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WELSH v. BSA

August 9, 1990

MARK G.A. WELSH, a minor, and ELLIOTT A. WELSH, his father and next friend, Plaintiffs,
v.
BOY SCOUTS OF AMERICA and BOY SCOUTS OF AMERICA WEST SUBURBAN COUNCIL No. 147, Defendants


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 Plaintiffs have been denied membership in the Boy Scouts on the sole ground that they are unwilling to profess a belief in a Supreme Being or God. In their attempt to gain membership in the Boy Scouts, they have brought this lawsuit pursuant to Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, which prohibits places of public accommodation from discriminating on the basis of certain criteria, including religion, which Congress has determined are inappropriate. *fn1"

 This case is currently before the Court on defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The purpose of such a motion is to challenge the sufficiency of the complaint's factual assertions to state a legal claim for relief. Accordingly, for purposes of deciding the motion, the Court is required to assume that the factual allegations of the complaint are true. Banner Industries v. Central States Pension Fund, 875 F.2d 1285, 1287 (7th Cir. 1989). Defendants argue that the Boy Scouts is beyond the scope of Title II, which applies only to places of public accommodations, and alternatively that application of Title II to the Boy Scouts would be unconstitutional. For the reasons described below, defendants' arguments are not sufficient to warrant dismissal at this preliminary stage of the proceedings, and their motion must therefore be denied.

 The Court notes that defendants do not argue that lack of belief in God is a viewpoint which is not protected against religious discrimination. See EEOC v. Townley Engineering & Mfg. Co., 859 F.2d 610, 614 n. 5 (9th Cir. 1988), cert. denied, 489 U.S. 1077, 109 S. Ct. 1527, 103 L. Ed. 2d 832 (1989); Young v. Southwestern Savings and Loan Ass'n, 509 F.2d 140 (5th Cir. 1975). *fn2" Thus the issue in this case is not whether individuals who do not believe in God are entitled to be treated under antidiscrimination laws the same as individuals who hold any other beliefs concerning religion, but rather whether the Boy Scouts is an organization which is entitled to discriminate among membership applicants on the basis of religion.

 II. FACTS

 Plaintiff Mark Welsh is the seven-year-old child of plaintiff Elliott Welsh and Donna Arsenoff. He lives with his parents in Hinsdale, Illinois, where he attends first grade. Neither plaintiff is a member of any organized religion, nor does either of them "firmly believe in a Supreme Being (God)." (Complaint para. 3 (b).) *fn3"

 Defendant Boy Scouts of America ("BSA") is a voluntary, charitable membership organization chartered by Congress in 1916 pursuant to 36 U.S.C. §§ 21-29. The purposes of the organization, as stated by Congress, are:

 
to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues, using the methods which were in common use by Boy Scouts on June 15, 1916.

 36 U.S.C. § 23.

 BSA is a civic organization which promotes, inter alia, good citizenship, physical fitness and camping for boys seven years of age and older. It encourages or requires adult family members of minor applicants to join BSA as supervisors. On plaintiffs' information and belief, BSA has over 4,000,000 members nationwide. Defendant West Suburban Council Boy Scouts of America ("Council") *fn4" is a local chapter of BSA located in LaGrange, Illinois. (BSA and the Council shall be referred to collectively as the "Boy Scouts.")

 The Tiger Cubs is a BSA program for boys who are seven years old or in the first grade. On or about September 11, 1989, at Anne Jeans Grade School, Mark Welsh was supplied with a flyer inviting students to join BSA Tiger Cub Scout Pack 56. The flyer stated that a recruitment meeting for the Tiger Cubs would take place on September 15, 1989 at the Palisades School in Burr Ridge, Illinois. *fn5"

 Mark Welsh attended the September 15 meeting along with Elliott Welsh, intending to enroll in the Tiger Cubs. At the meeting, Elliott Welsh was given an application to fill out for himself and his son. *fn6" At that time, plaintiffs learned that application to join BSA requires the applicant to "recognize an obligation to God" and to take an oath to do one's "duty to God." Elliott Welsh discussed these requirements with the scout leader in attendance, Tom Bannon, who informed him that an applicant would have to agree with the statements regarding God or be barred from participating in BSA.

 Plaintiffs left the meeting without applying, but Elliott Welsh subsequently sent a completed application and fees to the Council. On the application, he noted that he could not subscribe to BSA's Declaration of Religious Principle and the other references to God. The application was returned to him on September 28, 1989, along with a letter from BSA official Richard Corwin, who explained that the application could not be accepted unless the applicants agreed with the Declaration of Religious Principle set forth on the application.

 On October 7, 1989, Elliott Welsh wrote a letter to BSA headquarters in Irving, Texas, reaffirming his and his son's desire to join BSA and suggesting that BSA should not exclude applicants based on religion. On October 30, 1989, plaintiffs received a reply from Harold Sokolsky, Assistant to the Chief Scout Executive, stating that in order to participate in BSA, adult leaders must sign the Declaration of Religious Principle and youth members are required to acknowledge a duty to God. *fn7"

 BSA has also issued a "Reaffirmation of the Position of the Boy Scouts of America on 'Duty to God'" ("Reaffirmation") which emphasizes the importance of belief in God to the Boy Scouts. *fn8" There is no indication in the record of the circumstances which surrounded publication of the Reaffirmation.

 Plaintiffs brought this lawsuit on March 21, 1990, alleging that the exclusion from BSA of individuals who are unwilling to subscribe to BSA's religious principles violates Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. As relief, plaintiffs seek an injunction prohibiting BSA from maintaining a policy of refusing to admit persons who do not believe in God and requiring the Council to admit Mark Welsh as a youth member and Elliott Welsh as an adult partner. Defendants have moved to dismiss the complaint, arguing that even assuming the facts alleged by plaintiffs, the Court must find that Title II does not apply to the Boy Scouts and, alternatively, that it would be unconstitutional to apply Title II to the Boy Scouts. The Court cannot accept either of these arguments without giving plaintiffs an opportunity to gather and present factual evidence.

 III. SCOPE OF TITLE II

 A. Place of Public Accommodation

 42 U.S.C. § 2000a(a), the centerpiece of Title II of the Civil Rights Act of 1964, provides:

 
(a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

 Defendants argue that the Boy Scouts is not a "place of public accommodation," and that the Boy Scouts is therefore not subject to the restrictions of Title II. The statute defines "place of public accommodation" as follows:

 
Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
 
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
 
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment ; and
 
(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

 42 U.S.C. § 2000a(b) (emphasis added). Plaintiffs contend that the Boy Scouts is a "place of public accommodation" by virtue of § 2000a(b)(3) because it is a "place of entertainment." Defendants argue that the Boy Scouts is not a "place," is not an "accommodation," and does not provide "entertainment." Defendants also argue that Congress specifically excluded the Boy Scouts from the reach of Title II.

 1. "Place"

 Initially, the Court addresses defendants' argument that the Boy Scouts cannot be a place of public accommodation because it is not a "place" but rather is a membership organization. Place, according to defendants, refers to a "physical facility." Boy Scout groups, on the other hand, can meet in a variety of places, and the groups are defined by membership rather than by a particular facility.

 In support of this argument, defendants point out that the specific types of facilities identified in Title II all are centered around definite physical places of business. Defendants also rely on several cases which have found that state statutes which prohibit discrimination by a "place of public accommodation" do not apply to organizations which do not conduct business from a specific physical "place." See United States Jaycees v. Massachusetts Commission Against Discrimination ("MCAD"), 391 Mass. 594, 463 N.E.2d 1151 (1984); United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983); United States Jaycees v. Bloomfield, 434 A.2d 1379 (D.C. Ct. App. 1981). *fn9"

 Plaintiffs respond by emphasizing that Title II must be read broadly so as to effectuate its purpose of removing "the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public." Daniel v. Paul, 395 U.S. 298, 307-08, 89 S. Ct. 1697, 1702, 23 L. Ed. 2d 318 (1969). *fn10" Plaintiffs also cite cases which have interpreted state public accommodation statutes broadly to apply beyond specific physical facilities. See United States Jaycees v. McClure, 305 N.W.2d 764 (Minn. 1981); National Organization for Women v. Little League Baseball, Inc., 127 N.J. Super. 522, 318 A.2d 33 (1974), aff'd mem., 67 N.J. 320, 338 A.2d 198 (1974). *fn11"

 As the Little League court observed, an accommodation can have a moving situs and still be considered a "place," as exemplified by a train. 318 A.2d at 37. Even membership organizations provide their goods or services at "places," although those places may be mobile or shifting. Thus the Little League Baseball organization has a "place" which "is obviously the ball field at which tryouts are arranged, instructions given, practices held and games played." Id. In the case of a more amorphous organization like the Jaycees, the "facility" is not only the headquarters but also "the sometimes door-to-door, company-to-company solicitation of members for the organization, and . . . the oft-shifted sites at which the affiliated local chapters hold their meetings during part of which a sales approach is usually made to prospective members invited to the meeting for that purpose." McClure, 305 N.W.2d at 772. As the McClure court further noted, "A variety of enterprises that serve the public do not extend their goods and privileges from the same physical location (e.g., electricians, locksmiths, learning-at-home courses), and often they do not own or lease the sites at which they offer their goods and privileges." Id.13

 For this reason, it simply would not make sense to interpret Title II as applying only to a physical facility rather than to a business or organization, which of necessity inhabits physical facilities, whether they be fixed and unitary or shifting and multiple. *fn14" Defendants assert that "A Tiger Club [sic: Cub] group meets where it will: a church basement, a private house, or a backyard may be a Tiger Cub group meeting on a transitory basis." (Mem. in Support at 11.) Defendants do not argue that a church basement, a house, or a backyard is not a "place." Furthermore, it would be impossible in practice to draw a distinction between "places," which defendants argue are covered by Title II, and "membership organizations," which defendants argue are not covered by Title II. Many establishments are membership organizations which center their activities around certain definable places. When exclusionary practices of such organizations have been challenged pursuant to Title II, courts generally have focused more on the membership practices of the organizations (in particular, the selectivity of the membership process) than on the characteristics of the physical facilities involved (such as openness to the public). See, e.g., Durham v. Red Lake Fishing and Hunting Club, Inc., 666 F. Supp. 954 (W.D. Tex. 1987); People of State of New York v. Ocean Club, Inc., 602 F. Supp. 489 (E.D.N.Y. 1984); United States v. Slidell Youth Football Association, 387 F. Supp. 474 (E.D. La. 1974). In other words, the issue is generally framed in terms of the extent of public access to membership in the organization rather than the access of the public, as consumers, to the establishment's physical facilities.

 Thus the distinction advocated by defendants would be arbitrary, unworkable in practice, and contrary to the statute's remedial purposes. *fn15" The Court finds no basis for excluding from Title II's reach organizations which do not operate a unitary, definite "place" of business but rather carry out their activities in a large number of temporary locations. Accordingly, the Court rejects defendants' argument that the Boy Scouts cannot, as a matter of law, be subject to the provisions of Title II because it is not a "place."

 2. "Accommodation"

 In order for an establishment to constitute a "place of public accommodation," it must fit within one of the categories described in 42 U.S.C. § 2000a(b). See supra [Slip Op.] at 8. Plaintiffs contend that the Boy Scouts is a "place of entertainment" and thus fits within § 2000a(b)(3).

 Defendants dispute this characterization, arguing that the function of the Boy Scouts is education rather than entertainment. Plaintiffs respond by emphasizing the language in the Boy Scouts flyers, which seek to attract new members by emphasizing that members "have fun." (See Appendix A.) Plaintiffs also point out that "places of entertainment" for purposes of Title II include establishments which provide participatory recreational activities as well as those which provide passive entertainment. See Daniel, supra, 395 U.S. at 306-08, 89 S. Ct. at 1701-02; Miller v. Amusement Enterprises, Inc., 394 F.2d 342, 350-51 (5th Cir. 1968); Brown v. Loudoun Golf & Country Club, Inc., 573 F. Supp. 399, 402 (E.D. Va. 1983); Slidell, supra, 387 F. Supp. at 482.

 In light of the Boy Scouts' own emphasis on recreational activities and having "fun," as emphasized in the Boy Scouts literature attached to the complaint, the Court cannot conclude as a matter of law that the Boy Scouts is not a "place of entertainment."

 Defendants further argue that the Boy Scouts is not a "place of public accommodation" because a "role in a membership organization" is not an "accommodation." Defendants rely on Webster's Third New International Dictionary, which defines "accommodation" as "lodging, food, and services (as at a hotel) or seat, berth, or other space occupied together with services available (as on a train) . . . ."

 For reasons beyond the principle that "one of the surest indexes of a mature and developed jurisprudence [is] not to make a fortress out of the dictionary," Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.) (L. Hand, J.), aff'd, 326 U.S. 404, 66 S. Ct. 193, 90 L. Ed. 165 (1945), the Court finds that a role in a membership organization does constitute an "accommodation" for purposes of Title II. Even under the definition proffered by defendants, "accommodation" encompasses the provision of services, and roles in a membership organization provide members with certain privileges and services in exchange for the members' contributions of time, money or other support. To exclude membership organizations from Title II would leave open a facile and obvious method for an otherwise covered establishment to continue discrimination in avoidance of Title II's strictures -- the establishment would need only to reconstitute itself as a membership organization and grant memberships only to members of a certain race, sex, creed, etc. Indeed, many establishments attempted to evade Title II through this very means, but the resulting case law makes it clear that Title II does apply to membership organizations. See, e.g., Daniel, supra, 395 U.S. at 302-08, 89 S. Ct. at 1699-1702 (recreational facility which instituted membership feature following passage of Civil Rights Act of 1964 was place of public accommodation); Slidell Youth, supra, 387 F. Supp. at 482-83 (athletic association which in 1972 dropped white-only requirement and instituted restrictive membership clause was place of public accommodation). Cf. United States v. Lansdowne Swim Club, 894 F.2d 83 (3d Cir. 1990) (athletic membership club was place of public accommodation); Durham, supra, 666 F. Supp. at 959-60 (recreational membership club was place of public accommodation); Ocean Club, supra, 602 F. Supp. at 494-96 (membership club was place of public accommodation); Brown, supra, 573 F. Supp. 399 (E.D. Va. 1983) (golf membership club was place of public accommodation). *fn16"

 Defendants further argue that at least certain roles in the Boy Scouts, such as Cubmaster and Scoutmaster, are not open generally to the public but rather are open only to individuals who are good role models. Therefore, defendants contend, these specific roles cannot be "accommodations," and in turn no roles in the Boy Scouts can be "accommodations." This argument suffers from at least two flaws. First, the question of whether a service is open to the general public does not affect whether it is an "accommodation," but rather affects whether it is a "place of public accommodation" and whether it is a "private club" (see infra slip op. at 22-31). Second, the fact that some aspects of an organization may not be open to the general public does not remove the entire organization from the scope of Title II. In fact, the converse is true; if part of an establishment is covered by Title II, the entire establishment is subject to its provisions. See Daniel, supra, 395 U.S. at 305, 89 S. Ct. at 1701; Lansdowne, supra, 894 F.2d at 87.

 The Court finds that defendants have not established, as a matter of law, that the Boy Scouts is not an "accommodation" for purposes of Title II.

 3. Congressional Intent

 Defendants also argue that Congress intended to exempt the Boy Scouts from the coverage of Title II. Central to this argument is the language of the 1916 act which chartered the Boy Scouts. That statute provided that a purpose of the Boy Scouts was to train boys "using the methods which were in common use by Boy Scouts on June 15, 1916." 36 U.S.C. § 23. Because the Boy Scouts had stated as early as 1911 that "no boy can grow into the best kind of citizenship without recognizing his obligation to God" (see Appendix C), defendants argue that Congress gave its stamp of approval to the Boy Scouts' exclusion of individuals who could not subscribe to its religious principles. To now interpret Title II as requiring the Boy Scouts to surrender this policy would, defendants maintain, be a finding that Title II implicitly repealed that portion of the 1916 charter which endorsed the methods practiced by the boy Scouts in 1916. Because implicit repeals are not favored, Title II should not be interpreted in this manner.

 In support of this argument, defendants rely on Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974). In Morton, the Supreme Court found that the anti-discrimination provisions of the Equal Employment Act of 1972, 42 U.S.C. § 2000e et seq., did not override an employment preference created by the Indian Reorganization Act of 1934, 25 U.S.C. § 472, for Native Americans in the Bureau of Indian Affairs. The Court stated that "repeals by implication are not favored" and noted that the employment preference was "a specific provision applying to a very specific situation." 417 U.S. at 549-50, 94 S. Ct. at 2482-83. Accordingly, absent a clear intent to the contrary, the employment preference was not nullified by the more general anti-discrimination statute. 417 U.S. at 551, 94 S. Ct. at 2483.

 The argument that Congress sanctioned the Boy Scouts' discriminatory policy is too attenuated to permit the extension of Morton to this case. The 1916 charter is not "a specific provision applying to a very specific situation" with respect to the Boy Scouts' exclusion of individuals who did not believe in God. There is no indication that in recognizing the purposes of the Boy Scouts as including the use of methods which were in use in 1916, Congress intended to adopt, or was even aware of, the Boy Scouts' policy concerning religion. *fn17" Congress was not creating a new organization; it was merely providing official recognition to an existing organization. As the Little League court noted in an analogous context:

 
The purpose clause of the Little League charter does not signify a congressional policy decision that only boys should play baseball. The statute rather represents only a determination that Little League Baseball, Inc., such as it is, should have a national charter. . . . Moreover, the ascription of any purpose or policy beyond the mere grant of a federal charter would be incompatible with Congress' limited power to create corporations.

 The Boy Scouts unsuccessfully made a similar argument in Curran, supra, in which the court found that California's Unruh Act prohibited the Boy Scouts from excluding homosexual men. The Court held that the language of the charter did not sanction such discrimination and emphasized that in granting the charter Congress gave the Boy Scouts the power to "make and adopt by-laws, rules and regulations not inconsistent with the laws of the United States, or any State thereof . . . ." 195 Cal. Rptr. at 339, citing 36 U.S.C. § 22. Similarly, in Little League, the court stated: "The New Jersey statute as applied does not vitiate the charter of incorporation; it merely regulates how Little League shall conduct its activities in the State of New Jersey in respect to exclusion of participants on the basis of sex. In this regard it may be noted that the charter's objects are required to be pursued 'in all lawful ways.'" 318 A.2d at 41.

 The Court concludes that the 1916 charter does not provide statutory authorization for the Boy Scouts to discriminate on the basis of religious belief, and that even assuming such an authorization can be inferred, it does not survive the enactment of Title II. *fn19"

 B. Private Club

 Title II explicitly excludes "private clubs" from coverage as places of public accommodation:

 
The provisions of this subchapter shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b) of this section.

 42 U.S.C. § 2000a(e). Defendants argue that the Boy Scouts is a private club and is thus exempt from the provisions of Title II. *fn20"

 In determining whether an organization is a private club for purposes of Title II, courts have weighed a number of factors. In United States v. Lansdowne Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989), aff'd, 894 F.2d 83 (3d Cir. 1990), the court reviewed the case law and summarized the relevant factors as follows:

 
1. The genuine selectivity of the group in the admission of its members.
 
2. The membership's control over the operations of the establishment.
 
3. The history of the organization.
 
4. The use of the facilities by nonmembers.
 
5. The purpose of the club's existence.
 
6. Whether the club advertises for ...

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