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WELSH v. BSA

March 13, 1992

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 #147, Defendants.


ROVNER


The opinion of the court was delivered by: ILANA DIAMOND ROVNER

MEMORANDUM OPINION AND ORDER

 I. INTRODUCTION

 This case comes before the Court after trial and on the parties' post-trial proposed findings of fact and memoranda of law. The issue posed is whether the Boy Scouts of America properly may exclude from membership persons who are unwilling to profess a belief in and duty to a supreme being under Title II of the Civil Rights Act of 1964, which prohibits places of public accommodation from discriminating on the basis of religion. Upon review of the statute and consideration of the evidence presented at trial, the Court concludes that the Boy Scouts of America does not qualify as a "place of public accommodation" within the reach of Title II. Accordingly, the Court enters final judgment in favor of the defendants on both counts of the amended complaint.

 II. BACKGROUND

 Plaintiff Mark G.A. Welsh and his father, Elliot A. Welsh, have sued the Boy Scouts of America ("BSA") and the Boy Scouts of America West Suburban Council No. 147 (the "Council") -- collectively, the "Boy Scouts" -- under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a ("Title II"). The Boy Scouts has refused to admit Mark into its "Tiger Cub" and "Cub Scout" programs because Mark is unwilling to subscribe to a duty to God. Plaintiffs maintain that the Boy Scouts constitutes a place of public accommodation under Title II because its emphasis upon recreational and fun activity renders it a "place of entertainment" within the scope of the statute; if true, the organization cannot discriminate on the basis of religion and exclude atheists and agnostics. Plaintiffs' complaint asks the Court to enter an injunction barring BSA from excluding individuals who do not believe in a supreme being and requiring the Council to admit Mark Welsh as a youth member and his father as his adult partner. The Boy Scouts argues that (1) it does not qualify as a "place of public accommodation" within the coverage of Title II; (2) that even if Title II does apply, the Boy Scouts falls within the private club exemption to the statute's strictures; and (3) that requiring the Boy Scouts to admit individuals unwilling to profess a belief in God would infringe upon the rights of intimate and expressive association which its members enjoy under the First Amendment.

 Defendants moved to dismiss the complaint at the outset of the litigation, raising each of the arguments set forth above. The Court denied that motion in a memorandum opinion dated August 9, 1990. Welsh v. Boy Scouts of America, 742 F. Supp. 1413 (N.D. Ill. 1990) (Rovner, J.). In that opinion, the Court rejected the Boy Scouts' argument that it could not, as a matter of law, be deemed a "place of public accommodation" within the scope of Title II. 742 F. Supp. at 1421, 1423. *fn1" The Court also declined to find, as a matter of law, that the Boy Scouts involves relationships so personal that the forced admission of atheist or agnostic individuals pursuant to Title II would violate the First Amendment right of intimate association. Id. at 1430. Similarly, the Court declined to rule as a matter of law that the admission of such individuals would interfere with the First Amendment right of expressive association or the right to free exercise of religion. Id. at 1435, 1436. The Court reiterated in the conclusion of its opinion that the Boy Scouts' defenses implicated questions of fact which could not be resolved on the complaint alone. Id. at 1436.

 After the parties completed their discovery, plaintiffs moved for summary judgment or, in the alternative, for partial summary judgment finding that they had established a prima facie case of cognizable discrimination under Title II. The Boy Scouts did not file its own motion for summary judgment. Essentially, plaintiffs argued that the undisputed facts established the inverse of each of the arguments defendants had raised in seeking dismissal of the complaint, i.e., that the Boy Scouts was in fact a place of public accommodation, that it did not qualify for the private club exemption to the statute, and that application of Title II to the organization would not impermissibly infringe upon the rights of intimate and expressive association. The Court rejected these arguments as well, concluding that fundamental disputes as to the true nature of the Boy Scouts precluded summary judgment on any aspect of the case:

 This case is to a great extent one about the Boy Scouts' nature, its conduct, its true purposes, and its methods of achieving them. Only in resolving these factual questions can the Court decide the particular issues posed by this suit: Is the Boy Scouts a public accommodation subject to the provisions of Title II? Is it by nature so private that it may be deemed exempt from the statute? Is the nature of the association among its members sufficiently intimate or expressive that the admission of agnostics or atheists would intrude upon the members' First Amendment freedoms? In part, these are legal inquiries guided by a substantial body of case law. See Welsh, 742 F. Supp. 1413. At the same time, however, their determination requires a decision as to which evidence to credit -- a decision which generally must be reserved for trial. Plaintiffs, for example, rely upon evidence (much of it drawn from Boy Scouts literature) which emphasizes the fun, recreational aspects of the Boy Scouts. Based upon this evidence, they argue that the organization furnishes entertainment and thus qualifies as a public accommodation. Defendants, on the other hand, point to evidence which indicated that the recreational aspects of the Boy Scouts must be viewed simply as a means to an end -- the instillment of important social values in male youths. Whose view of the Boy Scouts is correct, and where the organization fits on the spectrum of institutions to which Title II may or may not apply, cannot be resolved upon a cold record. The literature, affidavits, and deposition testimony which the parties have submitted to the Court adequately support their respective views of the Boy Scouts; but only in hearing live testimony, tested by cross-examination, can the Court finally decide whose view to credit.

 Welsh v. Boy Scouts of America, No. 90 C 1671, Mem. Op. at 8-9, 1991 U.S. Dist. LEXIS 5979, 1991 WL 78179 (N.D. Ill. May 3, 1991) (Rovner, J.).

 The case proceeded to trial on June 10, 1991, and the Court heard testimony over the course of six days. At the conclusion of the trial, the Court requested the parties to submit revised proposed findings of fact as well as post-trial memoranda. The post-trial briefing was completed on August 23, 1991.

 The case is now ripe for final decision from the Court. Having heard and reviewed the evidence presented at trial, having considered the express provisions of Title II, and having carefully reviewed once again the case law applying the federal statute and comparable state provisions, the Court finds the case to be resolved on the threshold question of whether the Boy Scouts constitutes a place of public accommodation as that term is defined in the statute. Based upon the evidence which reveals the Boy Scouts to be a membership organization whose benefits flow primarily, if not exclusively, from the interpersonal associations among its members rather than from a tangible facility or "source of entertainment" which has moved in interstate commerce, the Court concludes that the Boy Scouts does not constitute a "place of entertainment" within the scope of Title II's prohibition of discrimination in places of public accommodation.

 III. FACTS

 A. Stipulated Facts

 The parties have stipulated to a number of background facts regarding the nature of the Boy Scouts and the events and policies which led to this litigation. These are summarized below and, pursuant to the parties' stipulation, the Court includes them among its findings of fact. See Stephenson v. United States, 771 F.2d 1105, 1107 (7th Cir. 1985). *fn2"

 1. Plaintiff Mark Welsh is the minor child of plaintiff Elliott A. Welsh and Donna Arsenoff. He lives with his parents in Hinsdale, Illinois. At the time this litigation was instituted, Mark was seven years old, was in the first grade, and desired to join a Tiger Cub Group.

 2. Elliott Welsh is a resident of Hinsdale, Illinois. At the time this litigation was instituted, Elliott Welsh desired to join a Tiger Cub Group as his son's adult partner.

 3. Boy Scouts of America ("BSA") is a congressionally chartered corporation, pursuant to 36 U.S.C. §§ 21-29, offering the Tiger Cub, Cub Scout, Boy Scout and Explorer programs to its membership.

 4. The West Suburban Council Boy Scouts of America ("West Suburban Council") is a not-for-profit Illinois corporation, chartered by BSA to make sure that the general principles of advancement are understood and carried out in the local area, to make Scout training available, and to supervise member groups in such a way as to ensure strict adherence to BSA requirements and standards. Pack 56 in Burr Ridge, Illinois is one of the Scouting groups supervised by the West Suburban Council. Hinsdale and Burr Ridge, Illinois are within the jurisdiction of the United States District Court for the Northern District of Illinois.

 5. BSA is part of the world-wide Scout movement founded by Robert Baden-Powell in England in 1907. The World Organization of the Scout Movement was established in 1922. The World Organization now involves national organizations in approximately 130 countries, including BSA, all of which agree to follow and are governed by the Constitution and By-laws of the World Organization of the Scout Movement.

 6. The Constitution and By-Laws of the World Organization of the Scout Movement sets forth the three principles of duty to God, duty to others, and duty to self to which all members world-wide adhere. The Constitution requires all members to adhere to a Scout Promise and Scout Law which reflect these principles.

 7. BSA requires as a condition of membership that all applicants recognize a duty to God.

 8. Scouting is conducted through Scout packs, troops, and posts.

 9. Each pack, troop, post, and local council is self-financed and is governed by the Constitution and By-laws of the World Organization of the Scout Movement and the Rules and Regulations of the Boy Scouts of America.

 10. BSA is a bona fide non-profit organization. Its volunteer leaders serve without compensation or material reward of any kind.

 11. BSA was incorporated in the District of Columbia in 1910 and published its first Handbook in 1911. The BSA Scout Oath or Promise for Boy Scouts has remained unchanged from that date:

 On my honor I will do my best to do my duty to God and my country and to obey the Scout Law, to help other people at all times, to keep myself physically strong, mentally awake and morally straight.

 12. BSA's Scout Law provides:

 A Scout is: . . . Trustworthy.

 . . . Loyal.

 . . . Helpful.

 . . . Friendly.

 . . . Courteous.

 . . . Kind.

 . . . Obedient.

 . . . Cheerful.

 . . . Thrifty.

 . . . Brave.

 . . . Clean.

 . . . Reverent.

 13. BSA is divided into geographic regions. BSA charters local councils, which are separate not-for-profit corporations, to further Scouting in a given geographic area. Local councils are divided into districts. Districts are overseen by a volunteer committee. The principal duty of each district is to work with sponsoring groups in organizing and supporting packs, troops, and posts. BSA charters sponsoring groups to maintain packs, troops, or posts.

 14. Every sponsoring organization appoints one delegate to a local council, which elects an executive board. Each local council has at least three delegates to the National Council. The National Council elects the National Executive Board which sets national policy for BSA. The National Council furthers Scouting nationally.

 15. Each council also employs a small number of professional Scouters to advise and guide its volunteers. For example, West Suburban Council employs approximately six professionals for its approximately 1,600 volunteer leaders.

 16. The sponsoring group is charged with providing suitable facilities for meetings and activities, adult leaders, and a Chartered Organization Representative who acts as liaison between the sponsoring group and the pack. The adult leaders are all volunteers who register as members of BSA.

 17. Cub Scouting was created as an outgrowth of the Boy Scouting program and became a permanent program of BSA in 1930.

 19. In addition, the parent of a prospective Cub Scout must sign the boy's application, indicating that the parent agrees to help with the boy's advancement, to participate in other den and pack activities, to attend monthly pack meetings, and to assist den and pack leaders.

 20. It is the leader's responsibility to teach each boy the Cub Scout ideals, as expressed in the Cub Scout Promise, the Law of the Pack, and the Cub Scout Motto. The Cub Scout Promise reads as follows:

 I, (name), promise to do my best

 To do my duty to God and my country

 To help other people, and

 To obey the Law of the Pack.

 21. The Law of the Pack reads as follows:

 The Cub Scout follows Akela. *fn3"

 The Cub Scout helps the Pack go.

 The Pack helps the Cub Scout grow.

 The Cub Scout gives goodwill.

 22. The Cub Scout motto is "Do Your Best."

 23. The Cub Scouting program takes place in three principal venues. The individual Cub Scout conducts many activities at his home with his family; the den, consisting of six to eight boys, generally meets at the home of the adult den leader, usually a parent of one of the boys in the den; and the Cub Scout pack, comprising four to six dens, typically meets in a room provided by the sponsoring organization, such as a church or civic organization.

 24. Den meetings are generally held weekly. Pack meetings are held once a month.

 25. Some ceremonies often held during den meetings are progress toward ranks ceremonies, Denner Installation ceremonies (recognizing the appointment of new boy leaders), and special recognition ceremonies, which acknowledge special achievements and activities participated in by the boys.

 26. A typical pack meeting is attended by the boys in each den and their families, den and pack leaders, and an occasional guest specially invited by the leaders. In order to encourage family attendance, pack meetings are held in the early evening. The Cub Scouts assemble as dens, with their families sitting behind them.

 27. The pack meeting typically commences with a ceremony led by the Cubmaster, the principal adult leader of the pack, which ordinarily includes a recitation of the Cub Scout Promise.

 28. Most pack meetings feature a recognition period in which Bobcat, Wolf, Bear, and Webelos badges and other symbols of achievement are presented. A formal ceremony, involving the Cub Scout's family, surrounds the presentation of each badge.

 29. This recognition period is often followed by a demonstration conducted by the Webelos dens of projects performed or skills acquired during the prior month. Games involving the parents, Cub Scouts, and siblings may also follow.

 30. Cub Scouts are encouraged to wear Cub Scout uniforms to meetings of their den and pack. The colors of the Cub Scout uniform have symbolic meaning. The blue stands for truth and spirituality, steadfast loyalty, and the sky above; the gold for warm sunlight, good cheer, and happiness.

 32. The Tiger Cubs program is a relatively new BSA program designed for first-grade boys and their adult partners. Tiger Cub Groups, consisting of four to eight boy and adult pairs (or teams), are affiliated with Cub Scout ...


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