Appeal Brief

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Case No. S039738

2 Civil B061869
(Superior Court Case No. C365529)
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

Appeal from the Los Angeles Superior Court The Honorable Sally Grant Disco, Judge

APPELLANT'S BRIEF ON THE MERITS

BEATRICE DOHRN
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
666 Broadway, 12th Floor
New York, New York 10012
(212) 995-8585

MARK D. ROSENBAUM (State Bar No. 89301)
MEI LIN KWAN-GETT (State Bar No. 165773)
TAYLOR FLYNN (State Bar No. 159709)
ACLU FOUNDATION OF SOUTHERN CALIFORNIA
1616 Beverly Boulevard
Los Angeles, CA 90026
(213) 977-9500

JON W. DAVIDSON, Of Counsel (State Bar No. 89301)

STATEMENT OF THE CASE

This case raises the question of whether young people and adults in California lawfully may be excluded from the largest youth organization in the United States based on a personal characteristic -- their sexual orientation. The case arises from the exclusion from the Boy Scouts of America of a former Eagle Scout, Appellant Timothy Curran ("Mr. Curran" or "Appellant"), because Respondent Mount Diablo Council of the Boy Scouts of America ("Respondent") learned that he is gay. Mr. Curran asserts that his exclusion from Scouting based on his sexual orientation violates California's Unruh Civil Rights Act (Cal. Civ. Code § 51) (the "Unruh Act" or "Unruh").¹There is no dispute that the Unruh Act prohibits business establishments in this state from discriminating against individuals based on their sexual orientation.²Instead, Respondent has contended that the Boy Scouts is not subject to the Unruh Act and that application of that law to Respondent would violate federal constitutional rights of expressive and intimate association -- contentions that frame the issues in this appeal.

The basic facts of this case are simple and almost entirely undisputed. Appellant was a member of a Boy Scout troop within Respondent's jurisdiction for four years, from 1975 through 1979. (JA 263, 2020; RT 131:14-26.³) As part of his membership, Appellant attained the rank of Eagle Scout, the highest rank a Boy Scout can reach. (JA 263; RT 138:20-139:24.) He was selected to participate in Respondent's Troop Leadership Development Program, where he formally was taught leadership and motivational skills. (RT 188:13 - 189:13.) He also was one of a small number of Scouts elected by his troop to two different honor camping organizations within Scouting. (RT 181:28 - 183:5, 1012:7-22.) In addition, he was one of fewer than 35 Boy Scouts selected by Respondent (out of more than 13,500 Scouts within its jurisdiction (JA 2029)) to attend a Boy Scout of America ("BSA") National Jamboree in 1977. (RT 177:5-24, 179:2-9.)

Appellant enjoyed the recreational and educational activities offered by Scouting, prized the prestige of being a Boy Scout, and greatly valued the skills it taught, particularly the practical training he received in journalism (which ultimately became his career) in programs offered during his troop meetings, the National Jamboree he attended in 1977, and another national BSA conference he attended in 1979. (RT 131:3-13, 134:18-26, 142:12 - 144:13, 146:18 - 147:2,180:17-27, 181:3-27, 184:14 - 190:3, 201:3 - 202:3.)

In July of 1980. after he turned 18, Mr. Curran formally informed Respondent that he wanted to attend the 1981 National Jamboree to participate again in its journalism program, as he had been encouraged to do by one of the adult leaders who had supervised his work on Scouting publications in the past. (JA 263, 2020-21, 2999-3000; RT 184:14 - 187:19, 665:16 - 667:10; Ex. 285, 286-A.) In October and November of 1980, Respondent refused to allow Mr. Curran to become an adult member of the Boy Scouts (also known as a "Scouter") or to attend the National Jamboree because -- and only because -- it had learned that Mr. Curran is gay. (JA 263-64, 2021, 2999-3000.)⁴ Indeed, it was determined below that Mr. Curran was excluded from membership in the Boy Scouts solely because of his status as a gay man. (JA 264 (finding

as without substantial controversy, and deeming established that "Plaintiff's homosexuality was the only reason for Defendant's refusal to admit him as an Adult Member"). ⁵)

Appellant filed this action on April 30, 1981. (JA 1-73.) A demurrer to the complaint was sustained on July 7, 1981, with partial leave to amend. (JA 74, 75.) Appellant amended (JA 85-96) but, on October 30, 1981, a demurrer to the amended complaint was sustained without leave to amend. (JA 97.) Appellant's original action accordingly was ordered dismissed on November 19, 1981. (JA 98.)

Appellant appealed the 1981 dismissal and, on October 3, 1983, the Court of Appeal issued its opinion, which since has become a landmark under the Unruh Act.⁶In its opinion, the Court of Appeal reversed the dismissal of the complaint, holding that Appellant had stated a valid claim for violation of the Unruh Act. (JA 99; Curran v. Mt. Diablo Council of the Boy Scouts of America (1983) 147 Cal.App.3d 712 [195 Cal.Rptr. 325].)

As part of its decision, the Court of Appeal expressly stated that it had "determined that the Boy Scouts is a business establishment within the meaning of the Unruh Act." (147 Cal.App.3d at p. 717; see also id., at pp.732 (noting the "Legislature's intent to include organizations such as the Boy Scouts within the scope of the Unruh Act") and 733 ("[W]e hold the Boy Scouts, of which the defendant is a part, is a business establishment within the meaning

of the Unruh Act") (emphasis added).)⁷The Court of Appeal further stated in its previous decision herein that "the Unruh" Act prohibits arbitrary discrimination against homosexuals" by "all commercial and noncommercial entities open to and serving the general public." (Id., at pp. 733-34.) Rejecting arguments that its construction of the Unruh Act and the Act's application to Respondent would infringe Respondent's rights of free association, the Court of Appeal additionally held that "these constitutional provisions only restrain the Legislature from enacting antidiscrimination laws where strictly private clubs or institutions are affected" and that "those entities that are not in fact [truly] private must comply with the mandate of the Unruh Act." (Id., at p.731 (emphasis in original).)⁸

After the case was remanded to the Superior Court (JA 137), Appellant filed a motion for summary adjudication. (JA l38-l74.)⁹ On February 15, 1985, the Honorable Norman L. Epstein ruled that a number of issues were without substantial controversy in this case and deemed them established pursuant to Section 437c(f) of the California Code of Civil Procedure. (JA 262-67.) Among other things, Judge Epstein specifically found as established that "[Appellant] was refused admission by [Respondent] as [an] Adult Member or 'Scouter,' because he was a homosexual;" that "[Appellant's] homosexuality was the only reason for [Respondent's] refusal to admit him as an adult member" (emphasis added); that "The policy and practice of [Respondent] is that no homosexual may be an adult member of the Boy Scouts of America;" and that "[Respondent] will not admit any homosexual into membership regardless of such person's qualifications and will dismiss homosexuals from membership if it becomes aware of the member's homosexuality." (JA 263-64.)

Appellant thereafter filed a further motion for summary adjudication. (JA 292-390.) On July 22, 1985, the Honorable Paul G. Breckenridge, Jr. granted that motion in pan, finding

without substantial controversy numerous additional facts relating to Defendant's status as a "business establishment" under the Unruh Act. (JA 522-32.)

Due to a number of subsequent developments, the trial herein did not commence until September 20, 1990, five years later.¹⁰

Pursuant to stipulation of the parties and court order, the trial herein was bifurcated. (JA 1190-94.) The first phase of the trial was limited to the issue of whether or not Respondent's organization is a "business establishments" within the meaning of the Unruh Act. (JA 1193-94; 2021.) After extensive testimony (RT 130-578), the admission of 116 exhibits, comprehensive briefing, and final argument (JA 1196-1395, 1747-1811, and 1829-2018, and RT 581-603), the trial court issued its Statement of Decision on November 6, 1990. (JA 2019-37.)

Applying the law to the evidence introduced in this first phase of the trial, the court concluded that Respondent is a business establishment under the Unruh Act and falls within the Unruh Act's "regulatory ambit." (JA 2022.) The trial court also found that Respondent "is not a truly private entity" and that its functions and activities "cannot be characterized as those of a small, private social club." (JA 2033 (emphasis added).)

To the contrary, the court found, based on the evidence produced at trial, that many of Respondent's activities are "open to and/or serve the general public." (JA 2034.) The court's factual findings noted that Respondent "engages in regular fund-raising activities and [that it publicizes in the local media] special events such as golf tournaments and auctions, to which the general public is invited." The court also noted that Respondent "has significant ties with government" and "interacts extensively with the local community." (JA 2033.) Among Respondent's government ties, the court specifically noted that Respondent's parent organization, the Boy Scouts of America, is "chartered by the United States Congress" (JA 2033; see also JA 263 and 36 U.S.C. §§ 21-29), and that Respondent has leased its main camp from the National Forest Service since 1926. As illustrations of Respondent's interdependence with the local

community and public at large, the court pointed to Respondent's receipt of "approximately 25-30 percent of its funding from the United Way"; the presence of presidents of major corporations (such as Clorox, C&H Sugar, and Dreyers Grand Ice Cream) on its Executive Board; Respondent's mandate to include among its Board membership representatives of the business, civic, labor, and social interests of the community; Respondent's reliance on the local business community for donations and volunteers, and Respondent's use of local churches, labor unions, and civic organizations such as the Rotary Club as sponsoring organizations for Scouting units. (JA 2033-34.) The court also pointed to Respondent's cooperation "with other social service organizations, such as the Salvation Army, the Good Will, and the Food Coalition, in carrying out various Scout-sponsored community service projects." (JA 2034.)

The court also specifically found, based on the trial evidence, that Respondent is immersed in the world of commerce, and regularly conducts business transactions with persons who are not members of the Boy Scouts:

The trial court additionally found that, in delivering services, Respondent "operates very much in the public view" and that Scouts (who are encouraged to wear their Scout uniforms to "identify openly" with Scouting) "are highly visible in the community," participating "in various service projects ... and troop fund-raising activities which take them out into the community." (JA 2033-35.)

The court expressly further found that "Membership in the Boy Scouts is non-gratuitous and non-selective." (JA 2030.) Instead, the trial court found that the evidence showed that:

The trial court accordingly concluded that Respondent "meets many of the criteria which case law has considered significant in determining whether an organization is a 'business establishment' for purposes of the Unruh Act." (JA 2029.) Based on these and Respondent's "size, non-selectivity and visibility" (JA 2037), the court held that "[Respondent's] public orientation and prominence in the community rightfully place it within the regulatory ambit of the Unruh Act." (JA 2035.)¹¹

Finally, the court rejected Respondent's argument that, because it and its members engage in expressive activity, " it "should not be subject to the Unruh Act." (JA 2036.) Such a conclusion, the court explained, "would mean that [Respondent] could discriminate on any grounds for any reason." (JA 2036.) The court responded:

Notwithstanding the rulings in Phase I of the trial, the trial court ultimately ruled in Respondent's favor after the second phase of the trial.

The second phase of the trial involved additional testimony and exhibits, further briefing (JA 1547-1678 and 2543-2839), and extended final argument. (RT 1301-1389.) The court

issued a Tentative Decision on May 21, 1991. After two rounds of submission of written objections by Plaintiff and some modifications by the Court (see JA 2898-2996), the court signed the Statement of Decision, and entered Judgment in Respondent's favor. (JA 2997-3019.)

Respondent raised several affirmative defenses to application of the Unruh Act to it in the present case. (JA 1399-1407.) The second phase of the trial, by stipulation, was limited to the issue of whether Respondent's exclusion of Mr. Curran based solely on his sexual orientation was justified under the First Amendment to the United States Constitution -- in other words, whether Respondent had a constitutional "right to discriminate" against Mr. Curran because he is gay. (See JA 2999; see also RT 1381:17-28.)

Based in part on the findings made during Phase I of the trial, the trial court rejected Respondent's assertion that its policy excluding all lesbians and gay men from participation in Scouting is justified by a right of "intimate association." (JA 3003 (Respondent "failed to make the showing required ... to establish a violation of its members' rights to intimate association.").) The court explained that the evidence admitted during the first phase of the trial demonstrated that the activities of Respondent's members simply do not come "within the zone of privacy where personal relations are protected from governmental interference under the constitutional right of intimate association." (RT 605:23-26.¹²)

The lower court concluded, however, that Respondent's exclusion of Mr. Curran was not actionable. In other words, the court ultimately adopted the view that Respondent does have a "right" to exclude individuals based solely on their sexual orientation because, the court explained, if Respondent were prohibited by the Unruh Act from excluding Mr. Curran or others like him from the Boy Scouts, this, in the court's view, "would violate [Respondent's] members' first amendment rights to expressive association." (JA 3005.)¹³

In its Statement of Decision, the court noted that "Not a great deal is explicitly spelled out in the Scout literature directed at Boy Scout members regarding sexuality in general or

homosexuality in particular." (JA 3009.)¹⁴ The trial court also found in its Statement of Decision "that the issue of homosexuality does not come up often in Scouting."¹⁵ (JA 3014.) As for Scouting's teachings regarding gay or non-gay sexual conduct (as opposed to sexual orientation), the court found that "Scoutmasters do not engage in any formal instruction regarding sexual matters" (JA 3013) and quoted in its Decision from a section of the Scoutmaster Handbook (Ex. 201:133) which explained that "It seems to be general belief that boys should learn of sex and family life at home, from their parents" and that Scouters "must respect the right of parents to teach their sons about life." (JA 3013.)

Nevertheless, the trial court found that "the Boy Scouts of America as an organization has taken a consistent position that homosexuality is immoral and incompatible with the Boy Scout Oath and Law, that [Respondent] has adopted this position, and that this is the view that is communicated whenever the issue comes up." (JA 3009 (emphasis added).) The court relied upon testimony of several Boy Scout employees who asserted that it has been the organization's "long standing belief that homosexuality is immoral and inconsistent with the Scout's view of 'morally straight' and clean," as well as the testimony of four religious leaders that their organizations understand this to be the Boy Scouts' position. (JA 3009-10.)

Based on this conclusion, the trial court opined that preventing the exclusion of an openly gay Scouter "would substantially impact [Respondent's] ability to get across its preferred message in its preferred way," and that, therefore, "application of the Unruh Act [in this case] would substantially interfere with Respondent's] ability to achieve its expressive goals." (JA 3015-16.) This followed, as the court explained it, because, in its view, "[i]nclusion of a homosexual Scoutmaster ... would either undermine the force of the Boy Scout view male homosexuality is immoral and inconsistent with the Scout Oath and Law, or would undermine the credibility of the Scoutmaster who attempts to communicate that view." (JA 3016.)

The trial court acknowledged that controlling law provides that "government has a compelling interest in eradicating discrimination in all forms." (JA 3012 (quoting from Pines v. Tomson, 160 Cal.App.3d at p. 391).) However, the lower court concluded that the government's compelling state interest in ending discrimination "does not outweigh [Respondent's] members' first amendment rights under the circumstances presented in this case." (JA 3016.) The lower court reached this conclusion without discussing, or having allowed the admission of any evidence regarding, the nature or strength of the state's interest or the consequences of allowing that interest to be overridden in this case. (See RT 1113-1115, 1132- 1134). The lower court stated that it had made its decision because it believed that "the impact of the regulation falls squarely on protected expression" in this case and that this case did not involve "equal access to economic opportunity or economic advantage." (Id.) Based on these conclusions, the trial court ruled for Respondent and entered Judgment in its favor on July 25, 1991. (JA 3018.)

The Judgment finalIy disposed of all issues between the parties and was appealable pursuant to Section 904.1(a) of the California Code of Civil Procedure.

I. SUMMARY OF ARGUMENT

As discussed in detail in Section II hereof, below, the trial court was correct in finding that Respondent's organization is a business establishment under the Unruh Act. Respondent does not fit the criteria for being a truly private club and, even if it did, the fact that Respondent regularly conducts business transactions with non-members subjects it to regulation under Unruh. Instead of being truly private, Respondent's organization meets the case laws's test for being a business establishment, and no exception to the Unruh Act's obligation not to discriminate should be carved out for Scouting.

As explained in Section III hereof, below, application of the Unruh Act to Respondent would not unconstitutionally infringe rights of either expressive or intimate association. Only some of Respondent's activities are expressive and requiring Respondent not to discriminate against Appellant in violation of the Unruh Act would not impair those activities. Application of the Unruh Act to preclude Respondent from excluding Appellant from Scouting based on his sexual orientation also would not violate any rights of intimate association. Moreover, even if there were some limitation on rights of association in this case, the compelling state interests served by the Unruh Act justify that result. The judgment of the trial court should therefore be reversed.

II. RESPONDENT'S ORGANIZATION IS A "BUSINESS ESTABLISHMENT" UNDER THE UNRUH ACT.

The Unruh Act prohibits discrimination on the basis of personal characteristics by "all business establishments of every kind whatsoever." (Cal. Civ. Code § 51.) The first issue in this case, which was the subject of the first phase of the trial below, is whether Respondent's organization is a "business establishment" as that term is used in the Unruh Act.¹⁶

In this Court's recent decision in Warfield v. Peninsula Golf & Country Club (1995)10 Cal.4th 594 [42 Cal.Rptr.2d 50, 896 P.2d 776], this Court disposed of many of the arguments Respondent has been advancing throughout the lengthy course of this litigation regarding this issue. For example, this Court reaffirmed in Warfield that it was "'the Legislature's intent to use the term "business establishments" in the Unruh Act in the broadest sense reasonably possible."' (10 Cal.4th at p.611 (quoting with approval from O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 796 [191 Cal.Rptr. 320, 662 P.2d 427].)¹⁷ This Court thus declined to follow the request to read its earlier decision in Harris v. Capital Growth Investors to limit the scope of the coverage of the Unruh Act to entities strictly within the letter of the statute.¹⁸This Court also held in Warfield that "an entity is not automatically exempt from the requirements of [the Unruh Act] simply because it characterizes itself as a private social club" or even if it "exhibits some of the attributes of a private club." (Warfield, 10 Cal.4th at p.619.)

To the contrary, this Court established in Warfield that an entity otherwise subject to the Unruh Act generally will only be exempt from the Act's provisions if the entity is a "truly private club." (10 Cal.4th at pp.599, 618.) This Court went on to hold in that case that even a truly private club becomes subject to the Unruh Act if it regularly conducts "business transactions... with persons who are not members of the club." Id. at 621)¹⁹ As demonstrated below, Respondent's organization is subject to the Unruh Act under both of these tests, as well as under the tests set forth in prior case law.

This Court noted in Warfield that numerous federal and state cases "have grappled with the question of whether a particular entity properly should or should not be considered a private club whose membership decisions are exempt" from laws like the Unruh Act. Id. at p.620.) As this Court went on to explain:

This Court emphasized that "no single factor has been viewed as controlling" (id.) and that the "truly private club" exemption to the Unruh Act is not available to an organization, whether it be a for profit entity or a nonprofit association, "simply because it possesses some of the characteristics of the Unruh Act." (Id. at p.619 (emphasis added).) This Court further explained that "Although no single factor has been viewed as controlling, many decisions consider the selectivity or lack of selectivity in the admission process to be of prime importance." (Id. at p.620; see also Curran, 147 Cal.App.3d at p.731 ("'[s]electivity is the

essence of a private club."') (quoting from Wright v. Cork Club (S.D.Tex. 1970) 315 F.Supp. 1143, 1151, also cited with approval by this Court in Warfield).)

As noted above, after considering all of the evidence presented at trial, the trial court specifically found that membership in Respondent's organization is "non-selective," that "[t]here is no general plan of exclusion," that "Scouts and scouters are actively recruited, and membership is open to all." (JA 2030.)²⁰ These findings were amply supported by the evidence below. For example, the testimony at trial established that Respondent actively recruits new members, invites the entire public to join, and is generally open to all (except for those who it learns are gay), having discarded exclusionary policies such as the racial restrictions the Boy Scouts practiced decades ago. (See RT 135:3-16, 191:15 - 192:2, 195:6-21, and 275:14 - 276:26; JA 2953; see also Ex. 1:17 ("Both membership in Scouting and advancement and achievement of leadership in Boy Scout Units are open to all boys without regard to race or ethnic background, and advancement and achievement of leadership is based entirely upon individual merit.") and 18 (the Boy Scouts "is absolutely nonsectarian"); Ex. 14:2; Ex. 28:33- 35; Exs. 31-34; Ex. 36:2-3; Ex. 38:2 ("leadership in America is needed in all sections of the

country and in all economic, cultural and ethnic groups.... Scouting must, therefore, serve all segments of the American population."); and Ex. 39:3 (Scouting is "constantly recruiting" for Adult Scouters)²¹ The testimony also showed that Scouting no longer even limits its adult leadership positions, including that of Scoutmaster, to males (RT 556:25 - 557:8) and that Respondent do not ask prospective Scouts or adult Scouters about their sexual orientation, sexual practices or attitudes about the morality of homosexuality before allowing them to join the organization (see, e.g., RT 852:14-20, 1176:22-26, 1177:4-10; 1258:9-27; Exs. 22, 31.)

In particular, it was established at trial that a minute number of applications for membership are denied²²and that, aside from the rejection of Appellant and a mere handfull of others, Respondent's review of membership applications, even for adult leaders, is largely a perfunctory process. (See RT 307:10 - 308:22; 572:0 - 573:13.) There thus can be no dispute that Respondent's organization fails the most significant test for being considered a truly private club, exempt from laws law the Unruh Act.²³

Three of the other factors identified by this Court as relevant to the determination of whether an entity is a private club also strongly indicate that Respondent is not. First, Respondent's size belies that status. Respondent had more than 10,000 youth members and more than 3,700 adult members when Appellant was excluded; Respondent's membership total has grown at approximately 10 to 15 percent per year; Respondent had more than 13,000 members

every year during the 1980s, and Respondent had approximately 13,500 youth members and between 5,000 and 6,000 adult leaders at the time of trial. (JA 2029; RT 282:9-24, 461:8-10, and 473:1-6; Ex. 14:2; Ex. 105:15.) It is part of a truly massive organization, the BSA, which has over 4-1/2 million members (see JA 308-09 and 523) and proudly proclaims that it has "directly touched" the lives of "more than 70 million" Americans. (Ex. 37:4.) Organizations with membership sizes less than one-twelfth the size of Respondent have been found not to be private clubs exempt from the Unruh Act.²⁴

Likewise, the members of Respondent's organization have little control over the governance of the organization, and no control over the selection of new members. Members of a troop do not have any voice in who else may join their troop, who will be their Scoutmaster or who will serve on their troop committee (RT 140:16 - 142:11), let alone the membership or policy decisions of the organization as a whole. Instead, Respondent is governed by a large Board of Directors, which has numerous officers and committees, and by a paid staff of 22 full- time employees (including a chief Executive, a Development Director, and paid District Executives) (see JA 2029-30; RT 237:14-26, 240:4 - 241:9, 243:26 - 248:2, 256:2 - 257:6, 462:17 - 468:17, 476:7 - 478:25, and 480:1 - 482:7; Exs. 14, 16, 17, and 288), and Respondent's governance is controlled "'by the by-laws and rules of the National Council [of the BSA,"' the national rules of which Respondent "applies ... to its own actions." (JA 263.)

The degree to which Respondent's facilities are available for use by nonmembers additionally points toward the rejection of truly private club status. Respondent maintains a shop where it sells numerous goods both to individuals who are members of Scouting and those who are not. (JA 523; RT 190:11 - 191:14; 468:6-10; 555:14 - 556:2.) Respondent also conducts numerous public events, regularly provides information to the public about Scouting and its activities, and allows non-members who are interested in the organization to attend troop meetings. (RT 192:5-25, 197:4-11 and 199:5 - 200:16; Ex. 2:87; Ex. 4:16; Ex. 26:97; Ex. 39:2-3; Ex. 105:3, 10, and 23-24; and Ex. 357:23.)

Other factors identified in the case law further indicate that Respondent's organization

cannot be considered a truly private club.²⁵ For example, the receipt of a significant amount of funding from donations from the general public (as opposed to just from its members), which is unquestionably characteristic of Respondent,²⁶has been considered a significant factor in showing that an entity is not truly private. (Isbister, 40 Cal.3d at p.80 (noting public funding support of the Boys' Club); Stout v. YMCA (5th Cir. 1972) 404 F.2d 687, 688 (chapter of YMCA, with 54% of income from United Way or Community Chest, held not private) Nesmith v. YMCA, 397 F.2d at p.102 (athletic building of chapter of YMCA, more than 20% of operating funds of which were derived from United Fund, made entire chapter of YMCA non-private).) Extensive turnover in membership, as Respondent experiences, indicates a lack of cohesiveness characteristic of truly private clubs. (Rotarv, supra, 178 Cal.App.3d at p.1059.27)

The fact that Respondent considers community service essential to its mission and that its members regularly perform such public service for others throughout the community, as opposed to engaging in activities on only their own behalf,²⁸are other factors indicative of not being a truly private club. (See Isbister, 40 Cal.3d at p.80, n. 5; Rotary, 178 Cal.App.3d at p.1059).) Likewise, the fact that Respondent regularly seeks media attention about its program and operates openly, with even its financial statements open to anyone to review (RT 318:24-26;

Ex. 3:22) indicates that it is not truly private. (See Isbister, supra, 400 Cal.3d at p.81; Rotary, supra, 178 Cal.App.3d at p.1059.) Finally, Respondent's special relationship with government entities and officials,²⁹ and Respondent's extensive interactions with major corporations, its local business community, and other social service organizations (JA 2033-34; JA 522, 528) also contrast it with the kinds of organizations that have been found to be truly private.³⁰

The trial court thus was correct in fmding that Respondent "is not a truly private entity." (JA 2033.)

This Court held in Warfield that a membership organization that regularly conducts business transactions with nonmembers falls within the reach of the Unruh Act's "broad reference to 'all business establishments of every kind whatsoever'" and is subject to the Unruh Act, regardless of consideration of the factors that might have indicated that it was a truly private club. (10 Cal.4th at pp.614, 621, 623.) This Court added that even a club that "is a nonprofit organization [whose] operations are financed, in major part, by initiation fees, dues, and charges for goods and services paid by club members" will be subject to the Unruh Act if it obtains "financial benefits from regular business transactions ... with persons who are not members of the club." (Id. at p.621.) As this Court explained, "the Unruh Civil Rights Act firmly established the right of all persons to nondiscriminatory treatment by establishments that engage in business transactions with the public." Id. at p.618.)

While it is clear, as the trial court found, that Respondent is not a truly private club, Respondent also is subject to the Unruh Act because, like the country club in the Warfield case, Respondent regularly engages in business transactions with and obtains both direct and indirect financial benefits from regular business transactions with individuals who are not members of

Scouting. Respondent maintains a shop on its premises, where it sells numerous camping equipment, craft kits, literature, and Scouting paraphernalia to the public. (JA 523, 527; RT 190:11 - 191:14; 468:6-10; 555:14 - 556:2). Sales at this shop exceeded $57,000 in one year alone and sales exceeded costs. (JA 523, 527.) To paraphrase this Court's finding in Warfield, Respondent thus "operates as the functional equivalent of a commercial [retail camping equipment, hobby, and book store] -- classic forms of 'business establishments' -- and indeed, presumably competes with business entities that offer comparable services and clearly are subject to the strictures" of the Unruh Act. (10 Cal.4th at p.621.)

The trial court found that, in addition, Respondent regularly engages in fund-raising activities, "such as the annual Scout-A-Rama, the annual Sports Breakfast, and special events, to which the general public is invited," which are publicized in the local media. (JA 2034; see also JA 528 (finding without controversy that Respondent receives "activities income" as well as revenue from "special events" to which the general public is sold tickets, including a distinguished citizen fund raising dinner, an auction, and a golf tournament); RT 253:5-28; 464:5 - 465:1; Exs. 15 (Respondent's financial statement) and 20 (BSA guide to obtaining financial support for Scouting in various ways from non-members).)³¹ Again, by charging fees for entertainment, recreation, and food, Respondent acts as the "functional equivalent" of a commercial enterprise subject to the Unruh Act.

In addition, businesses sponsor Respondent's newsletter in exchange for acknowledgment therein; in other words Respondent underwrites the cost of its newsletter by obtaining payments from non-members for advertising their support of the organization, just like a commercial periodical. As a result, members of Respondent's organization get the newsletter for free. (RT 316:6-28, 255:16 - 256:1; Ex. 357:12; see also Ex. 21 (BSA guide to obtaining sponsorship from businesses for Scouting activities by "selling" the project to them in exchange for recognition of their support).)³²

As in Warfield, the record here establishes that Respondent's "operations in the variety of regular business transactions with nonmembers ... inured to the financial benefit of the club members" by partially subsidizing and reducing the amount of their dues and fees. Warfield, 10 Cal.4th at p.623; see Ex. 15.) What the Court said in Warfield is equally true here: "In light of the explicit language of section 51 (encompassing 'all business establishments of every kind whatsoever') which ... 'leaves no doubt that the term "business establishment" was used in the broadest sense reasonably possible,' [this Court should] conclude that Respondent's] regular business transactions with nonmembers render it a 'business establishment"' under the Unruh Act. (Warfield, 10 Cal.4th at p.623.)

According to Warfield, regardless of any other factor, Respondent is subject to the Unruh Act because it regularly engages in business transactions with nonmembers. As the trial court below found, Respondent is subject to the Unruh Act as well because it meets "many of the criteria which case law has considered significant in determining whether an organization is a 'business establishment' for purposes of the Unruh Act." (JA 2029.)³³

Aside from reaffirming that the term "business establishment" must be given a broad reading and that it applies to numerous entities, including nonprofit membership organizations, that would not ordinarily be thought of as a "traditional" business establishment (Warfield, 10 Cal.4th at p.616), this Court did not identify in Warfield the factors to be considered in determining whether an entity falls within the scope of that term. Prior cases, however, have identified a number of factors that bring an entity within the scope of the Unruh Act's prohibition on discrimination by business estab1ishments.³⁴

For example, in O'Connor, this Court held that a non-profit homeowner's association was a business establishment under the Unruh Act because it had "sufficient businesslike attributes to fall within the scope of the act's reference to 'business establishments of every kind whatsoever.'" (33 Cal.3d at p.796.) The Court listed as such attributes that the association acted through a board of directors, employed professional managers, obtained insurance, and performed "all the customary business functions" of a landlord. (Id.)³⁵

Respondent unquestionably also is structurally set up and functionally operates like a business. Respondent has a large Board of Directors, as well as an Executive Board, Executive Committee, Associate Board, Advisory Council, numerous officers (including a President, Treasurer, Secretary, 11 Vice Presidents, such as Vice-Presidents of Administration, Operations, Communications, and Finance) who administer the organization pursuant to Executive Board direction, numerous committees (including Finance, Training, and Properties Committees), and substantial paid staff of 22 full-time employees (including 11 paid professionals, such as a chief Executive, a Development Director, and District Executives, and 11 clerical and non- professionals, such as an Office Manager, Executive Secretary, Trading Post Specialist, and Camp Rangers) and 30 additional temporary employees each summer. (See JA 2029-30; RT 237:14-26, 240:4 - 241:9, 243:26 - 248:2, 256:2 - 257:6, 462:17 - 468:17, 476:7 - 478:25, and 480:1 - 482:7; Exs. 14, 16, 17, and 288.) Respondent's chief executive officer even testified in his deposition that he has to keep the officers of Respondent's organization "informed of what's going on" with Respondent. Why? As even he recognized and explained: "It's a business. They must be kept informed on a business basis," (Ex. 85:21 (emphasis added).)

Respondent unquestionably also has a large physical plant, permanent offices, and a central administrative office, that is much like any business office, with desks, file cabinets, typewriters, a mailing machine, and a fax (RT 248:3-17, 257:26 - 258:18, 259:16 - 260:5, 293:4-27, and 497:4 - 499:2; Ex. 14; Ex. 105:10 and 22-23; Ex. 288, and Ex. 289.)

Respondent further receives substantial revenues from sources that are typical of businesses (see JA 307 and 523 (finding, among other things, that the BSA had revenues in 1983 of over $52 million and that Respondent had revenues that year of $759,000); RT 192:3-28, 248:18-249:3, 250:23-251:5, 254:6-19.275:3-13, 278:10-24,481:10-482:7; Ex. 14:4, Ex.

15, Ex. 20, Ex. 21, and Ex. 105:8, 11-12, and 31), and Respondent has businesslike expenses, such as overhead, payroll, supplies, postage, furniture and equipment depreciation and repairs, insurance, taxes, and auditing expenses. (RT 256:2 - 260:18; Ex. 15; Ex. 27:6.)

Like many businesses, Respondent additionally engages in public relations activities, such as public shows, the solicitation of press coverage of its events, issuance of media advisories, and print, radio, and cable television advertising. (RT 192:3-28, 197:4-11, 252:12 - 253:28, and 275:3 - 280:16; Exs. 43 and 105:3; see also JA 523, 529.) Respondent also sells T-shirts and patches bearing its name (RT 293:16-27; Ex. 105:4) and participates in the selection and

commercial exploitation of BSA uniforms, equipment, publications, and other official scouting paraphernalia. (JA 523; RT 550:12-22; Ex. 19:2 and Ex. 22.)³⁶

This Court further explained in Isbister that an additional significant factor that may make membership organizations "business establishments" under the Unruh Act is being generally open for members of the public to join. (40 Cal.3d at p.84.) What is significant is whether the organization offers membership or its facilities to "a broad segment of the population, excluding only a particular group ... recognized by the [Unruh] Act as a traditional target of discrimination. (Id. (emphasis in original).) As discussed above, the trial court found and it is unquestionably true that Respondent meets this criterion.³⁷

This Court also indicated in Isbister that, if a membership organization charges an annual fee for membership, this further indicates that it is a business establishment under Unruh. (40 Cal.3d at p.81.) The collection of assessments from members of the homeowner's association similarly was considered noteworthy by this Court in O'Connor (33 Cal.3d at p.796), as was the existence of per capita dues in Rotary (178 Cal.App.3d at pp.1051 and 1057-58).³⁸

This test also was easily met in the present case. Both Respondent's youth and adult members pay dues, which are collected by Respondent and forwarded to the BSA. (See JA 523, 529; RT 234:11-20, 295:27 - 296:5, and 375:9-14; Ex. 4:24; Ex. 31:2-3; Ex. 33; and Ex. 105:9 and 16-17 ("The fee must be paid before a person may become a member.").)

Finally, a further factor identified by prior cases for determining whether an entity should

be considered to be a business establishment under the Unruh Act is whether the entity in fact sells goods to its members and offers them accommodations, advantages, facilities, privileges, and services.³⁹Substantial evidence at trial established that Respondent meets these criteria as well. Respondent sells goods as well as food to its members. (JA 523; RT 293:16-27, 330:21- 27. 468:1-17, and 555:14 - 562:2; Ex. 1:3 and 4; Ex. 19:2; Ex. 22; Ex. 105:31.) Its members receive Boy Scout publications as part of their annual fees, and are encouraged to subscribe to others. (RT 565:18-26; Ex. 5:6; Ex. 105:12; Ex. 201:11.) By joining Respondent's organization, individuals obtain opportunities to go camping and on field trips, to wear Respondent's uniform and insignia, to learn skills, and to obtain training in outdoor skills, athletics, crafts, leadership and numerous trades and careers. (RT 142:12 - 144:13, 146:10 - 147:2, 181:14-27, 184:27 - 185:24, 187:2-11, 201:3-27, 210:16-27, 289:11-26. 318:3-11, 479:4-22,490:12 - 494:13, 502:25 - 503:10, 511:21 - 513:18,554:25 - 555:13,562:10-23, and 574:8-17; Ex. 4:6 and20; Ex. 36:3; Ex. 39:1; Ex. 48:2; Ex. 52:7; Exs. 53-59; Ex. 75; and Ex. 105:20.) Membership in Respondent's organization also creates access to scholarships. (RT 322:12-16.) Respondent thus functions quite similarly to a commercial day camp or school that charges fees in exchange for access to recreational and educational activities.

When an organization becomes as large, unselective, formally structured, public in operation, and interdependent on government and business as Respondent, and when the organization regularly engages in business transactions with non-members, as does Respondent, the Unruh Act demands that it treat all who seek access to it with equal dignity and respect. In becoming the important public institution it is, Respondent has become generally subject to California's laws demanding equality of treatment for all.

Were this Court to find that Respondent is not subject to the Unruh Act, it would leave Respondent free to exclude individuals from Scouting because they are Black, Latino or Asian-American, because they belong to a minority religion. because they or their ancestors are from

the Middle East or Eastern Europe, because they are disabled, or on any other invidious ground. While the issue before the Court now is exclusion on the basis of sexual orientation, there is no reason to believe that Scouting (which once excluded women from leadership positions and segregated troops on the basis of race and national origin) might not exclude other minorities under a changed social environment in the future. Absent general coverage by the Unruh Act, no law would prohibit Respondent from engaging in discrimination on the basis of race, religion, disability or any other personal characteristic, in even the most objectionable ways and for the most offensive of reasons. As the trial court found, Respondent's "public orientation and prominence," as the part of the largest youth organization in America, rightfully subject it to the requirement that it not be allowed to discriminate on the grounds prohibited by the Unruh Act. (JA 2035.)⁴⁰ To find otherwise "would send a stark message about what the ideals of this country really mean, a message that is not true." (Id.)

III. APPLICATION OF THE UNRUH ACT TO RESPONDENT WOULD NOT UNCONSTITUTIONALLY INFRINGE RIGHTS OF ASSOCIATION.

As this Court recognized in Warfield, the United States Supreme Court in Roberts v. United States Jaycees (1984)468 U.S. 609, 617-18 [104 S.Ct. 3244, 82 L.Ed.2d 462] explained that there are two aspects of the right of association that may be implicated when an antidiscrimination law is applied to the membership policies of an organization: the right of expressive association and the right of intimate association. (Warfield, 10 Cal.4th at p.624.) Application of the Unruh Act to preclude Respondent from discriminating against Mr. Curran based on his sexual orientation violates neither of these rights.

In the same manner that the First Amendment guarantees an individual's right to speak, it also guarantees the right of that individual to band together with others to magnify his or her voice. "An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a

correlative freedom to engage in group effort toward those ends were not also guaranteed." Roberts, 468 U.S. at p.622.)

The freedom of association is obviously important "in guaranteeing the right of people to make their voices heard on public issues." (NAACP v Claiborne Hardware Co. (1982) 458 U.S. 886, 908 [102 S.Ct. 3409, 73 L.Ed.2d 1215].) It is, however, a limited right. As explained by the United States Supreme Court in Dallas v. Stanglin (1989) 490 U.S. 19, 24 [109 S.Ct. 1591, 104 L.Ed.2d 18], simply because activities "might be described as 'associational' in common parlance," that does not mean that those activities involve the sort of expressive association that the First Amendment has been held to protect. As the Court in that case explained,

Thus, "[w]hile the first amendment fully protects expression about philosophical, social, artistic, economic, literary, ethical, and other topics, it does not protect every communication or every association that touches these topics." (IDK. Inc v County of Clark (9th Cir. 1988) 836 F.2d 1185, 1194.) Whether or not group activity warrants First Amendment protection is therefore a question requiring careful analysis.

While Respondent would like this Court simply to label Scouting an "expressive association" and end the analysis there such a cavalier approach would represent a profound misapplication of First Amendment law. The right of expressive association applies to particular activities and particular speech engaged in by groups of people; groups themselves are not deemed "expressive" or "nonexpressive" associations. Of course, the extent to which a group's activities include "expressive" components varies significantly from group to group. In order to determine which aspects of the Scouting may be considered "expressive," it is instructive to compare them to other organizations that have litigated these very issues.

At one end of the spectrum are private organizations that engage in no expressive activity. For example, the exclusive purpose of the Pacific-Union Club, a highly selective all-male private club in San Francisco, is "to promote social intercourse among its members." Pacific-Union Club, 232 Cal.App.3d at p.66.) Therefore, the Pacific-Union court, noting that the club did "not claim that it engages in any expressive activities protected by the First Amendment, such as the advocacy of social or political points of view" and that its "sole stated

purpose is to the promotion of friendship and camaraderie," held that the club had no expressive association claim. (Id. at p.71 (for "purely convivial organization" only the right of intimate association is pertinent).)

At the other end of the spectrum are private organizations that engage in nothing but expressive activity. The Ku Klux Klan ("KKK") and the Cult Awareness Network are both examples of private associations whose sole reason for existence is to convey a particular message. When the KKK sued the city of Thurmont, Maryland, challenging a nondiscrimination condition contained in its parade permit, the court held that the condition violated the KKK's freedom of expressive association, explaining that:

Similarly, when a member of the Church of Scientology sought admission to the Cult Awareness Network ("CAN"), it was held that, in light of CAN's purpose "to educate the public about the harmful effects of mind control as practiced by destructive cults and about the unethical or illegal practices they employ" and CAN's work asserting that Scientology is a cult, admitting the Scientologist to their association would "impede its ability to engage in protected activities." (Hart v. Cult Awareness Network (1993) 13 Cal.App.4th 781, 782, 790 [16 Cal.Rptr.2d 705].)

Respondent attempts to place Scouting at the KKK and CAN end of the spectrum, arguing that everything Respondent does is protected by the right of expressive association, but that cannot be the case. Scouting policy expressly precludes Respondent from involvement in "any question of a political character." (Ex.2:16; RT 719:11-720:2.) While Respondent does engage in general advocacy regarding issues such as combating child abuse, drug abuse, hunger, unemployment, and illiteracy (see Ex. 212; RT 724:19 - 725:11; 727:5-23), and Scouting does

attempt to teach boys the importance of values such as patriotism, courage, and self-reliance (Ex. 1:4), the outdoors skills, crafts, and athletic, recreational and social activities that make up the bulk of what is actually done in Scouting have no direct expressive content. (See generally Exs. 25 (Scoutmaster Handbook) and 35 (Boy Scout Handbook).) Indeed, Scouting appears to have more in common with the Pacific-Union Club, a social club whose purpose is to promote friendship and camaraderie amongst its members, than with organizations that only engage in expressive activities, like the KKK and CAN.

Clearly, with its wide range of activities and purposes, Scouting falls somewhere in between the two extremes. Much like the Jaycees, the Rotary Club, and the Boys' Club, the Scouting program has both expressive and nonexpressive components. Proper consideration of the right of expressive association in this context requires a determination of whether Scouting's protected expressive activities unconstitutionally are affected by application of the Urns Act in this case. As demonstrated below, they are not.

In Roberts v. United States Jaycees (1984) 468 U.S. 609, the United States Supreme Court held that application of Minnesota's Human Rights Act to compel the Jaycees to accept women as regular members did not impair the group members' rights of expressive association. The purposes of the Jaycees bear many similarities to those of the Boy Scouts. The Jaycees sought to further such

Despite the fact that much of the Jaycees' creed was directed to "promoting the interests of young men" (id. at p.627), the Supreme Court held that the all-male aspect of the group did not fall within the realm of protected expressive activity. Instead, the Court focused on the message communicated by the group's speech, that is, their public positions, and the impact the presence of women would have on that message. (Id. at pp. 627-28.) The Jaycees acknowledged that most of their resolutions adopted over the years had nothing to do with

gender (id. at p. 627), yet argued that their public positions would have a different effect if the group were not "'a purely young men's association."' (Id. at p.628 (quoting Jaycees' brief).) The Roberts Court flatly rejected this argument and declined to hold that inclusion of women in the Jaycees would "change the content or impact of the organization's speech." (Id. at p. 628.)

Here, Respondent's position is much weaker than the Jaycees' position was. While a focus on the interests of men pervaded the Jaycees' by-laws and credo, at least raising a question about the impact of the involvement of women, there is no similar focus on sexual orientation issues anywhere in the Boy Scouts' founding or guiding documents or even its literature. Significantly, the views that mattered in Roberts were the Jaycees' views on issues such as the federal budget, school prayer, voting rights, and foreign relations. (Id. at p.628.) The Jaycees' internal preference to allow only men to have input on those positions was not of constitutional significance. (See id. at p.627 ("any claim that admission of women as full voting members will impair a symbolic message conveyed by the very fact that women are not permitted to vote is attenuated at best"); id. at p.628 (rejecting claim that an all-male source will have a different effect on the public). So here, it is only Respondent's protected speech, not its internal preferences, that matters. Absent a showing that admitting Mr. Curran impermissibly will "change the content or impact of the organization's speech," the right of expressive association cannot be found to be violated. (See id. at 628.)

Board of Directors of Rotary International v. Rotary Club of Duarte (1987) 481 U.S 537, also involved the application of a state antidiscrimination statute to compel an all-male organization to accept female members. The Rotary Manual describes the organization as one of "men united worldwide who provide humanitarian service, encourage high ethical standards in all vocations, and help build goodwill and peace in the world." (Id. at p 539.) Only the club's service activities were held protected by the First Amendment, and the Court held that "the Unruh Act does not require the clubs to abandon or alter any of these activities." (Id.) As in Roberts, the fact that the manual described the club as an organization of "men" and that the members had a preference to associate only with men did not matter. Like the Roberts Court, the Court in Rotary examined the impact of including women on the club's protected expressive activities and found none. (Id. at p.548.)

The Supreme Court reaffirmed the need to focus on protected speech -- e.g., "specific expressive purposes" and advocacy of viewpoints -- in New York State Club Association v. New York (1988) 487 U.S. 1 [108 S.Ct. 2225, 101 L.Ed.2d 1]. Once again, internal preferences regarding social interaction did not trigger expressive association concerns. In the expressive

association context, it is only "advocacy" of points of view that is protected by the First Amendment. (487 U.S. at p.13.) Reiterating the standard proffered by the Rotary court, the Supreme Court held in New York State Club that the appropriate inquiry was therefore whether a club is required to "'abandon or alter' any activities that are protected by the First Amendment." (Id. (quoting Rotary, 481 U.S. at p.548).)

The same analysis has been applied by this Court. Isbister v. Boys' Club of Santa Cruz (1985) 40 Cal.3d 72, like Roberts, involved the application of the Unruh Act to compel an all-male organization to accept female members. The Boys' Club in Isbister purported to focus on the particular needs of male youth, but did "not suggest that it was substantially engaged in protected 'expression of views."' (Isbister, 40 Cal.3d at p.85.) Therefore, this Court held that the Unruh Act did not violate the club's freedom of expressive association. (Id.)

Not surprisingly, many of the purposes of the Boy Scouts are remarkably similar to those of the Jaycees, the Rotary Club, and the Boys' Club. Therefore, it is easy to discern which aspects of the Scouting's' activities fall within the protection of expressive association and which do not. First, espousing humanitarian goals and civic-mindedness is not sufficient to bring all of a group's activities within the ambit of the First Amendment. (See Roberts, 468 U.S. at pp. 612-13; Rotary, 481 U.S. at p.539. Second, as evident from Roberts and Isbister, having the well-being and development of young people at heart does not automatically elicit First Amendment protection. Third, only expressive views communicated by the group, such as positions on public issues (see Roberts, 468 U.S. at pp. 626-27), or service activities (see Rotary, 481 U.S. at p. 548), are protected. Finally, an infringement on the freedom of expressive association occurs only when the group is forced to abandon or alter its protected expressive views, not when it must change other aspects of its structure or purpose. (See New York State Club, 487 U.S. at p.13; Rotary, 481 U.S. at p.548.)

Here, Respondent's interest in excluding individuals it learns are gay is no different than the interests the Jaycees, the Rotary Club, and the Boys' Club had in excluding women or girls. In fact, it is weaker, since the charters of all the other clubs defined themselves as men's or boys' organizations, while the parallel documents in Scouting contain no mention of it being a heterosexual, or an anti-gay, organization. As in those cases, any interest Respondent may have in excluding gay men is not part of its protected expressive views.⁴²While Respondent would

like the Court to believe that everything it does is protected by the First Amendment, because it is all done in the name of instilling values in its members, such sweeping reasoning was soundly rejected by the United States Supreme Court in Roberts.

The Jaycees' objectives in Roberts included "inculcat[ing] a spirit of genuine Americanism and civic interest," and providing opportunities for "personal development and achievement." (468 U.S. at pp. 612-13; see also id. at p.614 (programs to "enhance individual development").) These broad-based purposes, however, did not mean that every activity designed to further those purposes qualified as protected expressive activity. Instead, the U.S. Supreme Court considered only a subset of the Jaycees' endeavors to be protected by the First Amendrnent -- specifically mentioning their public positions, their civic, charity, lobbying, and fundraising activities, and the formal resolutions they adopt. (Id. at pp. 626-27 ("a 'not insubstantial part' of the Jaycees' activities constitutes protected expression").)

Roberts is controlling here. Just as the Jaycees sought to inculcate values and foster personal development in young men, so do the Boy Scouts. But just as not every one of the Jaycees' activities constituted protected expression, not every activity undertaken by Respondent constitutes protected expression. In sum, like the Jaycees' view that women should be excluded, Respondent's view that those who it learns are gay should be excluded is not protected under the right of expressive association.

As noted above, like the Rotary Club's policy prohibiting Rotary Clubs from taking positions on public questions (Rotary, 481 U.S. at p.548), Scouting policy expressly precludes involvement in "any question of a political character." (Ex. 2:16; RT 719:11 - 720:2.) Consequently, it is Respondent's service and community activities that comprise its "expressive" communication component. (See Rotary, 481 U.S. at 548 ("Rotary Clubs engage in a variety

of commendable service activities that are protected by the First Amendment. ").) While these service and community activities have addressed issues such as child abuse, drug abuse, hunger, unemployment, and illiteracy (Ex. 212; RT 724:19 - 725:11, 727:5-23), neither Respondent nor Scouting at large has ever engaged in any service or community activities whatsoever addressing any aspect of being gay or of homosexuality. No programs, no advertisements, no opinion pieces, no literature, no newsletters -- nothing falling within the Respondent's expressive activities has focused on the lives or rights of gay people or on any aspect of homosexuality. (See RT 722:27 - 723:9; 727:24-27; 1199:3 - 1200:12).

As for the expressive activities in which Respondent does engage, there is no evidence that admitting Mr. Curran as a Scouter impermissibly will impair Respondent's ability to "engage in protected activities and disseminate its preferred views." (Hart, 13 Cal. App.4th at 790.) Mr. Curran was a model Boy Scout for many years, earning numerous honors. His presence would in no way require Respondent "to abandon or alter" its expressive activities. (See Rotary, 481 U.S. at p.548.) Respondent could still carry on all its service and community activities without any dilution of its message. Under the reasoning set forth by the United States Supreme Court, admitting Mr. Curran would not "impair the ability of the original members to express only those views that brought them together." (Roberts, 468 U.S. at p. 623.)⁴³

That there is no impact on the Respondent's expressive activities is further evidenced by Respondent's changing explanation for why it excluded Mr. Curran. The only reason why Respondent would not allow Appellant to register as a Scouter is because he is gay. This was firmly established by the trial court upon a motion for summary adjudication. The court found that Mr. Curran "was refused admission by [Respondent] as [an] Adult Member or 'Scouter,' because he was a homosexual," and that his "homosexuality was the only reason for [Respondent's] refusal to admit him as an Adult Member." (JA 262-63 (emphasis added).) In addition, the court found that the Boy Scouts "will not admit any homosexual into membership regardless of such person's qualifications and will dismiss homosexuals from membership if

However, later in the litigation, when it became apparent to the Respondent that discrimination on the basis of status was not a valid ground for an "expressive association" defense, it changed its tune, arguing that Mr. Curran's exclusion was based on his "conduct and advocacy, rather than his status." (See Respondent's Brief to the Court of Appeal ["RB"], at p.37.) This revised reasoning is inaccurate for a number of reasons. First, as noted above, it is not the reason why Mr. Curran was excluded. It was found below that Respondent excluded Mr. Curran because he was gay, pursuant to a policy that all who Respondent found out were gay would be excluded (regardless of their conduct), and that was the only reason he was excluded.⁴⁴

Second, Respondent relies on statements made after Mr. Curran was excluded from Scouting (see, e.g. RB at p.32, citing Ex. 312) to support its position -- statements that could not possibly have formed the basis for Mr. Curran's exclusion.⁴⁵

Third, Respondent has not demonstrated any policy regarding conduct that is more than a

a simple proxy for status. To adopt Respondent's equation of being gay or having stated that one is gay with "conduct" that Respondent should be allowed to regulate would completely undo the decades old understanding (reaffirmed by this court in Harris), that the Unruh Act prohibits discrimination based on sexual orientation. (See fn. 2 hereof, above). Just last year, the United States Court of Appeals for the Ninth Circuit explained that "Equating status or propensity with conduct or acts that are prohibited is problematic." (Meinhold v. U.S. Dep't of Defense (9th Cir. 1994) 34 F.3d 1469, 1478. Similarly, in Pruitt v. Cheney, that same court held that an

Army Reserve officer who was involuntarily discharged after she told a newspaper reporter that she was a lesbian was not discharged because of "conduct," but solely because of her "status" as a homosexual. (Pruitt v. Cheney (9th Cir. 1992) 963 F.2d 1160, 1663, cert. den. (1992) 113 S. Ct. 655). Moreover, this Court has long held that businesses cannot subject the class of gay persons to differential treatment "without regard to their conduct." (Stoumen v. Reilly (1951) 37 Cal.3d 713, 716 [234 P.2d 969]; see also United States v. Lemons (8th Cir. 1983) 697 F.2d 832, 838; Gay Lib v. University of Missouri (8th Cir. 1977) 558 F.2d 848, 856, cert. den. sub nom. Ratchford v. Gay Lib (1978) 434 U.S. 1080). Likewise, California law has long rejected the insupportably prejudiced view that lesbians and gay men cannot appropriately and effectively interact with young people. (See, e.g., Board of Education v. Jack M (1977) 19 Cal.3d 691, 700 [139 Cal.Rptr. 700, 566 P.2d 602 (teacher); In re Marriage of Birdsall (1988) 197 Cal.App.3d 1024, 1028 [243 Cal.Rptr. 287] (custodial parent).)⁴⁶

In sum, Respondent cannot rely on the freedom of expressive association as a defense to violating California's antidiscrimination law. The First Amendment is designed to guarantee the "right of people to make their voices heard on public issues" (NAACP v. Claiborne Hardware Co., 458 U.S. at p. 908), not to insulate their social preferences from the laws of the state. Neither boys nor adults join Scouting to contribute to a public debate on homosexuality. To the contrary, both political advocacy and instruction regarding sex and family life are explicitly disallowed by the Boy Scouts' policy. (See RT 659:7 – 661:3, 719:11 - 720:2; Ex. 2:16; Ex. 25:133-34; Ex. 34:4.) While the First Amendment does protect group speech, it protects only particular speech that the members of the group choose to express as a group. Of Scouting's wide range of activities, only a portion of them fall within the ambit of protected speech, and none of that portion is affected here.

The second type of "freedom of association" recognized by the courts is the freedom of

intimate association. As described by the Roberts Court, the First Amendment protects those relationships, including family relationships, that presuppose "deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life." (Roberts, 468 U.S. at pp. 619-20; Rotary, 481 U.S. at p. 545.)⁴⁷

While there are no precise boundaries delineating intimate associations, the United States Supreme Court defines them as "highly personal relationships" that are distinguished by "such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. " Roberts, 468 U.S. at p. 620.) In determining where a relationship lies on the spectrum of the most intimate to the most attenuated of personal attachments, the relevant factors are "size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship." (Rotary, 481 U.S. at p. 546; Roberts, 468 U.S. at p. 620.)

The trial court correctly found that Respondent exhibits none of these characteristics. (JA 3003.) As discussed at length above in connection with the related issue of Respondent's failure to qualify as a truly private club, Respondent is a large organization exercising almost no selectivity whose community directed activities are hardly shielded in privacy.⁴⁸

Even at the troop or den level, the Boy Scouts are not highly selective.⁴⁹ Troops accept virtually any interested boy within a particular age cohort, existing members have no right to veto new ones, and membership may change from month to month as boys move in and out of the neighborhood. (RT 140:16 – 142:11, 198:13 - 199:4, 373:17-28, and 461:8-10.) Troop

activities often include non-members or take place in the surrounding community. Furthermore, many Scouting activities participated in by Respondent's members take place outside the troop, with Scouts or Scouters from other troops, other districts and even other councils who a Scout or Scouter may never have met before. (See JA 1862-68 (detailing evidence supporting inapplicability of right of intimate association).)

As the U.S. Supreme Court has indicated, selectivity is the critical factor. (See Rotary, 481 U.S. at p. 547 (lack of selectivity "does not suggest the kind of private or personal relationship" deserving First Amendment protection).) The only relationships aside from familial ones held to be "intimate associations" have been extremely selective, in ways that Respondent's organization simply is not.⁵⁰

Moreover, even if Respondent were considered selective and had the characteristics that would lead to rights of intimate association being implicated, there was no showing in this case that anyone with whom Mr. Curran might have had a close enough relationship within Scouting to be able to claim a violation of the right of intimate association had Mr. Curran not been excluded by Respondent ever had any objection to associating with Mr. Curran. Mr. Curran was supported by his former troop and Scoutmaster in his efforts to remain in Scouting, even after it was known that he was gay (See RT 196:3-12.) Mr. Curran's former troop members, Scoutmaster, troop committee, and sponsoring organization all had great respect for him, having approved his becoming an Eagle Scout, and having chosen him for numerous honorary and leadership positions. (RT 177:15-18, 181:28 - 182:25, 189:8-13, 196:3-12, 212:25 - 213:19, and 217:10-16.) Because Respondent never presented any evidence that any of the members of Mr. Curran's former troop or any other troop with whom Mr. Curran might have interacted had any objection to associating with him, there was never any showing of the violation of the right of intimate association.⁵¹

The freedom of association guaranteed by the First Amendment is not absolute. (Roberts, 468 U.S. at p.623.) Even if rights of association were implicated by application of the Unruh Act in this case, "[the presence of protected activity . . . does not end the relevant constitutional inquiry. Governmental regulation that has an incidental effect on First Amendment freedoms may be justified in certain narrowly defined instances. " (NAACP v. Claiborne Hardware Co., 458 U.S. at p.912 (citing United States v. O'Brien (1968) 391 U.S. 367 [88 S.Ct. 1673, 20 L.Ed.2d 672].)

The distinction between the rule set forth in O'Brien and the rule set forth in the U.S. Supreme Court's recent decision in Hurley is significant. In Hurley, the Court found that regulation of who participated in a parade constituted direct regulation of speech because of the nature of parades and was therefore unconstitutional as the most prohibited form of content regulation of expression by the government. (132 L.Ed.2d at p.507.) Hurley was quick to point out, however, that its ruling in no way meant that application of laws like the Unruh Act as a general matter violated the First Amendment. (Id. at p.502.) The difference is explained by O'Brien, which sets forth the test that controls when government regulations target something other than speech -- like the denial of equal treatment by public accommodations or business establishments. In such a case, when the government's regulation "is unrelated to the suppression of free expression," the exercise of government power "is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; .. and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest." (O'Brien, 391 U.S. at p. 376.)

Hence, applying this test, the United States Supreme Court has made clear that infringements on one's First Amendment rights "may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." (Roberts, 468 U.S. at p.623.) And both the United States Supreme Court and this Court have already held that the very statute at issue here -- the Unruh Act -- was adopted to serve a compelling state interest, unrelated to the suppression of ideas. Both courts have further held that California's interest in ending

invidious discrimination cannot be achieved through less restrictive means. As applied to Mr. Curran's exclusion, any infringement on the First Amendment rights of those involved in Scouting is clearly justified.

A state's interest in ending discrimination based on arbitrary classifications has always qualified as a "compelling" interest. When the United States Supreme Court examined Minnesota's public accommodations law, it held that the statute "plainly serves compelling state interests of the highest order." (Roberts, 468 U.S. at p.624.) The Roberts Court concluded that acts of invidious discrimination "in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent -- wholly apart from the point of view such conduct may transmit." (14. at p.628.)

The Court reached the same conclusion when it was confronted in Rotary with the very statute at issue in this case, the Unruh Act. It held that "[e]ven if the Unruh Act does work some slight infringement on Rotary members' right of expressive association, that infringement is justified because it serves the State's compelling interest in eliminating discrimination against women. (Rotary, 481 U.S. at p.549.) The Court also determined that the Unruh Act is unrelated to the suppression of ideas: "the Unruh Act, like the Minnesota public accommodations law we considered in Roberts, makes no distinctions on the basis of the organization's viewpoint." (Id.)

This Court also held that the Unruh Act, as "this state's bulwark against arbitrary discrimination in places of public accommodation" (Isbister, 40 Cal.3d at p.75), was adopted to serve a compelling state interest unrelated to the suppression of expression. (Id. at p.85 (the Unruh Act "intrudes no further, and for no less compelling purpose" than statute in Roberts); see also Pines v. Tomson, 160 Cal.App.3d at 391-92 (holding that infringement of Christian Yellow Pages' First Amendment rights was justified by the Unruh Act's "unquestionably 'compelling"' state interest in eradicating invidious discrimination and that "'government has a compelling interest in eradicating discrimination in all forms."') (quoting from EEOC v. Mississippi College (5th Cir. 1980) 626 F.2d 477, 488, cert. den. (1981) 453 U.S. 912 [101 S.Ct. 3143, 69 L.Ed.2d 994).)

Except when an organization is truly private (as in Hart), every court that has considered possible infringements on First Amendment freedoms due to the Unruh Act has held that they are justified because the Act was adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through less restrictive means. (See, e.g., Rotary, 481 U.S. at p.549; Isbister, 40 Cal.3d at p.75; Pines, 160 Cal.App.3d at pp.391-92.) Nonetheless, Respondent has attempted to avoid this clearly controlling authority by arguing that the state's interest in ending discrimination is not compelling outside of the commercial context. This exact argument, however, has already been flatly rejected by California's courts.

Because the Unruh Act was adopted to serve a compelling state interest, that interest applies to every context covered by the Unruh Act. In Isbister, this Court easily discarded the argument that the Unruh Act includes only "commercial" ventures and should have "a strictly commercial meaning." (40 Cal.3d at pp.82-83.) The Isbister Court held that, regardless of whether the Boys' Club fit within the "commercial" category, so long as it was a "business establishment" within the meaning of the Act, any infringement on its members' right of association was justified by the Act's compelling state interest. (Id. at pp.84-85.) The Pines court similarly held that the Unruh Act covered noncommercial as well as commercial entities. (160 Cal.App.3d at p.386, citing Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463))

The state's interest in eradicating invidious discrimination, manifest in the Unruh Act, is no less compelling in a noncommercial context than in a commercial context. What antidiscrimination laws like the Unruh Act seek to prevent, after all is "'the deprivation of personal dignity that .. accompanies denials of equal access to public establishments"' (Heart of Atlanta Motel v. United States (1964) 379 U.S. 241, 250 [85 S.Ct. 348, 13 L.Ed.2d 258]. The unique evils that government has a compelling interest to prevent" (Roberts, 468 U.S. at p. 628), are no less evil in a noncommercial context. Because the Unruh Act applies, so does the compelling interest it serves.⁵²

For all of the reasons set forth above, the judgment of the trial court should be reversed and this case should be remanded to the trial court, with instructions.

1 At the time this action was brought and at the time of entry of tbe judgment from which this appeal is taken, the Unruh Act provided, in relevant part, that: "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 blindness or other physical disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." The Unruh Act was amended after the entry of judgment by the deletion of the words "blindness or other physical" before the term "disability" and by the amendment of its final paragraph, in order to comport with the federal Americans with Disabilities Act of 1990. (Cal. Civ. Code § 51, as amended by Stats. 1992, ch. 913, § 3.)

2 See Harris V. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155-56 [278 Cal.Rptr. 614, 805 P.2d 873] (citing with approval cases holding sexual orientation to be a personal characteristic upon which discrimination is prohibited under the Unruh Act); Beaty v. Truck Ins. Exchange (1992) 6 Cal.App.4th 1455, 1460 [8 Cal.Rptr.21 593] ('The decisions hold the Unruh Act forbids discrimination against individuals on the basis of sexual orientation."); Rolon V. Kulwitzky (1984) 153 Cal.App.3d 289, 291-92 [200 Cal.Rptr. 217] (so holding); Curran v. Mt. Diablo Council of the Boy Scouts of America (1983) 147 Cal.App.3d 712, 734 [195 Cal.Rptr. 325] ('Thus, we conclude that the Unruh Act prohibits arbitrary discrimination against homosexuals."), app. dism. (1984) 468 U.S. 1205 [104 S.Ct. 3574, 82 L.Ed.2d 873]; Hubert v. Williams (1982 App. Dept. Super. Ct.) 133 Cal.App.3d Supp. 1, 3-4 [184 Cal.Rptr. 161] ("[W]e hold homosexuals to be a class protected by the Unruh Act."); see also In re Cox (1970) 3 Cal.3d 205, 213-14 [90 Cal.Rptr. 24, 474 P.2d 992] (California law has long "clearly... prohibited all arbitrary discrimination" by business establishments, including class-based exclusions of those who are gay or lesbian).

3 References to the parties' Joint Appendix will be made throughout this brief in the form "JA [page number(s)]." References to the Reporter's Transcript will be in the form "RT [page number:line number(s)]." References to trial exhibits will be made in the form "Ex. [trial exhibit number:page number(s)]" or "Exs."

4 Respondent became aware of Mr. Curran's sexual orientation from a newspaper article published shortly before he applied to attend the 1981 National Jamboree. That article had discussed Appellant's experiences with his family and at school as an illustration of the difficulties faced by lesbian and gay teenagers and the courage it takes for them to "come out." The article did not mention Respondent or Scouting at all. (RT 655:3 - 667:19; Ex. 307.)

5 See also JA 2999 ("It is undisputed that [Appellant's] request to become a Scouter was rejected on the basis of the written policy which [Respondent] follows of excluding 'avowed' or 'known' homosexuals..."); Ex. 292 (Respondent's Council Executive Handbook, setting forth its policy that "Avowed or known homosexuals are not permitted to register in the Boy Scouts of America.").

6 See Harris, supra, 52 Cal.3d at p-1155; Isbister v. Boys' Club of Santa Cruz. Inc. (1985) 40 Cal.3d 72, 81, fn. 8 [219 Cal.Rptr. 150, 707 P.2d 212]; Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 28 [219 Cal.Rptr. 133, 707 P.2d 195]; Buhl v. Hannigan (1993) 16 Cal.App.4th 1612, 1624 [20 Cal.Rptr.2d 740]; Hart v. Cult Awareness Network (1993) 13 Cal.App.4th 777, 787 [16 Cal.Rptr.2d 705]; Beaty,supra, 6 Cal.App.4th at p. 1460; Vaughn v. Hugo Neu Proler International (1990) 223 Cal.App.3d 1612,1618 [273 Cal.Rptr. 426]; Rotary Club of Duarte v. Bd. of Directors (1986) 178 Cal.App.3d 1035,1049 [224 Cal.Rptr. 213], affd. (1987) 481 U.S. 537 [107 S.Ct. 1940, 95 L.Ed.2d 474]; Pines v. Tomson (1984) 160 Cal.App.3d 370, 384 [206 Cal.Rptr. 866]; Rolon V. Kulwitzky,supra, 153 Cal.App.3d at p.291; Ross v. Forest Lawn Memorial Park (1984) 153 Cal.App.3d 988, 992-93 [203 Cal.Rptr. 486]; Martin v. International Olympics Committee (9th Cir. 1984) 740 F.2d 670,677; and 1983 Op. Cal. Att'y Gen. 488 (all citing the Court of Appeal's prior decision in this action with approval).

7 Indeed, this Court itself has recognized that the prior Court of Appeal decision in this case "held that the Boy Scout's ... extension to the youthful public of a membership invitation limited only by sex made it a 'public' organization covered by the Unruh Act." (Isbister 40 Cal.3d at p. 81, fn. 8 (emphasis added).)

8 Upon losing the appeal, Respondent unsuccessfully petitioned the Court of Appeal for rehearing and then petitioned this Court for review. That petition too was denied. Respondent next appealed to the United States Supreme Court. The high court dismissed the appeal on July 5,1984. (468 U.S. 1205 [104 S.Ct. 3574, 82 L.Ed.2d 873].)

9 As part of his motion, Appellant dropped an ancillary common law cause of action he previously had raised in this case and elected to proceed solely on his cause of action for violation of the Unruh Act. (JA 141.) Appellant renewed this election before trial. (JA 1396-98, 1727-29.)

10 On November 7, 1986, the action had been stayed pursuant to stipulation, while the parties awaited the decision of the U.S. Supreme Court in the appeal of Rotary Club of Duarte v. Board of Directors where constitutional defenses to the Unruh Act also had been raised. (JA 555-56.) After that case's decision and additional discovery, on May 6,1988, all further proceedings in the action were assigned to the Honorable Vernon G. Foster. (JA 684.) Due to Judge Foster's retirement, the trial date was postponed and the case was reassigned to the Honorable Miriam Vogel. Because of Judge Vogel's subsequent elevation to the Court of Appeal, the trial date was postponed once more and the case was reassigned to the Honorable Sally Grant Disco, before whom trial ultimately was held. On each occasion, the deadline provided by Cal. Code Civ. Proc., § 583.310 was extended by stipulation of the parties. (See JA 1693-94.)

11 The trial court also explained that "the public nature of the context in which discrimination occurs is a factor of overriding importance in assessing the interests served by regulation under the Act," and that "Society's interest in preventing discrimination increases as the context in which it is practiced carries with it a greater suggestion of social tolerance or even acceptance" (JA 2035), factors which decidedly pointed in favor of coverage under the Unruh Act of America's largest youth organization, given the Boy Scouts' federal charter, extensive interactions with government entities (including public schools), and its public support and activities.

12 See also RT 608:13-16 ("[A]nalytically the rights of the members to intimate association do not extend on the spectrum to an organization of th[e] size, nonselectivity, et cetera, of [Respondent]"); RT 610:11-13 ("I just don't see the character of this organization as coming within that zone of privacy where personal relationships are protected"); RT 612:23-26 ("I have a very, very hard time seeing how ... this kind of organization and the nature of the relationships when you look at the organization as a whole comes within this zone of privacy protection.").

13 Because the trial court ruled in favor of Respondent based on one of its asserted constitutional defenses, the trial court never reached a possible third phase of the trial, which migbt have considered Respondent's contention that its discrimination against Mr. Curran was not prohibited by the Unruh Act (because, according to Respondent, that discrimination was not "arbitrary"), whether Mr. Curran is entitled to injunctive relief, and the extent of Mr. Curran's damages.

14 The latter statement, in particular, was one of considerable understatement. No position regarding any aspect of the lives of lesbians and gay men or even to the more narrow topic of the sexual acts in which they may engage appears anywhere in Scouting's charter, by-laws, mission statement, rules and regulations, or application forms, or even in the Scout Oath or Scout Law. (See Exs. 1, 22, 31, 34; Ex. 35:30 and 37; Ex. 205.) Indeed, neither Respondent nor any of its witnesses were able to find even one single reference to sexual orientation among the tens of thousands of pages of materials published by the BSA and distributed by Respondent that takes the position that lesbians and gay men are immoral or even that Scouting disapproves of sexual conduct between same sex adults. Moreover, other than statements emphasizing Scouting's agreement with the scientific data showing that it is a myth that homosexuals are child molesters (see Ex 95:DC-4; RT 726:3-24), the only direct reference to homosexuality in all of Scouting's or Respondent's publications at all appears but once, in one sentence,within the Scoutmaster's Handbook's two-page discussion of "sex curiosity" and deals more with predatory behavior than with homosexuality per se. (See Ex. 25:134.)

15 This too was understatement. The testimony showed that Respondent has never taken a political position regarding sexual orientation nondiscrimination ordinances (RT 697:13-20), such as the ordinance enacted in 1978 in Berkeley, California,where Respondent operates. (See Berkeley Mun. Code Chapter 13.28, §§ 13.28010-13.28.100.) No part of Respondent's program designed to dispel social ills in the community seeks to convey negative attitudes towards lesbians and gay men or even toward particular forms of consenting adult sexual conduct. (RT 722:27 - 723:9; 727:24-27.) Prior to the filing of this lawsuit, Respondent never engaged in any form of public expression regarding the morality of lesbians and gay men or of homosexuality. (RT 1199:3 - 1200:12.) Likewise, Respondent's Chief Scout Executive could not even recall the word "homosexuality" ever appearing in any of Respondent's newsletters. (RT 710:7-10.) Numerous witnesses testified that no issues relating to being gay or to same sex sexual conduct ever arose in their entire experience in Scouting. (See, e.g. RT 1055:8-16; 1056:15-21; 1077:21 - 1078:7; 1078:26 - 1079:2; 1143:3-13; 1144:10-14; 1149:28 - 1150:20; 1180:11-14; 1182:5-9.)

16 Respondent previously has attempted to argue that the issue in this case should be whether or not the troop to which Mr. Curran previously belonged was a business establishment, not whether Respondent's entire organization is. There are numerous flaws in Respondent's position. First, Mr. Curran was not excluded only from participation in his prior troop. Rather, Respondent denied Mr. Curran's application to attend the national BSA Jamboree and excluded Mr. Curran from any further participation in any capacity in Scouting within Respondent's jurisdiction. (JA 263-64; 2999.) Second, Mr. Curran was not through this lawsuit seeking admission to any particular troop or relief directed against any particular troop. (See JA 93, 540-41.) He was seeking an order that Respondent, which was the entity that excluded him from Scouting altogether, not continue to do so in violation of the Unruh Act. (Id.; JA 2790, fn. 86.) Indeed, as Respondent itself pointed out below (see JA 1583, 2685 n.8), the particular troop which Mr. Curran had been associated with prior to Respondent's exclusion of him from Scouting, ceased to exist long ago. (See JA 1138:17-21.) Third, troops appear to have no separate legal status from Respondent or the BSA and are totally subject to their dominion and control -- particularly with respect to the policy that led to Mr. Curran's exclusion. (See JA 264 (finding that "[Respondent] will not admit any homosexual into membership regardless of such person's qualifications and will dismiss homosexuals from membership if it becomes aware of the member's homosexuality.").) Fourth, Respondent's position makes no sense. If an individual is enrolled in a class at a school and the principal expels him because he does not want people of the student's race or religion or sexual orientation, the question is whether the school is a business establishment, not whether the particular class was. Thus, in the prior appeal herein, the court examined whether Respondent and the BSA (of which Respondent is a part) are business establishments, not whether a troop of a dozen or so boys and their Scout leader is. (See Curran, 147 Cal.App.3d at p.733.) Finally, Respondent cannot have it both ways. Respondent has argued throughout this case that Respondent's "First Amendment rights of expressive and intimate association would be infringed by applying the Unruh Act to Scouting's adult leadership decisions." (Answer to Petition for Review, p.2.) Because Respondent's exclusion of Mr. Curran was from Scouting altogether, based on a national policy it followed in approving or rejecting membership from Scouting, and Respondent has attempted to defend its conduct based on claims regarding the supposed impact of having Scouting's (not a particular troop's) membership decisions subject to the Unruh Act, the issue in this case is whether Respondent's organization (not one small part of it) is a business establishment.

17 See also Warfield, 10 Cal.4th at pp. 599 (noting "the very broad language of the statute" and referring to "the very broad category of "business establishments governed by the nondiscrimmation mandate" of the Unruh Act), and 621 (referring to the Unruh Act's 'broad reference to "all business establishments of every kind whatsoever").

18 See Warfield 10 Cal.4th at pp. 615-16 (explaining that this Court's prior decisions "do suggest that the reach of [the Unruh Act] cannot be determined invariably by reference to the apparent 'plain meaning' of the term "business establishment"' and concluding that "the circumstance that [an entity] is not generally thought of as a traditional business establishment is not, in itself, necessarily determinative of whether such an entity falls within the aegis of the act.") (emphasis in original); see also 10 Cal.4th at p.611 (quoting with approval O'Connor opinion's holding that nonprofit organizations are not exempt from the Unruh Act.

19 The opinion in Warfield holds that the country club at issue in that case is subject to the Unruh Act because "the business transactions that are conducted regularly on the club's premises with persons who are not members of the club are sufficient in themselves to bring the club within the reach of section 51's broad reference to 'all business establishments of every kind whatsoever.'" (10 Cal.4th at p.621 (emphasis deleted).) In stating the test in the text above, Appellant has not included the reference to conducting business transactions "on the club's premises" because, although applicable to the country club at issue in Warfield, in that it only conducted business on its premises, many entities conduct much of their business off-site and some have no actual "premises." Such a statement of the test also is most consistent with prior precedent, which has concluded that the Unruh Act was intended to apply to "not only a fixed location, such as 'the place where one is permanently fixed for... business,' but also a permanent 'commercial force or organization.'" (Burks V. Poppy Construction Co. (1962) 57 Cal.2d 463, 468 (quoted with approval in Warfield, 10 Cal.4th at p.610).)

20 In Warfield, this Court quoted with approval the conclusion of the court of appeal in Rotary Club of Duarte v. Board of Directors that the issue of whether a particular entity is a business establishment is an "issue ... of law" (178 Cal.App.3d at p. 1050), and this Court explained that "California decisions consistently have treated the issue whether a particular kind of entity constitutes a 'business establishment' [under the Unruh Act] as a question of statutory interpretation to be decided by the court." (Warfield. 10 Cal.4th at p. 607, n.7.) Although Appellant agrees that the ultimate question of whether a particular entity is subject to the Unruh Act is a question of statutory interpretation and application and therefore a legal question, that does not mean that the factfinding made by a trial court after consideration of all of the testimony and other evidence admitted at a trial regarding the underlying characteristics of an organization are subject to de novo review and second-guessing by an appellate court. (See U.S. v. Richland (5th Cir. 1968) 398 F.2d 523, 525-26 (explaining that "Whether or not an institution is a [private] 'club'... is a question of law once the underlying facts have been determined" and noting that underlying "evidential facts" must be accepted on appeal, unless clearly erroneous).) Thus, to the extent that this Court is considering facts found by the trial Court (as opposed to the application of the Unruh Act to those facts," this Court is required to "[v]iew[] th[e] evidence [admitted below] in the light most favorable to [Appellant], giving [him] the benefit of every reasonable inference, and resolving all conflicts in [his] favor." (In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [122 Cal.Rptr. 79, 536 P.2d 479.) In addition, where, as here, a "statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision." (In re Marriage of Hoffmeister (1987) 191 CaI.App.3d 351, 358 [236 Cal.Rptr. 543].) As a consequence, it is irrelevant that in Welsh v. Boy Scouts of America (7th Cir. 1993) 993 F.2d 1267, cert. den. 114 S.Ct. 603, a federal appellate court has stated, in dicta (see 993 F.2d at p. 1276, noting that the discussion of the point is "unnecessary" and included only to respond to the dissent's analysis) that it believes the Boy Scouts meets the statutory "private club" exception to Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000(a) (1988), based on a finding, on a different record, that the organization is selective. (993 F.2d at pp.1276-77.) To the contrary, the quite different factual finding of the trial court in this case is controlling in this appeal.

21 Respondent's Scouting Executive testified that Respondent actively recruits new members by, among other means, radio ads urging people to join. (RT 279:11 - 281:20.) Respondent's President admitted that the BSA even conducts "market research" to tailor Scouting's advertising to consumer demand. (RT 471:8-10.)

22 Respondent's Chief Executive confessed that, even though Respondent has the power to reject or accept applications it receives, Respondent has rejected only six to eight Scoutmaster or Assistant Scoutmaster applications out of approximately 35,000 it has received in his seventeen year tenure. (RT 307:21 - 308:22 and 482:8-14.) The case law demonstrates that similar rates of denial of applications establishes a lack of selectivity. Far example, in Nesmith v. YMCA (4th Cir. 1968) 397 F.2d 96 (cited by this Court in Warfield as one of the cases identifying the factors relevant to whether an entity is a truly private club), the rejection of only five out of 1,300 applications was found incompatible with private status. (397 F.2d at 101; see also Stout v. YMCA (5th Cir. 1972) 404 F.2d 687, 688 (organization that accepted all but 4 of 3,070 applications held not private).)

23 The fact that Respondent may have particular positions (such as that of Scoutmaster) where particular characteristics are considered for appointment does not make Respondent's membership decisions selective so long as all who belong to a broad segment of the general population are equally entitled to be considered for membership, as is the case here. In Rotary, precisely the same kinds of general limitations on membership to persons of "good character" and reputation that Respondent claims exists for its leadership positions were found insignificant and did not lead to exemption from the Unruh Act's provisions. (Rotary 178 Cal.App.3d at p. 1044, n. 4.) The trial court thus was correct in concluding that, while "Scoutmasters and Assistant Scoutmasters must also have good character and a willingness to serve, the criteria themselves ... are not exclusionary" within the meaning of the case law. (JA 2031 and 2031, fn. 4.)

24 For example, the Rotary Club of Duarte, as well as its parent organization, was found to be subject to the Unruh Act, even though local chapters of Rotary have between 20 and 900 members. (Board of Directors of Rotary International v. Rotary Club (1987) 481 U.S. 537, 542, 546 [107 S.Ct. 1940, 95 L.Ed.2d 575]; see also Nesmith v. YMCA, 397 F.2d at p.l0l (organization with 2,696 members not private club under federal law); Wright v. Cork Club. 315 F.Supp. at p.1147 (same true for organization with 1,864 members).)

25 The list of factors set forth in Warfield did not purport to be exclusive. (See 10 Cal.4th at p.620.) While the remaining factor specifically mentioned by this Court as among those that may be relevant is a less strong indicator that Respondent is not a private club, it likewise does not establish that Respondent is truly private. That factor -- whether the primary purpose served by the club is social or business -- does not fit well a youth organization whose primary purposes are educational and recreational. Nonetheless, the evidence did show that Respondent proclaims to prospective and existing members precisely the same opportunity for "furthering the objectives of one's business or organization" and making "business contacts" that was found significant in the Rotary case (see, e.g., Ex. 48:2); that individuals are encouraged to and do list Scouting on their job resumes (RT 157:10 - 160:26; Exs. 63,72-73, and 317); that Respondent's program in significant part provides an opportunity to "learn about ... trades, business and future careers" (Ex. 52:7; see generally Exs. 53- 59) and to obtain leadership skills (188:13-28; 201:24-27; 289:14-26; 319:20-23; 479:4-22; 492:8 - 494:13; 554:25-555:13; 562:10-22), and that Appellant himself obtained training for his ultimate career through Scouting (RT 146:18 - 147:2; 180:17 - 181:27; 185:7 - 187:19).

26 See JA 306-07 and 523; RT 249:4-12, 250:13-22, 278:10-12, 460:10 - 461:24, and 481:10 - 482:7; Ex. 14:4 ("The Mt. Diablo Council ... receive[s] nearly 30% of our operating funds from [the United Way of the Bay Area"); Ex. 15:2; Exs. 20-21; and Ex. 105:24-25 (Defendant "relies on contributions.. and invites... people to contribute through gifts and bequests, donations through the United Way,... [and] Golden Gate Scouting.").

27 In Rotary, it was noted that "in many [Rotary] clubs turnover is about 10 percent a year and that turnover is as high as 20 percent in larger clubs." (178 Cal.App.3d at p.1059.) Respondent is quite similar, with estimates of turnover ranging between 10 and 20 percent per year. (RT 140:25 - 141:7, 198:13 - 199:4, 373:17-28, and 461:8-10.)

28 RT 138:26 - 139:17, 193:1-28, 313:8-316:5,473:7-20, 483:6 - 484:10, and 506:2-10; Ex. 1:3,5, and 19.

29 Besides leasing its main camp from the National Forest Service since 1926 at a current fee of less than $500 per year; having approximately 25% of its troops sponsored by schools and PTAs, and other units sponsored by police departments, fire departments, and military units; seeking government use of Scouts on community projects; having government officials on its Advisory Council;, and being a part of a national federally chartered organization that makes an annual report of its activities to Congress and designates the President of the United States as the organization's honorary president during his term in office (JA 2033; RT 241:18 - 242:3,267:2-16, 293:28-295:16; Ex. 5.4; Ex. 14:1; Ex. 15:8; Ex. 40:11-12; Ex. 43:51), Respondent also obtains special government tax benefits and, unlike most organizations, is entitled to meet without charge in the public schools through which it does most of its recruiting for new members. (See Cal. Rev. & Tax Code § 6361; Cal. Educ. Code § 40041.)

30 See Pacific Union Club v. Superior Court (1991) 232 CalApp.3d 60, 75; [283 Cal.Rptr. 287] (describing club held private as one that "bars its doors and has virtually no windows, at least in the metaphorical sense).

31 The evidence established the income derived from nonmembers was obtained as a result of regular and repeated business transactions with them. As noted above, some events were annual, others occurred more frequently than that, and others (such as the sale of goods) were virtually continuous. These ongoing transactions with nonmembers cannot fairly be characterized as an occasional or isolated, like a small, irregular fund-raising bake sale or car wash. (See Warfield 10 Cal.4th at p.623, n.11.)

32 Furthermore, as the trial court found, Respondent leases the property for its main camp from the National Forest Service, a non-member. (JA 2029) Respondent also pays for furniture, supplies, postage, insurance, auditing, and public relations (JA 2030; RT 256:2 - 260:18; Ex. 15 and 27:6), has a paid staff of over 50 employees (JA 2030), and makes investments to earn interest and dividends (JA 2030, Ex. 15), presumably regularly engaging in business transactions with non-members (both on its premises and not) to accomplish all of this.

33 Indeed, as noted above, in the prior appeal in this case, the court of appeal already "h[e]ld [that] the Boy Scouts, of which [Respondent] is a part, is a business establishment within the meaning of the Unruh Act." (Curran, 147 Cal App.3d at p.733.) This was not careless use of language. The court of appeal separately reiterated in its prior opinion in this case it had "determined that the Boy Scouts is a business establishment within the meaning of the Unruh Act and is therefore prohibited from all discrimination in the provision of its services." (Id. at p.717.) As noted above, this Court also has concluded that this is what the prior court of appeal herein "held." (See footnote 7 hereof above.) Other courts have also explained that this was the "holding" of the prior appeal in this case. (See Pines v. Tomson 160 Cal.App.3d at p.386; see also Welsh v. Boy Scouts of America 993 F.2d at p.1271 (noting that the court of appeal's previous ruling in the present case interpreted the Unruh Act "to cover organizations like the Boy Scouts" based on the broad wording of California's public accommodations statute).)

The prior appellate opinion this case could hold that the Boy Scouts and its component councils such as Respondent are covered by the Unruh Act in a case on appeal from the grant of a demurrer because, as noted above, whether the Unruh Act applies to a particular organization is a legal question of statutory interpretation. Rather than minutely analyzing the factual allegations of Respondent's complaint, the prior appellate decision herein examined the legislative history, design, and purpose of the Unruh Act to reach the legal conclusion that "The Legislature's [intent] was to include organizations such as the Boy Scouts within the scope of the Unruh Act." (Curran 147 Cal.App.3d at p. 732.) This conclusion was based on, among other things, the fact that two antidiscrimination statutes enacted the same session as the Unruh Act specifically excluded from their coverage entities such as non-profit social clubs and fraternal, charitable and educational organizations, but the Unruh Act did not. (Id.). The significance of all this is that Respondent's status as a business establishment has been conclusively decided for the purposes of this litigation under the doctrine of "the law of the case." (People v. Shuey (1975)13 Cal.3d 835 [120 Cal.Rptr. 83, 533 P.2d 211].) That doctrine provides that a decision of an appellate court on an appeal in an action "must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal." (Tally v. Ganahl (1907)151 Cal. 418, 421 [90 P.1049].)

This Court specifically held the doctrine of law of the case to apply to this precise situation in Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57 [192 Cal.Rptr. 857, 665 P.2d 947] ("'[Q]uestions presented and decided by [an] appellate court upon appeal from a judgment on demurrer become the law of the case, and are not open to question on a subsequent appeal' unless the evidence "'"is substantially different in a material respect.""' (Quoting from Blatz Brewing Co. v. Collins (1948) 88 Cal.App.2d 438, 444, 445 [160 P.21 37].) Thus, even when the prior appellate decision (as in this case) was upon a demurrer without leave to amend, on which the truth of all facts property pleaded in the complaint are assumed, courts considering the issues ruled upon by the appellate court are "required to adhere to that ruling -- even if erroneous -- unless the evidence [subsequently] presented [is] substantially different" (Bigbee 34 Cal.3d at p. 56), which is not true in the present case.

34 These factors include: being organized and functioning similarly to a commercial business; having a substantial paid staff and permanent administrative offices; charging fees for membership; being large in size; engaging in the sale of goods; receiving funding from the general public, as opposed to just its members; providing services to the general public and not just its members; being controlled by staff rather than members; attempting to recruit an inclusive membership; having significant turnover in membership; engaging un activities in public view; exensive interacting with other businesses and the government; and offering of advantages, facilities, privileges or services to its members. (Isbister 40 Cal.3d at pp. 80-83; O'Connor 33 Cal.3d at p. 796; Rotary, 178 Cal.App.3d at pp. 1051-57, 1059, and 1064; Pines v. Tomson, 160 Cal.App.3d at pp. 385-86; and Curran, 147 Cal.App.3d at pp. 730-33.) Because many of these same factors demonstrate that Respondent is not a truly private club and have already been discussed above, Appellant will not readdress in this section all of the factors that overlap consideration of the two related determinations.

35 This Court similarly noted as significant in finding the Boys' Club of Santa Cruz to be a business establishment in Isbister that that entity was affiliated with a congressionally chartered, organization; owned and operated a building with recreational facilities; and was "run by an adult Board of Directors, officers of the corporation, and a paid staff headed by an executive director." (40 Cal.3d at p.77.) The Court explained that, "like the nonprofit hospital ... cited [in O'Connor] as an example of a non-profit 'business establishment,' the Club employs a substantial paid staff and 'care[s] for an extensive physical plant' used for public purposes." (Id, at p.82.) Because of these "businesslike attributes," the Boys' Club was found to have "functional similarity to a commercial business." (Id, at pp. 81-82.)

36 Respondent previously has argued, in error, that reliance on businesslike attributes turns everything into a business establishment, and that most such attributes are a function of being a large organization, not of being 'businesslike." It simply is not true, however, that all organizations and associations have a hierarchical structure of boards, committees, and officers; employ paid staff; own permanent administrative offices and a physical plant; charge fees; engage in public relations; and make commercial use of their name or logo. An overwhelming number of small, private forms of association (such as bridge and book clubs, theater groups, study groups, bowling leagues, support organizations such as the Cult Awareness Network at issue in Hart supra and family gatherings), and even some large grassroots political groups, share none of these characteristics. Moreover, the more an entity does have these characteristics, and becomes formally organized, publicly visible, and a significant force in the community, the more reasonable it is for the state to regulate its policies in furtherance of the state's goal of bringing about public equality.

38 This Court emphasized in Isbister that the membership fee need not be a "large one" to be significant. (40 Cal.3d at p.81.) Rather, the fact that a fee is charged at all indicates that relationships among an organizations members are not "gratuitous," as one would expect in a truly private organization. (Id.; see also Rotary 178 Cal.App.3d at p.1058.) It also does not matter that the fee hardly covers expenses, particularly when those expenses (as in this case as well as Isbister) "are subsidized from various private and public sources" so that the organization may offer its facilities to all "regardless of ability to pay a large fee." (Isbister 40 Cal.3d at p.81, n.9.)

39 For example, in Rotary, it was emphasized that "a variety of goods, privileges and services flow from membership in a local Rotary Club. These include the official Rotary magazine, numerous Rotary publications, the right to wear or display the Rotary emblem," the ability to attend conferences and learn management techniques and professional skills, the receipt of "inspiration" and the ability to make business contacts and obtain other business benefits. (178 Cal.App.3d at pp.1055-57 and 1059.) In Isbister this Court emphasized that the benefits of membership need not be "closely tied to aspirations for business success." Instead, it was considered sufficient that members of the Boys' Club receive the privilege of access to recreational facilities as well as "counseling, crafts classes, and other programs designed to promote healthy development toward adulthood." (40 CaI.3d at p.83, fn. 11.)

40 Of course, application of the Unruh Act in this case would not prevent Respondent form excluding those who refuse to abide by its legitimate rules of deportment. It would only prevent Respondent from discriminating on the basis of an individual's personal characteristics or using those characteristics as a proxy for prohibited conduct. (See Marina Point. Ltd. v. Wolfson (1982) 30 Cal.3d 721, 726 [18 Cal.Rptr. 496.640 P.2d 115]; In re Cox, 3 Cal.3d at p.217.)

41 The U.S. Supreme Court recently made clear that groups that exist to put on parades are engaged in pure expression, even if their message is not particularly clear. (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) ___ U.S. ___, ____ [115 S.Ct. 2338,132 L.Ed.21 487, 500-01] (noting that a distinctive feature of parades is that who is in them is an essential part of their message).)

42 Respondent's policy and practice of discrimination against those it learns are gay is not itself protected by any right of expressive association. (See Roberts, supra 468 U.S. at p.628 ("acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages .... are entitled to no constitutional protection"); Runyon v. McCrary (1976) 427 U.S. 160, 176 [96 S.Ct. 2586, 49 L.Ed.2d 415] (although advocacy that certain forms of discrimination are socially desirable may be protected by the right of expressive association, "it does not follow that the practice of excluding... minorities is also protected by the same principle"); Norwood v. Harrison (1973) 413 U.S. 455, 470 [93 S.Ct. 2804, 37 L.Ed.M 723] ("[i]nvidious private discrimination... has never been accorded affirmative constitutional protections").) Thus, the lower court's statement that being required not to exclude an openly gay Scout "would substantially impact [Respondent's ability to get across its preferred message in its preferred way" (JA 3015) is of no avail if Respondent's "preferred way" of getting across its message is by engaging in discrimination. (See R.A.V. v. St. Paul (1992) - U.S. - [112 S.Ct. 2538,120 L.Ed.2d 305, 322] ("acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.").)

43    For example, it is not claimed that the presence of Mr. Curran in Scouting would cause it to abandon or alter any of its positions on matters on which it does speak, such as child abuse or the importance of patriotism (see RT 701:16 - 702:4; 1210:20 - 1211:20). There also is no claim that Mr. Curran's presence would require Respondent to change a single word in any Scouting publication or would impair any message it purports to teach except through "the symbolic message conveyed by the very fact that [those known to be gay] are not permitted" in the organization, a factor rightly disparaged in Roberts. (468 U.S. at p.628.) Moreover, even if Respondent did engage in advocacy regarding the rights or lives of lesbians and gay men, there is no evidence that Mr. Curran would not abide by instructions that he not inappropriately discuss the details of his personal life with Scouts (as is Scouting policy, see Ex. 102:1) or would refuse to convey the particular position adopted by Scouting and, in any event, Mr. Curran was not excluded from Scouting for such reasons.

44    This point distinguishes Mr. Curran from both the Scientologist whose admitted purpose in trying to join CAN was "to challenge, if not change, [the organization's belief] that Scientology is a destructive cult." (Hart 13 Cal.App.4th at p.790) and the organization that sought inclusion in the Boston St. Patrick's Day/Evacuation Day parade specifically in order to make a statement. (Hurley 132 L.Ed.2d at p.501.) Notwithstanding Respondent's attempts to distort the record, Appellant did not seek to join Respondent's organization in order challenge or change its views or make any statement. He already had been a Boy Scout for many years and simply wanted to continue to participate, most immediately by attending the BSA Jamboree. He was excluded not because he wanted to change Scouting's positions on any subject, but simply because of Respondent having learned that he is gay. (JA263, 2020-21, 2999-3000; RT 184:14 - 187:19; 855:16- 667:10; Es. 285; Es. 286-A.)

45    Whether those statements might preclude Mr. Curran from being admitted now, and therefore defeat his claim for injunctive relief, is not now before the Court, as that issue was never reached below. Such subsequent comments of course could not defeat Mr. Curran's claim for damages for violation of the Unruh Act for discrimination based on his identity as a gay man, as opposed to his expression of views. Respondent simply has not shown that Mr. Curran ever did or said anything within the context of Scouting that was at odds with any of its messages, protected or otherwise.

46    In addition, if identifying a "personal characteristic" as to which the Unruh Act prohibits discrimination through conduct or speech were a permissible basis for discrimination, then the purpose of the Unruh Act will be eviscerated. Consider, for example, a restaurant that insisted that it did not discriminate on the basis of religious "status," but that refused to serve anyone wearing a yarmulke. The restaurant could not justify its refusal on the basis that wearing a yarmulke constituted "conduct" or "expressive activity." This is because discrimination based upon the act of wearing a yarmulke simply would be a surrogate for discrimination based on religion, just as discrimination based upon the "act" of identifying oneself as gay is nothing more than discrimination based on sexual orientation. (See Cal. Labor Code §§ 1101 - 1102.1.)

47 Thus, "Male fellowship" and the "spirit of [an all-male] organization" are not enough, in and of themselves, to create the sort of highly personal relationships afforded protection under the right of intimate association." (Bohemian Club v. FEHC (1986) 187 Cal.App.3d 1, 12 [231 Cal.Rptr. 769], app. dism. (1987) 484 U.S. 805 [108 S.Ct. 51, 98 L.Ed.2d 16].)

48 Like the Boys' Club whose claim of intimate association was previously was rejected by this Court, Respondent is basically a "large, socially unselective membership organization." (Isbister, 40 Cal.3d at p. 84, fn. 14; see also Fraternal Order of Eagles v. City of Tucson (CtApp. 1991) 168 Ariz. 598 [816 P.2d 255, 258] (rejecting claim of intimate association raised by organization seeking to exclude women members and stating that "The only requirements for membership, besides being male, are being over 21, believing in a supreme being, and not being a member of the Communist party. Those are not requirements that reflect an intent to associate only with persons who share a 'special community of thoughts, experiences and beliefs.'")

49 The fact that boys in scout troops may build close friendships with one another or with their troop leaders is irrelevant. As was held in New York State Club Assn., "It may well be that a considerable amount of private or intimate association occurs in such a setting, as is also true in many restaurants and other places of public accommodation, but that fact alone does not afford the entity as a whole any constitutional immunity to practice discrimination when the government has barred it from doing so." (487 U.S. at p. 12.)

50 For example, the Pacific-Union Club has a multiple-stage admission process requiring sponsors, numerous personal interviews, a waiting period of up to twelve months, and voting by secret ballot of the existing members. (Pacific-Union Club 232 Cal.App.3d at p. 66.) They do not advertise or recruit new members, and nonmembers are rarely allowed into the club's premises, much less allowed to attend functions. (Id. at p.75.) Similarly, admission to the "highly restricted and selective" membership of CAN requires a written membership application, three references, a detailed explanation of reasons for a candidate's interest, background checks, and intensive review by a membership committee. (Hart. 13 Cal.App.4th at pp.788-8; see also Bohemian Club 187 Cal.App.3d at p.13 (club's membership policy "extremely selective").)

51 Respondent's policy and practice precluded Mr. Curran from further involvement in Scouting because of his sexual orientation and that factor alone, not because of any feelings of anyone on Mr. Curran's former troop's troop committee or sponsoring organization or anyone else. (JA 263-64.) Respondent's claimed defense of a need to protect its members from intimate association to which no one ever expressed any objection to Respondent hence should be recognized as a sham, particularly since Respondent's policy was not dependent on the existence of objections to such association.

52 Were this Court to conclude that application of the Unruh Act to business establishments is not always compelling enough to overcome indirect effects upon rights of association, then this case would need to be remanded to the trial court to consider the nature and strength of the state's interest in this context. Appellant's attempts to put on such evidence were all rebuffed by the court below. (See RT 1115:18 - 1116:13; JA 1730-33, 2073-82 and 2176-87.) As a result, evidence of the harms that flow to Boy Scouts from Respondent's discriminatory policy and practices (including the contribution of such discrimination to the high rates of hate crimes against lesbians and gay men in California and to the low self esteem and related problems of gay teens -- such as the high rate of gay teen suicide) was not considered by the lower court. (See RT 1113:27-1114:4; 1114:22 - 1115:2; 1132:7-1134:13; 1313:17 - 1314:13; En. 108, 110-114, and 118-132.) If the state's interest in application of the Unruh Act is not always compelling, this was reversible enor. (Mobil Oil Corp. v. Rossi (1982)138 Cal.App.3d 256, 263-64 [187 Cal.Rptr. 845] (expressly holding that, when a factual inquiry is necessary to evaluating the importance of a state's interest and whether that interest justifies the impairment of individual rights, it is "prejudicial error" to exclude evidence necessary to evaluate that interest).)

Case No. S039738

APPELLANT'S BRIEF ON THE MERITS

TABLE OF CONTENTS

STATEMENT OF THE CASE

A. INTRODUCTORY STATEMENT

B. SUMMARY OF MATERIAL FACTS

C. PROCEDURAL HISTORY

D. STATEMENT OF APPEALABILITY

I. SUMMARY OF ARGUMENT

II. RESPONDENT'S ORGANIZATION IS A "BUSINESS ESTABLISHMENT" UNDER THE UNRUH ACT.

A. Respondent's Organization is Not a Truly Private Club.

B. Respondent Regularly Conducts Business Transactions with Non-members.

C. Respondent's Organization Meets the Case Law's Tests of Being a Business Establishment.

D. No Exception to the Unruh Act Should be Crafted for Scouting.

III. APPLICATION OF THE UNRUH ACT TO RESPONDENT WOULD NOT UNCONSTITUTIONALLY INFRINGE RIGHTS OF ASSOCIATION.

A. Application of the Unruh Act in this Case Would Not Interfere with Rights of Expressive Association.

B. Application of the Unruh Act in this Case also Would Not Impair Rights of Intimate Association.

C. The Compelling State Interests Served bv the Unruh Act Justifv Any Infringement Upon Rights of Association that Might Exist in this Case