Lisa Martin v. International Olympic Committee

ALARCON, Circuit Judge,

Special concurrence.

I concur in the opinion of the court. I write separately to express my concern that the views of the dissent, if adopted, would create an unwise and mischievous precedent and wipe out many hard fought victories in the battle for equality.

By invoking California’s Civil Rights Act to uphold a demand of the women runners for separate but equal women’s 5000m and *68010,000m events, our dissenting colleague would have us turn back the clock to a time when “whites only” signs separated this nation in our use of hotels, restaurants, restrooms, drinking fountains, and bus seats. California’s Civil Rights Act was enacted to eliminate separate but equal restrictions and to guarantee to all persons the same accommodations, privileges, advantages, and services. Recently the California Supreme Court stressed that California’s Civil Rights Act was a codification of the common law doctrine that certain businesses providing public accommodations must serve all persons “without discrimination.” Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 738, 640 P.2d 115, 180 Cal.Rptr. 496 (1982).

The Olympic Committee has scheduled 5000m and 10,000m events for the 1984 Olympics. The women runners do not seek full and equal access to the scheduled 5000m and 10,000m events which are now restricted to men. Instead, they seek the assistance of the court to compel separate but equal 5000m and 10,000m events for women. California’s Civil Rights Act has never been interpreted to permit or require separate but equal access to accommodations, privileges or advantages. In each case in which there has been a challenge to a restriction imposed on a person by the owner of a business establishment, the California courts have ordered that the plaintiff was entitled to the same privileges, advantages or accommodations available to the preferred group. See Rolon v. Kulwitzky, 153 Cal.App.3d 289, 200 Cal.Rptr. 217 (1984) (Lesbian couples are entitled to service in booths reserved for heterosexual couples); O’Connor v. Village Green Owners Association, 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427 (1983) (Families with children under 18 are entitled to purchase condominiums despite covenants, conditions, and restrictions to residency by persons over 18 years); Curran v. Mount Diablo Council of The Boy Scouts of America, 147 Cal.App.3d 712,195 Cal.Rptr. 325 (1983) (The Boy Scouts cannot exclude homosexuals); Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115 (1982) (Landlords cannot exclude parents with children); Winchell v. English, 62 Cal.App.3d 125, 133 Cal.Rptr. 20 (1976) (Owners of mobile home court cannot restrict subleasing to blacks); Hales v. Ojai Valley Inn and Country Club, 73 Cal.App.3d 25, 140 Cal.Rptr. 555 (1977) (Tieless men in leisure suits may not be excluded from dining room facilities which do not require women to wear ties); Easebe Enterprises, Inc. v. Rice, 141 Cal.App.3d 981, 190 Cal.Rptr. 678 (1983) (It is a violation of the Unruh Act to exclude all males from a business establishment which sells liquor to women only during certain hours).

I am mindful of the regrettable frustration which has resulted from the failure of the representative of the women runners to make a timely request to qualify special 5000m and 10,000m events for women when they obtained approval under rule 32 for their participation in separate 3000m and marathon events. Their short term disappointment should not blind us to the harm which would follow if the courts were now to interpret legislation, enacted to end class based discrimination, to require a business establishment to offer separate accommodations, privileges, advantages, or services. Such an apartheid construction of California’s Civil Rights Act would raise serious constitutional questions under the equal protection clause. See Brenden v. Independent School District 742, 477 F.2d 1292 (8th Cir.1973) (It is a violation of the equal protection clause to deny participation to women in a cross-country race restricted to males).