Meader's comment about Title V, defendants infer that Congress as a whole intended to include the Boy Scouts in the "private club" clause of Title II.
The Court cannot agree. Although statements of individual legislators may have some relevance to statutory interpretation, they are by no means controlling. See Weinberger v. Rossi, 456 U.S. 25, 35, 102 S. Ct. 1510, 1517, 71 L. Ed. 2d 715 (1982); Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118, 100 S. Ct. 2051, 2061, 64 L. Ed. 2d 766 (1980); Chrysler Corp. v. Brown, 441 U.S. 281, 311, 99 S. Ct. 1705, 1722, 60 L. Ed. 2d 208 (1979); United States v. O'Brien, 391 U.S. 367, 383-85, 88 S. Ct. 1673, 1682-83, 20 L. Ed. 2d 672 (1968). "What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it." O'Brien, 391 U.S. at 384, 88 S. Ct. at 1683. Here, the passage cited by defendants is simply too isolated and indirect to constitute an "express exemption" for the Boy Scouts from Title II's requirements. Particularly in light of the fact that the factors identified by the Title II precedents appear at this stage of the case to exclude, rather than include, the Boy Scouts from the private club exemption, the Court is unwilling to rely on Representative Meader's remark to hold that the Boy Scouts is exempt from Title II as a matter of law.
If the Boy Scouts were not a place of public accommodation, or if it were a private club, Title II would not only not prevent the Boy Scouts from excluding individuals who do not believe in God, it would also not prevent the Boy Scouts from engaging in other forms of discrimination as well. For instance, the Boy Scouts could exclude members of a racial minority or members of a particular sect of Christianity. Under such circumstances, the case would essentially be unchanged. If the visceral reaction would be different, it would serve only to demonstrate the persistence and depth of discrimination against atheists. See infra [Slip Op.] at 44-46. To argue that Title II does not prohibit the Boy Scouts from discriminating against atheists is to argue that Title II does not prohibit any type of discrimination by the Boy Scouts. As the Court has described above, defendants have not shown that the Boy Scouts are not subject to Title II. Further, if there is a principle which specifically allows the Boy Scouts to discriminate against individuals who do not believe in God, it must be that individuals who believe in God should not be required to associate with individuals who do not. That issue concerns not the scope of Title II, but the scope of the First Amendment. It is to the constitutional issues which are thus raised that the Court now turns.
IV. FREEDOM OF ASSOCIATION AND FREE EXERCISE
Defendants argue that application of Title II to the Boy Scouts would infringe on members' freedom to associate, which is guaranteed by the First Amendment to the United States Constitution.
There are two types of freedom of association which have been afforded constitutional protection -- freedom of intimate association and freedom of expressive association. See Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S. Ct. 1940, 1945, 95 L. Ed. 2d 474 (1987) (application of California's Unruh Act to Rotary Clubs does not violate First Amendment); Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S. Ct. 3244, 3249-50, 82 L. Ed. 2d 462 (1984) (application of Minnesota's Human Rights Act to Jaycees does not violate First Amendment). Defendants argue that application of Title II to the Boy Scouts would infringe on both of these interests. Defendants also argue that such application would violate their First Amendment right to freely exercise their religion.
A. Intimate Association
The Supreme Court has recognized that the Bill of Rights, in order to "secure individual liberty," must afford protection from unjustified governmental interference to "certain kinds of highly personal relationships." Roberts, 468 U.S. at 618, 104 S. Ct. at 3250. Most obvious among those relationships are those that involve family bonds, such as marriage, procreation, education, and cohabitation with relatives. Rotary International, 481 U.S. at 545, 107 S. Ct. at 1945-46; Roberts, 468 U.S. at 619, 104 S. Ct. at 3250. This is because "family relationships, by their nature, involve 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 619-20, 104 S. Ct. at 3250.
Although freedom of intimate association may extend beyond family relationships, it generally includes only relationships which, like family relationships, "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." Id. at 620, 104 S. Ct. at 3250. In determining the protection provided to a particular type of association, the Court must assess "where that relationship's objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments." Id. at 620, 104 S. Ct. at 3251. See also Rotary International, 481 U.S. at 546, 107 S. Ct. at 1946. Factors which are relevant to this assessment include "size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent." Roberts, 468 U.S. at 620, 104 S. Ct. at 3251. See also Rotary International, 481 U.S. at 546, 107 S. Ct. at 1946.
In arguing that membership in the Boy Scouts is a form of intimate association protected by the Constitution, defendants contend that such membership involves the education of children. Defendants point out that in Roberts, the Court cited, as examples of cases recognizing that "highly personal relationships" must be protected from unjustified governmental interference, the cases of Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 573, 69 L. Ed. 1070 (1925), in which the Court held that compulsory attendance at public schools interfered with the liberty to upbring and educate one's children, and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042 (1923), in which the Court invalidated a statute making it illegal to teach a foreign language to any child who had not yet completed the eighth grade. However, in noting that intimate association includes relationships which attend the "raising and education of children," Roberts, 468 U.S. at 619, 104 S. Ct. at 3250, the Supreme Court did not say that every form of association which in some way involves education is protected from all governmental intrusion.
The Roberts opinion must be read as a whole, and its emphasis on standards such as the size, purpose and selectivity of relationships cannot be ignored.
This is not a case where the government has directly impinged on the interests of parents or guardians to educate their children. Title II, as plaintiffs wish to apply it, does not affect the children's schooling, and to the extent that the Boy Scouts may have an educational function in addition to traditional schooling, Title II does not forbid a parent from ensuring that a child is exposed to that function. Title II would merely require that to the extent the Boy Scouts educates children, it do so without excluding certain children on the basis of criteria which Congress has determined to be improper.
In arguing that Title II infringes on rights to intimate association, defendants do not even discuss the specific factors recognized by the Supreme Court as governing the determination of whether a particular relationship constitutes intimate association. Plaintiffs, on the other hand, argue that an examination of those factors precludes any finding that the Boy Scouts involve intimate association. As alleged in the complaint, the Boy Scouts has over 4,000,000 members in the United States. Furthermore, as evidenced by the Boy Scouts literature attached to the complaint, the Boy Scouts is not selective in its admission of new members. (See supra [Slip Op.] at 24-28.) Assuming the truth of the complaint's allegations, the Boy Scouts is thus very similar in structure to other groups which have been held not to involve intimate association. See Rotary International, 481 U.S. at 547, 107 S. Ct. at 1947; Roberts, 468 U.S. at 620-21, 104 S. Ct. at 3251 (Jaycees); Curran, supra, 195 Cal. Rptr. at 336-37 (Boy Scouts). Accordingly, the Court cannot find as a matter of law that the Boy Scouts involves relationships of such a highly personal nature that application of Title II would violate members' rights of intimate association.
B. Expressive Association
1. Engagement in Expressive Association
The right to associate for expressive purposes stems from an "individual's freedom to speak, to worship, and to petition the government for the redress of grievances[, which] 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 622, 104 S. Ct. at 3252. In Roberts, the Court held that membership in the Jaycees involves rights of expressive association, based on the Jaycees' substantial activities which constitute "protected expression on political, economic, cultural, and social affairs." 468 U.S. at 626, 104 S. Ct. at 3254. These activities include the "taking of public positions on a number of diverse issues, . . . [and] engage[ment] in a variety of civic, charitable, lobbying, fund-raising, and other activities worthy of constitutional protection under the First Amendment." Id. See also 468 U.S. at 622, 104 S. Ct. at 3252.
Defendants argue that application of Title II to the Boy Scouts "not only would . . . require a change in the Boy Scouts' creed that 'no member can grow into the best kind of citizen without recognizing an obligation to God' . . ., it would restrict Boy Scouts' ability to 'exclude individuals with ideologies or philosophies different from those of existing members.'" (Reply Mem. at 8-9.)
This argument begs the question. Clearly application of Title II restricts the ability of a place of public accommodation to exclude individuals with different religious philosophies, just as it restricts the ability to exclude individuals on other grounds, such as race. However, while "invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, . . . it has never been accorded affirmative constitutional protections." Norwood v. Harrison, 413 U.S. 455, 470, 93 S. Ct. 2804, 2813, 37 L. Ed. 2d 723 (1973). By its very terms, Title II always operates to prevent exclusion of people who are different. The more fundamental question is whether the particular organization engages in expressive activity which would be unduly infringed by application of Title II.
Defendants do not call the Court's attention to specific expressive activities which the Boy Scouts conducts -- and indeed, consideration of such activities would be of dubious merit in the context of a motion to dismiss.
Furthermore, the Boy Scouts' own literature states that "partisan political activities are prohibited." (Appendix B.) To support the assertion that the Boy Scouts involves expressive association, defendants merely argue:
The Boy Scout movement is designed and intended to transmit moral, spiritual, and cultural values. One of the purposes of the Scouting program is to help boys become honorable men. The members of Boy Scouts believe that this objective is best accomplished when a boy is taught to believe in God and to acknowledge a duty owed to a Supreme Being.
. . . Teaching boys to become men by insisting on recognition of a duty to God is expressive association "intended to develop good morals, reverence, patriotism, and a desire for self-improvement."