MARK G.A. WELSH, a minor, and ELLIOTT A. WELSH, his father and next friend, Plaintiffs, v.
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.
No. 90 C 1671
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION
1992 U.S. Dist. LEXIS 3064
March 13, 1992, Decided
March 16, 1992, Docketed
JUDGES: ROVNER
OPINIONBY: ILANA DIAMOND ROVNER
OPINION: EDITOR'S NOTE: THE ORIGINAL SLIP OPINION CONTAINED
ILLEGIBLE WORDS AND/OR MISSING TEXT. THE LEXIS SERVICE WILL
PLACE THE CORRECTED VERSION ON-LINE UPON RECEIPT.
THE ABOVE NOTE WAS PLACES IN THE TEXT BY THE LEXIS SERVICE.
I BELIEVE I HAVE CAUGHT AND CORRECTED/INSERTED ALL
ILLEGIBLE AREAS FROM A COPY OF THE OPINION FURNISHED TO ME
BY ELLIOTT WELSH. BOYD CRITZ.
Hon. 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. n1 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.
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n1 The Court also rejected the contention that because
Congress had granted a federal charter to the Boy
Scouts, it necessarily had sanctioned the exclusion of
persons who did not concur in the organization's
religious principles. 742 F. Supp. at 1423-24.
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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). n2
- - - - - - - - - - - -Footnotes- - - - - - - - - - - -
n2 Because the Court's disposition of the case rests
upon the threshold question of whether or not the Boy
Scouts constitutes a place of public accommodation as
defined by Title II, facts to which the parties have
stipulated but which the Court finds immaterial to this
issue have not been incorporated into the Court's
findings.
Certain of the stipulated facts have also been
reordered by the Court and renumbered accordingly.
In some instances, defendants have stipulated to a
particular fact but have contended the fact is irrelevant
to the issues posed in the case. To the extent any of
these facts have been included in the Court's findings,
the relevance objections are overruled.
- - - - - - - - - - -End Footnotes- - - - - - - - - - -
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 [*11] 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.
18. In order to become a Cub Scout, a boy must meet
the following membership requirements. The boy must have
completed first grade or be between the ages of seven
and ten years old; he must have the written consent of
his parent or guardian; he must register and pay the
national registration fee; and he must complete the Cub
Scout Application. In completing the Cub Scout
Application, the boy signs a pledge which shows he has
read the Cub Scout Promise and Law of the Pack and
promises to do his best to live up to them. He also
promises to attend regularly the meetings of his den
and pack.
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. n3
The Cub Scout helps the Pack go.
The Pack helps the Cub Scout grow.
The Cub Scout gives goodwill.
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - -
n3 "Akela" is the mythical leader of a wolf pack
described in "The Story of Akela and Mowgli," which in
turn is based upon the story "Mowgli's Brothers" in
Rudyard Kipling's Jungle Book. See Wolf Cub Scout
Book (Defendants' Exhibit No. 7) at 4-10. The term
"Akela" is used in Cub Scouting to refer to adult
authority figures, including both den leaders and
parents. See id. at 10-11.
- - - - - - - - - - -End Footnotes- - - - - - - - - - - -
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.
31. Most packs hold a Blue and Gold banquet during
Scouting anniversary week in February. The activities at a
Blue and Gold banquet are largely the same as those of a
regular pack meeting, although special guests may take
part in the program.
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 packs, but operate independently under separate
programs.
33. The Tiger Cub Promise is:
I promise to love God, my family, and my country, and to
learn about the world.
The Tiger Cub motto is: "Search, Discover, Share."
34. The Tiger Cub emblem is symbolic of the program's
stress on equal participation.
35. A Tiger Cub Group comprises four to eight Tiger Cubs
and their adult partners who meet monthly. A Tiger Cub
Group is affiliated with a Cub Scout pack.
36. Tiger Cub groups normally recite the Tiger Cub
promise at each meeting.
37. Achievement is not as strongly emphasized at the
Tiger Cub level, but the completion of activities can be
rewarded by the adult partner's presenting a Tiger Cub
sticker to the boy for each activity completed.
38. On or about September 11, 1989, on the premises of
Anne Jeans Grade School, plaintiff Mark Welsh was
supplied with a flyer. A copy of the flyer is offered as
Plaintiffs' Exhibit No. 1 without objection as to
authenticity and is incorporated herein by reference.
The front page of that flier stated:
JOIN TIGER CUBS, BSA
AND HAVE LOTS
OF FUN!
YOU CAN JOIN TIGER CUBS, BSA, IF YOU ARE
IN THE FIRST GRADE
The reverse side of the flyer, directed to parents, stated,
inter alia, that "any boy who is in the first grade (or is
7 years old) may join Tiger Cubs, BSA, with his adult
partner," and further that "any adult 18 years of age or
older can work with the boy in Tiger Cubs, BSA. This can be
mom, dad, an aunt, uncle, or grandparent, an older brother
or sister, or even a neighbor." Finally, the flyer
contained an invitation to a special informational meeting
sponsored by Pack 56 at the Palisades School in Burr Ridge,
Illinois on September 15, 1989. n4
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - -
n4 The foregoing citations to the specific statements
and information included in the flyer are the Court's.
- - - - - - - - - - - -End Footnotes- - - - - - - - - - -
39. On Friday, September 15, 1989 at 7:00 p.m.,
plaintiffs Mark Welsh and Elliott Welsh attended a
recruiting meeting of prospective members of Pack 56 at the
Palisades School in Burr Ridge, Illinois.
40. At that time, plaintiffs learned that the
applications to join BSA required the applicants to agree
to recognize an obligation to God.
41. Plaintiffs left the meeting without applying, but
subsequently Elliott Welsh sent the applications and fee
directly to the West Suburban Council. A copy of Plaintiffs'
applications is offered as Plaintiffs' Exhibit No. 2
without objection as to authenticity and is incorporated
herein by reference.
Plaintiffs refused to subscribe to the Declaration of
Religious Principle and any reference to God.
42. The West Suburban Council returned the application
and fee to Elliott Welsh, explaining that agreement with
the Declaration of Religious Principle is a requirement
for admission into a Tiger Cub Group.
43. At the present time, Mark Welsh is eight years old
and desires to join a Cub Scout den. He will not be
admitted unless he subscribes to the Cub Scout Promise,
in which a Cub Scout promises to do his best to do his
duty to God.
44. Neither Mark Welsh nor Elliott Welsh believes
in God. Mark Welsh is not willing to subscribe to the Cub
Scout Promise and Elliott Welsh is not willing to
subscribe to the Declaration of Religious Principle.
45. Elliott Welsh wants his son to be a Cub Scout
because of certain non-religious values he recognizes that
BSA instills in boys, as well as the "fun" aspects of
Scouting.
46. Elliott Welsh believes that if BSA were a
sectarian youth group, it would be free to exclude
atheists.
47. Parents are always welcome at any Scouting
activity, even though they are not actual members of BSA.
They do not, however, normally attend den meetings.
48. The families of every Cub Scout are invited to
attend pack meetings with the Cub Scout, regardless of
whether they are actual members of BSA. Additionally,
families, whether members of BSA or not, are invited to a
yearly Blue and Gold banquet, which usually takes the
place of the February pack meeting.
49. In order to further the purposes of the Scouting
movement, BSA sells books, uniforms, badges, camping
equipment, and other Scouting materials. These sales are
"supply operations."
50. BSA publishes certain guides and other materials.
Among the materials published by BSA are the Cub Scout
Leader Book, The Cub Scout Fun Book, Boys Life, A
Representative Membership, The BSA Charter and By Laws,
and BSA Rules and Regulations.
51. West Suburban Council receives some operating
funds from the United Way.
B. Court's Independent Findings of Fact
1. The Boy Scouts is an educational organization whose
central purpose is to foster the development of certain
skills and values in male youths. These include citizenship,
patriotism, self-reliance, courage, sportsmanship, respect
for one's family, the ability to get along with others,
involvement in the community, physical fitness, athletic and
survival skills, an appreciation for nature, and the
acknowledgement of a supreme being. n5
- - - - - - - - - - - - -Footnotes- - - - - - - - - -
n5 See, e.g., Charter and By-Laws of the Boy Scouts of
America (Plaintiffs' Ex. No. 9, Defendants' Exhibit No.
1) at 6, By-Laws Article I, Section 2; id at 17, Article
IX, Section 1; id. at 18, Article X, Section 1; Rules
and Regulations of the Boy Scouts of America (Plaintiffs'
Ex. No. 8, Defendants' Exhibit No. 2) at 5, Article X,
Section 1, Clause 1; By-Laws, West Suburban Council, Boy
Scouts of America (Defendants' Exhibit No. 4) at 1,
Article II, Section 1; Constitution and By-Laws of the
World Organization of the Scout Movement (Defendants'
Exhibit No. 5) at 3, Article I, Sections 1 and 2.
See also Tr. at 58-59 (testimony of Sandra Dixon); Tr. at
79 (testimony of Ben Dixon); Tr. at 100-01 (deposition
testimony of William A. McCleery, III); Tr. at 136
(testimony of Boyd Ridley Critz, III); Tr. at 228, 230-
31, 231-32 (testimony of Carol C. Rapacz); Tr. at 238
(testimony of Eugene F. "Bud" Reid); Tr. at 249-50, 261
(testimony of Rabbi Peter E. Hyman); Tr. at 345
(testimony of Professor Larry Jensen).
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
2. The educational aims of the Boy Scouts are in great
measure accomplished through a range of activities which
are designed, and are represented to be, recreational and
entertaining. As explained in the Cub Scout Leader Book:
Cub Scouting is Fun
A boy joins Cub Scouting for the fun he expects. Part of
that fun is belonging to a den and taking part in exciting,
fun-filled activities. Cub Scouting's fun is not
exclusively for boys; it's fun for leaders and families,
as well. And an interesting thing happens -- while the boys
are having fun, doing the things they like to do, without
realizing it they are also learning new things, developing
new skills, gaining self-confidence, and becoming more
worthwhile individuals.
Cub Scout Leader Book (Plaintiffs' Exhibit No. 4,
Defendants' Exhibit No. 6) at 4. n6
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - -
n6 See also, e.g., Cub Scout Leader Book (Plaintiffs'
Exhibit No. 4, Defendants' Exhibit No. 6) at 3 ("The
purpose of the Boy Scouts of America . . . is to
provide for boys and young adults an effective
educational program designed to train in the
responsibilities of participating citizenship, provide
growth in moral strength and character, and to enhance
the development of physical, mental, and emotional
fitness. Mighty serious business, all done in the
spirit of fun."); id. at 43-58 (listing suggested
activities); Wolf Cub Scout Book (Defendants'
Exhibit No. 7) (listing activities); Big Bear Cub
Scout Book (Defendants' Exhibit No. 8 (listing
activities); Boy Scout Handbook (10th ed. 1990)
(Defendants' Exhibit No. 10 at 544 ("When you go to a
weekly troop meeting, you can expect 90 minutes
packed with activities. . . . There will be plenty of
fun and good fellowship, too, in the form of songs,
stunts, and ceremonies."); Tiger Cub Flip Chart
(Defendants' Exhibit No. 15) at 4 ("Most importantly,
the Tiger Cub program enables your boy and you to have
fun together, to learn new things together and to grow
together."); id. at 15 ("The Tiger Cub Family Activity
Book is your guide to a year of fun with a purpose.");
Cub Scout Fun Book (Plaintiffs' Exhibit No. 5)
(describing various entertaining activities).
See also Tr. at 94, 97, 99, 100-01 (deposition testimony
of William A. McCleery, III); Tr. at 134, 135-36,
136-37, 146, 514 (testimony of Boyd Ridley Critz, III);
Tr. at 249-50 (testimony of Rabbi Peter E. Hyman); Tr.
at 386 (testimony of Professor Ricky L. Slavings).
- - - - - - - - - - - -End Footnotes- - - - - - - - - - -
3. Boys are encouraged to join Tiger Cubs, Cub Scouts,
and Boy Scouts, and to a significant extent do join these
groups, in order to have fun. n7
- - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n7 See, e.g., Boy Scout Handbook (10th ed. 1990)
(Defendant's Exhibit No. 10) at ix ("Don't wait a minute
longer to get in on all the fun Scouts have.); id. at
2 ("Finally, Scouting is fun. You can look around during
Scouting activities and notice a smile on every face.
Everyone is sharing, learning, and living the Scout
life."); Cub Scout Handbook (Plaintiffs' Exhibit No.
4, Defendants' Exhibit No. 6) at 3 ("A boy joins Cub
Scouting for the fun he expects." and "Cub Scouting
helps fulfill a boy's desire for adventure . . . .");
Tiger Cub Flip Chart (Defendants' Exhibit No. 15) at 10
("Tiger Cubs, BSA, gives you and your boy a year of fun
and exciting activities.").
See also Tr. at 51, 52 (testimony of Sandra Dixon); Tr.
at 68, 70 (testimony of Mark Welsh) ; Tr. at 72, 79
(testimony of Ben Dixon); Tr. at 94 (deposition testimony
of William A. McCleery, III).
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
4. The structure of the Boy Scouts emphasizes group
activities. Thus, members are organized into groups which
range from the smaller dens or patrols to the larger packs
or troops. Much, if not most, of what a young man does as a
member of the Boy Scouts he does in the context of these
groups. n8
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n8 See, e.g., Rules and Regulations of the Boy Scouts
of America (Plaintiffs' Exhibit No. 8, Defendants'
Exhibit No. 2) at 5-6 (describing pack, troop, and post
structures); Constitution and By-Laws of the World
Organization of the Scout Movement (Defendants'
Exhibit No. 5) at 5, Article III (listing membership in
small groups as one of primary means by which Scout
Method's system of progressive self-education is
achieved); Boy Scout Handbook (10th ed. 1990)
(Defendants' Exhibit No. 10) at 535 ("As a member of a
patrol, you are no longer alone. . . . You will be able
to achieve much more than you would by yourself." and
"A patrol is a team of good friends working together to
make things happen."); id. at 540 (describing
relationship of patrol to troop); Tiger Cub Flip Chart
(Defendants' Exhibit No. 15) at 6 ("You and your boy
share with each other and with other members of your
Tiger Cub group all the great things you have done
together."); id. at 15 (emphasizing activities with
Tiger Cub group); Webelos Scout Book (Defendants'
Exhibit No. 9) at 18 ("Much of your boy's activity
badge work will be done in the den.").
See also Tr. at 166 (testimony of Charles E. Rummel);
Tr. at 350 (testimony of Rabbi Peter E. Hyman); Tr. at
374-78, 379, 380, 382-84 (testimony of Professor
Ricky L. Slavings).
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
5. The smallest of these groups, the den or patrol, is
the focal point of Boy Scout activities. n9 These groups
meet most frequently (typically on a weekly basis). n10 For
the individual Boy Scout member, the other members of the
den or patrol are likely to be the Scouts he will come to
know best and with whom he will have the most regular
contact. n11 Boys typically attend the larger pack, troop,
or post meetings as dens or patrols. n12
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n9 See, e.g., Cub Scout Leader Book (Plaintiffs' Exhibit
4, Defendants' Exhibit No. 6) at 12-13 (describing Cub
Scout and Webelos dens and Tiger Cub groups); Wolf Cub
Scout Book (Defendants' Exhibit No. 7) at 30 ("Cub
Scouting is fun, and much of that fun starts in your
den."); Boy Scout Handbook (10th ed. 1990) (Defendants'
Exhibit No. 10) at 535 (describing patrol); id. at 540
("Patrols are such a key part of Scouting that a portion
of troop meetings is set aside for each patrol to meet by
itself.")
See also Tr. at 391-92 (testimony of Professor Ricky L.
Slavings).
n10 See, e.g., Cub Scout Leader Book (Plaintiffs'
Exhibit 4, Defendants' Exhibit No. 6) at 12, 13, 73, 76;
Wolf Cub Scout Book (Defendants' Exhibit No. 7) at 30;
Big Bear Cub Scout Book (Defendants' Exhibit No. 8) at
14; Webelos Scout Book (Defendants' Exhibit No. 9) at 14;
Boy Scout Handbook (10th ed. 1990) (Defendants' Exhibit
No. 10) at 540, 544; Official Scout -Master Handbook
(Defendants' Exhibit No. 73) at 76-77.
See also Tr. at 52-53 (testimony of Sandra Dixon); Tr. at
222 (testimony of Carol C. Rapacz); Tr. at 393 (testimony
of Professor Ricky L. Slavings); Tr. at 548 (testimony of
Gerrold Frumm).
n11 See, e.g., Cub Scout Leader Handbook (Plaintiffs'
Exhibit No. 4, Defendants' Exhibit No. 6) at 12 ("The den
organization allows boys to get to know each other better
. . . ."); Boy Scout Handbook (10th ed. 1990)
(Defendants' Exhibit No. 10) at 535 ("A patrol is a team
of good friends . . . ."); id. at 540.
See also Tr. at 374, 379, 380 (testimony of Professor
Ricky L. Slavings); and see Tr. at 58 (testimony of
Sandra Dixon) ("It was more fun for my son to see the
Planetarium with his five best friends or five good
friends than it was just to go with the family.")
n12 See Cub Scout Leader Book (Plaintiffs' Exhibit No.
4, Defendants' Exhibit No. 6) at 68; Boy Scout
Handbook (10th ed. 1990) (Defendants' Exhibit No. 10) at
544; Official Scout -Master Handbook (Defendants'
Exhibit No. 73) at 87.
See Tr. at 383, 392-93 (testimony of Professor Ricky L.
Slavings).
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
6. Virtually all Boy Scout activities are group oriented.
The activities at weekly Cub Scout den meetings, for
example, typically call for group interaction. These might
include a rowdy game designed to expend energy, a
lesson in how to tie a necktie, a craft activity, a group
sing-along of "God Bless My Underwear," or a nature hike.
n13 Even the individual attainment of achievement badges,
which represents one of the central ways in which the
organization's education aims are accomplished, is tied to
the group. Work on these achievements is frequently a focus
of den meetings. n14 At the same time, individual
achievements are reviewed and sometimes reflected on charts
displayed at den meetings or beads worn by scouts as part
of their uniforms. n15 Awards for such achievements are
presented in the larger pack or troop setting. n16
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n13 See, e.g., Cub Scout Leader Book (Plaintiffs' Exhibit
No. 4, Defendants' Exhibit No. 6) at 26, 74-75; Boy Scout
Handbook (10th ed. 1990) at 540, 544; Tiger Cubs, BSA
Family Activity Book (Defendants' Exhibit No. 13) at 3
P5, 4-5. See also activities described in Wolf Cub Scout
Book (Defendants' Exhibit No. 7); Big Bear Cub Scout Book
(Defendants' Exhibit No. 8); Webelos Scout Book
(Defendants' Exhibit No. 9).
See also Tr. at 45-46, 48-51 (testimony of Sandra Dixon);
Tr. at 72-73, 76-77 (testimony of Ben Dixon); Tr. at 106-
07 (deposition testimony of William A. McCleery, III);
Tr. at 135 (testimony of Boyd Ridley Critz, III); Tr. at
220-21, 225-26 (testimony of Carol C. Rapacz); Tr. at
384 (testimony of Professor Ricky L. Slavings); Tr. at
549 (testimony of Gerrold Frumm)
n14 See Tr. at 45 (testimony of Sandra Dixon); Tr. at 221
(testimony of Carol Rapacz).
n15 See Tr. at 225, 226 (testimony of Carol Rapacz).
n16 See Cub Scout Leader Book (Plaintiffs' Exhibit No. 4,
Defendants' Exhibit No. 6) at 72; Official Scout Master
Handbook (Defendants' Exhibit No. 73) at 88.
See also Tr. at 73 (testimony of Ben Dixon); Tr. at 227
(testimony of Carol Rapacz).
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
7. Boy Scout activities frequently make use of items
which are sold by the Boy Scouts. These include Boy Scout
uniforms, the Cub Scout Fun Book and other books describing
various activities appropriate for Boy Scout meetings,
camping equipment, and other items. These items are sold
throughout the United States at local council service
centers and Boy Scout -authorized outlets. n17
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n17 See photograph of Cub Scout den meeting in home of
Carol Rapacz (Defendants' Exhibit No. 74) showing scouts
in uniform; Boy Scout Handbook (10th ed. 1990)
(Defendants' Exhibit No. 10) at 27 (noting that camping
gear available at national Supply Division of Boy Scouts
of America); id. at 27-28, 36, and 51-53 (picturing
various Scout camping equipment); id. at 567 ("How to Get
a Uniform"); Webelos Scout Book (Defendants' Exhibit No.
9) at 24 ("Securing the Uniform"); Cub Scout & Webelos
Scout Program Helps 1991-92 (Defendants' Exhibit No. 64)
at Cub 3 Intro 91 and back cover (listing resources
available for purchase from Boy Scouts equipment
distributors or council service centers, including Cub
Scout Leader How-To Book, Cub Scout Song Book, Cub Scout
Shorts Leader Guide, Wolf Cub Scout Book, Big Bear Cub
Scout Book, Webelos Scout Book, Webelos Den Activities,
Cub Scout Fun Book, Cub Scout Magic, Bobcat Action Book,
Wolf Action Book, Bear Action Book, and Tiger Cub Family
Activity Packet); Official Scout -Master Handbook
(Defendants' Exhibit No. 74) at 211, 212, 330 (listing
literature, camping equipment, and uniforms available for
purchase).
See also Tr. at 45, 49-51 (testimony of Sandra Dixon)
(describing use of activities set forth in How-To, Wolf,
and Bear books); Tr. at 139-40, 149-50 (testimony of Boyd
Ridley Critz, III) (describing items sold by Boy Scouts
ofAmerica); Tr. at 222, 223-26 (testimony of Carol C.
Rapacz) (noting that uniforms were worn at Cub Scout
meetings, and describing Defendants' Exhibit No. 74); id.
at 241 (noting use of den chief book as a resource for
songs).
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
8. Elliot Welsh was able to purchase two Boy Scout
items, a Tiger Cub T-shirt and a scout leader's cap,
through a J.C. Penney's catalog. These were shipped to Mr.
Welsh from a catalog center in Milwaukee, Wisconsin. (Tr.
at 29-30.) He was also able to purchase copies of the Cub
Scout Fun Book and the Cub Scout Leader Book from a
department store in LaGrange, Illinois. (Id. at 29.)
9. In the year ending 1989, the Boy Scouts took in over
$ 13 million from supply operations, which included the sale
of such items. n18
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n18 See Boy Scouts of America, 1989 Report of the
Treasurer and Financial Statements (Plaintiffs' Exhibit
No. 6) at 3.
See also Tr. at 139-41 (testimony of Boyd Ridley Critz,
III).
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
10. Given the large volume of such products which the Boy
Scouts sells throughout the country, it is virtually certain
that many if not most of these items have moved in
interstate commerce. However, with the exception of Elliot
Welsh's testimony regarding the purchase of items from the
J.C. Penney catalog center in Wisconsin, plaintiffs
have not presented any direct evidence on this point.
11. Although these items are used in or foster various
activities which are entertaining, they are not
indispensable to Boy Scout activities. n19
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n19 See, e.g., Boy Scout Handbook (1st ed. 1911)
(Defendants' Exhibit No. 12) at 46 ("It should be clearly
understood by all interested in the Scout Movement that
it is not necessary for a boy to have a uniform or any
other special equipment to carry out the scout program.
There are a great many troops in the country which have
made successful progress without any equipment
whatever.").
See also Tr. at 238 (testimony of Carol C. Rapacz)
(uniforms not required); id. at 241 (noting limited use
of Cub Scout Fun Book); Tr. at 355 (testimony of
Professor Larry Jensen) (uniforms not required).
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
12. Boy Scout activities do not depend upon or
necessarily emanate from particular facilities or locations.
den, patrol, pack, and troop meetings, for example,
typically take place at private homes, public
schools, and church facilities. n20 Nothing in the nature
of the activities which normally occur at such meetings
requires a particular kind of location or facility. n21
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n20 See, e.g., Cub Scout Leader Book (Plaintiffs'
Exhibit No. 4, Defendants' Exhibit No. 6) at 68, 73, 76;
Webelos Scout Book (Defendants' Exhibit No. 9) at 14; Boy
Scout Handbook (10th ed. 1990) (Defendants' Exhibit No.
10) at 540; Pack 52 1990-91 Orientation Guide
(Defendants' Exhibit No. 61) at 12.
See also Tr. at 14 (testimony of Sandra Dixon); Tr. at
219 (testimony of Carol C. Rapacz); Tr. at 519 (testimony
of Boyd Ridley Critz, III); Tr. at 549 (testimony of
Gerrold Frumm).
n21 See, e.g., Cub Scout Leader Book (Plaintiffs'
Exhibit No. 4, Defendants' Exhibit No. 6) at 73 ("Most
dens meet in the den leader's home. Meetings are usually
held in the same room; however, they can be held in a
basement, garage, backyard, or other practical place.
Many dens in large cities meet in apartment houses, small
parks, or squares nearby. Some dens in rural areas meet
in a school classroom because of distances involved in
traveling to someone's home."); Webelos Scout Book
(Defendants' Exhibit No. 9) at 14 ("The Webelos den meets
once each week in the evening or on Saturday. The meeting
place probably is either the home of the den leader or
some central place, perhaps in the chartered
organization's building if it has one."); Boy Scout
Handbook (10th ed. 1990) (Defendants' Exhibit No. 10) at
544 ("Not every troop meeting is held at the same place
or at the usual time. Now and then a troop may hold its
weekly meeting at a fire station or police headquarters
so that you can learn firsthand how your town is
protected. Another time you may gather at a local pool
and try to pass some of the swimming requirements for a
rank or merit badge. Or the troop might go to city hall
to see your government in action."); Boy Scout Handbook
(1st ed. 1911) (Defendants' Exhibit No. 12) at 3 ("All
that is needed is the out-of-doors, a group of boys, and
a competent leader."); Scouting Handbook (Relationships
between The Church of Jesus Christ of Latter-day Saints
and the Boy Scouts of America) (Defendants' Exhibit No.
52) at 9 ("Patrol meetings could be held at the
meetinghouse, in a home, or in an outdoor setting.");
Pack 52 1990-91 Orientation Guide) (Defendants' Exhibit
No. 61) at 12 (noting that Pack 52 meets monthly at the
Hinsdale United Methodist Church).
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
IV. ANALYSIS
The threshold question presented in this case is whether
or not an organization like the Boy Scouts, membership in
which does not provide access to a particular facility,
qualifies as a "place of public accommodation" within the
reach of Title II. Accordingly, it is appropriate to begin
with the statute itself. See Ardestani v. I.N.S., U.S. ,
112 S. Ct. 515, 519 (1991); United States v. Real Estate
Known as 916 Douglas Ave., Elgin, Ill., 903 F.2d 490, 492
(7th Cir. 1990), cert. dismissed, U.S. , 111 S. Ct.
1090 (1991). Title II 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 [*32] 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. . . . . n22
42 U.S.C. @ 2000a. Plaintiffs contend that given the Boy
Scouts' emphasis upon recreational activities and the
enjoyment of its members, it qualifies as a "place of
entertainment" within the meaning of subsection (b)(3)
above. In contrast, defendants have [*33] argued that the
Boy Scouts does not fit within either the ordinary
understanding of the term "place" or the category of
establishments cited within the statute as "places of
entertainment."
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n22 Subsection (e) of the statute sets forth the private
club exemption. Because the Court concludes that the Boy
Scouts does not constitute a place of public
accommodation to which Title II would presumptively
apply, it need not determine the pertinence of the
private club exemption here.
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
The Court is therefore called upon to resolve whether the
term "place," as it is used to modify the terms "public
accommodation" and "accommodation," should be accorded its
literal connotation of a physical site or whether it should
be taken simply as a term of convenience which does not
limit the reach of Title II to accommodations which have a
specific location or facility. Although the Court has
discussed this issue below largely in the context of
construing the phrase "place of public accommodation," the
analysis applies with equal force to the statutory
subcategory of "places of entertainment" into which
plaintiffs contend the Boy Scouts falls.
The parties have not cited, and the Court has been unable
to locate, any federal case which expressly considers
whether or not a membership organization, the activities of
which do not center upon a particular facility or "place,"
can qualify as a "place of entertainment" or other "place of
public accommodation" for purposes of Title II. However, a
number of state courts have considered this question in
applying anti-discrimination statutes which contain language
similar to that of Title II. As set forth below, a renewed
study of these cases, considered in light of the evidence
presented in this case, leads the Court to conclude that the
Boy Scouts does not constitute a "place of public
accommodation" within the framework of Title II. n23
Moreover, a review of federal cases which have considered
the applicability of Title II to membership organizations
confirms that Title II has never been applied so broadly as
to encompass organizations which lack a tie to a facility of
the kinds enumerated in the statute. At the same time, a
perusal of the legislative history of the statute
suggests that the use of the term "place" in the statute
reflects a congressional understanding that Title II would
not be applied more expansively.
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n23 The Court initially considered these authorities when
it ruled upon defendants' motion to dismiss the
complaint, which required the Court to construe the
pleadings in a light most favorable to the plaintiffs.
At that time, however, the Court did not have the benefit
of an evidentiary record before it, and held only that
the Boy Scouts might qualify as a place of public
accommodation for purposes of Title II. See 742 F. Supp.
at 1421.
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
At least four state courts have rejected the notion that
a membership organization in and of itself may be considered
a "place" for purposes of state laws prohibiting
discrimination in places of public accommodation: United
States Jaycees v. Iowa Civil Rights Commission, 427 N.W.2d
450 (Iowa 1988); United States Jaycees v. Massachusetts
Commission Against Discrimination, 391 Mass. 594, 463 N.E.2d
1151 (1984); United States Jaycees v. Richardet, 666
P.2d 1008 (Alaska 1983); and United States Jaycees v.
Bloomfield, 434 A.2d 1379 (D.C. App. 1981). As the case
names reveal, the courts in each of these cases considered
the Jaycees, a membership organization which does not
operate from a particular facility or location. At issue in
each of the cases was the validity of the Jaycees' policy of
excluding women from full membership in the organization in
light of legislation barring discrimination on the basis of
sex in public accommodations. The courts in all of these
cases found the use of the term "place" in the governing
statutes to be significant, and because the Jaycees was not
tied to a particular location or facility, they concluded
that the organization was beyond the reach of those
statutes.
United States Jaycees v. Massachusetts Commission Against
Discrimination ("MCAD") is illustrative. In this case the
Massachusetts Commission Against Discrimination ("MCAD") had
found that the U.S. Jaycees' policy of excluding women from
membership violated the Massachusetts statute barring gender
discrimination in "any place of public accommodation, resort
or amusement." The Jaycees sought judicial review of
MCAD's decision, and the case was certified to the state
supreme court. That court concluded that the Jaycees did not
constitute a place of public accommodation for purposes of
the statute.
The Massachusetts court began by observing what a
"tortuous analysis" was required in order to deem the U.S.
Jaycees a "place of public accommodation." 463 N.E.2d at
1155.
The MCAD observed that the State and local Jaycees chapters
certainly do meet in physical "places" within Massachusetts,
albeit a large number of different ones. Since a
"sufficiently strong nexus" exists between the U.S. Jaycees
and the State and local organizations, when the latter two
meet at a "place" within Massachusetts, it can be
hypothesized that the national organization is meeting at
that "place" also. The membership of the U.S. Jaycees is
demonstrably "public": all males who are between the ages of
eighteen and thirty-five and who pay the dues are admitted
to the organization. If the assumption that membership in
the national Jaycees organization can be tied to a "place"
in Massachusetts is then combined with the observation that
such membership is "public," it is possible to
reach the same conclusion as the MCAD, that the U.S. Jaycees
is a "place of public accommodation" within the meaning of
[the Massachusetts statute]. While this line of reasoning is
relatively easy to follow, it is hard to accept.
Id. The court found MCAD's rationale inconsistent with the
statute's emphasis upon the word "place." The statute
defined a place of public accommodation "to include any
place . . . which is open to and accepts or solicits the
patronage of the general public." In the court's view,
"place" should not be treated as a term of art defined in
technical terms, but rather should be interpreted in light
of its ordinary connotation of a physical environment. Id.
at 1155-56. To bring within the definition of "places of
public accommodation" any organization which met at
"places," the court reasoned, would accord the Massachusetts
statute a sweeping application; ignore the commonly
understood definition of a term the legislature had used;
and bring the statute to bear upon a category of
institutions unlike any of the examples cited in the
statute, each of which conformed to the ordinary notion of a
"place." Id. at 1156.
The MCAD's interpretation of [the statute] as including the
U.S. Jaycees does not call for the mere addition of another
physical "site" to the statutory language, but instead it
requires the addition of a type of "conduct" (a nonprofit
organization's membership policy). Such an interpretation
cannot be derived from the plain language or a reasonable
construction of [the statute]. Id. at 1159.
Finally, the Massachusetts court noted the significant
difference between the Jaycees and organizations in which
membership serves as the means of access to a physical
facility. Distinguishing National Organization for Women
v. Little League Baseball, Inc., 127 N.J. Super. 522, 318
A.2d 33, aff'd mem., 67 N.J. 320, 338 A.2d 198 (1974)
(holding Little League to be a public accommodation), and
United States v. Slidell Youth Football Association, 387
F. Supp. 474 (E.D. La. 1974) (holding football league to
be a public accommodation under Title II), the court
explained:
In both cases, although an organization's membership policy
was implicated, membership in the relevant entity served
effectively as the "ticket" for admission to a
particular "place." In Slidell Youth Football Ass'n, supra
at 477, the "place" was a sports facility containing "two
fully equipped football fields, grandstands and a food
concession stand enclosed in a chain link fence," the
facility being "utilized solely to play SYFA sponsored youth
football league games." In Little League Baseball, Inc.,
supra at 531, 318 A.2d 33, the "place of public
accommodation . . . [was] obviously the ball field at which
tryouts are arranged, instructions given, practices held and
games played." It is important to distinguish the case of a
discriminatory membership policy (which the U.S. Jaycees
concededly practices) from circumstances where the denial of
membership is used as a method for denying access to a
particular place.
463 N.E.2d at 1159. n24
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n24 The Massachusetts court noted further that all
Jaycees events were open to the public; consequently, the
denial of membership in the organization did not serve as
a bar to a given place. See 463 N.E.2d at 1159. In
contrast, although the evidence indicates that family
members are invited to some Boy Scout events, such as
pack meetings, most of the organization's activities are
not open to the public. Nonetheless, as set forth below,
MCAD's logic is still relevant here, in the sense that
membership in the Boy Scout organization does not serve
as an entree to a particular place. As the Court noted
above in its findings of fact, Boy Scout meetings and
activities take place in a variety of settings (many
times, private homes or churches) and for the most part,
the particular location is irrelevant to what transpires
at those meetings.
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
Other courts have echoed the Massachusetts court's
emphasis upon statutory use of the term "place" and the
common understanding of that term. See Iowa Civil Rights
Commission, 427 N.W.2d at 454; Richardet, 666 P.2d at 1011;
Bloomfield, 434 A.2d at 1381. Like the Massachusetts court,
these courts have also noted that membership organizations
stand apart from the types of "places" typically listed in
public accommodations statutes. Richardet, 666 P.2d at
1011-1012. See also Iowa Civil Rights Commission, 427 N.W.
2d at 454-55.
The courts of other states have struck out upon a
different path and have interpreted their
anti-discrimination statutes more broadly to reach
membership organizations, including the Boy Scouts. See
Quinnipiac Council, Boy Scouts of America, Inc. v.
Commission on Human Rights and Opportunities, 204 Conn.
287, 528 A.2d 352 (1987); United States Power Squadrons v.
State Human Rights Appeal Board, 59 N.Y.2d 401, 465 N.Y.S.2d
871, 452 N.E.2d 1199 (1983); Curran v. Mount Diablo Council
of the Boy Scouts of America, 147 Cal. App. 3d 712, 195 Cal.
Rptr. 325 (1983); United States Jaycees v. McClure,
305 N.W.2d 764 (Minn. 1981); National Organization for
Women v. Little League Baseball, Inc., supra, 127 N.J.
Super. 522, 318 A.2d 33 (1974) ("NOW"). The holdings in
several of these cases rest to a significant degree upon
statutory language and a body of state jurisprudence which
is particularly expansive and which does not restrict
application of public accommodations statutes to physical
"places." In contrast, the rationale of the New Jersey court
in NOW and the New York Court of Appeals in Power Squadrons
cannot be explained by these circumstances; the result in
those cases instead flows from an expansive reading of the
term "place of public accommodation." Further discussion of
each of these cases is in order.
Curran demonstrates the significance of liberal statutory
phrasing and the resulting jurisprudence. In that case, the
plaintiff sued the Boy Scouts under California's Unruh Civil
Rights Act after the organization excluded him from
membership because he was gay. In relevant part, the
statute provided that:
All persons within the jurisdiction of this state are free
and equal, and no matter what their sex, race,
color, religion, ancestry, or national origin are entitled
to the full and equal accommodations, advantages,
facilities, privileges, or services in all business
establishments of every kind whatsoever.
See 195 Cal. Rptr. at 333. The California Supreme Court
previously had interpreted the act to prohibit
discrimination based upon sexual orientation. See Stoumen
v. Reilly, 37 Cal.2d 713, 234 P.2d 969, 971 (1951).
Therefore, the question presented in this case was whether
or not the Boy Scouts constituted a "business
establishment" within the meaning the statute. The trial
court concluded that it did not; but the appellate court
disagreed and reversed.
The legislative history of the Unruh Act figured
prominently in the appellate court's decision. In
particular, the court noted that although the original
version of the statute had employed the same "places of
public accommodation" phrasing found in the comparable
statutes of other states, the California legislature had
subsequently abandoned that term in favor of "business
establishments of every kind whatsoever." 195 Cal. Rptr. at
334. This revision was made after the state
judiciary had placed a narrow construction upon the kinds of
public accommodations reached by the statute. Id.
The court also relied heavily upon a line of California
cases which had given the revised version of the Unruh Act
an extremely broad application. This included cases which
defined the term "business" to mean "everything about which
one can be employed," id. at 335 (quoting Mansfield v. Hyde,
112 Cal. App. 2d 133, 245 P.2d 577, 581 (1952)), and the
term "establishment" to include "not only a fixed location,
such as the 'place where one is permanently fixed for
residence or business,' but also a permanent 'commercial
force or organization' or 'a permanent settled position (as
in life or business),'" 195 Cal. Rptr. at 335 (quoting Burks
v. Poppy Construction Co., 57 Cal.2d 463, 20 Cal. Rptr. 609,
612, 370 P.2d 313, 316 (1962)). In addition, the court noted
that the act had been held to reach even not-for-profit
associations. 195 Cal. Rptr. at 335-36, citing O'Connor v.
Village Green Owners Association, 33 Cal.3d 790, 191 Cal.
Rptr. 320, 662 P.2d 427 (1983) . n25
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - -
n25 In contrast, the Supreme Court of Oregon concluded in
Schwenk v. Boy Scouts of America, 275 Or. 327, 551 P.2d
465, 468 (1976), that the Oregon Public Accommodation Act
was intended "to prohibit discrimination by business or
commercial enterprises which offer goods or services to
the public," and not to organizations like the Boy Scouts
and the YMCA and YWCA. (Emphasis supplied.)
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
Thus, the court rendered its decision against the
backdrop of a statute which spoke broadly in terms of
"business establishments of every kind whatsoever" and a
well established line of authority which had interpreted the
statute in a manner true to the expansive language the
California legislature had chosen. Because the plaintiff's
complaint attributed to the Boy Scouts certain "businesslike
attributes," the court concluded that the organization could
fall within the definition of a "business establishment" for
purposes of the Unruh Act despite its status as a not-for-
profit association. 195 Cal. Rptr. at 336.
In McClure, the Minnesota Supreme Court was confronted
with an equally broad statutory provision. Although, like
Title II, the Minnesota statute banned discrimination by
any "place of public accommodation," the Minnesota
legislature had, in the court's words, given that term "its
own special and unusually broad definition," 305 N.W.2d at
766. Thus, the statute defined "place of public
accommodation" to include:
a business, accommodation, refreshment, entertainment,
recreation, or transportation facility of any kind, whether
licensed or not, whose goods, services, facilities,
privileges, advantages, or accommodations are extended,
offered, sold, or otherwise made available to the public.
See id. As the court noted, "The legislature defines a term
only because it intends in some measure to depart from the
ordinary sense of the term. Thus, there is a presumption
that we are not to substitute the literal, ordinary meaning
of 'place of public accommodation' for the definition the
legislature has provided." Id. The court also took heed of
the legislature's explicit directive to construe the
provisions of the statute liberally. Id.
Given the broad wording of the statute, the
court found that its provisions applied even to
establishments which were dissimilar to the specific kinds
of places cited in an older version of the statute, which
remained on the books:
While the older statute contemplated only certain fixed and
mobile sites, the new statute encompasses a "business
facility of any kind," whether fixed or mobile. While the
older statute concentrated on the kinds of sites where
discrimination would be prohibited, the new statute focuses
on conduct in which discrimination would be prohibited and
thus speaks not of a business facility where goods and
privileges are offered, but rather, of "a business * * *
facility of any kind * * * whose goods * * * [and]
privileges are * * * offered, sold, or otherwise made
available to the public."
Id. at 768 (emphasis in original).
The court went on to find that the U.S. Jaycees
constituted a public business within the meaning of the
Minnesota statute. Based upon the record before it, the
court was convinced that the Jaycees was "a national
organization that regards its members more as customers than
as owners" and that membership in the organization amounted
to a "product"; thus, the Jaycees qualified as a
"business." Id. at 769. It also constituted a "public"
business, "by virtue of its unselective, vigorous sale of
memberships . . . ." Id. at 771.
Finally, the court determined that the U.S. Jaycees
constituted a "facility" despite the fact that the national
organization lacked an office or other physical "place"
within Minnesota's borders. Id. at 772-74. The court
reiterated that the terms of the newer statute reflected a
shift away from an emphasis upon particular sites and toward
an emphasis upon the conduct of businesses. Id. at 772.
Consequently, the court reasoned, a court need not deem a
given entity analogous to a hotel or restaurant in order to
find the public accommodations statute applicable. Id.
Food and lodging do not exhaust the category of a
"business * * * facility of any kind * * * whose goods,
* * * privileges, [and] advantages are * * * sold or
otherwise made available to the public." Minn. Stat. @
363.01(18) (1980) (emphasis added). Leadership skills are
"goods," business contacts and employment promotions are
"privileges" and "advantages," and each site in
the State of Minnesota where the sale of those "goods" is
solicited, promoted, and consummated is unquestionably a
"business facility."
Id. (emphasis in original). The court further reasoned that
to the extent a particular site need be identified as a
"facility" for purposes of the statute, there were two which
sufficed. The first was the office of the Minnesota Jaycees
affiliate, where officers of the state organization
supervised the recruitment activities of local chapters. Id.
The second site lay "in the sometimes door-to-door, company-
to-company solicitation of members for the organization" and
"in the oft-shifted sites at which the affiliated local
chapters hold meetings during part of which a sales approach
is usually made to prospective members invited to the
meeting for that purpose." Id.
What we decide here is that an organization engaged in the
business of seeking to advance its members and to add to
their ranks by assiduously selling memberships in this state
is a "public business facility." In more familiar terms,
such an organization has more than the "minimum contacts" to
qualify as doing business in this state, and its
facilities are anywhere it promotes, solicits, and engages
in the sale of memberships on an unselective basis.
Id. at 774.
Quinnipiac Council addressed a statute which the
Connecticut supreme court found to be as broadly drafted as
the Minnesota statute. See 528 A.2d at 358. In that case, a
woman contended that the Boy Scouts had violated the
state's public accommodations statute when it refused to
permit her to serve as the scoutmaster of a local troop.
The statute guaranteed to Connecticut citizens the right to
"full and equal accommodations in every place of public
accommodation, resort, or amusement." The phrase "place of
public accommodation, resort or amusement" was defined to
include:
Any establishment, which caters or offers its services or
facilities or goods to the general public including, but not
limited to, public housing projects and all other forms of
publicly assisted housing, and further including any housing
accommodation, commercial property or building lot, on which
it is intended that a housing accommodation or commercial
building will be constructed, offered for sale or rent, and
mobile home parks . . . .
See 528 A.2d at 354. The Boy Scouts contended that the
statute was limited to physical sites and could not be
applied to membership organizations. However, the court
rejected this argument in light of the way in which "places
of public accommodation" had been defined and in light of
the legislative history.
Because the statute was ambiguous to the extent it
defined "place of public accommodation" in terms of "any
establishment" which offered its services to the public
rather than in terms of physical sites, the court found it
necessary to examine the legislative history. 528 A.2d at
357. The court noted first that public accommodation
statutes were derived from the common law duties of
innkeepers and common carriers. Id. at 357. Consistent with
those origins, the original version of Connecticut's public
accommodations statute, which listed a variety of "places of
public accommodation" that the legislature deemed to fall
within the reach of the statute, included railroad cars,
despite their lack of a fixed location. Id. at 357-58.
Later, the "laundry list" of particular
accommodations was dropped from the statute in favor of the
provision defining a "place of public accommodation" as "any
establishment which caters or offers its services or
facilities or goods to the general public." Id. at 358. The
legislative history was thus one of "steadily expanded
coverage." Id. Paying heed to the remedial ends of the
statute and the state's compelling interest in eradicating
gender discrimination, the court concluded that the
statutory history coupled with the "unconditional
language of the statute," rendered it unnecessary for an
establishment to have an identifiable location in order for
the public accommodations act to apply. 528 A.2d at 358.
Like Minnesota's similarly broadly drafted public
accommodation statute, whose comprehensive applicability
was recognized in United States Jaycees v. McClure, 305
N.W.2d 764 (Minn. 1981), and held to be constitutional in
Roberts v. United States Jaycees, [468 U.S. 609 (1984)],
our statute now regulates the discriminatory conduct and
not the discriminatory situs of an enterprise which offers
its services to the general public.
528 A.2d at 358 (footnote omitted). n26
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n26 Although the court concluded that the Boy Scouts was
a "place of public accommodation" within the meaning of
the Connecticut statute, it went on to hold that the act
of denying the plaintiff the position of scoutmaster did
not constitute a denial of access to a public
accommodation. 528 A.2d at 360. The court reasoned that
in seeking to become an adult leader, the plaintiff was
attempting not to receive goods or services from the Boy
Scouts, but to offer her own services to the
organization. Id. In the court's view, the public
accommodations statute did not reach this kind of
situation. Id.
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In contrast to these cases, NOW, 318 A.2d 33, did not
deal with a broadly worded statute. Instead, the New Jersey
statute, much like Title II, simply barred the operator of
any "place of public accommodation" from refusing to provide
its "accommodations, advantages, facilities, or
privileges" on any of the grounds specified in the statute.
In this case, the Little League appealed from an order of
the New Jersey Division of Civil Rights requiring the league
to admit girls into its baseball programs. One of the
grounds upon which the Little League objected to the order
was that the group did not constitute a "place of public
accommodation" which was barred from discriminating on the
basis of gender.
Although the Little League was a membership organization
which did not operate from a fixed parcel of real estate
within New Jersey, the court nonetheless concluded that it
qualified as a "place of public accommodation." The court
began with the proposition that the public accommodations
statute was a remedial law which should be applied in a
manner "sympathetic to its objectives." Id. at 37. It then
went on to hold that the term "place" should not be
construed in such a manner as to limit the reach of the
statute to the kinds of establishments normally thought of
as public accommodations:
The statutory noun "place" (of public accommodation) is a
term of convenience, not of limitation. It is employed to
reflect the fact that public accommodations are
commonly provided at fixed "places," e.g., hotels,
restaurants, swimming pools, etc. But a public conveyance,
like a train, is a "place" of public accommodation although
it has a moving situs. See N.J.S.A. 10:5-5(1), ("public
conveyance"). The "place of public accommodation in the case
of Little League is obviously the ball field at which
tryouts are arranged, instructions given, practices held and
games played. The statutory "accommodations, advantages,
facilities and privileges" at the place of public
accommodation, N.J.S.A. 10:5-12(f), is the entire
agglomeration of the arrangements which Little League and
its local chartered leagues make and the facilities they
provide for the playing of baseball by the children. . . .
Little League is a public accommodation because the
invitation is open to the children in the community at
large, with no restriction (other than sex) whatever. See
Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25, 33, 219
A.2d 161 (1966). It is public in the added sense that local
governmental bodies characteristically make the playing
areas available to the local leagues, ordinarily without
charge.
318 A.2d at 37. Thus, under NOW's rationale, a
membership organization need not be a "place" in order to
come within the reach of a statute like Title
II, so long as its activities center upon an identifiable
location. n27 Accord Kiwanis International v. Ridgewood
Kiwanis Club, 627 F. Supp. 1381, 1387 (D.N.J.) (Kiwanis
organization constitutes a "place of public accommodation"
within meaning of New Jersey statute because it conducts its
meetings in places like restaurants to which public is
unselectively invited), rev'd, 806 F.2d 468 (3d Cir. 1986),
cert. dismissed, 483 U.S. 1050, 108 S. Ct. 362 (1987).
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n27 NOW leaves some room for dispute as to whether or not
the site of the organization's activities must be a
public one in order for the organization to be deemed a
place of public accommodation. Compare McClure, 305 N.W.
2d at 773, with Bloomfield, 434 A.2d at 1382.
- - - - - - - - - - - -End Footnotes- - - - - - - - - - -
As in NOW, the result in Power Squadrons cannot
fairly be attributed to broad statutory phrasing. In that
case, three women had been denied membership in the United
States Power Squadrons, a national not-for-profit
organization which promoted safety and skill in boating
through public educational programs sponsored by its local
squadrons. Membership in the organization was restricted to
men. The plaintiffs contended that the Power Squadron's
membership policy constituted gender discrimination contrary
to New York's public accommodations statute. The New York
law prohibited discrimination in "any place of public
accommodation, resort, or amusement." See 465 N.Y.S.2d at
874. An illustrative laundry list of such places was set
forth in the statute:
The term "place of public accommodation, resort or
amusement" shall include, except as hereinafter specified,
all places included in the meaning of such terms as: inns,
taverns, road houses, hotels, motels, whether conducted for
the entertainment of transient guests or for the
accommodation of those seeking health, recreation or rest,
or restaurants, or eating houses, or any place where food
is sold for consumption on the premises; buffets,
saloons, barrooms, or any store, park or enclosure where
spirituous or malt liquors are sold; ice cream parlors,
confectioneries, soda fountains, and all stores where ice
cream, ice and fruit preparations or their derivatives, or
where beverages of any kind are retailed for consumption on
the premises; wholesale and retail stores and establishments
dealing with goods or services of any kind, dispensaries,
clinics, hospitals, bath-houses, swimming pools, laundries
and all other cleaning establishments, barber shops, beauty
parlors, theatres, motion picture houses, airdromes, roof
gardens, music halls, race courses, skating rinks, amusement
and recreation parks, trailer camps, resort camps, fairs,
bowling alleys, golf courses, gymnasiums, shooting
galleries, billiard and pool parlors; garages, all public
conveyances operated on land or water or in the air, as well
as the stations and terminals thereof; travel or tour
advisory services, agencies or bureaus; public halls and
public elevators of buildings and structures occupied by two
or more tenants, or by the owner and one or more tenants.
See 465 N.Y.S.2d at 875 n.1. New York's high court
concluded that an organization which conducted public
activities fell within the embrace of this definition.
The court noted at the outset that the definition of
places of public accommodation had repeatedly been enlarged
over the years. In particular, it observed that original
wording limiting application of the statute to the places
listed in the act had ultimately been deleted, which the
court took to be "a clear indication that the Legislature
intended that the definition of place of accommodation
should be interpreted broadly." 465 N.Y.S.2d at 875.
The court found two concepts embedded within the
statute: "the idea of public accommodation in the broad
sense of providing conveniences and services to the public,
and the idea of place." Id. There was little question but
that the Power Squadrons met the first of these two
criteria. Its mission was one of public education, and
consistent with that goal it sponsored boating safety
courses attended by more than 70,000 people per year. See
id. It conducted a variety of other public activities as
well, each aimed at promoting public interest in boat safety
and in the work of the organization itself. Id.
These widespread public activities to promote the Power
Squadrons' goals and to solicit public interest and
participation in its courses are . . . the equivalent of
systematically offering a service or accommodation to the
public and bringing petitioners within the statutory
definition.
Id.
The court also found the second notion of "place" was
satisfied, despite the fact that the Power Squadrons did
not operate from a fixed location.
We define "place" as did the New Jersey court when
construing similar statutory language. It is a term of
convenience, not of limitation (see National Organization
for Women v. Little League Baseball, 127 N.J. Super. 522,
318 A.2d 33, aff'd, 67 N.J. 320, 338 A.2d 198; see also,
New York Roadrunners Club v. State Div. of Human Rights,
81 A.D.2d 519, 437 N.Y.S.2d 681, aff'd on other grounds 55
N.Y.2d 122, 447 N.Y.S.2d 908, 432 N.E.2d 780; Matter of
Walston & Co. v. New York City Comm. on Human Rights, 41
A.D.2d 238, 342 N.Y.S.2d 459; United States Jaycees v.
McClure, 305 N.W.2d 764 [Minn.]). The statute
itself suggests such an interpretation because it lists
places of accommodations which have no fixed place of
operation but supply their services at a variety of
locations, e.g., travel and tour advisory services and
public conveyances. The statute also applies to
"establishments dealing with goods or services of any kind."
Analytically, such establishments may discriminate by
denying individuals access to any particular place, e.g.,
home delivery service or services performed in the
customer's home and mail order services.
465 N.Y.S.2d at 876. The lower court had found that although
the Power Squadrons did not conduct their activities at any
one place, they did frequently make use of public schools
and other public buildings, as well as public waterways,
parks, and marinas. The court of appeals agreed that such
locations supplied the "place" required in order to render
the organization a "place of public accommodation":
The place of public accommodation need not be a fixed
location, it is the place where petitioners do what they do.
Id.
Returning for a look at Title II in light of these cases,
it becomes apparent that the language of the federal
statute is significantly more narrow than many of the state
statutes which have been construed to embrace membership
organizations. Title II does not, for example, purport to
reach "business establishments of every kind whatsoever" as
did the California statute at issue in Curran. Indeed,
Title II retains the very "place of public accommodation"
language which the California legislature had discarded in
order to ensure that the statute would be given a broader
application than the judiciary had previously given to it.
Similarly, Title II does not include language referring to a
business or entertainment "facility of any kind" as in
McClure, or "any establishment, which caters or offers its
services or facilities or goods to the general public" as in
Quinnipiac. In each of these cases, the state courts
emphasized that this type of phrasing was particularly broad
and intended to expand the reach of the public
accommodations statutes in question beyond the ordinary
understanding of the term "place of public accommodation."
See McClure, 305 N.W.2d at 766; Quinnipiac, 528 A.2d at 358.
In contrast, the term "place" continues to figure
prominently in the operative language of Title II.
Consequently, cases such as Curran, McClure, and Quinnipiac
are inapposite.
The remaining cases call upon the Court to choose sides
in the ongoing judicial debate over the significance of the
term "place." NOW and Little League posit that the term is
"one of convenience, not limitation" and suggest that an
enterprise need not have a fixed physical site in order to
attain status as a "place of public accommodation," at least
insofar as the enterprise conducts its activities at
identifiable locations (e.g., playing fields, public schools,
and so on) which would qualify as "places" of public
accommodation. MCAD and cases of its ilk, however, maintain
that the legislature used the term "place" for a reason, and
that it should be attributed its ordinary meaning. In the
view of these courts, an organization should not be deemed a
"place of public accommodation" unless, in MCAD's words,
membership in the organization functions as a "ticket" to
admission to a particular site or facility.
This Court believes the reasoning of MCAD to be most true
to the language of Title II. The word "place" and
the concept of a physical site both figure prominently in
Title II. "Place" appears not only in the operative phrase
"place of public accommodation" in subsection (a) of the
statute, but again in subsection (b)(3) in the phrase "other
place of exhibition or entertainment" which the Court is
called upon to apply here. The word "establishment" is
repeated throughout Title II as well. Indeed, subsection (b),
the definitional portion of the statute, begins, "Each of
the following establishments which serves the public is a
place of public accommodation within the meaning of this
subchapter . . . ." See also @ 2000a(b)(1), (b)(2), (b)(4).
The term "establishment" can have connotations which are not
tied to a particular site. See Welsh, 742 F. Supp. at
1420 n.11; Burks v. Poppy Construction Co., supra, 20 Cal.
Rptr. at 611-12, 370 P.2d at 315-16 ("establishment" defined
to include a permanent commercial force or organization);
but see United States Jaycees v. Iowa Civil Rights
Commission, supra, 427 N.W.2d at 454 (Jaycees did not fit
within terms "place" or "establishment," each of
which ordinarily "connotes a spatial dimension which the
Jaycees' membership, as such, does not possess"). Yet, the
specific establishments cited in Title II all constitute the
usual sorts of sites one normally thinks of as places of
public accommodation: inns, motels, and hotels
(@ 2000a(b)(1)); restaurants, cafeterias, lunchrooms, lunch
counters, soda fountains, and gasoline stations (@
2000a(b)(2)); and motion picture houses, theaters, concert
halls, sports arenas, and stadiums (@ 2000a(b)(3)).
Moreover, subsection (b)(4) of the statute reiterates the
concept of a fixed site by including within the
establishments covered by Title II:
any establishment (A)(i) which is physically located
within the premises of any establishment otherwise covered
by this subsection, or (ii) within the premises of which is
physically located any such covered establishment, and (B)
which holds itself out as serving patrons of such covered
establishment.
42 U.S.C. @ 2000a(b)(4) (emphasis supplied). Thus, the use
of the term "place" in Title II, coupled with the use of
fixed-cite facilities as examples of "places" and of the
possibly broader term "establishments," strongly suggests
that the terms "place of public accommodation" and
"place of entertainment" should not be defined to include
membership organizations which do not operate from a
particular site or facility.
MCAD is also consistent with the manner in which federal
courts have applied Title II to membership organizations.
As noted above, the Court has been unable to locate any
federal case which has addressed the significance of the
term "place" in Title II and whether a membership
organization per se can be deemed a place of public
accommodation. Nonetheless, several federal cases offer
clues which indicate that a membership organization must
operate from a concrete facility of the types identified in
Title II in order to be considered a place of public
accommodation.
For example, United States Slidell Youth Association, 387
F. Supp. 474 (E.D. La. 1974), draws an implicit distinction
between a membership organization and the physical facility
it operates. The subject of Slidell was a youth football
league which refused to admit African Americans as members.
The league was organized in order to promote safety in youth
football and to develop the physical, mental, and
moral health of its youth members and instill in them a
sense of fellowship, scholarship, and citizenship. See 387
F. Supp. at 476. Aside from being white, a boy needed only
to be of a certain age and weight, pay a fee, and execute a
waiver of liability in order to become a member of the
league. See id. at 476-77. The league owned and operated a
recreational facility which included two football fields,
grandstands, and a concession stand. All football games
played in the league were played at this facility, and the
facility was used for this purpose alone and only by the
league. See id. at 477.
In considering whether the government had established a
pattern and practice of racial discrimination, the Slidell
court focused upon the youth association itself. See 387 F.
Supp. at 480-81. However, the court's attention shifted to
the recreational facility operated by the association when
it considered whether or not there was a "place of
entertainment" within the scope of Title II. The court did
observe that the association existed in order to provide
community youth "the entertainment of playing football"
and other community residents with the pleasure of
watching the game played. Id. at 483. Yet, the court's
ultimate finding was not that the association constituted a
place of entertainment, but that the facility it operated
was:
Because participatory forms of entertainment are covered by
42 U.S.C. @ 2000a(b)(3) and because playing football is one
such form of entertainment, the facility owned, operated
and maintained by SYFA to conduct its youth football program
is a place of entertainment within the meaning of 42 U.S.C.
@ 2000a(b)(3).
. . .
SYFA's facility is also covered as [a] place of
entertainment under 42 U.S.C. @ 2000a(b)(3) on the basis
that it offers a form of spectator entertainment to the
general public. The evidence in this case shows that members
of the general public are admitted to the SYFA youth
football games as spectators upon payment of an admission.
Many of the improvements made by SYFA to its property to
prepare the property for its football program centered
around this aspect of the program: the food concession
stand, the grandstands, the chain link fence. The statutory
language of Section (b)(3) is very clear that ". . .
sports arenas and stadiums" are intended to be included
within that section,' and the discussions of the scope of 42
U.S.C. @ 2000a(b)(3) in the cases cited above all begin with
the premise that places which offer a form of entertainment
to the viewing public are within the scope of that section.
Id. (emphasis supplied). See also id. at 484 ("it has been
established that SYFA's recreational facility is a place of
public accommodation within the meaning of 42 U.S.C. @ 2000a
et seq. . . . .") (emphasis supplied); id. at 486 (same).
Similar reasoning has prevailed in courts which have held
that local branches of the Young Men's Christian Association
("YMCA") were within the reach of Title II as "places of
entertainment" and therefore were prohibited from
discriminating on the basis of race. Much like the Boy
Scouts, the YMCA is an eleemosynary organization which
promotes the moral and spiritual development of boys through
a variety of recreational, educational, and spiritual
activities.
See Smith v. Young Men's Christian Association of
Montgomery, Inc., 462 F.2d 634, 636 (5th Cir. 1972); Nesmith
v. Young Men's Christian Association of Raleigh, N.C., 397
F.2d 96, 99-100 (4th Cir. 1968). Each of the local
YMCA organizations at issue in these cases was in effect
open to the public, requiring only that an individual
wishing to join be white and pay an annual membership fee.
See Smith, 462 F.2d at 648; Nesmith, 397 F.2d at 101. As in
Slidell, the touchstone for the court's conclusion in these
cases that Title II applied to the YMCA was the physical
site at which the organization sponsored its activities. See
Smith, 316 F. Supp. 899, 912 (M.D. Ala. 1970) ("The record
shows that each of the YMCA branches (excluding the Camp
branch) offers numerous recreational activities, such as
swimming, scuba diving, table tennis, basketball and tennis.
The Camp branch offers such activities as swimming, boating,
waterskiing, archery, and arts and crafts. Furthermore, the
Association's recreational facilities include five
gymnasiums, a health club and eight swimming pools.")
(emphasis supplied), aff'd 462 F.2d at 648; Nesmith, 397
F.2d at 97 ("The issue presented by this appeal is whether
the health and athletic facilities of the Young Men's
Christian Association of Raleigh, Inc. are covered
by Title II . . . .") (emphasis supplied).
This emphasis upon the facilities operated by the
membership organization as the "place" of public
accommodation is echoed, at least implicitly, in many other
Title II cases. See generally Durham v. Red Lake Fishing &
Hunting Club, 666 F. Supp. 954, 959 (W.D. Tex. 1987)
("Courts have found places of entertainment to include
health and beauty spas, golf clubs, bars and package stores,
swimming pools, and athletic clubs.") (footnotes collecting
cases omitted); United States v. Lansdowne Swim Club, 713 F.
Supp. 785, 790 (E.D. Pa. 1989), aff'd, 894 F.2d 83 (3d Cir.
1990). See also, e.g., Auerbach v. African American Teachers
Association, Inc., 356 F. Supp. 1046, 1048 (E.D.N.Y. 1973)
(white teachers ejected from public meeting called by group
organized to promote the education of African Americans had
shown discrimination in a place of entertainment, where
organization's meetings were held in a public school
auditorium); n28 Wesley v. City of Savannah, Georgia, 294 F.
Supp. 698, 701-02 (S.D. Ga. 1969) ("it is conceded by the
Savannah Golf Association that
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n28 Auerbach deals primarily with the question of whether
a claim of unconstitutional state action could be
asserted under 42 U.S.C. @ 1983 based upon the group's
use of public facilities. See 356 F. Supp. at 1048. Cf.
Equal Access Act, 20 U.S.C. @ 4071(c)(1), (5). A similar
question might be raised regarding the Boy Scouts, to
the extent its local affiliates promote and/or conduct
their activities in public schools. See Tr. at 43
(testimony of Sandra Dixon); Tr. at 133, 519 (testimony
of Boyd Ridley Critz, III); Tr. at 468-69 (testimony of
James L. Valukas); Tr. at 581 (deposition testimony of
William A. McCleery, III). No such contention has been
made in this case, however, nor does the Court express
any opinion as to this issue.
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
the Bacon Park Course is a place of public accommodation
under the Civil Rights Act of 1964"; accordingly, annual
golf tournament sponsored by this private association at the
golf course was subject to Title II); Williams v. Rescue
Fire Co., 254 F. Supp. 556 (D. Md. 1966) (skating arena
and swimming pool built and operated by not-for-profit
volunteer firefighting association constituted place of
entertainment). Indeed, in a number of these cases, the
courts have noted that the public facilities at issue had
merely adopted the facade of a membership organization in
order to circumvent Title II. See Daniel v. Paul, 395 U.S.
298, 302, 89 S. Ct. `697, 1699 (1969) ("this 'membership'
device seems no more than a subterfuge to avoid coverage
of the 1964 Act"); Williams, 254 F. Supp. at 563 ("The
so-called 'club' operation is an obvious subterfuge.");
United States v. Johnson Lake Inc., 312 F. Supp. 1376, 1378,
1381 (S.D. Ala. 1970) (recreational club was incorporated
in 1964 after enactment of Title II and insisted upon
display of membership cards only after suit was filed,
leading court to conclude that the club had been formed
principally as a means to exclude African Americans.
As the Massachusetts court noted in MCAD, cases like
these stand for the proposition that a membership
organization comes within the reach of Title II when
membership serves as a "ticket" to a particular
facility of the kinds set forth in the statute. See 463
N.E.2nd at 1159. Although none of the federal cases goes
so far as to say that a membership organization cannot
qualify as a place of public accommodation absent such a tie
to a particular facility, this Court believes MCAD was
correct in extrapolating this principle from the
legislature's use of the term "place" as well as the
results in cases like Slidell and NOW v. Little League.
This distinction between membership organizations and the
facilities they operate comports with the ordinary
understanding of "place" and with the categories of
establishments expressly cited in the statute, while at the
same time ensuring that such establishments cannot evade the
statute simply by adopting the mantel of a membership
organization. The distinction is also consistent with the
private club exemption set forth in subsection (e) of the
statute. That portion of the statute provides:
The provisions of this subchapter shall not apply to a
private club or other establishment not in fact open to the
public, except to the extent that the facilities of such
establishment are made available to the customers or patrons
of an establishment within the scope of subsection (b) of
this section.
42 U.S.C. @ 2000a(e). Like MCAD, Congress itself, in
enacting subsection (e), seems to have drawn a distinction
between an organization, in this case a "private club," and
the facilities it operates. Subsection (e), of course, does
not purport to address large organizations like
the Boy Scouts (which may or may not qualify as an
organization "not in fact open to the public," a disputed
matter the Court does not reach in this opinion);
nonetheless, the fact that the statute recognizes a
distinction between organizations per se and organizations
which operate the sorts of facilities cited as "places of
public accommodation" lends credence to MCAD's "ticket"
analogy. See U.S. Jaycees v. Iowa Civil Rights Commission,
427 N.W.2d at 455.
The legislative history of Title II, in contrast to the
history of California's Unruh Act and some of the other
state statutes which have been given a more expansive
interpretation, also points toward exclusion of
organizations which do not have a physical site. It is
appropriate to look beyond the statutory language and delve
into the legislative history only when the statute is
ambiguous or where a literal interpretation of the statute
would produce a result which is absurd or contrary to the
goals of the statute. United States v. Real Estate Known
as 916 Douglas Ave., supra, 903 F.2d at 492. In view
of the division among the state courts as to the
appropriate interpretation of the term "place" in
statutes comparable to Title II, arguably there is enough
of an ambiguity in the federal act to invite resort to its
legislative history. However, even when a court does
consider the legislative history of a statute, it must do
so bearing in mind that the words of the act itself reflect
congressional intent; that presumption is rebutted only in
the rare circumstance in which the legislative history
clearly reflects a purpose contrary to the ordinary meaning
of the words used. Ardestani v. I.N.S., supra, 112 S. Ct. at
520 (citing I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 432 n.
12, 107 S. Ct. 1207, 1213 n.12 (1987), and Rubin v. United
States, 449 U.S. 424, 430, 101 S. Ct. 698, 701 (1981)). See
also American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102
S. Ct. 1534, 1537 (1982); Richards v. United States, 369
U.S. 1, 9, 82 S. Ct. 585, 591 (1962).
Here, a review of the legislative history does not
demonstrate an intent to depart either from the common
understanding of the term "place" or from the types
of facilities expressly cited as examples of places of
public accommodation and places of entertainment. To the
contrary, the legislative history confirms the notion that
Congress meant the terms "place of public accommodation" and
"place of entertainment" to be construed consistently with
the ordinary meaning of those terms.
The legislative history of Title II has been described as
"inconclusive" and "obscure" insofar as it concerns the
intended reach of the statute. See Miller v. Amusement
Enterprises, Inc., 394 F.2d 342, 349 (5th Cir. 1968) (en
banc). Nonetheless, that history supplies a number of clues
which suggest that Congress did not intend for membership
organizations lacking ties to a tangible place or facility
to be treated as "places" of public accommodation.
It bears noting first that in contrast to the House bill
which was eventually enacted, Section 4 of the Senate bill,
S. 1732, included a ban upon discrimination with respect to
membership in labor unions as well as professional,
business, or trade associations and organizations. See S.
Rep. No. 872, 88th Congress, 2d Sess. (1964), reprinted in
1964 U.S.C.C.A.N. 2355, 2359. In this sense, the
House bill which was to become Title II was far narrower in
scope. See 110 Cong. Rec. 6533 (March 30, 1964) (remarks of
Sen. Humphrey) ("The reach of that title is much narrower
than when the bill was first introduced. It is also
narrower than S. 1732, the bill reported by the Senate
Commerce Committee, which covers the general run of retail
establishments, membership in labor unions, and so forth.");
see also 110 Cong. Rec. 7397 (April 9, 1964) (remarks of
Sen. Magnuson). Indeed proponents of the bill repeatedly
emphasized its limited scope. See, e.g., 110 Cong. Rec. 6533
(March 30, 1964) (remarks of Sen. Humphrey) ("The bill deals
with the practical problems we face. This is a bill of
limitation and restraint. It is a reasonable proposal. It
is directed to specific, known, abuses."); id. at 6534
("Title II, like the bill as a whole, is designed to reach
the most significant manifestations of discrimination. It
is carefully drafted and moderate in nature. There is no
desire to regulate truly personal or private
relationships."); 110 Cong. Rec. 8253 (April 17, 1964)
(remarks of Sen. Prouty) ("Equal access to public
accommodations involves few new jurisprudential
concepts.") See also 110 Cong. Rec. 8344 (April 18, 1964)
(remarks of Sen. Proxmire); 110 Cong. Rec. 1629 (February
1, 1964) (remarks of Rep. Halpern).
Moreover, throughout the debates upon the bill, when
referring to the kinds of facilities which would be
considered "places of public accommodation," members of
congress simply echoed the list of covered establishments
expressly identified in the bill -- e.g. hotels and motels,
restaurants, etc. -- without any acknowledgment that the
bill might reach other kinds of establishments or
organizations. See, e.g., 110 Cong. Rec. 6533 (March 30,
1964) (remarks of Sen. Humphrey) ("The business
enterprises covered by section 201 include hotels and motels
. . ., restaurants and lunch counters, . . . gasoline
stations, and motion-picture houses, theaters, sports
arenas, and other public places of exhibition or amusement.
These are the establishments covered by title II."); id. at
6534 ("I should like to emphasize that the establishments
covered are very clearly described in section 201(b)."); id.
at 6356; 110 Cong. Rec. 6557 (March 30, 1964) (remarks of
Sen. Kuchel) ("The House-passed bill does not in title II
cover all places of public accommodation, but it
does cover those establishments whose discriminatory
practices, when they have occurred, have resulted in great
distress and anguish. Specifically, the bill expressly
provides that all persons shall have access to the following
places of public accommodation without regard to race,
color, religion, or national origin: places of lodging,
such as hotels, and motels . . .; eating establishments;
places of amusement such as theaters and sports arenas;
[and] gasoline stations . . . ."); 110 Cong. Rec. 7404
(April 9, 1964) (remarks of Sen. Magnuson) (citing examples
of places of entertainment); id. at 7410 ("Simply stated,
the bill merely seeks to establish the right of all persons,
without regard to race, color, religion, or national
origin, to the full and equal enjoyment of the services and
facilities of a variety of places of business serving the
general public."). Again, lawmakers stressed the limited
nature of the bill. See 110 Cong. Rec. 1640 (February 1,
1964) (remarks of Rep. Senner) ("Title II is moderate
legislation. It invades no man's privacy and compels no
personal or confidential relationships. It deals only with
places which have traditionally held out services
and facilities to the general public."); 110 Cong. Rec. 1926
(February 4, 1964) (remarks of Rep. Moorehead) ("Title II is
not a radical change, it merely expands the ancient and
familiar rule with respect to inns to such places as
restaurants, gasoline stations, and places of exhibition or
entertainment, as has been done by some 31 States and the
District of Columbia."). See also 110 Cong. Rec. 12614
(June 3, 1964) (remarks of Sen. Muskie); 110 Cong. Rec. 7785
(April 13, 1964) (remarks of Sen. Smathers); 110 Cong. Rec.
7383 (April 9, 1964) (remarks of Sen. Young); 110 Cong. Rec.
1511 (remarks of Rep. Madden).
Indeed, proponents of the bill repeatedly stressed the
fundamental right to unrestrained interstate travel and the
economic significance of interstate commerce in explaining
why it was important that these types of facilities not be
permitted to discriminate. See, e.g., 110 Cong. Rec. 1642
(February 1, 1964) (remarks of Rep. Ryan) ("For the white
person traveling from State to State, the road is a series
of familiar landmarks. Frequently his most difficult problem
is to choose among the array of establishments offering
food, lodging, and respite. But for the Negro
traveler, the road may be more like a desert and each
inviting sign a mirage or, worse yet, a humiliating rebuff
to him, his family or companions."); 110 Cong. Rec. 6528,
6535 (March 30, 1964) (remarks of Sen. Humphrey) ("the lack
of facilities at which to rest and at which to eat is a
substantial impediment to interstate travel and commerce");
110 Cong. Rec. 6557 (March 30, 1964) (remarks of Sen.
Kuchel) ("There can be no question but that segregation in
public accommodations obstructs and restricts interstate
travel and the sale of related goods and services. The
market for national entertainment such as community
concerts, athletic competitions and motion pictures is
surely restricted by such a local situation. National
industries seeking new sources of manpower and availability
to growing urban markets are inhibited from locating their
offices and plants in areas where racial strife is likely to
occur."); 110 Cong. Rec. 7397, 7398, 7412-13 (April 9, 1964)
(remarks of Sen. Magnuson). See also id. at 7402; S. Report
872, supra, 1964 U.S.C.C.A.N. at 2371-72; 110 Cong. Rec.
8343 (April 18, 1964) (remarks of Sen. Proxmire); 110 Cong.
Rec. 1594 (February 1, 1964) (remarks of Rep. Farbstein).
Opponents of the bill in turn argued that the bill
represented an intrusion upon the property rights of
business owners, and as such constituted a violation of the
Fifth Amendment. See House of Representatives Minority
Report Upon Proposed Civil Rights Act of 1963, Committee on
Judiciary Substitute for H.R. 7152, 88th Cong., 2d Sess.,
reprinted in 1964 U.S.C.C.A.N. 2431, 2441 ("Places of '
public accommodation' do not cater by custom to one race in
preference to another solely from proprietary preference.
People are in business to make money and in certain areas
they have learned, or have reason to believe, it is more
profitable to serve only one race or another. . . . A
host follows the customs of his community else he suffers,
economically. To force him to abandon his practice, to run
counter to prevailing opinion, is to injure his business and
his property."); 110 Cong. Rec. 1606 (February 1, 1964)
(remarks of Rep. Dorn) ("Title II will give the Attorney
General gestapo power over hotels, motels, restaurants,
cafeterias, lunchrooms, gasoline stations, and so forth.
This section is a most sinister and calculated attack upon
property rights."); 110 Cong. Rec. 7756 (April 13,
1964) (remarks of Sen. Holland) ("The owners of the
thousands of fine hotels, motels, restaurants, boarding
houses, and so forth, might be deprived of their
constitutional rights to manage their own businesses which
they have built up by hard work, sacrifice, and investment
of their own hard earned money. . . . Enactment of this
vicious, socialistic legislation strikes at the very heart
of the Constitution upon which this Republic was founded and
upon which our basic system of private enterprise, which we
hold so high, lives and thrives."); 110 Cong. Rec. 7784,
7786 (April 13, 1964) (remarks of Sen. Smathers, quoting
congressional testimony of Florida Gov. Bryant) ("We are
dealing here today with property rights. . . . The debate
in which we are now engaged is over the assertion of a new
right: The right of nonowners of property to appropriate it
from the owners."); 110 Cong. Rec. 12700 (June 4, 1964)
(remarks of Sen. Byrd) ("Title II constitutes a radical
departure from established constitutional principles, and
would constitute an invasion of the property rights of
owners of privately owned establishments.") See also 110
Cong. Rec. 8081-82 (April 15, 1964) (remarks of
Sen. Ervin); 110 Cong. Rec. 8356 (April 18, 1964) (remarks
of Sen. Eastland); 110 Cong. Rec. 5958 (March 23, 1964)
(remarks of Sen. Thurmond); 110 Cong. Rec. 2791 (February
10, 1964) (remarks of Rep. Grant); 110 Cong. Rec. 1988
(February 5, 1964) (remarks of Rep. Whitten); 110 Cong. Rec.
1977 (February 5, 1964) (remarks of Rep. Fuqua); 110 Cong.
Rec. 1629 (February 1, 1964) (remarks of Rep. Andrews); 110
Cong. Rec. 1618 (February 1, 1964) (remarks of Rep.
Abernethy); 110 Cong. Rec. 1617 (February 1, 1964) (remarks
of Rep. Roberts); 110 Cong. Rec. 1611 (February 1, 1964)
(remarks of Rep. Sikes).
Thus, the legislative history demonstrates an
understanding that Title II would reach only the types of
businesses commonly understood to be places of public
accommodation. Without question, opponents of the bill
perceived it as a radical measure. See, e.g., 110 Cong. Rec.
2791 (February 10, 1964) (remarks of Rep. Grant) ("This
could well be the Appomattox of constitutional liberties for
all Americans."); 110 Cong. Rec. 6071 (March 24, 1964)
(remarks of Sen. Long) ("this radical legislation would
create a whole pack of wolves to be used against the rights
of individual Americans"); 110 Cong. Rec. 3713
(February 26, 1964) (remarks of Sen. Ervin) ("This bill
constitutes the most drastic assault on constitutional
government ever proposed in the history of our Nation.");
110 Cong. Rec. 2472 (February 7, 1964) (remarks of Rep.
Matthews) ("Title II, the so-called public accommodations
provision of the bill, is the most brazen attempt to impose
Federal authority directly on private citizens and private
property since the ill-fated Civil Rights Act of 1875.").
However, their concern focused upon the intrusion into the
operation of businesses like restaurants and hotels, not
membership organizations like the Jaycees or the Boy Scouts.
See, e.g., 110 Cong. Rec. 3713-14 (February 27, 1964)
(remarks of Sen. Ervin) ("It seems to me that the Federal
Government should devote its attention to something more
important than telling shoeshine boys whose shoes they
should shine.") At the same time, proponents of the bill
stressed that it was a moderate measure designed to address
the denial of access to public facilities which had
contributed to the racial strife which confronted the
nation. See, e.g., 110 Cong. Rec. 8062 (April 15, 1964)
(remarks of Sen. Johnston) ("The list of businesses
expressly covered by the title consists of places of public
accommodation in which racial discrimination is particularly
humiliating and causes the greatest inconvenience. Moreover,
the list focuses on situations in which congressional action
can clearly produce prompt and significant relief."); see
also pages 56-57, supra. There is no hint in the legislative
history that Title II would be construed so broadly as to
+reach membership organizations which had little or no
connection to the sorts of facilities normally thought of as
places of public accommodation. See 110 Cong. Rec. 7406
(April 9, 1964) (remarks of Sen. Magnuson) ("Performances
produced by private organizations, like fraternal groups, in
places to which the public is not invited are outside the
scope of Title II."); id. at 7407 ("Service or professional
establishments would not generally be covered unless they
are physically located within the premises of a covered
establishment and hold themselves out as serving the patrons
thereof."). Thus, this is not a case in which the
legislative history of the statute merely fails to establish
a clear intent contrary to the ordinary meaning
attached to Title II's terminology. Cf. United States v.
Johnson Lake Inc., supra, 312 F. Supp. at 1380 ("The word
'entertainment' as used in [42 U.S.C. @ 2000a(b)(3)] was
intended to carry its ordinary meaning . . . .") Instead,
the history of the act tends to confirm that Title II was
not meant to be so sweeping a measure as to reach membership
organizations per se.
The Court is cognizant of the fact that Title II is to be
construed liberally and that its language should not be
interpreted so narrowly as to conflict with the statute's
remedial aim. See, e.g., Miller v. Amusement Enterprises,
Inc., supra, 394 F.2d at 349 ("We do not read [Title II]
with narrowed eye but with open minds attuned to the clear
and strong purpose of the Act, namely, to secure for all
citizens the full enjoyment of facilities described in the
Act which are open to the general public."). In particular,
the Court recalls the admonition of the majority in Daniel
v. Paul, supra, 395 U.S. at 308, 89 S. Ct. at 1702,
regarding the proper construction of the term "place of
entertainment":
In light of the overriding purpose of Title II "to remove
the daily affront and humiliation involved in
discriminatory denials of access to facilities ostensibly
open to the general public," H.R. Rep. No. 914, 88th Cong.,
1st Sess., 18, we agree with the en banc decision of the
Court of Appeals for the Fifth Circuit in Miller v.
Amusement Enterprises, Inc., 394 F.2d 342 (1968), that the
statutory language "place of entertainment" should be given
full effect according to its generally accepted meaning
. . . .
(Emphasis in original.) See Welsh, 742 F. Supp. at 1419;
Lansdowne Swim Club, 713 F. Supp. at 790. Thus, the Court
recognizes that an establishment may qualify as a "place of
entertainment" for purposes of Title II even though it is
not among those expressly cited in the statute. See Miller,
394 F.2d at 350 ("Although we recognize that ejusdem generis
is an old and accepted rule of statutory construction, we do
not believe that it compels us to accord words and phrases
embodied in the statute a definition or interpretation
different from their common and ordinary meaning; or that
the rule requires us to interpret the statute in such a
narrow fashion as to defeat what we conceive to be
its obvious and dominating general purpose."); United States
v. DeRosier, 473 F.2d 749, 752 (5th Cir. 1973) (neighborhood
bar qualified as "place of entertainment" although it was
unlike the establishments cited in the statute). n29
- - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n29 In Daniel, the Supreme Court held that the Lake Nixon
Club, an amusement park located near Little Rock,
Arkansas, qualified as a "place of entertainment" under
42 U.S.C. @ 2000a(b)(3). As the Fifth Circuit had in
Miller, the Court rejected the Club's argument that it
was unlike any of the other establishments listed in
Subsection (b)(3) because it offered participatory,
rather than spectator, amusement. 395 U.S. at 306-08, 89
S. Ct. at 1701-02. See Miller, 394 F.2d at 348-51.
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
However, there comes a point at which giving the
statutory language its "full effect according to its
generally accepted meaning" will result in the exclusion of
certain establishments which do not conform to the
ordinary understanding of the term "place of entertainment."
This is such a case. There may well be merit to the
contention that the principal focus of statutes like Title
II is upon the denial of access to accommodations rather
than upon the concept of "place." See Kiwanis International
v. Ridgewood Kiwanis Club, supra, 627 F. Supp. at 1387
(D.N.J.); Power Squadrons, 465 N.Y.S.2d at 875-76;
Quinnipiac Council, 628 A.2d at 358. See also Welsh, 742
F. Supp. at 1420-21. However, the Court is not free to
disregard the plain language Congress has used or the
ordinary meaning of that language. Congress enacted a law
addressing the "place of public accommodation"; and it did
not define that term in such a way as to signal a departure
from the usual connotations of that phrase. It did not
define the term as "any establishment which caters or offers
its services or facilities or goods to the general public,"
(see Quinnipiac Council, 528 A.2d at 358); nor as "all
business establishments of every kind whatsoever" (see
Isbister v. Boys' Club of Santa Cruz, Inc., 40 Cal.3d 72,
219 Cal. Rptr. 150, 153, 707 P.2d 212, 215 (1985);
Curran, 147 Cal. App. 3d 712, 195 Cal. Rptr. at 334-36); nor
as "a business, accommodation, refreshment, entertainment,
recreation, or transportation facility of any kind" (see
McClure, 305 N.W.2d at 766); nor as "any establishment or
person," with the term "person" defined to include "one or
more individuals, partnerships, associations, [or]
organizations, . . . ." (see Israel v. West Virginia
Secondary Schools Activities Commission, 388 S.E.2d 480, 488
(W. Va. 1989) (distinguishing Title II)) Congress instead
chose to highlight the concept of place by listing as
examples establishments which possess concrete locations and
facilities, and, in the particular provision at issue here,
by rendering the statute applicable to "other places of
. . . entertainment." 42 U.S.C. @ 2000a(b)(3). Cf. Hatheway
v. Gannett Satellite Information Network, Inc., 157 Wis.2d
395, 459 N.W.2d 873 (Wis. App. 1990) (newspaper which
refused classified advertisement from gay/lesbian
organization did not constitute a "public place of
accommodation" within scope of Wisconsin accommodation
statute, because newspaper was dissimilar to types
of places listed in statute). n30
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n30 See generally United States v. Thomas, 930 F.2d 526,
529 (7th Cir.), cert. denied, U.S. , 112 S. Ct.
171 (1991), and Alschuler v. Department of Housing and
Urban Development, 686 F.2d 472, 488 (7th Cir. 1982),
employing similar ejusdem generis rationale.
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
The Boy Scouts, lacking a connection to a particular
site or facility, does not qualify as such a place. Although
both BSA and the Council may have certain administrative
offices and do sponsor certain events at locations which
might be thought of as places of public accommodations
(e.g., public campgrounds), access to these sites is not
really at issue here. The dispute instead is one over access
to the Boy Scouts as an organization and to the full range
of its activities, many (if not most) of which do not take
place at such locations. In and of themselves, neither the
Council nor BSA constitute "places" within the meaning
of Title II. Nor does the fact that the majority of scouting
activities take place at some identifiable place in the
generic sense -- in a home, a church, a museum, or a Show
Biz Pizza parlor, to cite but a few examples -- render the
Boy Scouts a "place" for purposes of Title II. Certain
courts have suggested otherwise. See McClure, 305 N.W.2nd
at 772 ("[i]f we were to look for mobile sites of the
national organization's 'business facilities' we would find
them in the sometimes door-to-door, company-to-company
solicitation of members for the organization, and we would
find them in the oft-shifted sites at which the affiliated
local chapters hold meetings . . ."); see also Ridgewood
Kiwanis Club, 667 F. Supp. at 1387 ("[b]ecause Kiwanis
conducts its meetings in just such places, -- i.e., public
restaurants -- [this] court concludes that the New Jersey
Supreme Court would be prepared to find that the statutory
'place' requirement has been met . . ."), rejected, 806
F.2d at 474. However, for the Court to deem the Boy Scouts
a "place" simply because it conducts its activities at
identifiable locations would attribute a sweeping scope to
the term "place of public accommodation" completely
inconsistent with its ordinary meaning. Private homes, for
example, are rarely thought of as places of public
accommodation (except by parents exasperated by the comings
and goings of their prodigal adolescent offspring); and to
use the family home as the site which triggers Title II
coverage would raise serious constitutional concerns.
Lending further support to the conclusion that the Boy
Scouts does not amount to a "place of public accommodation"
within the scope of Title II is the fact that the primary
benefits of membership in the organization flow not from
access to or the use of a particular facility, but from the
interaction and companionship amongst the boys and the adult
volunteers. Organizations like the YMCA or Boys' Club, for
example, have in common with the Boy Scouts the aim of
fostering the mental, physical, and spiritual development of
boys. Yet, unlike the Boy Scouts, the YMCA and Boys' Club
work toward that goal in substantial part through a variety
of programs and activities which center upon a concrete
recreational facility embraced by the ordinary meaning of a
"place of public accommodation" and a "place of
entertainment" in particular. Having reviewed the body of
evidence presented in this case, this Court is convinced
that it would not particularly matter whether a Cub Scout
den met in a club house, in a living room, or in a garage.
The kinds of activities in which Boy Scout, Cub Scout,
and Tiger Cub groups typically engage are not
dependent upon the accoutrements of any particular location,
let alone of a facility one would normally think of as a
place of public accommodation. Rather, the success of the
Boy Scouts, and the attraction to boys and their parents
alike, lies in the sense of community among its
participants.
In a similar vein, the Boy Scouts has argued that it
does not qualify as a "place of entertainment," because the
true sources of entertainment in the organization are its
members and volunteers and the interaction between them,
rather than any recreational equipment or other goods which
have moved in interstate commerce. See 42 U.S.C. @ 2000a(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
. . ."); 2000a(c) (a place of exhibition or entertainment
under subsection (b)(3) affects commerce if "it customarily
presents films, performances, athletic teams, exhibitions,
or other sources of entertainment which move in commerce").
Because the Court concludes that the Boy Scouts does not
constitute a "place of entertainment" as plaintiffs have
contended, it need not and does not reach the
question of whether the organization "customarily presents
. . . sources of entertainment which move in commerce."
Thus, for example, the Court need not consider whether it is
enough to satisfy the interstate commerce requirement of
Title II that the Boy Scouts makes use of "fun books,"
uniforms, camping and hiking equipment, and other goods
which may have moved in interstate commerce, even though
these items may be incidental to the "entertainment" which
the Boy Scouts offers. For present purposes, the Court
merely notes its agreement with the proposition that the
benefits of participation in the Boy Scouts stem not from
access to particular places 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. CONCLUS®IONS 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.
VI. CONCLUSION
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.
ENTER:
ILANA DIAMOND ROVNER
UNITED STATES DISTRICT JUDGE
Dated: March 13, 1992
Newsline December 7, 1993 The Supreme Court has UPHELD the BSA's
position to ban athiests in their organ-
ization. source: API
E-Mail Fredric L. Rice / The Skeptic Tank