California high court rules Boy Scouts free to discriminate

Tuesday, March 24, 1998

The Boy Scouts of America is not covered by California civil rights laws and can exclude gays, agnostics and atheists, the state Supreme Court ruled Monday.

In a pair of unanimous decisions, the court said the Scouts is not a business and therefore is free, like any private club, to set its own membership policies.

One ruling upheld a decision by a Contra Costa County Scout organization to reject Timothy Curran, a former Eagle Scout, as an assistant scoutmaster after he disclosed that he was gay.

The other ruling involved Michael and William Randall, twins who were tossed out of the group in 1991 for refusing to swear an oath to God. Because of lower court decisions, however, the twins were allowed to stay in the organization and just last week were awarded Eagle Scout status by a county Scout Council, subject to approval by the national organization.

After the boys challenged their expulsion, the California Superior Court ruled in 1992 that the Scouts is a business subject to the state's Unruh Civil Rights Act, which bars corporations doing business in California from discriminating against a person's religious beliefs. The court ordered the twins to be reinstated and prohibited the Scouts from requiring them to meet religious requirements for advancement.

In reversing the lower court decisions Monday, Justice Joyce Kennard said that if the state's anti-discrimination laws were enforced on the Scouts, the group's First Amendment rights to association would be violated.

Kennard wrote that if the NAACP could not be compelled to accept as a member a Ku Klux Klansman then the “First Amendment permits the membership decisions of these groups… .”

Chief Justice Ronald George concluded the Scouts is not a business, but “an expressive social organization whose primary function is the inculcation of values in its youth members.”

Greg Shields, spokesman for the Scouts, praised the high court's decisions.

“For 88 years we've taught the moral values of the Scout oath and law to American boys,” Shields said. “Those who meet the standards of this membership organization are welcome to belong.”

Taylor Flynn, an American Civil Liberties Union of Southern California attorney for the twins, urged charities and governments to withdraw support from the Boy Scouts, following the lead of Levi Strauss, United Way of San Francisco and city of Chicago.

The state high court decision is not subject to federal court review unless the twin's attorneys successfully argue that a federal right has been subverted by the ruling.

“To the extent that the California decision construes the Unruh Act, the California Supreme Court is the court of last resort,” said Jim Henderson, senior counsel for the American Center for Law and Justice.

“If the ACLU wishes not to learn a lesson from the California Supreme Court, then they might seek to build an argument that there is a federal constitutional right to foist yourself on to a private association–a right that I don't see as being recognized,” Henderson said.