I concur in the judgment.
In my view, however, the majority’s analysis cannot sustain the result. Like Justice Werdegar, I find that our Unruh Civil Rights Act jurisprudence, including today’s decision, fails to provide useful guidance in determining the act’s coverage and that predictability in its application remains elusive. To put it bluntly, the law is a mess. In a state as marvelously diverse as California, the rules regarding discrimination should not develop ad hoc. Nevertheless, our prior decisions have almost universally failed to formulate a coherent and comprehensive interpretation of “business establishment.” This vice did not become pernicious until recently because the results appeared consistent with legislative intent to prohibit discrimination by those engaged in commercial activity regardless of its form. (See, e.g., Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463 [20 Cal.Rptr. 609, 370 P.2d 313] [Unruh Civil Rights Act applies to sale of real property notwithstanding lack of fixed place of business].) Beginning at least with Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72 [219 Cal.Rptr. 150, 707 P.2d 212], however, the lack of analytical substance began to take its toll, and the law is now desperately in need of critical reexamination.
*734In his concurrence, Justice Mosk has successfully undertaken this task, and I fully endorse his statutory analysis and the conclusions which flow from it. In discussing the likely scope of “business establishment,” Professor Horowitz noted the Legislature had failed to define this pivotal phrase. Nevertheless, considering the language contained in predecessor public accommodations statutes replaced by the Unruh Civil Rights Act, the choice to declare the principle of nondiscrimination “in terms of ‘business’ relationships seems to indicate . . . that the principle should be restricted to a broad category of relationships in which the ‘establishment’ offers its facilities for compensation, and in which the relationship with the patron is relatively noncontinuous, and in which personal and social aspects of the relationships are relatively insignificant.” (Horowitz, The 1959 California Equal Rights in “Business Establishments” Statute—A Problem in Statutory Application (1960) 33 So.Cal.L.Rev. 260, 288-289.)
Given the Legislature’s clear focus on discrimination arising in the context of commercial activities, Horowitz concluded “[mjembership clubs or organizations, e.g., country clubs owned by and operated for the benefit of the members, [which] should be held not to fall within the scope of the statutory principle, because the relationship between discriminator and discriminatee is essentially continuous, personal, and social.” (Horowitz, The 1959 California Equal Rights in “Business Establishments” Statute—A Problem in Statutory Application, supra, 33 So.Cal.L.Rev. at pp. 289-290, fn. omitted.) Likewise, coverage of nonprofit organizations would turn on whether the relationship between the establishment and other persons were “of a gratuitous, continuous, personal, and social sort. . . .” (Id. at p. 290.)
Justice Mosk’s definition of business establishment faithfully distills the valuable insights of Professor Horowitz on which this court has frequently relied and provides a comprehensive, and comprehensible, standard. Doubtless, his conclusions require the overruling of Isbister v. Boys’ Club of Santa Cruz, Inc., supra, 40 Cal.3d 72, and Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594 [42 Cal.Rptr.2d 50, 896 P.2d 776]. That necessity should not call into question the soundness of the standard; it simply reflects how far our jurisprudence has strayed from the plain meaning of the statute and apparent legislative intent.
This explication of the Unruh Civil Rights Act also properly recognizes a distinction between an organization’s formulation and implementation of membership policies and its commercial activities. Such recognition is not only consistent with the statutory language and legislative intent but, for the reasons cogently expressed by Justice Kennard in her concurrence, imperative when those policies implicate expressive association and free speech. *735Any definition of business establishment that failed to make such an accommodation would raise serious constitutional questions as to application of the act.