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Curran v. Boy Scouts of America


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     Tim Curran's first experience with Scouting came relatively late in his early life -- at the age of 14. Most boys join a Boy Scout troop at the age of 11 or 12 and despite the best efforts of the BSA, stay in Scouting for less than two years. So when Tim decided to join the troop his friend dragged him to that night, the odds were against him staying involved for long. Fortunately for Tim, he stayed with Scouting and earned the coveted Eagle Scout Award, which fewer than 3% of all Boy Scouts achieve.
     Along the way to getting his Eagle, the other Scouts in his troop elected Tim to be a Patrol Leader and a member of Scouting's "honor society of campers," the Order of the Arrow. As part of the requirements for Eagle, Tim organized a troop for deaf children in Oakland. He attended the National Jamboree as a journalist for the newspaper published during the Jamboree. This early experience eventually led him to his current career as a journalist.
     On a spring night in 1980, three days before he turned 18, BSA awarded Tim the Eagle Scout rank in a Berkeley church. During his Court of Honor, BSA held Tim up as an exemplary Scout, one to which all other Scouts should emulate. A few months later, in a meeting called by the Scout Executive of the local council, the Scout Executive informed Tim and his parents that "homosexuality and Scouting were not compatible." BSA would not allow Tim to attend the next National Jamboree and write for its newspaper.
     Tim's parents knew that he was gay and could not believe what the Scout Executive was saying about their son. The impetus for this meeting was a newspaper article printed in a local newspaper about gay youth. The article included a picture of Tim and his male date to his school prom. His mother knew that taking a male date was the "most difficult thing he had ever done in his life," for which she "was very proud of him for having the courage."
     Tim was not only ejected from Scouting, but also had his name placed in BSA's Confidential File. This file is where known pedophiles are supposedly recorded and prevented from registering again. All this for openly taking another boy to a school prom. With the help of the ACLU, Tim sued the Boy Scouts of America under California's Civil Rights Act. The following is a synopsis of that court case.

     Tim's suit challenged BSA's policy prohibiting participation by lesbians and gay men (gay youth, gay/lesbian adult leaders, gay/lesbian parents). Tim contended that this policy violated the Unruh Civil Rights Act (1959), which prohibits arbitrary discrimination by "business establishments." On October 30, 1981, the Superior Court sustained BSA's demurrer to the complaint, without leave to amend. The Court of Appeal reversed this decision on October 3, 1983, upholding Tim's view that the Unruh Act bars discrimination on the basis of sexual orientation and that Tim's allegations respecting BSA makes them a "business establishment" within the meaning of the Unruh Act. The California Supreme Court denied BSA's petition for hearing and BSA's appeal to the US Supreme Court was dismissed. All of these court proceedings took place throughout the decade of the 1980's.

     After almost a decade of discovery and pretrial motions, the first phase of trial began on September 20, 1990, and dealt with whether BSA is a "business establishment." On November 6, 1990, the Court ruled in Tim's favor, holding that the Mt. Diablo Council is a "business establishment" under the Unruh Act.
     The second phase of trial began on December 10, 1990. It dealt with whether application of the Unruh Act to the Mt. Diablo Council in this case would impermissibly violate its members' rights to intimate or expressive association under the US Constitution. Closing arguments, after post-trial briefing, took place on February 22, 1991.
     While rejecting claims of intimate association, the Court issued a tentative decision on May 30, 1991, (later made final with minor modifications) accepting BSA's argument that a significant part of their mission involves teaching that homosexuality is immoral and that requiring them not to discriminate on the basis of sexual orientation would substantially impact BSA's ability "to get across its preferred message in its preferred way" in violation of their right of expressive association. Judgment was entered on July 25, 1991. A notice of appeal was filed on September 27, 1991. BSA filed a cross appeal on October 16, 1991.
     The Court of Appeal ruled, 2-1, on March 29, 1994, that BSA is not a business establishment and that the rights of intimate and expressive association justify their policies. Tim filed a petition for rehearing, which was denied April 18, 1994. Tim afterwards filed a petition for review with the California Supreme Court, which was granted on June 2, 1994. The Court deferred briefing, however, pending decision of Warfield v. Peninsula Golf and Country Club, in which the ACLU was also counsel.
     On July 26, 1995, the California Supreme Court ruled six to one that a private golf club cannot discriminate against women members in Warfield vs. Peninsula Golf and Country Club. This hard-fought, 14-year-old case challenged the legality of a San Mateo club's policy that only men could hold family memberships in the club.
     "This decision tells the entire business community that organizations, whether private or public, shall not discriminate against people on the basis of gender, race, religion, national origin, disability, and other personal characteristics," said Ramona Ripston, Executive Director of the ACLU of Southern California.
     Attorney Jon W. Davidson, who argued the case before the California Supreme Court April 3, 1995 said the ruling confirmed the strength of the Unruh Civil Rights Act of 1959 to prohibit discrimination by "all business establishments of every kind whatsoever." "This is a tremendous victory," said Davidson. "As businesses, clubs -- whether private or not -- cannot be allowed to discriminate against a class of people based solely on their status. The Court's ruling says women and others must receive equal treatment in California."
     The case was brought by Mary Ann Warfield, a real estate agent who had been the women's golf champion at the club on numerous occasions, and who had used the club's facilities to generate half of her business. Ms. Warfield participated in the club's activities for 11 years and obtained rights to the membership as part of her 1981 divorce. The country club refused to recognize her membership after the divorce under their policy that only men could hold voting, proprietary memberships.
     After Warfield was decided, the Court set an August - September briefing schedule for both Tim's case and Randall v. Orange County Council (the case of twin boys denied membership in BSA on religious grounds). Oral argument was heard on January 5, 1998 for both cases . On March 23, 1998, the California Supreme Court issued their ruling -- against Tim Curran and the Randall twins.

     In a unanimous decision, the California Supreme Court ruled that the Boy Scouts of America are not a business covered by California's anti-discrimination laws and can therefore discriminate on the basis of both sexual orientation and religious belief.
     The opinion by Chief Justice Ronald George stressed that the court was not judging the wisdom of the Scouts' policies, and carefully avoided the question of whether the Scouts, if covered by civil rights laws, would have the constitutional right to exclude gays and atheists.
     Of course, this March 23rd ruling came just days after the New Jersey Supreme Court, also in a unanimous opinion, ruled that the Boy Scouts of America is a public accommodation -- as defined by New Jersey's civil rights laws -- and that they violated state civil rights laws in discriminating on the basis of sexual orientation. Thus, setting up the basis for the Boy Scouts of America to successfully appeal to the United States Supreme Court the New Jersey Dale decision.
 

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