Isbister v. Boys' Club of Santa Cruz, Inc.

MOSK, J.

I dissent.

The incredible concept that a private, charitably funded recreational club for boys cannot be allowed to exist as such because it is a “business establishment” would be an irresistible subject for ridicule and humor if it were not so serious in its impact. The majority opinion conjures up visions of young boys, who have been skinny-dipping in their club pool, donning three-piece suits to attend the board meeting of their “business establishment” where they may discuss such matters as the antitrust implications of a proposed takeover of girl scout cookies. Precocious indeed these teen and preteen youngsters must be.

Growing up into a world of sex equality is inevitable for all children, but the court-ordered elimination of traditional childhood activity is an exorbitant price to pay for accelerating the process.

The majority purport to be blithely oblivious to the extended reach of their decision, and disingenuously attempt to restrict their opinion to this one case, involving only this one Boys’ Club in this one city. At the same time they appear to implore the Legislature to rescue society from this judicial folly and its consequences. (Maj. opn., ante, at pp. 77 and 91.) That is a plea I can enthusiastically endorse.

That the ultimate result of this case will strain our social fabric and send shock waves throughout the realm of children’s organizations is made clear by the appearance of numerous apprehensive amici curiae representing both girls and boys. Girls’ organizations throughout California are no more eager for an invasion by boys than are boys’ groups for dilution of their programs by compulsory inclusion of girls. Briefs on behalf of the Santa Cruz club have been filed by the Boy Scouts of America, Girl Scout Councils of California, United Way of America, the Girls’ Club of Vista, and the Boys’ Clubs of Tustin, Vista, Oceanside, Chula Vista, Buena Park, Rio Hondo, Pasadena, Whittier, San Francisco, National City, Santa Clara County, Oakland, Santa Ana, and the San Dieguito Boys’ and Girls’ Clubs and Fall-brook Boys’ and Girls’ Clubs.

The majority’s insouciance is disturbing. No girl’s parents who are inclined to be litigious will fail to use this case as authority to demand their daughter’s admission to other boys’ clubs, the Boy Scouts, Cub Scouts, Young Men’s Christian Association, and similar organizations that maintain camps or physical facilities. Conversely, boys could rely on this case to *94insist on their right to join girls’ clubs, the Girl Scouts, Campfire Girls, Young Women’s Christian Association, and like groups. There is no rational way to distinguish those situations.

In addition, the majority strike a death knell for fraternities and sororities as they exist on every college campus in California. There is-no way any court can read the rationale of the majority opinion and yet deny the right of a male student to join a sorority, or a female student to become a fraternity member. If the Boys’ Club of Santa Cruz is a business because it operates a gymnasium and swimming pool, a fortiori sororities and fraternities, which provide and charge for housing accommodations and eating facilities, are business establishments. Similar considerations will probably also affect separate college dormitories.

The natural extension of the majority opinion to women’s colleges is even more potentially devastating. If a qualified male student seeks admission to Mills, Mount St. Mary’s or Scripps—California’s renowned educational institutions for women—there is no rational way in which a court could distinguish his demand from that of the plaintiff herein. Colleges that provide not only classes but living accommodations and food service are arguably more akin to a business establishment than is a recreational boys’ club.

As is inevitable, the majority have considerable difficulty with legislative history. The original version of the measure that ultimately came to be known as the Unruh Act was expansive. It extended to “all public or private groups, organizations, associations, business establishments, schools and public facilities. ...” (Assem. Bill No. 594 (1959 Reg. Sess.), as introduced Jan. 21, 1959.) By means of amendment, however, all groups other than “business establishments” were eliminated. Specifically stricken was reference to “private groups” and “associations.”

From the foregoing, the majority with amazing dexterity reach the conclusion that by limiting the scope of the act to the one remaining category-business establishments—the Legislature somehow intended to embrace all the eliminated categories. This is comparable to insisting that when the states repealed the 18th Amendment they intended to retain prohibition. As stated in Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 607 [45 Cal.Rptr. 512]: “The rejection by the Legislature of a specific provision contained in an act as originally introduced is most persuasive to the conclusion that the act should not be construed to include the omitted provision.” (Accord, Madrid v. Justice Court (1975) 52 Cal.App.3d 819, 825 [125 Cal.Rptr. 348].)

There is a simple answer to the plaintiff’s contention about legislative intent. If the Legislature really meant that the Unruh Act applies to chari*95table and noncommercial enterprises like boys’ clubs and intended to simplify the act, it would not have used the word “business” in the statute; “establishment” would have sufficed.

As this court declared in In re Cox (1970) 3 Cal.3d 205, 215 [90 Cal.Rptr. 24, 474 P.2d 992], we must presume the Legislature is aware of our decisions. Thus when over the years the Legislature retained the coupling of “business” and “establishment,” it obviously did so in deference to the definition given to “business” by Chief Justice Gibson in Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 468 [20 Cal.Rptr. 609, 370 P.2d 313]: “The word ‘business’ embraces everything about which one can be employed, and it is often synonymous with ‘calling, occupation, or trade, engaged in for the purpose of making a livelihood or gain.’ ” It is obvious to the boys at the club, as it should be to my colleagues, that the Boys’ Club is not operated “for the purpose of making a livelihood or gain.”

Professor Horowitz in his law review article on the meaning of “business establishments” declared that they are entities which enter into nongratuitous relationships with other persons, those relationships being relatively noncontinuous, nonpersonal and nonsocial. (Horowitz, The 1959 California Equal Rights in “Business Establishments” Statute (1960) 33 So.Cal.L.Rev. 260, 289.) Services and facilities are provided by the Boys’ Club for a nominal nonprofit fee of $3.25 per year; the relationship between the Boys’ Club and its members is essentially gratuitous. The purpose of the Boys’ Club—to help boys develop citizenship, leadership, values, health and fitness, personal adjustment and individual growth, and intergroup understanding—is primarily to provide services of a personal and social nature, and the relationship between the Boys’ Club and its members is clearly noncommercial. Finally, boys may remain members for years; the relationship is thus continuous.

My colleagues did not need to strain to the point of reductio ad absurdum to prove judicial devotion to principles of sexual equality in business establishments. This court’s record has been clear. Long before any of the present majority were on the court, we insisted on the right of women to be accorded equal treatment in the business world. In Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 20 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351], a unanimous court held sex classifications to be suspect, particularly in business and employment. The Legislature has been consistent with us in this area, and also spoke in terms of “business establishments” as distinguished from nonprofit community service organizations.

A different view was taken in a recent federal case. In Martin v. International Olympics Committee (9th Cir. 1984) 740 F.2d 670, 82 women *96athletes experienced in 5,000 and 10,000 meter track races sought the right to compete in the 1984 Olympics in Los Angeles. The federal court, conceding that the sporting event has become a “business establishment,” nevertheless found no violation of the Unruh Act or related statutes in “the male-oriented approach taken in the Olympics from its modern-day inception.” (See also O’Connor v. Board of Educ. of School Dist. 23 (N.D.Ill. 1982) 545 F.Supp. 376 [girl not permitted on boys’ basketball team]; Forte v. Board of Ed., North Babylon, etc. (1980) 105 Misc.2d 36 [431 N.Y.S.2d 321] [boy not permitted on girls’ basketball team].)

The recent United States Supreme Court opinion involving Minnesota Jaycees is helpful, but clearly not to these plaintiffs. (Roberts v. United States Jaycees (1984) 468 U.S. 609 [82 L.Ed.2d 462, 104 S.Ct. 3244].) The majority reiterated their devotion to the principle of protecting organizations of persons with shared ideals and beliefs from unwarranted state interference. Whether an organization is entitled to constitutional protection from incursion by the state depends upon such factors as its “size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent.” (Id., at p. 620 [82 L.Ed.2d at p. 473, 104 S.Ct. at p. 3251].)

In finding that the Jaycees were subject to state-imposed sex restrictions, the court relied upon the criteria used by Minnesota courts: the organization’s size, selectivity, commercial nature and use of public facilities. It specifically drew a distinction between the Jaycees and such community groups as Kiwanis clubs. And if there were any question as to the limited reach of the Supreme Court opinion, in its conclusion it recognized the state courts’ “articulated willingness to adopt limiting constructions that would exclude private groups from the statute’s reach.” (Italics added, id., at pp. 630-631 [82 L.Ed.2d at p. 480, 104 S.Ct. at p. 3256].)

Justice Sandra O’Connor’s concurring opinion is particularly instructive. She emphasized (at p. 632 [82 L.Ed.2d at p. 481, 104 S.Ct. at p. 3257]) the goal of ensuring “nondiscriminatory access to commercial opportunities in our society.” She declared (at p. 632 [82 L.Ed.2d at pp. 483-484, 104 S.Ct. at pp. 3259-3260]) that organizations engaged in commercial activity-such as the Jaycees—have only limited protection from governmental restrictions, in contrast to those groups engaged in “the training of outdoor survival skills or participating in community service [which] might become expressive when the activity is intended to develop good morals, reverence, patriotism and a desire for self-improvement. ” It is significant that she cited as examples of the latter the activities of boy scouts and girl scouts.

From Roberts one gleans that organizations such as the Jaycees that foster the commercial benefits of its members may be regulated by government, *97but that others enjoy “a substantial measure of sanctuary from unjustified interference by the State.” It is ludicrous to contend that the Boys Club of Santa Cruz is engaged in commercial activity.

The effects, tangible and intangible, of the majority opinion in this case are devastating.

First, the club will be required to compel joint use of facilities by boys and girls—swimming, basketball, handball, etc. In the alternative, the club will be required to cut the boys’ recreational time in half and restrict their hours in order to accommodate girls: e.g., not a full day on Saturday but only a half day; not two hours after school but only one hour.

Second, the club will be compelled to build an additional locker room, showers, toilets and other physical facilities. This, of course, will require a considerable expenditure of charitable funds.

Third, while being thus obligated to expand, the club will simultaneously lose a $200,000 gift that is conditioned on a male-only policy. The majority gratuitously declare that the admission of girls “may well produce offsetting new revenue sources.” I doubt that my colleagues would enjoy serving on a fund-raising committee seeking to raise a $200,000 “offset” for this purpose in the Santa Cruz community.

Fourth, the majority effectively stifle any community incentive to create and construct a girls’ club comparable to the Boys’ Club.

Fifth, the Boys’ Club may very well lose its national charter. By act of Congress, the Boys’ Clubs of America are authorized “to promote the health, social, educational, vocational, and character development of boys throughout the United States of America. ...” (36 U.S.C.A. § 693.) Parenthetically, it may be observed that Congress has chartered other sex-exclusive organizations, e.g., Daughters of the American Revolution (36 U.S.C.A. §§ 18-18c), Sons of the American Revolution (36 U.S.C.A. §§ 20a-20g), and Veterans of Foreign Wars of the United States (36 U.S.C.A. §§ 111-120).

Amicus Boy Scouts of America points out other significant policy considerations overlooked by the majority. By protecting the freedom to base sexual associations on personal affinities, society promotes its pluralism, with all the values that connotes—values such as a diversity of views, a variety of ideas, and preservation of traditions. Here, the plaintiff and her supporters believe that their community will benefit by making certain private facilities with limited capacity and with limited adult supervision avail*98able either to children of both sexes or to none at all. Other citizens—those who charitably donated the property and those who charitably maintain it— believe their community will benefit by more narrowly focusing the use of that property on boys, many of whom are disadvantaged.

The value of a pluralistic, democratic society is that it permits members of each group to join with others sharing their views, to pool their resources as they wish, to seek the resources of new members, and to experiment to try to prove the validity of their respective concepts. The charitable donors of the Boys’ Club property and funds, and the volunteers who charitably organize and operate the club, have done just that. No law or policy bars plaintiff and others from seeking out charitable contributors who share their views. Their unwillingness to look for or inability to find such contributors does not justify imposing a judicial compulsion on the existing charitable group to change its own views and policies.

Another important factor that the majority have ignored is the policy favoring private charitable contributions, a policy manifested in tax laws and laws authorizing charitable contributions. Citizens often, perhaps almost always, charitably contribute to organizations that promote or implement goals the contributors believe to be beneficial and worthy of support. The more the state arbitrarily dictates the permissible goals and practices of charitable organizations, the tighter the pursestrings of potential donors are likely to be drawn.

For all of the foregoing reasons I would reverse the judgment.