Scouts Can Ban Gays, Agnostics, Court Rules

SAN FRANCISCO —  The Boy Scouts of America is a “social organization,” not a business, and enjoys broad authority to ban agnostics and gays, the California Supreme Court ruled in two cases Monday.

The long-anticipated decisions put an end to nearly two decades of court battles in California over whether the state’s civil rights law restricts the Scouts’ ability to bar certain groups.

“The Boy Scouts is an expressive social organization whose primary function is the inculcation of values in its youth members,” Chief Justice Ronald M. George wrote for the court.

Because the civil rights law prohibits discrimination by businesses, the Scouts are not covered and are free to bar whom they wish, the court held.

The unanimous decisions would also make it possible for the Boy Scouts to continue to exclude girls, the subject of another pending lawsuit in California.

Although the Scouts’ membership policies still face challenges in other states, Monday’s ruling will remain the law in California whatever the outcome elsewhere. The state Supreme Court is the final arbiter of the meaning of state laws, and both sides agree that there is no federal law that would provide grounds for challenging the Scouts’ membership policies in federal court.

The state has 438,580 youngsters in Boy Scout activities, according to a Scouting spokesman.

At a news conference, twin boys from Anaheim, whose family sued the Scouts after the group tried to eject them for refusing to recite a required oath to God, wept as they talked about the end of their Scouting days.

“The Scouts taught us to stand up for what we believe in, no matter what people say, but I guess it was just a bunch of words to them,” said William Randall, one of the twins.

The boys’ case began when they were Cub Scouts. They have remained Scouts for years as the suit made its way through the courts. Now 16 and on the verge of getting Eagle Scout badges--the highest honor in Scouting--the Randalls said they will leave the organization rather than recite an oath they don’t believe.

Timothy Curran, whose case challenging the Scouts’ ban on gays began 17 years ago when the Scouts rejected him as an assistant Scoutmaster, said the decision will encourage gay youths to hide their sexuality. “What they have done is create a regulation that now makes it necessary for people to lie,” said Curran, a former Eagle Scout from Berkeley and now a documentary director in Florida.

The Scouts contended that homosexuality violated a Scouting oath to be “morally straight.”

The question of what groups are businesses covered by the civil rights law has come up in several cases. Previously, the court has ruled that some private organizations--a Northern California country club in one case, a nonprofit boys’ club in another--were properly considered businesses subject to the state’s Unruh Civil Rights Act.

The current ruling did not overturn those decisions, but created a narrow exception for the Boy Scouts’ membership policies.

The decision came as four of the seven justices face a retention election in November. Conservatives already have targeted two of the justices, George and Ming W. Chin, for a court ruling last year against a law requiring parental consent before minors can have abortions. Some conservative activists had warned that the campaign would be broadened if the court ruled against the Scouts.

Lawyers for Curran and the Randall twins argued that the Scouts are a business because the group has retail shops and licenses the use of its insignia.

Commercial Activities Called Separate

The court agreed that state law would prohibit discrimination in the Scouts’ business transactions with nonmembers, but distinguished those commercial activities from the Scouts’ membership policies.

“Nonmembers cannot purchase entry to pack or troop meetings, overnight hikes, the national jamboree or any portion of the Boy Scouts’ extended training and education process,” George wrote.

Although the Scouts do own recreational facilities, the primary purpose of those properties is not to make money for the group, the court said.

“Membership 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 friendships, trust and loyalty, and Scouts are required to participate in a variety of activities, ceremonies and rituals.”

Justice Stanley Mosk, one of four justices who wrote separate opinions in the case, voted in favor of the ruling, but called its effects regrettable.

“That the law does not prohibit [the Scouts] from shutting Curran out cannot obscure the fact that he is the very kind of person whom it should receive most eagerly--a person whom it has itself honored as an Eagle Scout,” Mosk said. “Regrettably, the situation will remain such until the law changes.”

There seems to be little likelihood of that happening.

Even two prominent liberal legislators who strongly criticized the decisions conceded that there is little chance of the Legislature acting to change the state’s law to cover the Scouts.

The members of the Legislature who oppose the court’s ruling “could create an ill-fated bill not at all welcome in an election year and end up with a demoralizing defeat,” said Assemblywoman Carole Migden (D-San Francisco), one of the Legislature’s two openly gay members.

Justices Kathryn Mickle Werdegar and Janice Rogers Brown wrote separately to complain that the majority ruling failed to clarify which kinds of organizations will be subject to the civil rights law.

“A competent attorney . . . still would not be able to advise a client with a reasonable degree of certainty whether the [civil rights] act applies, “ Werdegar wrote.

Brown complained: “To put it bluntly, the law is a mess.”

George Davidson, a lawyer for the Scouts, called the California ruling “an important win” that may influence courts in other states. “There has been a lot of effort put into these matters over a considerable number of years,” the New York lawyer said.

Just two weeks ago, an appeals court in New Jersey decided that the Boy Scouts in that state could not bar gays under the state’s public accommodations law. The Scouts are appealing that ruling to New Jersey’s highest court. Similar cases also have been filed in Washington, D.C., and in Chicago.

But Jon Davidson, a supervising attorney at the Lambda Legal Defense and Education Fund, said the Scouts had not earned “an honorable victory.”

“ ‘A Scout is prejudiced’ should not be a 13th point of the Boy Scout law,” he said. “And I believe that discrimination by the Boy Scouts is wrong, whether it be today’s banishing of gay people and religious nonbelievers or the organization’s past racial segregation of groups and exclusion of Japanese-Americans after World War II.”

“Scouting has just cut themselves off from a supply of talented leaders by taking this view” against gays, said Curran, who was rejected in 1980 when a newspaper photograph showing him with a male date at his senior prom came to the attention of regional Scout officials.

“My troop--the troop I was originally in when I was thrown out of Scouting, no longer exits because they couldn’t find enough adult leaders.”

The court’s ruling would allow the Scouts to discriminate by race, but the Scouts’ Davidson said a Scouting bylaw prohibits race discrimination, and the court noted that other laws could be invoked to protect against racial bias.

State Atty. Gen. Dan Lungren, who had castigated the court for its vote last year on abortion, also praised Monday’s ruling for allowing the Scouts to bar agnostics.

“To require the Boy Scouts to accept someone who refuses to believe in God goes against the group’s core beliefs,” said Lungren, whose prepared statement did not mention the rulings’ effect on gays.

Times staff writers Max Vanzi and Carl Ingram in Sacramento contributed to this report.