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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1018

## Text

9B 84 4 stp 54 199
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

¢

s

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.

ii

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

iv

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

5

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.

a

REASONS FOR GRANTING THE WRIT
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 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

7

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

10

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
d

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.

I
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.”

II
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.

A
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.)

B
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.

Cc
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.

© The federal public accommodations law has been held not
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.

IV
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.

Vv
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

kn
=a

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.

va

_—

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.”

3
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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

© The 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, 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.

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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.)

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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

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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

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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

V.

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,
v.

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
a

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

I.
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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1677%3A1. Public record. Not legal advice.