court be rested on quotations from

previous opinions that are not pertinent by rea-

son of dissimilarity of facts in the cited cases

and in those in the case under consideration.’

[Citations.]” (Harris v. Capital Growth Investors

XIV, supra, 52 Cal. 3d at p. 1157.)

We may thus consider the matter afresh, as did the

court in “Curran II” (Curran v. Mount Diablo Council of the

Boy Scouts, supra, 48 Cal.App.4th 670), now on review

before the Supreme Court.

Purpose of the Organization

Warfield, supra, 10 Cal.4th 594 teaches that a court

deciding the “business establishment” issue must con-

sider “whether the primary purpose served by the club is

social or business.” (Id. at p. 620.) The mission statement

of BSA is: “It is the mission of the Boy Scouts of America

to serve others by helping to instill values in young

people and in other ways prepare them to make ethical

choices over their lifetime in achieving their full poten-

tial. [{] The values we strive to instill are based on those

found in the Boy Scout Oath and Law.” (See appen. A, p.

4 for text of the oath and law.) Although BSA engages in

certain commercial activities, such as sales of scouting

App. 14

goods in scouting stores and provision of recreational

facilities to other youth groups, it is not seriously con-

tended here that BSA has a business as opposed to a

social primary purpose. (See pt. IIIC, post.)

Membership of the Organization

Under Warfield, supra, 10 Cal.4th 594 a court is next to

consider the size of the group and its selectivity in admit-

ting members, as well as the members’ control over the

governance of the organization. As shown in the stipu-

lated facts (Appen. A [App. 49]), national membership

totals in 1992 for youths were 4,150,148 and for adults

were 1,189,512. In San Diego in 1992, the Explorer totals

were 1,685 youth and 391 adult members. (Ibid.)* Elected

adult leaders set policy for the organization. (Appen. A

[App. 48].) The stipulated facts state in relevant part:

“To become an adult leader for [BSA], an appli-

cant must be 21 years of age, be a United States

citizen, and complete and sign a volunteer

leader application. Adult leaders must subscribe

4 Since this case deals with an adult leader, we need not

discuss the membership applications and criteria for youths,

which are in any case quite similar. Similarly, we focus here

largely on the older scouting group, the Explorers (ages 14-20),

since that is the group with which Merino was affiliated. It

should also be noted that just as the Unruh Act applies to

nonprofit as well as commercial organizations, it may apply to

volunteer positions as well as paid positions, where such

positions affect a person’s advantages or privileges of

membership. (See Quinnipiac Coun. v. Com’n on Human Rights

(Conn. -1987) 528 A.2d 352.)

App. 15

to principles as set forth in the oath and Law

and the Declaration of Religious Principle [pro-

‘moting nonsectarian religious values]... . ”

(Appen. A [App. 51-52].)

Testimony at trial established that the role of an adult

volunteer in BSA is to provide youth with a positive

example of a person living according to the oath and law.

It was a stipulated fact at trial that BSA regards homosex-

ual conduct as being inconsistent with the scout oath and

law, and thus does not accept known or avowed homo-

sexuals as adult leaders. (Appen. A [App. 53].) However,

the adult membership application makes no mention of

homosexuality.

From these facts it may readily be concluded that

BSA, although a very large organization, makes signifi-

cant although not extreme attempts to be selective

regarding the values adhered to by adult leaders. Size

alone is not an indicator that an organization must be

regarded as a business establishment. (Warfield, supra, 10

Cal.4th at p. 619.) Nor does an organization’s personnel

and management structure alone indicate businesslike

attributes.

BSA witnesses at trial clearly stated that BSA did not

attempt to discover the sexual orientation of its adult

volunteers, but rather only dealt with that issue if such a

person made a public declaration or avowal of homosex-

uality. Thus, the group of adult volunteers under consid-

eration in this lawsuit has always been known or avowed

homosexuals who seek to serve as adult leaders.

App. 16

Our conclusion regarding the membership prong of

the test for whether an organization is a business estab-

lishment is that BSA made adequate efforts to be selective

regarding the qualities and values exhibited by its adult

leaders in order to retain the private quality of the orga-

nization. BSA is, in our view, chiefly an organization

composed of and promoting relationships which are

“continuous, personal and social,” which take place more

or less outside the public view. (Isbister v. Boys’ Club of

Santa Cruz, Inc., supra, 40 Cal.3d at p. 84, fn. 14.) Its

membership policies do not bring it within the purview

of the Unruh Act.

Economic Activities

We next consider the degree to which BSA facilities

are made available for use by nonmembers to assist in

deciding if BSA qualifies as a business establishment.

(Warfield, supra, 10 Cal.4th at p. 620.) Evidence was pre-

sented that BSA has scouting stores selling scouting and

other goods, and provides a concession to department

stores to sell scouting apparel. These economic activities

are incidental to and conducted in furtherance of its

expressive purposes, not mainly for business purposes.

BSA also operates recreational facilities in Balboa

Park and at Fiesta Island, on properties leased to it by the

City of San Diego.> These facilities are made available to

> Before trial, the City of San Diego was granted summary

adjudication as to Merino’s claims against it that the HDO local

ordinance applied, although the ruling was made without

App. 17

other youth organizations, church groups and the public

for a small fee. BSA maintains these facilities at its own

expense. Although this activity in some respects resem-

bles the public access and use of the golf club by non-

members in the Warfield case, it is different in character in

that it promotes the overall mission of BSA to serve youth

in the community, not to create profit to subsidize the

other operations of the organization. “ ‘Private’ groups

and institutions do not fall prey to the Act simply because

they operate ‘nongratuitous’ residential or recreational

facilities for their members or participants; an ‘accom-

modation’ must be ‘public’ to be covered.” (Isbister v.

Boys’ Club of Santa Cruz, Inc., supra, 40 Cal.3d at p. 84, fn.

14.) The BSA organization does not exist mainly for the

purpose of providing these accommodations. (Ibid.) We

believe this type of economic activity furthers the expres-

sive goals of the organization and does not require BSA

to be characterized as a business establishment.®

For all these reasons, we conclude BSA is not a

business establishment within the meaning of the Unruh

prejudice to a later petition for writ of mandate on any

remaining issues as to the City. The final judgment in this action

only grants relief in favor of Merino against BSA and ruled

against Merino and in favor of the City on the HDO issues. (See

pt. IV, post.) The City is not a party to this appeal.

to apply to scouting in Welsh v. Boy Scouts of America (7th Cir.

1993) 993 F.2d 1267. Similar results have been reached by several

state courts construing their own public accommodations

statutes: Seabourn v. Coronado Area Council (Kan. 1995) 891 P.2d

385; Schwenk v. Boy Scouts of America (Ore. 1976) 551 P.2d 465;

and Quinnipiac Coun. v. Com’n on Human Rights, supra, 528 A.2d

352.)

—

App. 18

Act. The freedom of expression issues raised by BSA will

accordingly not be discussed here.

Local Ordinance

The City of San Diego Human Dignity Ordinance

provides in relevant part:

“It shall be an unlawful business practice for

any person to deny any individual the full and

equal enjoyment of the goods, services, facili-

ties, privileges, advantages and accommoda-

tions of any business establishment on the basis

(in whole or in part) of such individual’s sexual

orientation.” (San Diego Mun. Code, § 52.9605,

subd. (A)(1).)

“It shall be an unlawful service practice for any

person to deny any individual the full and equal

enjoyment of... any service, program or facility

wholly or partially funded or otherwise sup-

ported by The City of San Diego, on the basis (in

whole or in part) of such individual’s sexual

orientation.” (San Diego Mun. Code, § 52.9606,

subd. (A)(3).)

The trial court rejected Merino’s argument that this

ordinance applied to his suspension from membership by

BSA, a national organization, and his request to be reins-

tated at the El Cajon Police Department Explorer Post,

stating “[t]his relationship is outside the jurisdiction of

the Ordinance. The fact the local council of the Boy

Scouts was headquartered in the City of San Diego is of

no effect.” The court noted that Merino had not shown he

was denied access to the recreational facilities on leased

App. 19

City of San Diego property, nor that such facilities were

supported by the City of San Diego within the meaning of

the ordinance.

Merino challenges this ruling in his cross-appeal,

claiming that he as a resident of the City of San Diego is

entitled to the protection of the ordinance under these

facts. He also contends that the San Diego Council of BSA

is the relevant entity for purposes of applying the ordi-

nance, so he should be able to enforce it based on City of

San Diego leases of property to BSA. (San Diego Mun.

Code, § 52.9609, subd. (A).)

BSA responds that the ordinance is vague and over-

broad, and the subject matter of this ordinance is subject

to state regulation and thus the ordinance is preempted

by state law, specifically the Unruh Act. (See Delaney v.

Superior Fast Freight (1993) 14 Cal.App.4th 590, 597.) With-

out addressing these specific arguments, it is enough for

our purposes to state that BSA does not qualify as a

business establishment in San Diego or elsewhere, and

the subject relationships do not fall under City of San

Diego jurisdiction.

Disposition

The judgment and order awarding attorney fees are

reversed in their entirety with the exception that the trial

court’s ruling regarding the City of San Diego HDO

remains in effect. The trial court is directed to enter a

different judgment in favor of BSA in accordance with the

App. 20

views expressed in this opinion. Each party to bear its

own costs.

/s/ Huffman

HUFFMAN, Acting P.J.

WE CONCUR:

Nares

NARES, J.

Haller

HALLER, J.

Separate concurring opinion by Huffman, J.:

Because of the disposition in the majority opinion of

the business establishment issues under the Unruh Act,

my colleagues deem it unnecessary to address the signifi-

cant freedom of expression issues raised and briefed by

the parties, and relied on by the trial judge in issuing his

ruling in the matter. I strongly disagree with that

approach. I find the major issues here to be inextricably

intertwined due to the historically unsettled nature of the

law regarding the proper characterization of business

establishments, particularly in the difficult area of organi-

zations representing, as here, “relationships which are

truly private - to paraphrase Horowitz’ words, those

which are ‘continuous, personal, and social’ [citation] and

take place more or less outside ‘public view.’ [Citation.]”

(Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal.3d

<A) be a gt wien i ees vA . 4 Si

eee “ie b -

App. 21

72, 84, fn. 14.) Accordingly, I take the unusual step of

concurring separately with an opinion of which I am the

author.

I am confident that the majority’s interpretation of

the Unruh Act is correct. To my way of thinking, how-

ever, it is not outside the realm of possibility that BSA

could be brought within the extraordinarily broad charac-

terization of a “business establishment” that has been

developed by case law. In any case, labels such as “busi-

ness establishment” should not be treated as talismanic:

the proper approach requires us to recognize the particu-

lar nature of the organization and its purposes when

resolving the legal and statutory question of its proper

characterization. (Warfield v. Peninsula Golf & Country

Club (1995) 10 Cal.4th 594, 607, fn. 7.) The inquiry then

proceeds to a balancing of the legitimate state interests

represented by the Unruh Act (i.e., preventing arbitrary

discrimination) against the impact of any threatened

intrusions into constitutionally protected expressive

rights. The overall issue is the extent to which govern-

ment may regulate the manner of expressive conduct and

association. In general, the greater the businesslike char-

acter of the organization, the lesser protection is accorded

its expressive rights to promote its particular views in a

way which may constitute discrimination; conversely,

where the organization exists primarily for promoting

values to a like-minded membership, as opposed to pro-

moting commerce, more rather than less First Amend-

ment protection is due.

For these reasons, I believe it necessary and proper to

set aside for the moment the majority’s conclusions set

forth above, and to assume arguendo that BSA may in

App. 22

some sense be considered to be a business establishment

under the Unruh Act. For example, such an approach

may ultimately be required by the California Supreme

Court when it rules upon the pending Boy Scout cases

(see maj. opn., ante, at pp. 2-3). The question is thus

presented whether the First Amendment freedom of asso-

ciation rights of BSA would be unduly infringed upon by

application of Unruh Act regulation. Such associational

rights may be described as follows:

“‘*As we observed in [Roberts v. United States

Jaycees (1984) 468 U.S. 609], our cases have

afforded constitutional protection to freedom of

association in two distinct senses. First, the

Court has held that the Constitution protects

against unjustified government interference

with an individual’s choice to enter into and

maintain certain intimate or private relation-

ships. Second, the Court has upheld the freedom of

individuals to associate for the purpose of engaging

in protected speech or religious activities. In many

cases, government interference with one form of

protected association will also burden the other

form of association.” [Citation.]” (Hart v. Cult

Awareness Network (1993) 13 Cal.App.4th 777,

787, italics added.)}

;

octets wats

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Infringement upon freedom of association rights may

be justified by regulations which serve compelling state

interests and which are unrelated to the suppression of

1 This case falls mainly into the category of the second form

of association, engaging in protected speech or religious

activities; BSA has not specifically argued, and the trial court

did not rule, that the “intimate or private relationship” form of

association is involved here, concerning Explorer activities.

App. 23

ideas, if the state interests cannot be served through less

restrictive means. (Roberts v. United States Jaycees (1984)

468 U.S. 609, 623 (Roberts); Hart v. Cult Awareness Net-

work, supra, 13 Cal.App.4th at p- 791.) My analysis

would first consider the form of expression involved, and

then determine the degree of protection to which it is

constitutionally entitled, as follows.

The mission statement of BSA provides:

“It is the mission of the Boy Scouts of America

to serve others by helping to instill values in

young people and in other ways prepare them

to make ethical choices over their lifetime in

achieving their full potential. [{ ] The values we

Strive to instill are based on those found in the

Boy Scout Oath and Law.” (See appen. A, p. 4

for text of the oath and law.)

BSA relies on its adult volunteers to provide role

modeling for youth and indirect influences toward the

values BSA promotes. This is done through counseling,

teaching and other interaction with scouts. (See Roberts,

supra, 468 U.S. at p. 636 (conc. opn., O’Connor, J.) [“pro-

tected expression may also take the form of quiet persua-

sion, inculcation of traditional values, and instruction of

the young,” citing the Boy Scout Handbook].)

As set forth above, BSA has issued position state-

ments to the effect that “homosexual conduct is not com-

patible with the aims and purposes of Scouting” and “it

does not present a desirable role model for the youth in

our program.” Among BSA’s principles is an opposition

to homosexual conduct as inconsistent with the Scout

oath and law regarding the terms “morally straight” and

“clean”. (Appen. A [App. 58].) BSA seeks thereby “to

App. 24

provide the appropriate environment and role models

which reflect Scouting’s values and beliefs.” It does not

adopt a position that homosexuals do not have good

moral or emotional character, rather, it states: “Our posi-

tion is that they do not present a role model which we

seek for our youth members.”

Thus, the message BSA seeks to convey to its mem-

bership does not include approval of homosexual conduct

by a person who is acting as an appropriate role model

and moral example. Moreover, some of the religious enti-

ties with which BSA is affiliated strongly disapprove of

homosexual conduct, and evidence was presented that

these entities would withdraw their support of scouting if

BSA changed its position on this issue.

Federal case law sets out these parameters of the

protected right of expressive association:

“ed

[W]e have long understood as implicit in the

right to engage in activities protected by the

First Amendment a corresponding right to asso-

ciate with others in pursuit of a wide variety of

political, social, economic, educational, reli-

gious, and cultural ends.’ [Citation.] ‘There can

be no clearer example of an intrusion into the

internal structure or affairs of an association

than a regulation that forces the group to accept

members it does not desire. Such a regulation

may impair the ability of the original members

to express only those views that brought them

together. Freedom of association therefore plainly

presupposes a freedom not to associate.’ (Id. at p.

623.)” (Hart v. Cult Awareness Network, supra, 13

Cal.App.4th at p. 790, italics added.)

Such protections of the right of freedom of associa-

tion and expression are subject to some restrictions:

App. 25

“The right to associate for expressive purposes

is not, however, absolute. Infringements on that

right may be justified by regulations adopted to

serve compelling state interests, unrelated to the

suppression of ideas, that cannot be achieved

through means significantly less restrictive of

associational freedoms. [Citations.]” (Roberts,

supra, 468 U.S. at p. 623.)

Thus, incidental infringement of protected speech is

permitted to the extent that the state’s legitimate pur-

poses are accomplished thereby. (Roberts, supra, 468 U.S.

at p. 628.) A recent United States Supreme Court opinion,

Hurley v. Irish-American Gay Group of Boston (1995) ___

U.S. __ (115 S.Ct. 2338) has clarified the scope of pro-

tected expressive association. There the high court held

that the state courts’ application of the Massachusetts

public accommodations law to require certain private

citizens who organized a parade to include among the

marchers a group imparting a message that the orga-

nizers did not wish to convey was a violation of the First

Amendment. The court said the free speech principle

involved “boils down to the choice of a speaker not to

propound a particular point of view, and that choice is

presumed to lie beyond the government's power to con-

trol.” (Id. at p. __ [115 S.Ct. at p. 2348].)

Explaining further, the United States Supreme Court

said:

“New York State Club Association[, Inc. v. City of

New York (1987) 487 U.S. 1, 13] is also instructive

by the contrast it provides. There, we turned

back a facial challenge to a state antidiscrimina-

tion statute on the assumption that the expres-

sive associational character of a dining club with

App. 26

over 400 members could be sufficiently attenu-

ated to permit application of the law even to

such a private organization, but we also recog-

nized that the State did not prohibit exclusion of

those whose views were at odds with positions

espoused by the general club memberships. [Cita-

tions.] In other words, although the association

provided public benefits to which a State could

ensure equal access, it was also engaged in

expressive activity; compelled access to the benefit,

which was upheld, did not trespass on the organiza-

tion’s message itself. If we were to analyze this

case strictly along those lines, GLIB [the gay

group involved in Hurley] would lose. Assum-

ing the parade to be large enough and a source

of benefits (apart from its expression) that

would generally justify a mandated access pro-

vision, GLIB could nonetheless be refused

admission as an expressive contingent with its

own message just as readily as a private club could

exclude an applicant whose manifest views were at

odds with a position taken by the club’s existing

members.” (Hurley v. Irish-American Gay Group of

Boston, supra, __ U.S. at p. ___ (115 S.Ct. at p.

2351], italics added.)

To explain this ruling, the Supreme Court concluded:

“Our holding today rests not on any particular

view about the [association’s] message but on

the Nation’s commitment to protect freedom of

speech. Disapproval of a private speaker’s state-

ment does not legitimize use of the [State’s]

power to compel the speaker to alter the mes-

sage by including one more acceptable to

others.” (Hurley v. Irish-American Gay Group of

Boston, supra, __ U.S. at p. __ [115 S.Ct. at p.

2351].)

App. 27

California case law has also addressed the parame-

ters of the right of expressive association. Warfield v.

Peninsula Golf & Country Club, supra, 10 Cal. 4th at pages

624-628 recognized that application of the Unruh Act

would be constitutionally prohibited where an institution

is organized for an expressive purpose and would not be

able to advocate its desired viewpoint nearly as effec-

tively if it could not confine its membership to those who

share the same views. Such expressive activities are enti-

tled to constitutional protection. (Roberts, supra, 468 U.S.

at pp. 628-629.)

Under this approach, the interplay of expressive

association rights and the Unruh Act must be considered.

Even if an organization may be considered to be a busi-

ness establishment, it may still have expressive rights to

be evaluated as to any permissible restrictions. (Roberts,

supra, 468 U.S. at p. 623.) To my mind, the question then

becomes whether the trial court was correct in ruling that

since the right to associate for expressive purposes is not

absolute, the compelling state interest of ending arbitrary

discrimination as expressed in the Unruh Act must over-

come the expressive associational rights of BSA to pursue

its leadership selection criteria policies.

Membership criteria is of prime importance in both

the Unruh Act context and in freedom of association

doctrine. In general, a state may enact and enforce anti-

discrimination laws to prevent an association from using

such specified characteristics as race and sex as short-

hand measures of eligibility in place of more legitimate

criteria for determining membership. (New York State Club

Association, Inc. v. City of New York (1987) 487 U.S. 1, 13.

However, the U.S. Supreme Court also affirmed in that

id {

App. 28

case that “an association might be able to show that it is

organized for specific expressive purposes and that it will

not be able to advocate its desired viewpoints nearly as

effectively if it cannot confine its memberships to those

who share the same sex, for example, or the same reli-

gion.” (Ibid.) Moreover, a club may permissibly seek to

exclude individuals who do not share the views the club’s

members wish to promote. (Ibid.)

I perceive here a significant clash between the laud-

able objectives of the Unruh Act, to combat arbitrary

discrimination, and the paramount importance of protec-

tion of freedom of expressive association. BSA represents

a unique blend of numerous purposes, some of which are

clearly expressive in nature and within the protected

arena of association for religious and cultural purposes;

at the same time, it has some attributes or characteristics

of a business establishment (e.g., a large membership and

varying degrees of membership selectivity). The question

then becomes whether enforcing the Unruh Act “business

establishment” standards under these circumstances tres-

passes upon the organization’s chosen message itself, or

dilutes that message through state action. (Hurley v. Irish-

American Gay Group of Boston, supra, ___ U.S. at p. ___ [115

S.Ct. at p. 2351].)

Turning to the record in this case, the parties stipu-

lated that BSA as an institution believes that homosex-

uality is inconsistent with its goals, objectives and

principles, and that adults selected for leadership posi-

tions must agree to be guided by the scout oath and law.

To my mind, the record demonstrates that contrary to the

trial court’s finding, BSA manifests a clearly expressive

purpose, due to the great extent that its many activities

App. 29

are value-driven. For example, the charter and bylaws of

BSA state that its purpose shall be “to promote through

organization, and cooperation with other agencies, the

ability of members to do things for themselves and

others, to train them in scoutcraft, and to teach them patrio-

tism, courage, self-reliance, and kindred virtues, using the

method which are now in common use by Boy Scouts.”

(Italics added.) And, of course, all these activities are

guided by the scout oath and law, designed to set forth

certain values and morals.

In my view, and in light of those undisputed institu-

tional purposes, application of the Unruh Act to BSA in

this case would impermissibly require it to accept into

leadership positions those who promote goals and objec-

tives that are inconsistent with the institution’s expres-

sive purpose. It makes no difference whether BSA is

considered to be a full-fledged business establishment, or

only to have some limited businesslike attributes. The

point is that this result, compelling Merino’s access to the

benefits of membership in BSA, would violate the expres-

Sive association rights of BSA and its members that are

specifically protected by the First Amendment. The

Unruh Act cannot constitutionally be applied here

because such access of an adult volunteer leader would

trespass upon the organization’s message itself. (Hurley v.

Irish-American Gay Group of Boston, supra, __ US. at p.

— [115 S.Ct. at p. 2351].)

In my view, applying the Act here would suppress

BSA’s ideas that an avowed homosexual is not an appro-

priate role model and moral example within scouting.

(See Roberts, supra, 468 U.S. at p. 623.) A person who is an

avowed homosexual who seeks to serve as a scout leader

> kn

App. 30

is manifesting views that are at odds with those of the

organization on the issue of leadership criteria. (See

Hurley, supra, ___ U.S. at p. ___ [115 S.Ct. at p. 2351].) It is

established that an organization or club may permissibly

seek to exclude individuals who do not share the views

the club’s members wish to promote, where it has shown

that it is organized for specific expressive purposes and

that it will not be able to advocate its desired viewpoint

nearly as effectively if it cannot confine its membership to

those who share the same views. (Ibid.; also see Warfield v.

Peninsula Golf & Country Club, supra, 10 Cal.4th at pp.

624-628.) A speaker or association should be able to

choose not to propound a particular point of view, “and

that choice is presumed to lie beyond the government's

power to control.” (Hurley v. Irish-American Gay Group of

Boston, supra, ___ U.S. at p. ___ [115 S.Ct. at p. 2348].) That

is the case here.

It is not because I agree with the position of BSA on

this issue that I reach this conclusion; rather, the issue |

see is BSA’s right as an association to reach such a posi-

tion and to conduct its operations accordingly. (Ibid.; see

also Warfield v. Peninsula Golf & Country Club, supra, 10

Cal.4th at pp. 598, 632.) I would not, and I do not believe

the majority opinion will, undermine in any way the

important social goals, objectives, and authority of the

Unruh Act within its proper scope of application. How-

ever, because of the particular characteristics and mission

of BSA, the organization under discussion, I would con-

clude that the important state interest in preventing arbi-

trary discrimination is not implicated here in such a

manner as to justify this degree of abridgment of the

expressive conduct integrally involved in scouting.

App. 31

(Roberts, supra, 468 U.S. at p- 628.) Where the state interest

being promoted by the business accommodations statute

is antithetical to an important expressive purpose of the

organization, which is within its protected sphere of asso-

ciation, the statute cannot prevail over First Amendment

rights. I would reverse the judgment on this ground also.

/s/ Huffman, J.

HUFFMAN, J.

App. 32

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

CHARLES MERINO,

Plaintiff,

CASE NO. 659236

STATEMENT OF

DECISION

AND JUDGMENT

(Filed Sept. 13, 1994)

VS.

)

SAN DIEGO COUNTY )

COUNCIL OF THE BOY ?

SCOUTS OF AMERICA, ?

RON BRUNDAGE, CITY ?

OF SAN DIEGO, and )

DOES I through XxX, )

inclusive,

)

Defendants.

The above-entitled cause came on regularly for trial

in Department 43 of the above-entitled court, the Honor-

able Anthony C. Joseph, Judge, presiding without a jury.

Plaintiff appeared by and through his attorneys of record,

Bobbitt & Gattey, by Everett L. Bobbitt and Vicki L.

Gilbreath. Defendants appeared by and through their

attorneys of record, Hughes, Hubbard & Reed by George

A. Davidson and Carla A. Kerr, and Edwards, White &

Sooy, by Michael M. Edwards.

Oral and documentary evidence was introduced on

behalf of the respective parties and the cause was argued

and submitted for decision. On July 7, 1994, the court

issued a Decision in this matter. The parties then filed

objections and proposals thereto. Pursuant to the court’s

statements in the Decision, plaintiff calendared a Motion

for Injunction for telephonic hearing on August 26, 1994.

App. 33

A written ruling on this motion was issued on August 26,

1994. Oral arguments on the ruling and on proposals to

the statement of decision were heard on September 7,

1994.

The court, having considered the evidence and heard

the arguments of counsel and being fully advised, issues

the following statement of decision and judgment

thereon. This statement of decision and judgment super-

sedes the court’s Decision dated July 7, 1994.

INTRODUCTION

This matter involves the application of the Unruh

Civil Rights Act (the “Unruh Act”), Civil Code section mi,

and the San Diego Human Dignities Ordinance (the

“Ordinance”), San Diego Municipal Code section 52.9601

et seq. to an avowed homosexual Explorer Scout adult

leader. The Unruh Act prohibits arbitrary discrimination

by “all business establishments of every kind what-

soever.”! Plaintiff Charles Merino alleges a violation of

the Unruh Act, the Ordinance, and the common law right

of fair procedure by defendants San Diego County Coun-

cil of the Boy Scouts of America, Boy Scouts of America

and Ronald Brundage (hereinafter collectively referred to

as the “Boy Scouts” or “defendants”). Mr. Merino seeks a

* The Unruh Act provides in relevant part: “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.”

App. 34

peremptory writ of mandate, injunctive relief, declaratory

relief and damages.

_ The major issue presented is.whether the Boy Scouts

is a “business establishment”; and, if so, whether any

constitutional principle precludes application of state and

local civil rights law to the Boy Scouts.

decisions were rendered which examined the application

of the Unruh Act to the Boy Scouts. In Randall vs. Orange

County Council (1994) 22 Cal.App.4th 1526, the Fourth

Appellate District cited Curran vs. Mt. Diablo Council of the

Boy Scouts (1983) 147 Cal.App.3d 712 (hereinafter referred

as “Curran I”) for the proposition “[i]t has long been the

law of California that the Boy Scouts, on the national and

council levels, are businesses precluded from discrimina-

tion under the Unruh Act.” (Randall, supra, 22

Cal.App.4th 1526 at 1529.) Recently, the Court of Appeal,

Second Appellate District, reviewed the Curran I decision

in Curran vs. Council of the Boy Scouts of America (1993) 23

Cal.App.4th 1307 (hereinafter referred to as “Curran II”).

The majority in Curran II found the Boy Scouts was not a

business establishment within the meaning of the Unruh

Act.

The California Supreme Court has granted hearing

on the petitions for review in both Randall and Curran II,

holding these cases pending its review of Warfield vs.

Peninsula Golf & Country Club (1993) 22 Cal.App.4th 1078.

This grant of hearing by the Supreme Court depublishes

both decisions; as such, the decisions have no preceden-

tial effect in any pending case. [Cal. Rule of Court, rule

976(d).]

App. 35

This court has concluded, based on presently existing

precedents, the Boy Scouts is a “business establishment”

within the meaning of the Unruh Act, and the First

Amendment rights of the Boy Scouts are not violated by

application of the Unruh Act.

STATEMENT OF FACTS AGREED ee

Set forth are the relevant stipulated facts of the par-

ties this case in the exact language from their agreement.

The Boy Scouts of America is a federally-

chartered non-profit organization. Boy Scouts of

America charters local councils to accomplish

the purposes of Scouting and carry out its pro-

grams in a given geographic area. Duly char-

tered local councils are incorporated according

to the not-for-profit laws of their states of incor-

poration. Scouting is conducted through Scout-

ing groups known as Cub Scout Packs and Dens,

Boy Scout Troops and Patrols, and Explorer

Posts.

San Diego Council is a duly chartered local

council of Boy Scouts incorporated under the

not-for-profit laws vf California. The Council's

purpose is that of supporting Scouting groups

within San Diego County in accordance with the

Charter, Bylaws and Rules and Regulations of Boy

Scouts of America.

Boy Scouts charters sponsoring organiza-

tions meeting the requirements of the Bylaws

and the Rules and Regulations of Boy Scouts of

2 (Exhibit 100, Stipulated Facts.)

| OE ST lh a Pts ee

i App. 36

iH America to organize and maintain Scout groups

i in accordance with Boy Scouts of America poli-

i cies. The El Cajon Police Department was one

such organization that sought and was granted

a charter by Boy Scouts of America to form and

maintain Explorer Post 2245 in El Cajon, Califor-

nia.

_—

The sponsoring organization is charged sy

with. providing suitable facilities for meetings

and activities and with selecting adult leader-

ship that meets with the standards for member-

ship of Boy Scouts of America.

Every sponsoring organization appoints one

delegate to the local council, which elects an

executive board. Each local council has at least

three delegates to the National Council. The

National Council elects the National Executive

Board, which sets national policy for Boy Scouts.

Each Scouting group is governed by the Charter

and Bylaws and Rules and magenene of Boy

Scouts of America.

Adult leaders serve without pay from Boy

Scouts of America or San Diego Council. To

become an adult leader for Boy Scouts of Amer-

ica, an applicant must be 21 years of age, be a

United States citizen, and complete and sign a

volunteer leader application. Adult leaders must

subscribe to principles as set forth in the Oath

and Law and the Declaration of Religious Prin-

ciple.?

3 The Scout Oath is: “On my honor I will do my best to do

my duty to God and my country and to obey the Scout Law; to

help other people at all times; to keep myself physically strong,

mentally awake, and morally straight.”

eb ts by Ui ae

App. 37

The adult applicant must also pay the

national registration fee and his or her applica-

tion must be signed by the Scout group’s Com-

mittee Chairman, the Chartered Organization

Leader and the Scout Executive or a designee.

One of the roles of an adult volunteer leader is

to be a good role model for the youth in the

Scout group.

Mr. Merino has been a police officer in the

El Cajon Police Department since 1977. In 1982,

Mr. Merino came to be in charge of the El Cajon

Police Department Cadet program.

The Scout Law is: “A Scout is: Trustworthy, Loyal, Helpful,

Friendly, Courteous, Kind, Obedient, Cheerful, Thrifty, Brave,

Clean, and Reverent.”

The Declaration of Religious Principle is:

“The Boy Scouts of America maintains that no

member can grow into the best kind of citizen without

recognizing an obligation to God. In the first part of

the Scout Oath or Promise the member declares, ‘On

my honor I will do my best to do my duty to God and

my country and to obey the Scout Law.’ The

recognition of God as the ruling and leading power in

the universe and the grateful acknowledgment of His

favors and blessings are necessary to the best type of

citizenship and are wholesome precepts in the

education of the growing members. No matter what

the religious faith of the members may be, this

fundamental need of good citizenship should be kept

before them. The Boy Scouts of America, therefore,

recognizes the religious element in the training of the

member, but it is absolutely nonsectarian in its

attitude toward that religious training. Its policy is

that the home and the organization or group with

which the member is connected shall give definite

attention to religious life.”

App. 38

In 1989, Mr. Merino sought and obtained

permission from the Chief for the Department to

affiliate with Boy Scouts of America as a char-

tered organization. He completed an application

for the El Cajon Police Department to become a

chartered organization of Boy Scouts of America

to sponsor an Explorer Post. Mr. Merino also

completed a volunteer leader application to be a

member of Boy Scouts of America. Following

the receipt of these applications, Boy Scouts of

America chartered Post 2245 and Mr. Merino

became an adult member of Boy Scouts of

America and the Explorer Advisor of Post 2245.

_ Mr. Merino remained an adult leader in Boy

Scouts of America as Explorer Advisor of Post

2245 from 1988 to on or about August 25, 1992.

Mr. Merino first publicly announced that he

is homosexual in December 1991.

Because Boy Scouts of America believes that

homosexual conduct is inconsistent with the

Scout Oath and Law, Boy Scouts of America

does not accept known or avowed homosexuals

as adult leaders. Boy Scouts of America sus-

pended Mr. Merino’s registration as an adult

volunteer on or about August 25, 1992. After Mr.

Merino’s membership as an adult volunteer was

suspended, the El Cajon Police Department

chose to withdraw its sponsorship of the

Explorer program and resumed operating its

Cadet program.

App. 39

DISCUSSION

A. The Unruh Act prohibits discrimination on the

basis of sexual orientation.

In Harris vs. Capital Growth Investors XIV (1991) 52

Cal.3d 1142, the California Supreme Court stated the

Unruh Act applied to prevent arbitrary discrimination

against homosexuals. (Harris, supra, 52 Cal.3d 1142 at

1155-1156, citing, Rolon vs. Kulwitzky (1984) 153

Cal.App.3d 289; Curran I supra, 147 Cal.App.3d 712;

Hubert vs. Williams (1982) 133 Cal.App.3d Supp. 1.)

B. The Boy Scouts is a “business establishment”

within the meaning of the Unruh Act.

The Unruh Act protects all persons from arbitrary

discrimination in “accommodations, advantages, facilities

privileges or services in all business establishments of

every kind whatsoever.” (Civil Code section 51, supra, fn.

2.) The term “business establishments” has been inter-

preted “in the broadest sense reasonably possible.” [Burks

vs. Poppy Construction Co. (1962) 57 Cal.2d 463, 468;

accord O’Connor vs. Village Green Owners Assn. (1983) 33

Cal.3d 790, 796; Isbister vs. Boys’ Club of Santa Cruz, Inc.

(1985) 40 Cal.3d 72, 78; Warfield vs. Peninsula Golf &

Country Club (1989) 214 Cal.App.3d 646, 654.] The Legis-

lature has not intervened to curtail the broad judicial

interpretation of the Unruh Act.

The Unruh Act applies to both profit-seeking and

non-profit organizations. (O’Connor, supra, 33 Cal.3d 790

at 796.) The purposes and operations of an organization

need not be strictly commercial in order to conclude the

ie .

App. 40

organization is a “business establishment” to which the

Unruh Act applies. (Isbister, supra, 40 Cal.3d 72 at 83.) In

contrast, truly selective private organizations do not fall

within the purview of the Unruh Act. [Isbister, supra, 40

Cal.3d 72 at 84, fn. 14; Warfield, supra, 214 Cal.App.3d 646

at 653-655; Hart vs. Cult Awareness Network (1993) 13

Cal.App.4th 777, 786-787.]

The court concludes, based upon the evidence in this

case, the Boy Scouts is a “business establishment” within

the broad meaning of the Unruh Act.* The Boy Scouts is

not an exclusive private organization. The Boy Scouts is a

large public organization that is far-reaching in American

society and expanding world-wide. (See, Exhibit 26, Boy

Scouts of America Annual Report 1990, p. 341; Exhibit 28,

Preparing for the Future, pp. 407-409.) National member-

ship in Boy Scouts of America, as of the 1992 Annual

Statement, was 4,150,148 youth members and 1,189,512

adult members. Membership of Boy Scouts of America in

San Diego as of December 31, 1992 was:

Youth Adult

Cub 11,981 4,266

Scout 6,489 3,444

Explorer 1,685 391

20,155 8,101

4 In Curran I, the Second District Court of Appeal examined

the “public” versus “private” aspects of the Boy Scouts and

reversed a judgment of dismissal following sustaining of a

demurrer by specifically holding the Boy Scouts is a “business

establishment” within the meaning of the Unruh Act. (Curran I,

supra, 147 Cal.App.3d 712 at 733.) The Curran I decision was

cited by the Supreme Court for the proposition that the

extension “to the youthful public of a membership invitation

limited only by sex made it a ‘public’ organization covered by

the Unruh Act.” (Isbister, supra, 40 Cal.3d 72 at 81, fn. 8.)

App. 41

Membership criteria for both juvenile and adult

members are non-selective. The adult membership appli-

cation contains no questions concerning the lifestyle or

sexual orientation of the prospective adult member. (See,

Exhibit 3, Boy Scouts of America Adult Application.)

None of the Boy Scout Handbooks or publicly distributed

Boy Scout materials use the word “homosexual” or any

synonym thereof. (See, Testimony of Roy Williams, Tran-

script March 21, 1994, pp. 179-188.)

The Boy Scouts engage in “commercial” activities.

Mr. Ronald Brundage, Chief Executive Officer of the local

Boy Scouts, has been employed by the Boy Scouts for

over thirty-three years. (Brundage Deposition, p. 9, line

6.) Mr. Brundage’s salary is $112,000.00 per year, paid by

the local council. (Brundage Deposition, p. 35, lines

20-22.) Mr. Brundage supervises a Scout store which sells

Scout equipment. (Bryndage Deposition, p. 7, lines

10-17.) Additionally, Boy Scout uniforms are sold at three

or four distributorships and at some department stores.5

(Brundage Deposition, p. 42, lines 6-16.)

The San Diego Council of the Boy Scouts employs,

and Mr. Brundage supervises, approximately forty-four

full-time employees: nineteen are professional Scouters;

twenty-five are non-commissioned employees. Among

> The national Boy Scouts’ total revenues for the year ended

in December 31, 1992 were $54,205,000. Total expenses for the

year ended in December 31, 1992 were $49,977,000. The San

Diego Council’s 1992 projected income was in the amount of

$2,375,596.00 and projected expenses were in the amount of

$2,525,596.00.

App. 42

the twenty-five are six camp rangers and one field assis-

tant; the rest are secretaries or clerical workers. (Brun-

dage Deposition, p. 7, lines 3-4; Stipulated Facts,

paragraph 10.) The “management staff structure” of the

Boy Scouts is formalized and reveals the business-like

aspects of the organization. (Exhibit 21, 1990 San Diego

County Council Staff Chart; Exhibit 22, 1993 Boy Scouts

of America Management Staff Structure Chart.)

California courts have held large, non-selective mem-

bership organizations to be “business establishments of

any kind whatsoever”, in regard to Rotary Clubs [Rotary

Club of Duarte vs. Board of Directors (1986) 178 Cal.App.3d

1035] or Boys Clubs (Isbister, supra, 40 Cal.3d 72). The

United States Supreme Court has ruled similarly as to the

Junior Chamber of Commerce. [Roberts vs. United States

Jaycees (1984) 468 U.S. 609.]

Case law also supports application of the Unruh Act

to protect the privilege of membership in non-profit orga-

nizations such as the Boy Scouts. [Isbister, supra, 40 Cal.3d

72; Board of Directors of Rotary International vs. Rotary Club

(1987) 481 U.S. 537.] As an adult member of the Boy

Scouts, Mr. Merino was arbitrarily denied the full advan-

tages and privileges associated with being a member of

the Boy Scouts. The Unruh Act applies to prohibit this

arbitrary discrimination.

C. The San Diego Human Dignity Ordinance does not

apply to this action.

Mr. Merino seeks relief under the San Diego Human

Dignities Ordinance (the “Ordinance”), San Diego

App. 43

Municipal Code section 52.9601 et seq.6 The Ordinance

declares the public policy of the City of San Diego is to

prevent discrimination based on sexual orientation.

[Ordinance, section 52.9601.]

Mr. Merino seeks to be reinstated in Boy Scouts of

America, a national organization, and to resume being an

Explorer Advisor for the El Cajon Police Department

Explorer Post. Mr. Merino was the Explorer Advisor to an

Explorer Post located in the City of El Cajon. This rela-

tionship is outside the jurisdiction of the Ordinance. The

fact the local council of the Boy Scouts was headquar-

tered in the City of San Diego is of no effect.

Section 52.9606(A) (3) of the Ordinance provides it is

unlawful to deny any individual “the full and equal

enjoyment of ... any service, program or facility wholly

or partially funded or otherwise supported by The City of

San Diego on the basis (in whole or in part) of such

individual’s sexual orientation.”

Mr. Merino argues application of section 52.9606(A)

(3) of the Ordinance by presentation of evidence that the

City of San Diego “supports” the Boy Scouts by leasing

property in Balboa Park and on Fiesta Island to the Boy

Scouts basically at no cost to the Boy Scouts. The record,

however, does not sustain a finding that the City of San

unlawful business practice for any person to deny any individual

the full and equal enjoyment of the goods, services, facilities,

privileges, advantages and accommodations of any business

establishment on the basis (in whole or in part) of such

individual’s sexual orientation.” [Ordinance, section

52.9605(A)(1).]

App. 44

Diego funds or otherwise supports the Boy Scouts

through the Balboa Park and Fiesta Island leases. More

importantly, Mr. Merino has not shown he was denied

“the full and equal enjoyment of” the Balboa Park or

Fiesta Island properties. (See, Brundage Deposition, p. 96,

lines 10-15; Merino Deposition, p. 37, lines 9-18.) The

record does not support a finding the Ordinance applies

to the facts of this case. This finding is dispositive of all

other issues raised by the parties pertaining to the Ordi-

nance.

D. Application of the Unruh Act to this case does not

violate the First Amendment.

The federal constitution protects both “intimate” and

“expressive” associational rights. [Roberts vs. United States

Jaycees (1984) 468 U.S. 609.]

1. Intimate Associational Rights

Relationships distinguished by such attributes as

“relative smallness, a high degree of selectivity in deci-

sions to begin and maintain the affiliation,"and seclusion

from others in critical aspects of the relationship” are

protected from unwarranted state interference. [Roberts,

supra, 468 U.S. 609 at 620.]

The degree of intimacy necessary to invoke freedom

of associational privacy is not clearly defined. However,

in determining whether an organization is entitled to

App. 45

constitutional protection, factors such as its “size, pur-

pose, policies, selectivity, congeniality”, and other perti-

nent characteristics should be considered. [Roberts, supra,

468 U.S. 609 at 620.1

For example, the Pacific-Union Club of San Francisco

may discriminate in member selection, as it seeks no

public benefits, precludes member contact with the

media, allows no discussions of business matters in con-

nection with its activities, prohibits members from

deducting club expenses from their income tax and exists

solely for the purposes of conviviality. [Pacific-Union Club

vs. Superior Court (1991) 232 Cal.App.3d 60.] In contrast,

the United States Jaycees may not discriminate against

women as, its organization is neither small nor selective.

(Roberts, supra, 468 U.S. 609.)

Application of the Roberts factors to the Boy Scouts

results in a finding that the Boy Scouts is not entitled to

the protection of the freedom of intimate association.

The Boy Scouts is a nationwide organization which

charters local councils to carry out its programs in a

given geographic area. Groups which meet the require-

ments of the Boy Scouts are granted charters to organize

and maintain Scout groups. Local councils and chartered

organizations are bound by the national policies of the

Boy Scouts of America. (Exhibit 100, Stipulated Facts,

paragraphs 2, 5 and 8.)

Scouting is conducted through Scouting groups

known as Cub Scout Packs and Dens, Boy Scout Troops

and Patrols, and Explorer Posts. (Exhibit 100, Stipulated

Facts, paragraph 3.) The relatively small size of these

groups, however, does not permit the Boy Scouts as a

App. 46

whole the right to practice invidious discrimination. [See,

New York State Club Association vs. City of New York (1988)

487 U.S. 1, 12.]

Membership in the Boy Scouts is non-selective. (Com-

pare, Pacific-Union Club, supra, 232 Cal.App.3d 60; Hart vs.

Cult Awareness Network, supra, 13 Cal.App.4th 777.) The

Boy Scouts is not intimate in terms of its purpose for

existence, its programs and its size. The Boy Scouts does

not conduct activities in an atmosphere of privacy and it

routinely engages in activities which are public in nature.

In sum, the Boy Scouts is not sufficiently “intimate” to

override the mandate of the Unruh Act.

2. Expressive Associational Rights

Freedom of expressive association embraces a “right

to associate with others in pursuit of a wide variety of

political, social, economic, educational, religious, and cul-

tural ends.” (Roberts, supra, 468 U.S. 609 at 622.) The

freedom of expressive association accords “protection to

collective effort on behalf of shared goals.” (Id.) The right

of expressive association allows an organization to

exclude persons who would “impair the ability of the

original members to express only those views that

brought them together.” (Id.)

The Boy Scouts does not exist for an “expressive”

purpose. The aim of the Boy Scouts is to accomplish the

purposes of Scouting. As stated at section 3 of the Charter

and Bylaws of the Boy Scouts of America, “the purpose of

this corporation shall be to promote, through organiza-

tion, and cooperation with other agencies, the ability of

“ah

App. 47

boys to do things for themselves and others, to train them

in Scoutcraft, and to teach them patriotism, courage, self-

reliance, and kindred virtues, using the methods which

are now in common use by Boy Scouts.” (Exhibit 23,

Charter and Bylaws of the Boy Scouts of America.)

During his three-year tenure as an adult leader, Mr.

Merino furthered the purpose of and strongly believed in

Scouting. (Transcript March 21, 1994, p. 28.) Mr. Merino

testified that he practiced religion, believed in God, and

held moral values. (Transcript March 21, 1994, p. 23, line

24-25; p. 44, line 17; p. 45, line 15.) A 1990 newspaper

article in The Californian profiled Mr. Merino as a “role

model”. (Exhibit 79.) In a letter explaining the factual

basis for Mr. Merino’s termination from the Boy Scouts,

Mr. Brundage stated: “Your professional service to the

citizens of El Cajon has never been called into question,

nor have the professional principles of the department.”

(Exhibit 6, Letter from Ronald Brundage to Mr. Merino

dated September 23, 1992.)

Mr. Merino was expelled from the Boy Scouts solely

based-on his classification as an avowed homosexual.

Exclusion of the entire class of avowed homosexuals is a

status-based policy which results in invidious discrimina-

tion against certain individuals based on stereotyped

notions. [See, Watkins vs. U.S. Army (9th Cir. 1989) 875

F.2d 699, 725.] Before avowed homosexuality may law-

fully be used as a basis to expel an individual from

membership in the Boy Scouts, a connection must be

demonstrated between the individual’s avowed homosex-

uality and any significant danger of harm to the Boy

Scouts resulting from the individual’s continued member-

ship. (See, Curran I, supra, 147 Cal.App.3d 712 at 725.) Mr.

_ a

aS Oe ey ee ee BO er ee eee Oe ae 88 a ee ee eee,

i 7 a eg IES OEE aD

App. 48

Merino testified repeatedly that he would serve as a role

. model for Explorer Scouts and he would not discuss

issues of homosexuality or heterosexuality with Scouts.

(Transcript March 21, 1994, pp. 32-33; 45.)

Discrimination based on status, absent any evidence

of improper conduct, is arbitrary, capricious and offen-

sive to public policy. The Boy Scouts’ policy against

known or avowed homosexuals was a stipulated fact in

this case. (Exhibit 100, Stipulated Facts, paragraph 28.)

The policy is grounded in the Boy Scout Law which

requires a scout to be “clean”, and the Boy Scout Oath

which requires a scout to be “morally straight”. (Supra,

fn. 4.) Mr. Christopher Leach and Mr. Roy Williams testi-

fied it was the policy of the Boy Scouts to terminate the

membership of avowed homosexuals. Being an avowed

homosexual involved the public statement of a person’s —

homosexuality. (See, Transcript March 21, 1994, pp. 101

and 189.) No definition of “public” was given.

Mr. Leach and Mr. Williams also testified the Boy

; Scouts would not revoke the membership of a person

who remained silent regarding his sexual orientation.

) (See, Transcript March 21, 1994, p. 104, lines 4-17, and p.

189, lines 5-13.) The testimony elicited at trial suggests a

| homosexual can be a member of the Boy Scouts and

| remain a member as long as the person is not an avowed

homosexual. In fact, Mr. Williams, a national Boy Scout

representative testified, “We don’t exclude gays. We

exclude people who promote by declaring themselves as

an avowed homosexual. And they promote a particular

lifestyle that we don’t think is appropriate for children.”

(Transcript March 21, 1994, p. 189, lines 6-9.)

—

haga eee ee .

App. 49

Public acknowledgement of homosexuality does not

translate to a “teaching” that homosexuality is proper or

improper any more than a Scout admitting he is Catholic

amounts to a “teaching” that Catholicism is the only

“proper” religion. Any concerns the Boy Scouts may have

regarding the fitness of an individual to be an adult

leader and a proper role model can be addressed via

reasonable rules of deportment related to conduct. [See,

In re Cox (1970) 3 Cal.3d 205, 217.}

The right to associate for expressive purposes is not

absolute. (Roberts, supra, 468 U.S. 609 at 623.) The elimina-

tion of arbitrary discrimination is a compelling state

interest under the Unruh Act. Requiring the Boy Scouts to

end discrimination against avowed homosexuals serves

this compelling state interest and is unrelated to the

suppression of ideas. Any impact the application of the

Unruh Act has on the expressive associational rights of

the Boy Scouts is justified by the compelling state interest

of the Unruh Act to eliminate arbitrary discrimination.

E. Mr. Merino’s common law right of fair procedure

was not violated.

The right of fair procedure as a component of due

process recognizes private associations must use fair pro-

cedure in excluding persons from membership. (Ezekial

vs. Winkley (1977) 20 Cal.3d 267, 272.) The common law

right of fair procedure requires at least adequate notice of

the charges and a meaningful opportunity to respond.

(Id.)

By letter, Mr. Merino was provided with notice of the

reasons for the revoking of his membership in the Boy

igi:

+ cS

App. 50

Scouts. (Exhibit 6, Letter from Ronald Brundage to Mr.

Merino dated September 23, 1992.) Mr. Merino was also

provided a fair opportunity to present his position and

seek reinstatement of his membership. (Exhibit 4, Letter

from Ronald Brundage to Mr. Merino dated August 25,

1992.) Attached to the August 25, 1992 letter was a docu-

ment entitled “Procedures of Review”. While the court

finds Mr. Merino’s suspension from the Boy Scouts

amounted to arbitrary discrimination, the court finds no

violation of Mr. Merino’s common law right of fair pro-

cedure, as Mr. Merino was afforded a meaningful oppor-

tunity to respond to the action taken against him.

REMEDIES

Mr. Merino has requested the court to reinstate him

as an adult leader in the Boy Scouts, for damages under

the Unruh Act and the San Diego Human Dignities Ordi-

nance, an injunction reinstalling him as an adult leader of

the Boy Scouts, a writ of mandamus commanding the Boy

Scouts to charter the El] Cajon Police Department as a Boy

Scout Explorer Post and to reinstall Mr. Merino as its

adult leader, and a declaration by the court of the rights

of himself and the Boy Scouts regarding Mr. Merino’s

membership in Boy Scouts.

This court’s determination is, the Boy Scouts may not

exclude or remove avowed homosexuals from member-

ship in the Boy Scouts, unless the conduct of such person

is violative of Boy Scout rules which apply equally to all

Boy Scout members without regard to homosexuality.

Rules to protect Scouts from improper sexual contact or

be PO RS

App. 51

solicitation, applying equally to heterosexual and homo-

sexual adult leaders, are appropriate, and nothing set

forth in this decision is intended to interfere with such

rules.

The court sets monetary damages herein in the total

amount of $5,000.00. [Civil Code section 52, subdivision

(a).] There was little testimony regarding special dam-

ages. Mr. Merino did testify he paid the annual dues of

himself and all Scouts in his Explorer Post - approxi-

mately $100.00 — per year. (Transcript March 21, 1994, p.

16, line 17 to p. 17, line 9.) Only brief testimony in regard

to general damages was elicited. The psychological harm

of removing a person as leader of a youth program to

which he was devoted and committed is difficult to quan-

tify. Mr. Merino stated he was, “very upset, indignant, I

guess.” (Transcript March 21, 1994, p. 19, lines 8-19.)

This court realizes the emotional impact of exclusion

on a person can be devastating; however, Mr. Merino

continued his employment and was apparently elected by

the officers of the El Cajon Police Department to a posi-

tion in the El Cajon Police Officers Association. (Tran-

script March 31, 1994, p. 14, lines 7-15.) Additional

widespread moral support was provided Mr. Merino by

friends and law enforcement persons. (Transcript March

21, 1994, p. 14, lines 3-6.)

After completion of trial in this matter, Mr. Merino

was provided the opportunity to request an injunction for

reinstatement as a Boy Scout Explorer Post Advisor. A

ruling on Mr. Merino’s Motion for Injunction was ren-

dered on August 26, 1994. (See, Ruling on Motion for

App. 52

Injunction — Calendared for August 26, 1994 (tele-

phonic).) After consideration of the pleadings and the

evidence presented at trial a Mandatory Injunction was

issued as set forth in a separate order of this court.

Although Mandamus is a proper proceeding to com-

pel the reinstatement to membership of one who has been

illegally expelled from a duly organized association

[Smetherham vs. Laundry Workers’ Union Local No. 75 (1941)

44 Cal.App.2d 131, 135], the court may not issue a writ of

mandate unless petitioner shows both an inadequate rem-

edy at law and exhaustion of remedies provided by the

organization involved.

An inadequate remedy at law does not exist as the

Unruh Act provides the authority to issue any orders

which the court could issue through mandamus. There-

fore, the prayed for Writ of Mandamus is denied.

Plaintiffs shall receive attorney’s fees and costs.

CONCLUSION

Over the substantial history of the Boy Scouts of

America, the organization has sought diversification of

its membership. The Boy Scouts has shown exemplary

tolerance in the area of religious acceptance. The Boy

Scouts does not restrict membership on the basis of reli-

gion. The Boy Scouts is open to members of any religion

so long as such religion recognizes a deity. The Boy Scout

Handbook lists twenty-five religions which confer reli-

gious emblems to Scouts who meet the religious criteria.

In addition to generally recognized American religions

are Moravian, Zoroastrian, Armenian, Baha’i, Buddhist

PL DAE A ORE RE ORF SEA 2k ey

S 2

App. 53

and others. [See, Exhibit 12, The Boy Scout Handbook

(10th ed.), pp. 624-625.]

Contrary to the exclusivity of their formal name, the

Boy Scouts of America has, since 1971, accepted young

women as members of Explorer Scout Posts. (See, Exhibit

14, Exploring, pp. 6, 81; Exhibit 23, Boy Scouts of America

Charter and Bylaws, Article VI, section 1.)

The Boy Scouts is also actively recruiting new mem-

bers in “low-income and minority communities” under

the Urban Emphasis initiative; and the Boy Scouts has

started 840 new packs, troops and posts in California and

Texas during a three-year period under the Hispanic

Emphasis initiative. (Exhibit 28, Preparing for the Future,

p- 407.)

As to sexual preference, the testimony of virtually all

defense witnesses was that the Boy Scouts only precludes

membership to persons who are avowed homosexuals.

Homosexuality “unavowed” is apparently not a basis for

denial (or expulsion) from Scouting.

Witnesses called by the Boy Scouts believed and

stated Mr. Merino could be heterosexual if he chose to. It

was suggested that consultation with either religious offi-

cials or psychotherapists could change Mr. Merino. (Tran-

script March 21, p. 111, line 13 to p. 112, line 12.)

Mr. Merino stated he recognized his homosexuality

since he was twenty years old. He did not believe his

homosexuality was a part of his environment, given his

Catholic background, church participation, his law

enforcement family, and the anti-gay sentiment of his

App. 54

parents’ friends. Mr. Merino believes he was a homosex-

ual from birth and cannot convert to heterosexuality.

(Transcript, March 30, 1994, pp. 8 and 13.)7

Three witnesses testified on behalf of the Church of

Latter Day Saints, the United Methodist Church and the

Catholic Church, religious sponsors of a substantial

number of Boy Scouts packs, troops and posts. These

witnesses indicated acceptance of avowed homosexuals

in the Boy Scouts may lead to withdrawal of religious

sponsorship of the Boy Scouts. The principal concern of

the persons who testified on behalf of religious sponsors

was promoting homosexuality. No credible evidence was

presented to suggest avowed homosexuals who are

allowed to join the Boy Scouts would be allowed to

advocate the morality of homosexual conduct to Scouting

youth. In fact, such conduct is already grounds for

removal from Boy Scouts. (Transcript March 21, 1994, p.

188, line 21 — p. 189, line 15.)

The Unruh Act prohibits generalization as a basis for

exclusion or preclusion from any business establishment.

Assumptions that women are indecisive, Catholics are

stubborn, or Germans are insensitive, and based thereon

will be disallowed membership or customer service, is

illegal. Similarly, persons may not be excluded based on

their sexual orientation.

7 Dr. Simon LeVay, a neurobiologist, testified

homosexuality was a personal trait which could not voluntarily

be changed. His paper, A Difference in Hypothalamic Structure

Between Heterosexual and Homosexual Men (1991) Science Vol.

235, p. 1034, suggests that sexual orientation, at least in men,

has a biological substrate.

App. 55

If a woman, a Catholic, a German or a homosexual

has acted or is acting contrary to reasonable membership

requirements, an organization may preclude such person

from becoming a member or move to expel such person,

but such criteria must apply to all persons equally.

Had the Boy Scouts discriminated on the basis of

race, not sexual orientation, most would not question the

existence of an Unruh Act violation. (See, Isbister supra, 40

Cal.3d 72 at 91.) Correspondingly, arbitrary discrimina-

tion by the Boy Scouts against avowed homosexuals is

prohibited under the Unruh Act. This court finds no

overriding constitutional concerns to prevent application

of the Unruh Act.

Based on these findings IT IS ADJUDGED, DECREED

AND DECIDED:

1. Plaintiff is granted judgment.

2. Plaintiff is awarded monetary damages in the

total amount of $5,000.00 plus attorneys’ fees and costs of

suit.

3. Defendants may not exclude or remove avowed

homosexuals from membership in the Boy Scouts, unless

the conduct of such person is violative of Boy Scout rules

which apply equally to all Boy Scout members without

regard to homosexuality.

4. A Mandatory Injunction shall issue as follows:

(1) That defendants SAN DIEGO COUNTY

COUNCIL OF THE BOY SCOUTS OF AMERICA

and BOY SCOUTS OF AMERICA, their agents,

servants, assigns and all those acting in concert

with them, reinstate the Boy Scouts charter for

One Sas Gee PET ee

App. 56

the El Cajon Police Department Explorer Post

upon application by Mr. Merino with the El

Cajon Police Department as the sponsor;

(2) That upon such reinstatement of the char-

ter, defendants SAN DIEGO COUNTY COUN-

CIL OF THE BOY SCOUTS OF AMERICA and

BOY SCOUTS OF AMERICA, their agents, ser-

vants, assigns and all those acting in concert

with them, reinstate plaintiff Merino as the

Explorer Advisor of the El Cajon Police Depart-

ment Explorer Post.

5. The Writ of Mandamus is denied.

[plus costs at $115,492.58 (11-21-94) /s/]

Dated: September 13, 1994

/s/ Anthony C. Joseph

ANTHONY C. JOSEPH

Judge of the

Superior Court

App. 57

Everett L. Bobbitt, Bar No. 116908

Vicki L. Gilbreath, Bar No. 13793

BOBBITT & GATTEY

- 2445 Fifth Avenue, Suite 350

San Diego, California 92101

(619) 232-8142

Attorney for Plaintiff CHARLES MERINO

EDWARDS, WHITE & SOOY

State Bar No. 53467

101 West Broadway

9th Floor

San Diego, California 92101

(619) 231-1500

HUGHES HUBBARD & REED

One Battery Park Plaza

New York, New York 10004

(212) 837-6000 -

Attorneys for Defendants SAN DIEGO COUNCIL OF

THE BOY SCOUTS OF AMERICA, RON BRUNDAGE and

BOY SCOUTS OF AMERICA

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN DIEGO

CHARLES MERINO, __) Case No. 659236

Plaintiff, STIPULATED FACTS

SAN DIEGO COUNTY

COUNCIL OF THE BOY

SCOUTS OF AMERICA,

et al.,

) Department: 43

) I/C JUDGE HON.

) ANTHONY C. JOSEPH

) Trial Date:

) March 21, 1994

)

Defendants. ) (Filed March 21, 1994)

)

App. 58

Pursuant to Local Rule 1.14(d)(2) of the San Diego

County Superior Court, plaintiff Charles Merino and

defendants San Diego County Council of Boy Scouts of

America (“San Diego Council”), Boy Scouts of America,

and Ron Brundage hereby stipulate to the following facts:

1. Boy Scouts of America is a federally-chartered

non-profit organization.

2. Boy Scouts of America charters local councils to

accomplish the purposes of Scouting and carry out its

programs in-a given geographic area. Duly chartered

local councils are incorporated according to the not-for-

profit laws of their states of incorporation.

3. Scouting is conducted through Scouting groups

known as Cub Scout Packs and Dens, Boy Scout Troops

and Patrols, and Explorer Posts.

4. San Diego Council is a duly chartered local coun-

cil of Boy Scouts incorporated under the not-for-profit

laws of California. The Council’s purpose is that of sup-

porting Scouting groups within San Diego County in

accordance with the Charter, Bylaws and Rules and Regula-

tions of Boy Scouts of America.

5. Boy Scouts charters sponsoring organizations

meeting the requirements of the Bylaws and the Rules and

Regulations of Boy Scouts of America to organize and

maintain Scout groups in accordance with Boy Scouts of

America policies. The El Cajon Police Department was

one such organization that sought and was granted a

charter by Boy Scouts of America to form and maintain

Explorer Post 2245 in El Cajon, California.

Ce Ce ee Ex pent ah ange 6 tpn se Ces

a Na a aka a a ee

App. 59

6. The sponsoring organization is charged with pro-

viding suitable facilities for meetings and activities and

with selecting adult leadership that meets with the stan-

dards for membership of Boy Scouts of America.

7. Every sponsoring organization appoints one del-

egate to the local council, which elects an executive

board. Each local council has at least three delegates to

the National Council. The National Council elects the

National Executive Board, which sets national policy for

Boy Scouts.

8. Each Scouting group is governed by the Charter

and Bylaws and Rules and Regulations of Boy Scouts of

America.

9. San Diego Council’s 1992 projected income was

in the amount of $2,375,596 and projected expenses were

in the amount of $2,525,596.

10. San Diego Council employs approximately 44

full-time employees: 19 are proffesional [sic] scouters; 25

are non-commissioned employees. Among the 25 are six

camp rangers and one field assistant; the rest are secre-

taries or clerical workers.

11. Membership of Boy Scouts of America in San

Diego as of December 31st, 1992:

Youth Adult

Cub 11,981 4,266

Scout 6,489 3,444

Explorer _1,685 _ 391

20,155 8,101

App. 60

12. National membership totals for Boy Scouts of

America, as of the 1992 Annual Statement, was 4,150,148

youth members and 1,189,512 adult members.

13. Boy Scouts’ total revenues for the year ended

December 31, 1992 were $54,205,000. Total expenses for

the year ended December 31, 1992 were $49,977,000.

14. The Scout Oath reads as follows:

“On my honor

I will do my best

To do my duty to God and my country and

To obey the Scout Law;

To help other people at all times;

To keep myself physically strong, mentally

awake, and morally straight.”

15. “Morally Straight” in the Scout Oath is

described to Boy Scouts in the Boy Scout Handbook as

follows:

“To be a person

life with hone

and defend the rights of all people. Your rela-

tionship with others should be honest and open.

Be clean in your speech and actions, and faithful

in your religious beliefs. The values you follow

as a Scout will help you become virtuous and

self-reliant.”

16. The Scout Law reads as follows:

“A Scout is: Trustworthy, Loyal, Helpful,

Friendly, Courteous, Kind, Obedient, Cheerful,

Thrifty, Brave, Clean, and Reverent.”

17. “Clean” in the Scout Law is described to Boy

Scouts in the Boy Scout Handbook as follows:

18.

App. 61

“A Scout keeps his body and mind fit and clean.

He chooses the company of those who live by

these same ideals he helps keep his home and

community clean.

You never need to be ashamed of dirt that will

wash off. If you play hard and work hard you

can’t help getting dirty. But when the game is

over or the work is done, that kind of dirt

disappears with soap and water.

There’s another kind of dirt that won’t come off

by washing. It is the kind that shows up in foul

language and harmful thoughts.

Swear words, profanity, and dirty stories are

weapons that ridicule other people and hurt

their feelings. The same is true of racial slurs

and jokes making fun of ethnic groups or people

with physical or rental limitations. A Scout

knows there is no kindness or honor in such

mean-spirited behavior. He avoids it in his own

words and deeds. He defends those who are

targets of insults.”

The Explorer Code reads as follows:

“As ari Explorer —

I believe that America’s strength lies in her trust

in God and in the courage and strength of her

people. I will, therefore, be faithful in my reli-

gious duties and will maintain a personal sense

of honor in my own life.

I will treasure my American heritage and will

do all I can to preserve and enrich it.

I will recognize the dignity and worth of my

fellowmen and will use fair play and goodwill

in dealing with them.

App. 62

I will acquire the Exploring attitude that seeks

the truth in all things and adventure on the

frontiers of our changing world.”

19. The Declaration of Religious Principle reads as

follows:

“The Boy Scouts of America maintains that no

member can grow into the best kind of citizen

without recognizing an obligation to God. In the

first part of the Scout Oath or Promise the mem-

ber declares, ‘On my honor I will do my best to

do my duty to God and my country and to obey

the Scout Law.’ The recognition of God as the

ruling and leading power in the universe and

the grateful acknowledgment of His favors and

blessings are necessary to the best type of citi-

zenship and are wholesome precepts in the edu-

cation of the growing members. No matter what

the religious faith of the members may be, this

fundamental need of good citizenship should be

kept before them. The Boy Scouts of America,

therefore recognizes the religious element in the

training of the member, but it is absolutely non-

sectarian in its attitude toward that religious

training. Its policy is that the home and the

organization or group with which the member is

connected shall give definite attention to reli-

gious life.”

20. Adult leaders serve without pay from Boy

Scouts of America or San Diego Council.

21. To become an adult leader for Boy Scouts Of

America, an applicant must be 21 years of age, be a

United States citizen, and complete and sign a volunteer

App. 63

leader application. Adult leaders must subscribe to prin-

ciples as set forth in the Oath and Law and the Declara-

tion of Religious Principle. The adult applicant must also

pay the national registration fee and his or her applica-

tion must be signed by the Scout group’s Committee

Chairman, the Chartered Organization Leader and the

Scout Executive or a designee.

22. One of the roles of an adult volunteer leader is

to be a good role model for the youth in the Scout group.

23. Mr. Merino has been a police officer in the El

Cajon Police Department since 1977.

24. In 1982 Mr. Merino came to be in charge of the

El Cajon Police Department Cadet program.

25. In 1989 Mr. Merino sought and obtained permis-

sion from the Chief for the Department to affiliate with

Boy Scouts of America as a chartered organization. He

completed an application for the El Cajon Police Depart-

ment to become a chartered organization of Boy Scouts of

America to sponsor an Explorer Post. Mr. Merino also

completed a volunteer leader application to be a member

of Boy Scouts of America. Following the receipt of these

applications Boy Scouts of America chartered Post 2245

and Mr. Merino became an adult member of Boy Scouts

of America and the Explorer Advisor of Post 2245.

26. Mr. Merino remained an adult leader in Boy

Scouts of America as Explorer Advisor of Post 2245 from

1988 to on or about August 25, 1992.

27. Mr. Merino first publicly announced that he is a

homosexual in December 1991.

App. 64

28. Because Boy Scouts of America believes that

homosexual conduct is inconsistent with the Scout oath

and Law, Boy Scouts of America does not accept known

or avowed homosexuals as adult leaders.

29. Boy Scouts of America suspended Mr. Merino’s

registration as an adult on or about August 25, 1992.

30. After Mr. Merino’s membership as an adult vol-

unteer was suspended, the El Cajon Police Department

chose to withdraw its sponsorship of the Explorer pro-

gram and resumed operating its Cadet program.

Dated: March 21, 1994

BOBBITT & GATTEY

By: /s/ Vicki L. Gilbreath

Vicki L. Gilbreath

Attorneys for Plaintiff

Charles Merino

-Dated: March 21, 1994

EDWARDS, WHITE & SOOY

HUGHES HUBBARD & REED

By: /s/ Carla A. Kerr

Carla A. Kerr

Attorneys for Defendants

San Diego Council,

Boy Scouts of America,

Boy Scouts of America

and Ron Brundage

App. 65

(Filed Jun 27, 1997)

Ct of Appeal # D021969

Superior Ct. # 659236

IN THE

SUPREME COURT OF CALIFORNIA

CHARLES MERINO,

Petitioner,

SAN DIEGO COUNTY COUNCIL OF THE BOY SCOUTS

OF AMERICA; RON BRUNDAGE; and BOY SCOUTS OF

AMERICA,

Respondents.

After a Decision by the Court of Appeal

Fourth Appellate District, Division One

Ct. of Appeal # D029169

PETITION FOR REVIEW

Everett L. Bobbitt, SBN 116908

Sanford A. Toyen, SBN 177172

LAW OFFICES OF EVERETT L. BOBBITT

8388 Vickers Street

San Diego, CA 92111

he ’ 7

4 ~

App. 66

TABLE OF CONTENTS

TABLE OF AUTHIORITING incite. f006 Set ii

BBS Pe 5 ks uv ooo wes e ekise anes 1

Tl, SEATOIU Ee Pe POM i os 6s CE Ear ise ees 2

BEE; ‘CAGE FER s 0. FS. Se ER is 4

IV. WHY REVIEW SHOULD BE GRANTED ..... 5

Issue #1

Whether the Boy Scouts is a business establishment

under the Unruh Act, California Civil Code section

51, and thus prohibited from discriminating

RINSE TONGUE ao ss oes ice eee se chee s 5

Issue #2

Whether the Boy Scouts may be considered a busi-

ness establishment under the Unruh Act when it

operates in conjunction with a public agency.... 7

Issue #3

Whether the Boy Scouts, when operating in con-

junction with a public agency, may take personnel

action that would violate Labor Code section

1102.1, specifically, discrimination against homo-

CURMAIY oo os 2s 9.02200 Gennookteahh eneuakeaks +s saps 13

Issue #4 :

Whether MERINO’S rights under the San Diego

Human Dignity Ordinance, San Diego Municipal

Code Section 52.9601 et seq., prohibiting discrimi-

nation against homosexuals, were violated....... 5

Vi. . SUNN S04 65 F.0d KWNAE ft ke os den een tates 18

App. 67

TABLE OF AUTHORITIES

California cases

Beatty v. Truck Ins. Exchange 6 Cal. App. 4th 1455

ce OPT Ae Rate a a at aS ae 6

Delaney v. Superior Fast Freight 14 Cal. App. 4th

no a ROR eo 3 Goer cee a 17

Harris v. Capital Growth Investors XIV 52 Cal. 3d

RAM CSD Unites Shae Lee. ROE ES. 6

Isbister v. Boys Club of Santa Cruz, Inc. 40 Cal. 3d

Lows om | iL SSA ieee 6, 8

Warfield v. Peninsula Golf & Country Club 10 Cal.

Fe RR ES Rad a ar ae passim

Federal cases

Cornelius v. Benevolent Protective Order_of Elks 382

pape idee Cr, Comm 1976) 2. ess... 9

Nesmith v. Young Men’s Christian Ass'n of Raleigh,

N.C, 397 Bad 96 (4th Cir. 1968).................... 9

Roberts v. United States Jaycees 468 U.S. 609........... 9

Wright v. Cork Club 315 F. Supp. 1143 (S.D. Tex.

cy _MNRRSESPORP POE S AAS ES RSPR a a ag 9

California Statutes

spay ont coc a Be WN ee a passim

Other Statutes

San Diego Municipal Code section 52.601 et seq....15, 16

App. 68

Ct of Appeal # D021969

Superior Ct. # 659236

IN THE

SUPREME COURT OF CALIFORNIA

CHARLES MERINO,

Petitioner,

vV.

SAN DIEGO COUNTY COUNCIL OF THE

BOY SCOUTS OF AMERICA; RON BRUNDAGE;

and BOY SCOUTS OF AMERICA,

Respondents.

After a Decision by the Court of Appeal

Fourth Appellate District, Division One

Ct. of Appeal # D021969

PETITION FOR REVIEW

ISSUES PRESENTED

Issue #1

Whether the Boy Scouts is a business establishment under

the Unruh Act, California Civil Code section 51, and thus

prohibited from discrimination against homosexuals.

App. 69

Issue #2

Whether the Boy Scouts may be considered a business

establishment under the Unruh Act when it operates in

conjunction with a public agency.

Issue #3

Whether the Boy Scouts, when operating in conjunction

with a public agency, may take personnel action that

would violate Labor Code section 1102.1, specifically,

discrimination against homosexuals.

Issue #4

Whether the Petitioner’s rights under the San Diego

Human Dignity Ordinance, San Diego Municipal Code

section 52.9601 et seq., prohibiting discrimination against

homosexuals, were violated.

Il.

STATEMENT OF FACTS

In May 1989, Petitioner CHARLES MERINO, a police

officer with the El Cajon Police Department (ECPD)

applied to Boy Scouts, through its chartered local council,

San Diego County Council of the Boy Scouts of America,

for an Explorer Post charter. MERINO, who was in charge

of the ECPD Cadet program, sought to convert the

Department's existing Cadet program into a law enforce-

ment Explorer Post, a scouting group within Boy Scouts.

In order to be the adult advisor of the Post, MERINO

- applied to be an adult member of the Boy Scouts. Boy

Scouts chartered the El Cajon Police Department as a

sponsor of Explorer Post 2245 and approved MERINO’s

App. 70

application to be a volunteer adult member of the Boy

Scouts.

Exploring is the young adult program of the Boy

Scouts of America for men and women aged 14 through

20. The program is developed by local community organi-

zations, such as the El Cajon Police Department, which

match the interests of young adults with the program

resources of the chartered organization. The program,

leadership, and membership of the Explorer Post are

determined by the chartered organization within the

framework of the policies and standards of the Boy

Scouts of America. The Explorer Post charter agreement

between ECPD and Boy Scouts states, among other

things, that the Department agrees to “conduct the Scout-

ing program according to its own policies and guidelines

as well as those of the Boy Scouts of America” and Boy

Scouts agrees to “respect the aims and objectives of the

organizations and offer the resources of Scouting to help

in meeting those objectives.”

In approximately December 1991, MERINO became

involved in organizing a Citizens Patrol to patrol the

Hillcrest area of San Diego, where MERINO lived, to

assist police in the prevention of the numerous and

increasing assaults and batteries on homosexuals in the

Hillcrest area at the time. Boy Scouts learned of MER-

INO’S activities and determined that MERINO was an

avowed homosexual. Boy Scouts views homosexuality as

inconsistent with Scouting principles, specifically the

requirement in the Scout Oath to be “morally straight”.

Boy Scouts therefore do not permit known or avowed

homosexuals to be adult leaders. On the basis of his

homosexuality, Boy Scouts, by letter dated August 25,

App. 71

1992, signed by Council President RONALD BRUNDAGE

suspended MERINO’S registration.

The El Cajon Police Department, as a public agency,

may not discriminate on the basis of sexual preference. It

was the opinion of then-Chief of Police Jack Smith that it

would be an unlawful adverse employment decision if he

were to remove MERINO from the position of Explorer

Post Advisor based on his sexual orientation. Chief Smith

therefore allowed the El Cajon Police Department's

Explorer program charter to expire. If MERINO is reins-

tated as the Explorer Advisor, the charter agreement will

be reinstated, with MERINO as the advisor.

III.

CASE HISTORY

MERINO filed suit on December 14, 1992. The suit

named as defendants SAN DIEGO COUNTY COUNCIL

OF THE BOY SCOUTS OF AMERICA, RON BRUNDAGE,

and the CITY OF SAN DIEGO. The complaint prayed for

a Writ of Mandamus ordering the BOY SCOUTS to reins-

tate MERINO to his membership in BOY SCOUTS and to

his position of Explorer Post Advisor, a permanent

injunction preventing BOY SCOUTS from expelling MER-

INO from membership solely on the basis of his homo-

sexuality, a writ commanding the CITY OF SAN DIEGO

to terminate its lease with the BOY SCOUTS, and Declar-

atory relief. |

The Court granted Summary Judgment to the CITY

OF SAN DIEGO, holding that the relief sought against

the City was premature.

App. 72

The case went to trial on March 21, 1994. On July 7,

1994, the trial court, Hon. Anthony C. Joseph, ruled that

the Boy Scouts had discriminated against MERINO in

violation of the Unruh Act, and that the San Diego

Human Dignity Ordinance did not apply since the

Explorer Post was in the City of El Cajon and therefore

“outside the jurisdiction of the Ordinance”. The Court

granted relief to MERINO as follows: $5000.00 in mone-

tary damages; attorneys fees; and a Mandatory Injunction

ordering the BOY SCOUTS to reinstate the Explorer Post

charter for the El Cajon Police Department, upon applica-

tion by MERINO, and to reinstate MERINO as the

Explorer Advisor of the El Cajon Police Department post.

BOY SCOUTS appealed the court’s judgment. MER-

INO cross-appealed on the court’s ruling that the Human

Dignity Ordinance did not apply. After briefing and oral

argument, the Court of Appeal, on May 21, 1997, reversed

the judgment of the trial court with respect to the finding

that BOY SCOUTS violated the Unruh Act, and affirmed

the trial court’s findings that the San Diego Human Dig-

nity Ordinance did not apply.

MERINO petitioned the Court of Appeal for rehear=m,

ing, based on the fact that the Court of Appeal did not

consider issues (Issues #2 and #3) presented by MERINO

in the briefs and at oral argument. The court denied

MERINO’s Petition for Rehearing on May 21, 1997.

App. 73

IV.

WHY REVIEW SHOULD BE GRANTED

Issue #1

Whether the Boy Scouts is a business establishment

under the Unruh Act, California Civil Code section 51,

and thus prohibited from discriminating against homo-

sexuals.

The Unruh Act, Civil Code section 51 et seq., provides

that “all persons within the jurisdiction of the state are

free and equal, and no matter what their sex, race, color,

religion, ancestry, national origin, or disability, are enti-

tled to the full and equal accommodations, advantages,

and facilities, privileges, or services in all business estab-

lishments of every kind whatsoever.” The Act also pro-

hibits discrimination on the basis of sexual orientation.

Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142,

1155-1156 (1991); Beatty v. Truck Ins. Exchange, 6 Cal. App.

4th 1455, 1460 (1992).

What constitutes a business establishment, as

opposed to a private club, has been the subject of much

confusion, and resulted in significant volume of litiga-

tion. This is because many entities have attributes that

make their status under the law difficult to discern. The

Boy Scouts is such an organization.

The case law that has developed over the years

analyzing the Unruh Act has not specifically held

whether or not the Boy Scouts are a business establish-

ment under the Unruh Act. While recent case law has

made clear that certain types of establishments such as

non-profit boys clubs (Isbister v. Boys Club of Santa Cruz,

ee iia sates semat :

SOR TENe

App. 74

Inc., 40 Cal. 3d 726 (1985)) and country clubs (Warfield v.

Peninsula Golf & County Club, 10 Cal. 4th 594 (1995) are

business establishments within the meaning of the Unruh

Act, neither of these lower court cases have settled the

issue of whether the Unruh Act applies to the Boy Scouts

because neither of these organizations, according to the

Court of Appeal, are sufficiently analogous to the Boy

Scouts. In order for the issue to be resolved, the court

must issue a decision that specifically applies to the Boy

Scouts.

This court should decide this issue because the rights

and responsibilities of an organization as large and as

renowned as the Boy Scouts should be as well defined as

possible. Whether or not the Boy Scouts may discriminate

on the basis of sexual orientation is a question that

should be resolved, not just for the benefit of those who

are currently members, but for those who would like to

be members. Furthermore, Boy Scouts is a large and

culturally significant organization, such that the question

of whether Boy Scouts may deny membership on the

basis of sexual orientation is one that would have rele-

vance on the lives and livelihoods of a significant portion

of the state populous.

Additionally, the court has agreed to decide this very

issue, but has not yet done so. This court had granted

review to the cases Randall v. Orange County Council of the

Boy Scouts of America (Review Granted, 6-2-94) and Curran

v. Mt. Diablo Council of the Boy Scouts of America (Review

Granted, 6-2-94). This issue is identical to the issue that

will be resolved by the Randall and Curran cases. Peti-

tioner MERINO, who has been litigating this case for five

years now, should not have his case turned away when

App. 75

the court has agreed to consider granting relief to those

similarly situated.

Issue #2

Whether the Boy Scouts may be considered a business

establishment under the Unruh Act when it operates in

conjunction with a public agency.

The legal status of the Boy Scouts under the Unruh

Act turns on the issue of whether Boy Scouts are a busi-

ness establishment, or a private social club. Status as the

latter type of organization does not bring them under the

umbrella of the Unruh Act, for the reason that the Unruh

Act does not attempt to regulate (nor would the Constitu-

tion permit its regulation of) purely social relationships.

Government cannot compel the inclusion of anyone into a

purely social, non-business relationship. People are free

to socialize or not to socialize with whomever they see fit,

for whatever reason.

However, when an organization opens its doors to

the public, it must follow the requirements of the Unruh

Act. An organization that opens its doors to the public

must leave the door open to all types of people, and may

not exclude on the basis of race, gender, religion, or

sexual orientation. Isbister v. Boys Club of Santa Cruz, Inc.,

40 Cal. 3d 72 (1985) (holding that Boys Club was a tradi-

tional “public accommodation” and therefore subject to

the Unruh Act).

Even if the Boy Scouts are not said to have opened

their doors to the public with respect to general member-

ship, they have done so with respect to Explorer Post

Advisors. Boy Scouts opened their doors to a public

App. 76

agency in order to establish an Explorer post to be run by

the El Cajon Police Department. By opening their doors

to the El Cajon Police Department, the Boy Scouts opened

the Explorer Post Advisor position up to the public.

As a public agency, the El Cajon Police Department

cannot discriminate on the basis of race, gender, religion,

or specifically, sexual orientation. It cannot discriminate

in hiring, promotions, job assignment, or in any person-

nel areas. ECPD could not prevent homosexual from

holding any positions within the ECPD. If an Explorer

Post Advisor position existed, the ECPD could not pre-

vent a homosexual from filling the position.

Thus, by opening its doors to a public agency that

could not lawfully discriminate on the basis of sexual

orientation, the Boy Scouts opened its doors to any mem-

ber of the ECPD to become its Explorer Post Advisor.

Since employment with ECPD must necessarily be open

to all qualified members of the public, opening one’s

doors to the ECPD is no different than opening its doors

to the public.

MERINO’S case therefore presents an issue that is

separate and distinct from the cases that are currently

before this court regarding the applicability of the Unruh

Act to the Boy Scouts: Whether the Boy Scouts may be

considered a business establishment under the Unruh act

when it operates in conjunction with a public agency.

This issue should be heard by this Court. The War-

field decision suggests that the court is moving away from

its past Unruh Act analysis, which focused on examining

the character of the organization to see whether it is, at its

core, a business establishment, or a social club. This type

App. 77

of analysis involved a five-prong “totality of the circum-

stances” approach which took into consideration the fol-

lowing factors:

“(1) the selectivity of the group in the admission

of members, (2) the size of the group, (3) the

degree of membership control over the gover-

nance of the organization (and particularly the

selection of new members), (4) the degree to

which club facilities are available for use by

nonmembers, and (5) whether the primary pur-

pose served by the club is social or business.”

Warfield, 10 Cal. 4th at 620-1 citing Nesmith v.

Young Men's Christian Ass'n of Raleigh, N.C. (4th

Cir. 1968) 397 F.2d 96, 98-102; Cornelius v. Benev-

clent Protective Order of Elks (D.Conn. 1974) 382

F. Supp. 1182, 1203-1204 (three-judge court);

Wright v. Cork Club (S.D. Tex. 1970) 315 F. Supp.

1143, 1150-1153; United States Jaycees v. McClure,

supra, 305 N.W.2d 764, 770-771, affd. Roberts v.

United States Jaycees (1984) 468 U.S. 609, 82 L.

Ed. 2d 462, 104 S. Ct. 3244.)

Warfield suggests that Unruh Act analysis should not

focus on the organization as whole, but on the activities

in which the organization is engaged, to see-if those

activities are such that the organization has opened itself

to the public.1 This is an entirely different method anal-

ysis than that which the Court of Appeal applied, and

' In Warfield, this Court held that because the Country Club

engaged in significant business transactions with non-members

on its premises, it must be considered a business establishment

within the meaning of the Unruh Act, which intended that the

term “business establishment” be used “in the broadest sense

reasonably possible” Warfield, 10 Cal. 4th 492, at 609-10.

The business contacts with the public were deemed to be

significant in Warfield because of the financial benefits realized

App. 78

one that recognizes that organizations often engage in

both private and public activities.

The Court of Appeal’s Unruh Act analysis breaks

down when an organization is involved in multiple activ-

ities, some of which can be considered “business” and

some “social”. It forces a court to classify the organiza-

tion as either a social club or a business establishment,

even when the organization may have attributes of both,

or neither, or may engage in some activities that are

characteristic of a private club, and some that are charac-

teristic of a business establishment. The result is violence

done to both the Unruh Act and the right of association.

Classification of an organization as a “business establish-

ment” may erode the organization’s truly private social

activities. Conversely, classification of an organization as

a private club may allow the organization that otherwise

opens its doors to the public, to exclude people on the

basis of race, gender, religion, or sexual orientation,

clearly violating the spirit of the Unruh Act.

by the country club. However, the Court’s focus on the financial

transactions between members and non-members in Warfield

was because, in that case, it was through continuous and

significant financial transactions that the country club opened

itself up to the public. Warfield should not be read to stand for

the proposition that it is only through financial transactions

with the public that an organization may open itself up to the

public, for purposes of the Unruh Act. An organization that

establishes a partnership with a public agency for the purpose

of providing services to its members is opening itself up to the

public just as the country club in Warfield did by engaging in

financial transactions.

App. 79

The court should use this issue as an opportunity to

clarify its analysis of the Unruh Act. It is an issue that has

widespread implications, not just to MERINO and the

Boy Scouts, but to all social clubs that engage in business

activity, and to all businesses that engage in social activ-

ity.

In Isbister, and later repeated in Warfield, the Court

wrote: *

. . . [W]e have emphasized that the statute

does not govern relationships that are truly pri-

vate . . . those which are ‘continuous, personal,

and social’ and take place more or less outside

of public view. ‘Private’ groups and institutions

do not fall prey to the Act simply because they

operate ‘nongratuitous’ residential or recre-

ational facilities for their members or Partici-

pants; an ‘accommodation’ must be ‘public’ to

be covered.

Warfield, 10 Cal. 4th 492 at 618.

The language of the Court in Warfield suggests that

Unruh Act analysis will focus on the ‘accommodation’

being provided rather than the character of the organiza-

tion as a whole. If the ‘accommodation’ is made open to

the public, the organization will not be considered a

‘business establishment’ for the purposes of this ‘accom-

modation’.

This analysis is far more sound than the analysis

used “by the Court of Appeal? or, which analyzed the

? Although the Court of Appeal claimed to follow Warfield,

it in fact, followed the five-prong analysis articulated in Isbister

Ee BO Oe CE EMRE TS Soe TR Ta OR Re ots —

Tae MRS egg TSN dR em pe eee ae Pen te st IE ak hs a ls a

App. 80

character of the organization rather than the specific

activity or accommodation in question. If the Court of

Appeal’s reasoning were permitted to stand, the Boy

Scouts, because of their status as a ‘private club’ could be

free to discriminate even in their non-private activities.

Boy Scouts would be free to exclude African-Americans

from their annual Scout Fair, which is open to the entire

public, because the Boy Scout organization is not subject

to the Unruh Act. Other private clubs that operate public

accommodations would similarly be free to discriminate

in their business activities. Girl Scouts would be permit-

ted to refuse to sell cookies to Jews. The Kiwanis Club

could refuse service to homosexuals at their pancake

breakiasts, which are open to the public.

The above results are indeed absurd, but they log-

ically follow from an Unruh Act analysis that does not

focus on the specific accommodation and instead is based

on the ‘character’ of the organization. Under an activity-

based analysis, the Boy Scouts, the Girl Scouts, and the

which this Court in Warfield specifically declined to follow. In

Warfield, this Court wrote:

... [W]e conclude that there is no need to determine

whether [the country club] constitutes a “private

club” rather than a place of public accommodation

under the multi-pronged standard developed in the

out-of-state cases, because we conclude that the

business transactions that are conducted regularly on

the club’s premises with persons who are not

members of the club are sufficient in themselves to

bring the club within the reach of section 51’s broad

reference to “all business establishments of every

kind whatsoever”.

Warfield, 10 Cal. 4th 492 at 621.

App. 81

Kiwanis could select whomever they chose as their mem-

bers, but they could not discriminate when they opened

their doors to the public.

Even if the Court of Appeal were correct that the Boy

Scouts were a private club with respect to their general

membership, the Court failed to analyze the facts unique

to MERINO’s case: The fact that the Boy Scouts opened

their doors to the public by establishing an Explorer Post

with a public agency. The Boy Scouts cannot refuse to

allow a homosexual employee of a public agency to be an

Explorer Post advisor any more than the Girl Scouts

could refuse to sell cookies to homosexuals.

The court should hear this issue in order to clarify its

Unruh Act analysis, and to demonstrate how the Unruh

Act will be applied to private organizations that open

themselves up to the public. Hearing this case would also

allow the Court to clarify when an organization has

“opened itself to the public”. This court has held that the

Unruh Act does not apply to relationships that are “con-

tinuous, personal, and social, and take place more or less

outside public view”. (Internal citations omitted). The

term “more or less outside public view” needs clarifica-

tion if the Boy Scouts’ partnership with a public agency

in running an Explorer Post is considered “outside of

public view”.

The court of appeal refused to consider this issue,

even upon a motion for rehearing.

Be PT, OE aOR OMe Ugo MO ED 0! OE Ee ieain RA Se Ss Se gr NE te Oe

- = x G i Be acy SN th Ae. ee Lobe wes ae

‘

App. 82

Issue #3

Whether the Boy Scouts, when operating in conjunction

with a public agency, may take personnel action that

would violate Labor Code section 1102.1, specifically,

discrimination against homosexuals.

Even if the Boy Scouts are found not to be a business

establishment in any respect, the issue remains whether

the Boy Scouts may, when it operates in conjunction with

a public agency, discriminate against homosexuals, which

the Labor Code forbids the public agency from doing.

Labor Code section 1102.1 states:

[Labor Code] Sections 1101 and 1102 prohibit

discrimination or different treatment in any

aspect of employment or opportunity for

employment based on actual or perceived sexual

orientation. (Michie’s, 1997)

If the El Cajon Police Department had established an

Explorer Post within the department, but had prevented

MERINO from holding the position of Advisor, the

department would have been in violation of the Labor

Code.

3 This is undoubtedly why the Boy Scouts allow women to

be Explorer Post Advisors. Boy Scouts know that it could not

establish an Explorer Post with a public agency if it restricted

the Advisor position to men. No public agency, consistent with

the Labor Code, could allow its female employees to be

discriminated against in their employment. Boy Scouts must

have known that if the El Cajon Police Department acceded to

the demands of the Boy Scouts, it would be violating the Labor

Code.

a a id EE ae pie ts Le EOE, ge MTT RET ETRE ON EAR LYS FEC

App. 83

Yet, this is exactly what the Boy Scouts were allowed,

by the Court of Appeal to do to Merino. Boy Scouts

suspended MERINO’s membership so that he could not

be an Advisor. Since the department refused to violate

the Labor Code by installing another ECPD officer as

Advisor, the department had no choice but to terminate

the Post. =

This issue should be heard because unless there is

clear guidance as to whom and when the Labor Code

applies, public employees may find themselves losing the

protections guaranteed by the Labor code because their

employing agency undertook a project with an organiza-

tion not covered by the Unruh Act. If an organization that

may lawfully discriminate with respect to its own mem-

bership is allowed to come into a public agency and begin

discriminating against the employees of that agency, then

the protections of the Labor Code are in jeopardy, and

this Court should use this case as an opportunity to

establish the guidelines for affiliations of public agencies

with private organizations not subject to the Unruh Act.

The Court of Appeal refused to consider this issue,

even upon a Petition for Rehearing.

Issue #4

Whether the Petitioner’s rights under the San Diego

Human Dignity Ordinance, San Diego Municipal Code

section 52.9601 et seq., prohibiting discrimination

against homosexuals, were violated.

The Court of Appeal held that MERINO’S rights

under the San Diego HDO was not violated, by sum-

marily concluding that “it is enough for our purposes to

App. 84

state that BSA-dees-not-qualify—as_a_business_establish-___

ment in San Diego or elsewhere, and the subject relation-

ships do not fall under City of San Diego jurisdiction”.

This issue has statewide implications. Many munici-

palities have enacted similar ordinances designed to

broaden the scope of protection from discrimination

implies that such local ordinances can only be coexten-

sive with the Unruh Act. If this reasoning is correct, then

hundreds of similar local ordinances statewide will be

invalidated.’

The HDO is specifically intended to have broader

application than the Unruh Act. Its definition of a busi-

ness establishment is far more inclusive than the Unruh

Act. The HDO defines a business establishment as:

[A]ny entity, however organized, which fur-

nishes goods or services to the general public.

An otherwise qualifying establishment which

has membership requirements is considered to

furnish services to the general public if its mem-

bership requirements: (a) consist only of pay-

ment of fees, or (b) consist of requirements

under which a substantial portion of the resi-

dents of this City could qualify. San Diego

Municipal Code, section 52.9602, subd. I

It could hardly be disputed that under this ordi-

nance, the Boy Scouts would qualify as a business estab-

lishment. Yet the Court of Appeal’s holding seems to be

that if an organization is not a business establishment

under the Unruh Act, it is not a business establishment

for any purpose. This interpretation not only affects

MERINO, but the residents of every municipality with a

the Unruh Act.

The Court of Appeal further concluded that the HDO

did not apply in this case. The Court affirmed trial court's

decision regarding the HDO which stated that

[t}his relationship is outside the jurisdiction of

_ the Ordinance. The fact that the local counsel of

the Boy Scouts was headquartered in San Diego

is of no effect.

(CT, 712-13).

MERINO, a resident of the City of San Diego, was

stripped of his membership by the San Diego County

Council of the Boy Scouts, which is located in the City of

San Diego. Under the trial court’s reasoning, no national

business with branches or headquarters in San Diego is

subject to the San Diego HDO.

The court should hear this issue because it concerns a

statewide issue of major importance: the applicability of

local anti-discrimination ordinances. The trial court and

the Court of Appeal’s ruling would seem to be the death

knell of local anti-discrimination ordinances if 1) a local

ordinance cannot define a business establishment more

broadly than the Unruh Act, and 2) the local ordinance

cannot reach national businesses and organizations that

have branches or headquarters in the municipality.

Unlike local anti-discrimination statutes that deal with

discrimination in employment, there has been no case

law to date that has indicated that the Unruh Act was

intended to pre-empt local anti-discrimination ordi-

nances. See Delaney v. Superior Fast Freight, 14 Cal. App.

App. 86

anti employment discrimination statutes).

If the Unruh Act pre-empts local anti-discrimination

statutes, this court should so state. If the Unruh Act has

not effected a pre-emption, this court should hear this

issue in order to determine whether the Boy Scouts may

be considered a business under the San Diego HDO, and

whether the San Diego HDO may reach the local council

of the Boy Scouts.

CONCLUSION

For the foregoing reasons, we respectfully request

that this petition for review be granted.

Dated: 7-26-97

Respectfully Submitted,

LAW OFFICES OF

EVERETT L. BOBBITT

/s/ Everett Bobbitt

Everett L. Bobbitt,

Attorney at Law

Sanford A. Toyen,

Attorney at Law

Attorneys for Petitioner

CHARLES MERINO

App. 87

4/1 No. D021969/D022829

$062514 eet

IN THE SUPREME COURT OF CALIFORNIA

CHARLES MERINO, Appellant

_SAN DIEGO COUNTY COUNCIL OF THE BOYS |

SCOUTS et al., Appelants

And Companion Case

(Filed July 30, 1997)

Petition for review GRANTED.

Further action in this matter is deferred pending

consideration and disposition of a related issue in Curran

v. Boy Scouts of America, S039738 (see Cal. Rules of Court,

rule 29.2(c)), or pending further order of the court. Sub-

mission of additional briefing, pursuant to California

Rules of Court, rule 29.3, is deferred pending further

order of the court.

George

Chief Justice

Mosk

Associate Justice

Kennard

Associate Justice

Baxter |

Associate Justice

=... SR Dene Reorcron boo

App. 88

Wendegetes

Associate Justice

Chin

Associate Justice

Brown

eS aNids MaiasiaiMabanenenimai eon teaNemali TE

App. 89

Fourth Appellate District, Division One

ne ee a a a eae: ae

8062514 q3

IN THE SUPREME COURT OF CALIFORNIA

CHARLES MERINO, Appellant

--- SAN_DIEGO- COUNTY COUNCIL OF THE BOYS

SCOUTS et al., Appellants

and companion case

(Filed July 8, 1998)

Pursuant to Rule 29.4(c), California Rules of Court,

the above-entitled review is DISMISSED and cause is

remanded to the Court of Appeal, Fourth Appellate Dis-

trict, Division One.

George

Chief Justice

Mosk

Associate Justice

Kennard

Associate Justice

Baxter

Associate Justice

Werdegar

Associate Justice

Brown

Associate Justice

- App. 91 |

COURT OF APPEAL - STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT ee

Division One

Clerk of the Superior Court

San Diego County

220 W. Broadway Street

San Diego, CA. 92101

a ee

Plaintiff-Respondent-X /Applt

SAN DIEGO CO. COUNCIL OF THE BOY SCOUTS

Defendant-Appellant-X/Respond

D021969 AND D022829

San Diego County No. 659236

* * REMITTITUR * *

I, Stephen M. Kelly, Clerk of the Court of Appeal of

the State of California, for the Fourth Appellate District,

certify the attached is a true and correct copy of the

original opinion or decision entered in the above-entitled

cause on May 21, 1997, and that this opinion or decision

has now become final.

Appellant Respondent to recover costs.

/__Each party to bear own costs.

Costs are not awarded in this proceeding.

Witness my hand and the seal of the court affixed this

furly-23,-4997. JUL 14 1998

[SEAL]

STEPHEN M. KELLY, Clerk

By: /s/ Ilegible

Deputy Clerk

App. 92

cc: All Counsel (Copy of remittitur only, California >

Rules of Court, rule 25(e)).

OTT TE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.