Curran v. Mount Diablo Council of Boy

Page 580

29 Cal.Rptr.2d 580

Previously published at 23 Cal.App.4th 1307, 29 Cal.App.4th 192, 34 Cal.App.4th 299, 39 Cal.App.4th 224, 43 Cal.App.4th 1370, 48 Cal.App.4th 670

23 Cal.App.4th 1307, 29 Cal.App.4th 192, 34 Cal.App.4th 299,

39 Cal.App.4th 224, 43 Cal.App.4th 1370,

48 Cal.App.4th 670, 62 USLW 2612

Timothy CURRAN, Plaintiff and Appellant, v. MOUNT DIABLO COUNCIL OF the BOY SCOUTS OF AMERICA, Defendant and Appellant.

No. B061869.

Court of Appeal, Second District, Division 7, California.

March 29, 1994.

Rehearing Denied April 18, 1994.

Review Granted June 2, 1994.

Jon W. Davidson, Paul L. Hoffman, Los Angeles, and Richard H. Green, Santa Monica, for plaintiff and appellant.

Eisen & Johnston, Jay-Allen Eisen, Marian M. Johnston, Karen Leaf and Ann Perrin Farina, Sacramento, as amici curiae on behalf of plaintiff and appellant.

Hughes Hubbard & Reed, George A. Davidson, John Kralick, IV, and Lois C. Moonitz, New York City, for defendant and appellant.

FRED WOODS, Associate Justice.

I. INTRODUCTION

This opinion does not address any moral or social issues relative to homosexuality. Similarly, this opinion does not address the question of whether a homosexual can be deprived of the privilege of membership in the Boy Scouts of America. This opinion addresses the right of the Boy Scouts to freedom of expressive association and its right to preserve the basic tenets of the scouts as expressed in its charter when selecting adults for leadership roles.

Mount Diablo Council of the Boy Scouts of America ("Mt. Diablo Council" or "Council") is a nonprofit, volunteer-run organization that supports Boy Scout troops in two northern California counties. The trial court found it is an "expressive association" that exists to " 'instill values in young people and ... prepare them to make ethical choices over their lifetime in achieving their full potential.' "

In 1980, Timothy Curran ("Curran") took a male date to the senior prom and took advantage of the resulting press coverage to let the public know that he was "proud of being gay--someone who didn't just say it, but who acted on it." The following fall, he sought to be an assistant scoutmaster in part because of his desire to show there was "not anything wrong with it." The parties' conflicting moral viewpoints gave rise to this lawsuit when Mt. Diablo Council told Curran in November 1980, that it would not approve him as an adult leader of boy scouts.

Curran's suit is based solely upon the Unruh Act (the "Act"), Civil Code section 51, which prohibits discrimination in "business establishments." The trial court took the position that the question whether scouting's views were wise was not before her:

"The issue, of course, is not whether the defendant's view is correct, or enlightened, or even best calculated to achieve the organization's broader goals."

Rather, the trial court saw its task to decide whether the state could constitutionally impose its own views via the Unruh Act regarding who can be a "morally straight" scoutmaster upon a voluntary expressive association. As hereafter discussed, we hold that the trial court correctly decided that the state could not, albeit we disagree with part of the decision of the trial court. ¹

II. PROCEDURAL HISTORY

A. The Previous Appeal Considered The Issue Of The Sufficiency Of Plaintiff's Complaint To State A Cause Of Action.

This court's holding in Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 195 Cal.Rptr. 325, ("Curran I ") was expressly limited to examining the sufficiency of the complaint. At p. 719, 195 Cal.Rptr. 325 of Curran I this court stated: " 'Our only concern in this case is whether plaintiff has succeeded in stating a cause of action.' "

As the court below noted: "[Curran I ] was a pleading case and the Court of Appeal necessarily held only that the allegations of the complaint were sufficient to withstand a demurrer; a great deal of evidence not referred to in the pleading was presented at trial regarding the purpose of the organization and the relationship amongst its members which might have affected the outcome." (Emphasis added.)

B. This Appeal And Cross-Appeal Is From A Judgment After Trial By The Court During Which Two Major Issues Were Resolved In A Bifurcated Trial, i.e., (1) Whether Mt. Diablo Was Proven To Be A Business Establishment Under The Unruh Act, And (2) Whether Application Of The Act To Compel The Hiring of Curran Would Constitute A Violation Of The First Amendment.

1. Phase I of Trial: Business Establishment

Issue. ²

On November 6, 1990, the court issued its decision regarding "business establishment." Judge Disco read the precedents available to her at that time as having caused "[t]he word 'business' " to lose "its commonly understood meaning." The court held that the term "business" operated simply as an excluder, sweeping in all organizations except "a small intimate, private club." The court held that the Mt. Diablo Council could not prove it was a "small, intimate, private club" based on the number of Scouts in the Council (approximately 13,500), a lack of selectivity in membership, and a "public orientation and prominence in the community." In holding that the evidence showed that Mt. Diablo Council was a "business establishment" within the Unruh Act, the court recognized that it was extending the Unruh Act beyond any previously reported case by the following statements:

1. "Unlike all the cases, except Isbister, which have been decided to date, the Council has no substantial, or even significant, business purpose."

2. "Unlike the Boys Club in Isbister, Mt. Diablo Council is not a single purpose organization operating a traditional 'public accommodation.' "

3. "[U]nlike all the other cases which have been decided to date, scouting activities take place principally in small, intimate primary groups where the relationships among the members can be characterized as continuous, close and personal."

4. "The benefits which the scouts and scouters receive from participation in the program are overwhelmingly personal and non-economic."

5. "The court does not find that participation in scouting enhances a Boy Scout's chances of getting into the college of his choice or of advancing in his chosen career to a greater extent than participation in any activity that can be included in a resume would. The evidence does not establish that boys join the scouts for any kind of financial reward."

2. Phase II of Trial: Expressive Association Issue.

Phase II of the trial considered whether using the Unruh Act to force the Mt. Diablo Council to install Mr. Curran as an adult scouter would violate the First Amendment right of freedom of association.

The court primarily considered the question presented by the expressive association defense: May a plaintiff such as Mr. Curran "who has publicly acknowledged his or her homosexuality and has expressed beliefs contrary to the Boy Scouts' view regarding the immorality of homosexuality," use the force of the state to compel Boy Scout councils, troops, and patrols, to recognize him as a role model and place him in a position of influence over its young members?

The court relied upon Roberts v. United States Jaycees (1984) 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462, to provide "the framework for analyzing defendant's constitutional claims." "The issue is simply whether application of the Unruh Act here would substantially interfere with Mt. Diablo Council's ability to achieve its expressive goals."

The court below reviewed the evidence and found that there would be substantial interference with Boy Scouts' expressive activities. The court based its decision on two factual conclusions which find support in the record:

First, based on evidence that was "not directly contradicted," the court found that since its inception, scouting has sincerely viewed homosexuality as immoral behavior inconsistent with the Scout Oath, in which a scout promises to be " 'morally straight,' " and the Scout Law's requirement that a scout be " 'clean.' " Based upon this uncontradicted evidence, the court made the factual finding that there was a nexus between the exclusion of Curran and "the belief system which defines the organization."

Second, the court made the factual finding, again based upon a record which compelled the conclusion, that Mt. Diablo Council had established "by a preponderance of the evidence" that forced inclusion of a scout leader such as Curran would "substantially interfere with Mt. Diablo Council's ability to achieve its expressive goals," and "would substantially impact the defendant's ability to get across its preferred message in its preferred way."

III. STATEMENT OF FACTS

Mt. Diablo Council "is a California non profit corporation chartered by the National Council of the Boy Scouts of America to support the troops, packs and posts in its geographic area." The Council is principally composed of volunteers from scouting groups in Alameda and Contra Costa Counties.

A. Boy Scouting Is An Expressive Association.

Unlike all of the entities which have been found to be business establishments under the Unruh Act, Mt. Diablo Council is an "expressive association." All of the Council's activities are directed to the express purpose of instilling values in young people: "The Boy Scout Mission is 'to serve others by helping to instill values in young people and in other ways prepare them to make ethical choices over their lifetime in achieving their full potential.' All Boy Scout activities are designed to further this mission." (Emphasis added.) As stated by scouting's founder, Robert S.S. Baden Powell: " 'Don't let the technical outweigh the moral. Field efficiency, backwoodsmanship, camping, hiking, good turns, jamborees, comradeship, are all means, not the end. The end is character. Character with a purpose.' "

As the court found, "[t]he values that the Boy Scouts seek to instill and the rules and...