Boy Scouts may exclude gays and atheists, California court holds.

The California Supreme Court handed the Boy Scouts of America (BSA) a long-awaited victory in March, affirming the organization's right to exclude from its ranks boys and men who acknowledge they are gay and those who refuse to avow a belief in God. The court held that the BSA is not a business establishment subject to the state's antidiscrimination statute.

The court ruled in two companion cases challenging the Scouts' policies, one brought by a gay Scout and one by twin boys who say they are unsure what, if any, religious beliefs they hold. (Curran v. Mount Diablo Council of the Boys Scouts of America, 952 P.2d 218 (Cal. 1998); Randall v. Orange County Council of the Boy Scouts of America, 952 P.2d 261 (Cal. 1998).)

The BSA hailed the decision. "For 88 years we've taught the moral values of the Scout oath and law to American boys," said spokesman Greg Shields. "Those who meet the standard of this membership organization are welcome to belong." (Philip Carrizosa, No Gays, No Atheists, L.A. Daily J., Mar. 24, 1998, at 1.)

Lawyers for the plaintiffs expressed deep disappointment but said they would pin their hopes on cases working their way through courts in other states. They cited a recent New Jersey appellate decision holding that the BSA is covered by that state's antidiscrimination law.

"Although [the California] decision applies only to California law, it is a shame that even one state tolerates blatant discrimination by an important American institution," said Jon Davidson, an attorney for the Lambda Legal Defense and Education Fund, a gay-rights organization. Davidson argued the case last January on behalf of the ACLU of Southern California, which represents the plaintiffs.

In one of the oldest cases on the court's docket, longtime Scout Timothy Curran sued the BSA in 1981 after his application to become a troop leader was denied because the organization became aware that he was gay. Both the trial and appellate courts dismissed his case.

The BSA contends that homosexuality is immoral and conflicts with the Boy Scout oath requiring members to be "morally straight."

The second case, filed in 1991, was brought by twin brothers expelled from the Scouts because they refused to recite the part of the oath that swears a duty to God. Michael and William Randall won a court order that they be reinstated, which was upheld on appeal.

But in two unanimous decisions, the California Supreme Court held that the BSA is not a business establishment subject to the state's Unruh Civil Rights Act, which prohibits discrimination in California businesses.

"The record establishes that the Boy Scouts is an organization whose primary function is the inculcation of a specific set of values in its youth members," Chief Justice Ronald George wrote for the California court.

He distinguished the Scouts from country clubs and other private organizations that the court had previously found to be covered by the act because those organizations conduct significant amounts of commercial business.

"[M]embership in the Boy Scouts is not simply a ticket of admission to a recreational facility that is open to a large segment of the public and has all the attributes of a place of public amusement," George wrote. "Scouts meet regularly in small groups (often in private homes) that are intended to foster close friendship, trust, and loyalty, and Scouts are required to participate in a variety of activities, ceremonies, and rituals that are designed to teach the moral principles to which the organization subscribes."

Just three weeks before the California decision, the New Jersey appeals court held that the BSA is a "place of public accommodation" under the state's antidiscrimination law. (Dale v. Boy Scouts of America, 706 A.2d 270 (N.J. Super. Ct. App. Div. 1998).)

"The New Jersey court got it right--members do not join the Scouts to be part of an antigay organization. Discrimination violates what Scouting itself stands for," said Evan Wolfson, a Lambda lawyer who is lead counsel in the New Jersey case. "We are hopeful that cases continuing across the country will ultimately topple BSA's antigay policy."