Schwenk v. Boy Scouts of America

O’CONNELL, J.,

dissenting.

The majority holds that the plain thrust of the Public Accommodation Act is to bar discrimination in business and commercial activities. I find nothing in the Act nor in the legislative background of the Act which suggests that it was to apply only to business or commercial activities. The Oregon Public Accommodation Act is but one of a number of similar state statutes in the United States proscribing discrimination.1 The Civil Rights Act of 1964 (42 USCA 2000a et seq.) appears to be aimed at essentially the same objective. These comparable statutes have, for the most part, been construed to extend to non-commercial types of *338discriminatory conduct. Thus, the statutes have been applied to preclude the practice of excluding females from competitive sports or to preclude the practice of withholding membership in the Y.M.C.A. from applicants because of their color.2 There are also many cases raising an equal protection challenge to sex discrimination in school athletic programs.3 Although this constitutional issue has not been raised in the present case, such cases are a fruitful source of analogy since they consider many of the issues present in Public Accommodation Act cases.

Defendant points to ORS 30.680, which permits the recovery of damages "from the operator or manager of such place” (of public accommodation), arguing that this phrase relates to the management of a commercial enterprise and not to one who performs such services as leading a group of young boys in Cub Scout activities. It may seem somewhat out of focus to refer to one performing services of any kind as the "operator or manager” of a "place.” But it is to be noted that ORS 30.675 provides that a "place of public accommodation * * * means any place or service.” ORS 30.680 must, therefore, be read to say that damages may be recovered from "the operator or manager of such place [or service].” If one can operate or manage a service, it is difficult to see why one cannot operate or manage a *339service which consists of teaching woodcraft, how to tie knots, or how to live in a Cub Scout camp.4

There is nothing about the wording of the Oregon Act which suggests that it was intended to be confined to commercial activities or to those activities which are carried on in a particular geographical place where goods, entertainment, services, etc. are dispensed to the public. Whether a nondiscrimination statute such as ORS 30.670 et seq. is to be given a limited application to accommodations, goods, services, etc. which are found in the marketplace or a broader and more inclusive interpretation will depend upon the objectives which motivated the adoption of this type of legislation.

The original public accommodation acts sought to deter discrimination on the basis of "race, religion, color, or national origin.”5 More recently, discrimination on the basis of sex or marital status is forbidden.6 The evil at which this type of legislation is aimed is not simply the unfairness which results in denying certain material benefits to one group when they are at the same time made available to others; it is aimed at the elimination of practices which deprive a person of his individuality by insisting that he bear the stamp of his class. As Kenneth Karst observes, in an article in 49 Los Angeles Bar Bulletin 499, 502 (Oct. 1974), *340entitled "A Discrimination So Trivial”: A Note on Law and the Symbolism of Women’s Dependency:

"* * * It is state sponsorship of the symbolism of * * * inferiority that is unconstitutional.
"Inequality is harmful chiefly in its impact on the psyches of the disadvantaged. * * * [W]hat really matters about inequality is something that happens inside our heads:
" 'The peculiar evil of a relative deprivation * * * is psychic or moral; it consists of an affront; it is immediately injurious insofar as resented or taken personally, and consequentially injurious insofar as demoralizing.’ ”7

The psychic or moral interest at stake is seen in the principle that provision for separate but equal accommodations does not obviate a constitutional objection based on the Equal Protection Clause of the Fourteenth Amendment.8 It is apparent that the so-called "women’s lib” movement is not merely an expression of dissatisfaction on the part of women because goods and services are not made available to them to the same extent that they are available to men. They seek to eliminate the traditional image of women’s dependence and their relegation to certain traditional female roles.9

*341It is no answer to a high school girl who seeks to be accepted as a member of the varsity tennis team that the tennis facilities for women are as good or better than those enjoyed by the boys who play on varsity; she demands recognition as an individual — the opportunity to demonstrate that whatever image her sex may denote as a result of tradition, she as an individual can do as well as the males who have excluded her.

Reading the Oregon Public Accommodation Act against this backdrop, which relates the 1973 amendment of the Act to the movement for women’s psychological independence, I cannot accept the majority’s narrow interpretation of the Act, limiting it to commercial activities or to material advantages such as the obtention of credit.

The majority’s attempt to derive "legislative intent” from a few oblique comments by witnesses at the committee hearings speculating about the applicability of the legislation is unproductive. For example, the testimony of Eleanor Meyers is relied upon by the majority in support of the conclusion that the YMCA and YWCA (and therefore the Boy Scouts of America) are not within the definition of "public accommodations.” Apart from the fact that the witness’ statements are ambiguous and inconclusive, they seem clearly in error.10 It is difficult to believe that such testimony would convince the legislature that the YMCA, YWCA or similar organizations, including *342Boy Scouts, were "strictly private” organizations. The effect of the majority’s interpretation is that the statute would not be violated if the YMC A would exclude from membership all black persons. I cannot bring myself to believe that the legislature intended the statute to permit discrimination in such circumstances. If I am correct in my belief, there is as much reason to assume that discrimination on the basis of sex as well as on the basis of color was proscribed.

The majority’s reliance on the testimony of Eleanor Meyers is faulty in another respect. The following portion of Eleanor Meyers’ statement quoted by the majority indicates that the YMC A and YWCA would be included under the 1973 Act definition of public accommodations unless the "distinctly private” exception applied:

Unidentified Representative: "and this [bill] wouldn’t affect them [YMCA and YWCA]?
Eleanor Meyers: "I don’t believe it would as such. That’s a question that needs further research. It depends on what services would be called distinctly private.”

This is inconsistent with the majority’s conclusion that the legislature intended the public accommodations act to apply to only business or commercial enterprises.

The same inconsistency exists in the majority’s use of Representative Shirley Field’s 1957 testimony. When asked whether the Act would include fraternal organizations, Representative Field replied, "private clubs or institutions would not be covered.” Representative Field did not mention the non-commercial nature of most fraternal organizations. The recurring distinction in the legislative history is between that which is a public accommodation and that which is "distinctly private”; it is not the distinction between commercial and non-commercial relied upon in the majority opinion.11

*343Defendant also contends that even if defendant was found to be a "place” or provided a "service” within the meaning of the Act, it falls within the exception found in ORS 30.675, which excludes "any institution, bona fide club or place of accommodation which is in its nature distinctly private.”

Since the Boy Scouts of America organization does not appear to be a club as that term is usually employed, the question is whether defendant is an "institution” or "place of accommodation which is in its nature distinctly private.”12 Although no evidence was adduced in the present case (since it was decided upon the demurrer to the complaint), it is commonly known that membership in the Boy Scouts of America is open to any boy within the specified age group without any other limitation whatsoever. It is also a matter of common knowledge that defendant obtains its financial support from public sources.13 To classify as "distinctly private” an organization with such open accessibility to the public at large (within the age group) and with its financial support resting on such a broad public base, would be to distort this phrase beyond any conceivable meaning which could be attributed to the drafter.

A point is made of the fact that the extension of membership in the Boy Scouts would require defendant and other similar organizations such as the Girl Scouts, the Camp Fire Girls, and the Young Women’s Christian Association either to restructure their programs and some of their physical facilities at consider*344able inconvenience or to withdraw from the state. It is further argued that the union of both sexes in any of these organizations would result in sacrificing the special benefits now offered to the youth of a single sex. Recited as another reason for limiting the membership as presently provided is the prospect of supporters of the existing programs withdrawing their contributions.

It is highly doubtful that this spectre of a crumbling organization would assume real form. It is well known that in many communities YMCA and YWCA organizations continue to flourish even though membership in each case is open to both sexes (as well as to young and old and to Christian and non-Christian). But even assuming serious readjustments would be necessary if the Act is interpreted as requiring the acceptance of both sexes in the organization, I do not regard this as a basis for holding the statute inapplicable. The same considerations which apply in testing the constitutionality of a statute alleged to deprive the plaintiff of equal protection are applicable in testing the statute involved here. Frequently, in the equal protection cases, compliance with the court’s command to desist from discrimination causes serious, and sometimes costly, readjustments. This is a part of the price we pay for the equality guaranteed by the constitution. I assume that the legislature recognized that a similar price would have to be paid to remove existing disparities which did not meet the requirements of the statute.

Upon the basis of the foregoing reasons, I would hold that the allegations of plaintiff’s complaint bring this case within the scope of the Public Accommodation Act and therefore defendant’s demurrer should have been overruled.

The question which has been presented to the court on this appeal: "Did the legislature intend the Public Accommodation Act to proscribe the exclusion of girls from the Boy Scouts of America?” will, for some, *345undoubtedly have the ring of facetiousness. If the inquiry is made simply in terms of the right of a specific female person to enjoy the benefits which are offered by the Boy Scouts program, the obvious answer is that she can get similar benefits by joining the Girl Scouts, the Camp Fire Girls, or the Brownies. But this "separate but equal” argument loses its force if the specific female applicant is seen as the prototype of all women and the defendant’s refusal to admit her as a rejection of all women simply because they fall within a particular class. The interest at stake, then, assumes the form which I have identified above — the interest which relates to one’s sense of individuality, independence and self-worth.14 That interest is easier to identify when it is put alongside the interest protected where color is the basis of the discrimination. If defendant were to set up a Boy Scout program exclusively for blacks and barred them from a separate organization for whites, it would be obvious that the classification would be discriminatory. The reason that the classification is discriminatory is that each black person is entitled to be treated as a person and the classification fails to do this. The interest involved is described by Morris, "Persons and Punishment,” 52 The Monist 475, 493 (1968), as follows:

"The right to be treated as a person is a fundamental right belonging to all human beings by virtue of their being human. It is also a natural, inalienable and absolute right.”

To this, Karst adds:

"* * * It is more basically the right to be treated as one who is free to make independent choices. It is this sense of being a person that is undermined by legal rules symbolizing a woman’s dependency.”15

*346When this is seen as the interest intended to be protected by the Public Accommodation Act it becomes apparent that it becomes necessary to subordinate other interests in order to fulfill the purpose of the Act. Thus, although one may feel strongly that, as a parent, he should be entitled to have his son learn the principles of scouting in exclusively male surroundings, that luxury cannot be enjoyed where the scouting program is offered as a public accommodation. There is, of course, nothing to prevent the creation of a strictly private organization offering a scouting program for boys only.16

If all of this has a strange and unreal ring to it, the explanation is that the symbolism of women’s dependency has by tradition been so deeply ingrained in our thinking that it is difficult to readjust our views to comport with the growing recognition of woman’s equality and independence.

Defendant argues that a construction of the Act requiring the acceptance of girls into the Boy Scouts would violate the right of association guaranteed by Article I, § 26 of the Oregon Constitution and the First and Fourteenth Amendments of the United States Constitution. The "governing principle,” defendant asserts, is found in the following dissenting opinion of Mr. Justice Douglas in Moose Lodge No. 107 v. Irvis, 407 US 163, 92 S Ct 1965, 32 L Ed2d 627, 641 (1972):

"* * * associational rights which our system honors permit all white, all black, all brown, and all yellow clubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be. The individual can be as selective as he desires. So the fact that the Moose Lodge allows only Caucasians to join or come as guests is constitutionally *347irrelevant, as is the decision of the Black Muslims to admit to their services only members of their race.”

Taking this literally as a "governing principle,” the most flagrant form of discrimination would be protected under the mantle of the right of free association. The answer is, of course, that those with a common interest may associate exclusively with whom they please only if it is the kind of association which was intended to be embraced within Art. I, § 26, Oregon Constitution and the First and Fourteenth Amendments of the United States Constitution.

These constitutional provisions were not intended to restrain the legislature from enacting anti-discrimination laws where, as in the case of the Oregon Public Accommodation Act, strictly private institutions are not affected.17

Defendant also argues that the enforcement of the Public Accommodation Act against the Boy Scouts of America would violate the Supremacy Clause of the United States Constitution, Art. VI, Cl. 2.18 It is pointed out that the Boy Scouts of America, the Girl Scouts of America, and similar organizations have been granted charters by Act of Congress (36 USCA § 21 et seq.). Defendant interprets this as a declaration of policy that the precepts and goals of the Boy Scouts of America can best be encouraged by participation in *348programs limited to persons of the same sex. Assuming that Congress has the power to so limit the method by which such programs are to be carried out,19 there is no indication that Congress intended to authorize Boy Scouts to practice sex discrimination in violation of state law. In fact, the language of the Boy Scouts charter demonstrates a contrary intent:

"The name of the corporation created by this chapter shall be 'Boy Scouts of America’, and by that name it shall have * * * power to * * * make and adopt by-laws, rules, and regulations not inconsistent with the laws of the United States of America, or any State thereof * * 36 USCA § 22. (Emphasis added.)

There is no Supremacy Clause problem, since Congress did not authorize Boy Scouts to exclude girls if to do so would be inconsistent with state law.20

*349The decision of the trial court should, therefore, be reversed and remanded for trial.

See, e.g., Ariz. Rev. Stat. Ann. § 41-1441; Iowa Code Ann. § 601 A.2(10); N. J. Stat. Ann. 10:1-5; N. M. Stat. Ann. § 4-33-1 et seq; N. Y. Exec. Law § 292(9) and N. Y. Civ. Rts. Law 40; 43 Consol. Pa. Stats. Ann. § 951 et seq; R. I. Gen. Laws Ann. § 11-24-3; Utah Code Ann. § 13-7-2(a); and Wash. Rev. Code § 9.91.010(1).

See also, additional Public Accommodation Acts collected in Heart of Atlanta Motel v. United States, 379 US 241, 85 S Ct 348, 13 L Ed2d 258, 259, n. 8 (1964).

See, e.g., Stout v. Young Men’s Christian Ass’n., 404 F2d 687 (5th Cir 1968) and Nesmith v. Young Men’s Christian Ass’n of Raleigh, N.C., 397 F2d 96 (4th Cir 1968) (federal Civil Rights Act prohibited racial discrimination of Y.M.C.A.); National Organization for Women, Essex Chapter v. Little League Baseball, Inc., 127 N J Super 522, 318 A2d 33, aff’d. mem., 67 N J 320, 338 A2d 198 (1974) (state statute prohibited sex discrimination in Little League baseball program). See also, Tillman v. Wheaton-Haven Recreation Ass’n., 410 US 431, 93 S Ct 1090, 35 L Ed2d 403 (1973) (federal Civil Rights Act prohibited racial discrimination in non-profit community swimming pool association).

See, e.g., cases collected in 19 S Dak L Rev 429 (1974), and in 25 Syracuse L Rev 535 (1974).

It is likely that some of the terminology and the thrust of the language in some parts of the Oregon Public Accommodation Act does not fit comfortably in other parts of the Act because of the amendments made to the Act by Oregon Laws 1973, ch 714. It will be noted that in making these amendments the legislature eliminated the specific designation of "place” (.e.g., "hotel, motel, motor court, trailer park, or campground),” and "[a]ny place offering to the public food or drink” and "[a]ny place offering to the public entertainment, recreation or amusement” and "[a]ny place offering to the public goods or services,” and substituted the general definition of a place of public accommodation as "any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise,” obviously in an effort to expand the scope of the statute.

E.g., Oregon Laws 1953, ch 495, § 1.

E.g., Oregon Laws 1973, ch 714.

The quote is from Michelman, "On Protecting the Poor Through the Fourteenth Amendment,” 83 Harv L Rev 7, 49 (1969).

See, Brown v. Board of Education, 347 US 483, 74 S Ct 686, 98 L Ed 873, 38 ALR2d 1180 (1954) (public school) and Watson v. Memphis, 373 US 526, 83 S Ct 1314, 10 L Ed2d 529, 538 (1963) (public recreational facilities).

The proponents of this view do not contend that a classification based upon sex can never be employed, but only that it cannot be employed without justifying it on the basis of some compelling societal interest. As Karst notes: "Of course, law — any law — implies inequality. Inequality is built into a system of norms and sanctions; legislation necessarily classifies. And law, at least law-as-rules, is necessarily a system of symbols. Some symbolism of inequality is thus inescapable if we are to have law. A legal system constitutionally disabled from employing any such symbolism is a legal system that cannot function. However, no such self-defeating remedy is required. What is required is a special judicial sensitivity to the impact of legislative symbolism on any person’s sense of first-class citizenship, on any person’s sense of individuality, independence and self-worth. Doctri*341nally speaking, such sensitivity is conveniently expressed in the notion that classification on the basis of sex is 'suspect’ requiring justification by a compelling state interest.” Karst, "A Discrimination So Trivial”: A Note on Law and the Symbolism of Women’s Dependency, 49 Los Angeles Bar Bulletin 499, 504 (Oct. 1974).

In Thompson v. IDS Life Ins. Co., 274 Or 649, 652, 549 P2d 510, decided as recently as April 15, 1976, this court dismissed the same statement of Eleanor Meyers that is relied upon by the majority in the present case: "* * * [I]t is only the comment of one individual and of little or no help in determining legislative intent.”

Since its inception, the Public Accommodation Act has always contained a "distinctly private” exception: See, 1953 Oregon Laws, ch 495, § 2; 1957 Oregon Laws, ch 724, § 2; 1961 Oregon Laws, ch 247, § 2; 1973 Oregon Laws, ch 714.

There are numerous cases in which the courts have been called upon to decide whether a club is or is not "distinctly private.” In making this determination the factors employed have included: (1) Whether the club is genuinely selective; (2) whether the members control the organization; (3) whether the club is supported solely by its members; (4) whether there are initiation fees and dues; (5) whether payment for the privilege of membership or "dues” is by cash or credit; (6) whether it advertises; (7) whether it is taxed and licensed as a private club; (8) whether the use of its facilities is limited to members and their guests.

Public sources of financial support include United Way, Inc. (a community fund raising organization) and, in some instances, have included federal education programs (cf., USCS § 1681(a)(6)(B)).

"This right to be treated as a person is a fundamental right belonging to all human beings * * Morris, “Persons and Punishment,” 52 The Monist 473, 495 (1968).

K. Karst, "A Discrimination So Trivial”: A Note on Law and the Symbolism of Women’s Dependency, 49 Los Angeles Bar Bulletin 499,503, n. 22 (Oct. 1974).

Nor would there seem to be a violation of the Act if in addition to offering one public accommodation program open to both boys and girls, a separate program was offered for boys and a separate program offered for girls.

The right to freedom of association is not absolute. See, Annotation, 33 L Ed2d 865 §§ 6[a] and 7[b], and cases collected therein. States may constitutionally limit associational freedoms in furtherance of a compelling state interest in the regulation of a subject within the state’s power to regulate, so long as the compelling interest cannot be served equally well through significantly less burdensome regulation. See, American Party of Texas v. White, 415 US 767, 94 S Ct 1296, 39 L Ed2d 744, 760 (1974). The Oregon Public Accommodation Act is in furtherance of a compelling state interest within the state’s power to regulate — elimination of the evils inherent in discrimination on the basis of race, sex, religion, marital status or national origin — and the regulation could not be made significantly less burdensome and still serve the state interest equally well.

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

In National Organization for Women, Essex Chapter v. Little League Baseball, Inc., 127 N J Super 522, 318 A2d 33, 40 (1974), the defendant argued that since Little League Baseball, Inc. was chartered by Congress, it precluded inconsistent state legislation. The court stated:

<>* * * Moreover, the ascription of any purpose or policy beyond the mere grant of a federal charter would be incompatible with Congress’ limited power to create corporations.
“Congress has no explicit power to create corporations. The power exists only as a means, under the necessary and proper clause, to effectuate the powers expressly conferred upon the national government. M’Culloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579 (1819); see Fletcher, Cyclopedia Corporations, § 121 (1963). Since it is difficult to conceive of any express power underlying the congressional charter of incorporation for Little League Baseball, the charter is itself a tenuous exercise of federal power. Moreover, there being no underlying express power, the charter cannot be deemed intended to effectuate any substantive policy or purpose.
"These being our views as to the intent and purpose of the chartering act, it remains to determine whether the Law Against Discrimination, as applied in the Division, conflicts with it. The test is whether the latter 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ Hines v. Davidowitz, 312 US 52, 67-68, 61 S Ct 399, 404, 85 L Ed 581 (1941) quoted with approval in Perez v. Campbell, supra, 402 US at 649-650, 91 S Ct at 1711; Florida Avocado Growers v. Paul, 373 US 132, 141 (opinion of the court), 165 (dissenting opinion), 83 S Ct 1210, 10 L Ed2d 248 (1963).”

See, Florida Avocado Growers v. Paul, 373 US 132, 83 S Ct 1210, 10 L Ed2d 248, 257 (1963). Federal regulation is not "deemed preemptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained. * * *”