or goods, but from the fellowship among Scouts and the adult volunteers.
In analytical terms, the Court also believes that excluding an organization like the Boy Scouts, whose activities and memberships lack a tie to the sorts of facilities cited in Title II as places of public accommodation, represents a prudent stopping point. For where the benefits of membership in an organization flow primarily, if not exclusively, from the interpersonal association among the people who belong to the organization rather than the enjoyment of the physical accoutrements of a particular facility, the rival interests implicated by exclusion of an individual from the group become more difficult to resolve. As set forth above, when Congress enacted Title II, it sought to ensure that everyone, regardless of their race, color, religion, or national origin, would have access to the public facilities which were necessary to everyday travel, sustenance, and recreation. Perhaps not so differently from the Boy Scouts today, some opponents of the act contended that integration of such public accommodations would interfere with their desire to associate. with persons of their own choosing. See, e.g., 110 Cong. Rec. 12700 (June 15, 1964) (remarks of Sen. Byrd) ("The right to exclusiveness, like the right to privacy, is essential to freedom, and no one is legally aggrieved by the exercise of that right."); see also Additional Views on H.R. 7152 of Hon. William M. McCulloch, et al., 88th Congress, 2d Sess. (1964), reprinted in 1964 U.S.C.C.A.N. 2487, 2495 (rejecting this line of argument). To whatever degree Congress might have found the assertion of such an interest to be valid, plainly it concluded that the interest in eradicating invidious discrimination in places of public accommodation outweighed any associational interest the owners and patrons of such establishments might assert. See id. However, there is no evidence that Congress struck the same balance vis a vis the membership organization which is divorced from any particular facility or location. In the context of such an organization, where the selection of one's companions is less fortuitous and (at least from the Boy Scouts' point of view) depends to a significant degree upon the individual's affinity with the group's values and goals, the competing interests raise more nettlesome questions.
Of course, the Court is fully aware that Title II's private club exemption and the First Amendment defenses which are frequently raised in public accommodations cases supply a vehicle for resolution of these competing concerns. Indeed, the Boy Scouts has invoked these very defenses here, and the Court could and would reach them if it were necessary to do so. However, given the resolution of this case, the Court expresses no opinion on the merits of these defenses. The Court merely cites the clash between individual and associational rights which is highlighted in the context of this case -- where the benefits of membership result exclusively from interpersonal relationships rather than the use of particular facilities -- as yet another signal that entities like the Boy Scouts are almost certainly beyond the realm of establishments which Congress intended to reach through Title II.
The terms of Title II simply do not permit application of its provisions to membership organizations like the Boy Scouts, which do not operate a facility of the kinds referenced in the statute. Absent congressional action which would bring membership organizations per se within the scope of the federal public accommodations statute, the Boy Scouts may select its membership according to its own criteria and conscience.
V. CONCLUSIONS OF LAW
1. The Court has jurisdiction over this case pursuant to 42 U.S.C. § 2000a-6 and 28 U.S.C. § 1331.
2. Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a provides, in relevant part, as follows:
(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.
(b) 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:
. . .
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; . . .
. . . .
(c) The operations of an establishment affect commerce within the meaning of this subchapter if . . . (3) in the case of an establishment described in paragraph (3) of subsection (b) of this section, it customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment which move in commerce; . . . . For purposes of this section, "commerce" means travel, trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia and any State, or between any foreign country or any territory or possession and any State or the District of Columbia, or between points in the same State but through any other State or the District of Columbia or a foreign country.
. . . .
3. In order to qualify as a "place of public accommodation" within the scope of Title II, an establishment must have a substantial connection to a concrete facility or location.
4. Membership organizations per se, which do not operate from or supply access to a particular facility or location, do not qualify as "places of public accommodation" within the meaning of Title II.
5. Defendants BSA and the Council constitute neither a "place of entertainment" nor any other kind of "place of public accommodation" within the scope of Title II, as they do not operate from or avail their members of access to a particular facility or location.
6. Accordingly, defendants are entitled to final judgment in their favor on both counts of plaintiffs' first amended complaint.
For all of the reasons set forth above, upon review of the relevant authorities and the evidence presented at trial, the Court concludes that because defendants Boy Scouts of America and Boy Scouts of America West Suburban Council No. 147 do not operate from or provide access to particular locations or facilities, they do not qualify as "places of entertainment" or any other kind of "places of public accommodation" within the meaning of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a. Accordingly, the Court enters final judgment in favor of the defendants on both counts of plaintiffs' first amended complaint.
ILANA DIAMOND ROVNER
UNITED STATES DISTRICT JUDGE
Dated: March 13, 1992