"don't ask - don't tell." no longer just a military slogan.

[This was my law school thesis paper] 

“Don’t ask – don’t tell.”
No longer just a military slogan.

Travis A. Wise

Introduction

Permitting discrimination against gays is a constant reminder to gay people that solely by virtue of our sexuality, we are not equal to everyone else.  We are not worthy of the same housing,[1] the same jobs,[2] the same right to choose those who we spend our lives with,[3] and even the same opportunities to socialize.[4]  By permitting this segregation, the state does not forbid gay people from living as gay people; it merely denies them the ability to do so in the same public way that heterosexuals are able to.  As a consequence, the military policy of “don't ask, don’t tell,”[5] has become a way of life for the millions of civilian gays who interact with society in the face of express and implied discrimination.[6]
The Constitution provides two broad protections for private associations of people which discriminate against others:  Freedom of association, and equal protection.  Private organizations have traditionally enjoyed broad immunity from antidiscrimination laws based on the First Amendment freedom of association.[7]  This theory is based on the premise that the First Amendment protects private associations from being trammeled by the government, and therefore, the government is prohibited from imposing rules about association membership, such as prohibiting discrimination.[8]  The second Constitutional theory applicable, the equal protection doctrine found in the Fourteenth Amendment, guarantees all persons equal protection of the laws, but only in the face of adverse state action.[9]  Private action, such as that which occurs when a private organization discriminates against a minority, is not within the scope of the doctrine.
All hope is not lost, however.  In recent decades, the civil rights movements have opened up the previously closed doors and broken through glass ceilings which prevented various categories of minorities from achieving equality.  Title VII of the 1964 Civil Rights Act protects against discrimination based on race and sex, but not sexuality.  State legislatures and courts have increasingly limited the freedom of association of quasi-public organizations[10] in the interest of eradicating discrimination against racial minorities,[11] women,[12] and, with much less success, gays.[13]   While many of these legislative and judicial attempts at increasing civil rights protections for minorities have been successful, many, especially those with respect to gays, have failed.[14]  The protections which do exist cover a wide range of discrimination.  This paper focuses on discrimination against gays in the context of public accommodations and membership organizations.  There are other contexts outside the scope of this paper which are very important battlegrounds for combating discrimination, including education, employment, and of course, the military.
In the first part of this paper, I examine the common law and legislative structure which presently exists to protect gays from discrimination by quasi-public organizations.  While this primarily consists of state law, federal law is slowly catching up and providing protections, albeit minimal.  The second part of this paper analyzes how the Boy Scouts,[15] as a quasi-public organization, are vital to the momentum of the gay civil rights movement, why allowing the Boy Scouts to discriminate should not be permitted under existing state law, and what public policy reasons exist for prohibiting discrimination in the Boy Scouts.   Finally, I propose solutions in the form of state and federal legislation which would increase the protections afforded to gays against discrimination in quasi-public organizations, that would lead to dramatic increases in civil rights for gays.

I. Common Law and  Legislative Framework for Prohibiting Discrimination Against Gays in Quasi-Public Organizations, and the Civil Rights Movement

A. Common Law Origins

It may be unusual to consider that the common law may lend protection to a traditionally ostracized population – gays – from discrimination.  And indeed, the common law argument is not entirely persuasive.  Nonetheless, as with many types of legal analysis, common law provides the foundation upon which Laws Against Discrimination (LADs)[16] exist, and therefore it is worthy of exploration as a means of understanding the historical basis for antidiscrimination legislation. 
At common law, innkeepers, common carriers and blacksmiths were required to accept all paying customers that they had the capacity to handle.[17]  Refusing to serve a customer when one had the ability to do so was not only breach of an implied contract, but also a breach of the peace, for which an innkeeper could be fined and criminally indicted.[18]  This rule originated in the basis that these professionals had taken upon themselves a trade open to the public, and thus had a duty to serve all of the public who come before them.[19]  Sir William Blackstone theorized that the duty to serve comes not from the necessity of travelers to have lodging and services, but from the fact that the proprietor has hung out his shingle to the public and therefore has a duty and implied promise, not unlike a unilateral contract, to fulfill their invitation “with integrity and diligence.”[20]  As years went on and society became more complex, monopolies and businesses with grants of exclusive privileges were (and continue to be) required to serve the public without discrimination, in addition to those businesses which held themselves out to the public.[21]  These entities, often referred to as “quasi-public” or “quasi-private” organizations, are not afforded as much protection from governmental interference as would a truly private organization.  The reason for the different treatment is that these organizations, while having no direct governmental affiliation, are overwhelmingly open to public membership and embraced by the public as an organization to which the public has a right to belong.  It is worthy of note at this point that the Boy Scouts are unique amongst quasi-public organizations because they are a federally chartered corporation,[22] of which over ninety million Americans have at some time considered themselves members.[23]
The common law duty to serve the public was not without its glaring shortcomings.  Those subject to the duty, particularly in the United States, have frequently either completely refused service to non-whites, or provided them with inferior service.  As examined below, no attempts were made to rectify this until after the Civil War, and it was not until the 1950’s and 1960’s that our “enlightened” society became serious about expanding the concept of “the public” to include all members of society, regardless of the color of their skin or their gender.[24]  Obviously, that debate continues today in the context of sexual orientation.
The federal government first attempted to codify the common law duty of innkeepers and common carriers in the Civil Rights Act of 1875.  The goal of the Act, similar to its 1964 successor, was to ensure equal access to public accommodations for all people, including blacks.  The 1875 Act was struck down by the Supreme Court in The Civil Rights Cases,[25] and thus for the time it was left up to the states to codify a public accommodations statute.[26]  One might inquire what the impetus was for states to enact such legislation, given the nation’s traditional hesitancy to secure civil rights for its minorities.  With the Civil War and corresponding Constitutional Amendments[27] fresh in the minds of politicians and society, many states, including California, correctly foresaw the social demand for integration, and enacted such statutes in the late 1890’s.  These statutes prohibited discrimination on the basis of race in providing “public accommodations”.[28]

B. State Legislation

The present nonexistence of meaningful federal legislation protecting gays and lesbians from discrimination leaves the burden to enact such protections to the states.  This means that any widespread antidiscrimination legislation must be accomplished state-by-state, a feat particularly difficult to achieve given constrained resources of the proponents[29] and extremely vocal and active opposition in many states.[30]  On the other hand, a state-based approach means that attacks on such legislation must also be financed and executed for each state – an approach that takes away from the abilities and resources of those groups to focus on other, and possibly more productive, causes.

1. Unruh Act

California enacted its first LAD in 1897.  The statute prohibited discrimination on the basis of race in providing “public accommodations.”[31]  The courts in the late 1950’s, in an attempt to skirt the desegregation intent of the statute, interpreted “public accommodations” more narrowly than the legislature saw fit, and in response, the state legislature repealed the 1897 statute and enacted the Unruh Civil Rights Act[32] in 1959.[33]
The Unruh Act states:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or blindness or other physical disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.[34]

The Act’s broad prohibition of discrimination has been construed expansively to include arbitrary discrimination on the basis of personal characteristics, including sexual orientation.[35]  Excluded from the Unruh Act are bona fide private clubs, which the court in Warfield v. Peninsula Golf & Country Club characterized as having the following features:  Selectivity of membership, size of membership, degree of membership control over governance of organization, availability of club facilities to use by nonmembers, business transactions with non-members, and whether primary purpose of club is social or pleasure.[36]  In Curran v. Boy Scouts of America[37] and Dale v. Boy Scouts of America,[38] the Boy Scouts was held to be a public association, not a private club, based on its unselective admission of all boys, vast membership, lack of governance by the Scouts, use of public facilities, and presence of business transactions with non-members.[39] 
Also excluded from coverage of the Unruh Act are circumstances in which the application of the statute would be an unconstitutional infringement on the First Amendment freedom of association, and bona fide religious organizations.[40]  Several Christian organizations which supported the Boy Scouts’ right to discriminate against gays have overlooked the well-defined narrow scope of the religious organizations exception.  For example, the Christian organization “Breakpoint” released a statement shortly after the Dale decision which said that the decision would allow judges to “dictate to churches whom they should hire as pastors and youth leaders,” due to the similarity in terms of public nature of both the Boy Scouts and church organizations, and that the Dale decision would lead to “courts of this country may soon require that gays … be given … a place in our pulpits.”[41]  This type of propaganda flatly ignores the text of the statute, and the decisions of the courts, which interpret the separation of church and state to exclude bona fide religious organizations from the scope of the statute, which clearly protects churches from the reach of antidiscrimination statutes.[42]
Notwithstanding the broad application of the Act to gays and the narrow exceptions, the Unruh Act has failed to adequately protect gays from discrimination.[43]  The reason for this failure is that the language of the Unruh Act prohibits discrimination “by all business establishments,”[44] which has been interpreted more narrowly than the language which other statutes use prohibiting discrimination “in places of public accommodation”.[45]  One such statute is the New Jersey Law Against Discrimination,[46] which is the only LAD to date to have been held to prohibit the Boy Scouts from discriminating against gays.[47]  California courts have had great difficulty interpreting what is and what is not a “business establishment,” and because of the unique wording of the statute, the court cannot look to other states’ interpretations for guidance.[48]  The California Supreme Court has, however, required the term to be interpreted in the “broadest sense reasonably possible”.[49]  Despite this required broad interpretation of “business establishment,” there are some very public organizations which the Unruh Act does not seem to be able to reach, such as the Boy Scouts.
In Curran, the Supreme Court of California decided that the Boy Scouts were not a “business establishment”.[50]  The court found that while the group’s nonprofit status was not controlling,[51] the business activities in which the Boy Scouts are involved were significantly different from the type in Warfield, were “distinct from the Scouts’ core functions, and do not demonstrate that the organization has become a commercial purveyor of the primary incidents and benefits of membership in the organization.”[52]
Following the Curran decision in 1998, SB1910 was introduced in the California Senate which proposed to provide statutory protections to the Boy Scouts from the scope of the Unruh Act.  The bill was defeated in committee.  No subsequent legislative proposals were made to either strengthen or weaken the applicability of the Unruh Act in terms of sexuality or specifically to the Boy Scouts.

2. Employment Discrimination

The gay rights movement gained much momentum in the 1990’s when Wisconsin, Massachusetts, Connecticut, Hawaii, New Jersey, Vermont, Minnesota, Rhode Island, California and the District of Columbia enacted legislation prohibiting discrimination in employment on the basis of sexuality.[53]    Regretfully, several of these statutes, but not California’s, contain disclaimers stating that by enacting the statute, the state does not condone gayness and is not authorizing same-sex marriage.[54]  This is certainly a sign of the compromise being made between the present social views of sexuality, particularly in conservative states, and the state’s goals of eradicating discrimination and expanding of civil rights.
In California, the Fair Employment and Housing Act (FEHA)[55] broadly prohibits discrimination in public and private employment and housing on the basis of traditionally protected classifications.  After many years of failed attempts resulting from the vetoes of former Republican Governor Pete Wilson, the statute was amended in 1999 with a signature from Democratic Governor Grey Davis to include “actual or perceived sexual orientation” as a protected class.[56]  This amendment replaced California Labor Code § 1102.1, which had previously afforded very minimal and inadequate protections to gays from employment discrimination, on the perplexing basis that sexual orientation was a political statement.[57]
Whether the recently amended FEHA would apply to the Boy Scouts has not yet been directly addressed by any courts.  The Curran case was not brought under Labor Code § 1102.1.  Courts in other states have indicated that the Boy Scouts are not a traditional employer within the scope of employment antidiscrimination statutes similar to FEHA.[58]  Nonetheless, FEHA and similar statutes in other states which include sexual orientation as a protected classification for employment are indicative of the momentum which the gay rights movement needs in order to overcome discrimination against gays in other contexts, including the Boy Scouts.

C. Federal Legislation

Regretfully, attempts at federal legislation which would protect gays and lesbians from discrimination have nearly always failed.  Hence the brevity of the following section.

1. Civil Rights Act(s)

As explored in detail above, at common law there existed a duty for innkeepers and common carriers to accept all customers.  The federal government first attempted to codify this duty in the Civil Rights Act of 1875.  The Act guaranteed to all persons, regardless of race or color, the "full and equal enjoyment" of inns, public conveyances and public places of amusement.  The Act was struck down by the Supreme Court in The Civil Rights Cases,[59] largely to appease southern democrats, and thus it was left up to the states to codify a public accommodations statute, which most states did in the late 1800’s and early 1900’s.[60]
In 1964, at the height of the racial civil rights movement, Congress revisited the issue of federal legislation prohibiting discrimination in public accommodations with Title II of the Civil Rights Act of 1964.[61]  This Act prohibits “discrimination or segregation” on the basis of race, color, religion or national origin in “any place of public accommodation.”[62]  Covered “places” include inns, restaurants, gas stations and places of entertainment.[63]  “Places of entertainment” are further defined as “any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment.”[64]  Whether this list is exhaustive or inclusive is far from clear.[65]  Only one case has explored whether the Boy Scouts are a “place” and therefore under the purview of Title II:  In Welsh v. Boy Scouts of America,[66] Mark Welsh and his father were refused membership in the Boy Scouts due to their religious beliefs, and sued the Boy Scouts under Title II.  In a case of first impression for the federal courts, and one that has not since been revisited, the federal district court found that the Boy Scouts were not a “place” as required by the statute, because Congress did not intended “place” to include membership organizations which does not have a “close connection to a structural facility”.[67]  In Dale, however, “place” was determined not to have been intended by the legislature as a restriction on the scope of the statute.[68]  Therefore, one issue the Supreme Court will have to determine when it hears the Dale appeal is whether or not a membership organization has to have a “place” in order to fall within the scope of the statute.  California courts, as will be analyzed below, have focused on the business characteristics of the organization, rather than a physical “place.”[69]
Regardless of whether the Boy Scouts are within the scope of Title II, gays are definitely not covered as a protected class.  Congress has considered bills which would add sexual orientation to the classifications protected by Title II since as early as 1974, but none of the bills have been seriously considered.[70]
Interestingly, coverage for gays under Title IX, which presently protects public school students from harassment based on gender, may soon be one of the tangible effects of the push for increased protections in the wake of Matthew Shepard’s murder in 1998.  The Department of Education Office of Civil Rights has indicated that they are investigating the use of Title IX as a weapon against sexual orientation harassment in public and private schools.[71]  Such use may propel sexual orientation onto the radar screens of the other titles in the Act.

2. Title VII

As difficult as it is to believe, numerous polls show that overwhelming numbers of Americans have expressed support for equal employment opportunities for gays.[72]  Sadly, none exists on the federal level.[73]  Title VII of the 1964 Civil Rights Act broadly prohibits discrimination in employment on the basis of race, color, religion, sex (including pregnancy), and national origin.[74]  Other similar statutes provide protection against discrimination on the basis of age,[75] disability,[76] and citizenship.[77]  Title VII does not expressly include sexual orientation in the scope of its protections, and courts have pointedly refused to imply sexual orientation in the existing prohibition against discrimination based on sex, citing a lack of legislative intent.[78] 
Adding sexual orientation as a protected class may be not only beneficial to gays, but also to straights.  Professor Francisco Valdez has theorized that much of the sexual orientation discrimination faced by gays in employment has actually been a disguise for gender discrimination.[79]  Gender, which is frequently defined a social interpretation of one’s biological sex, was held by the Supreme Court in Hopkins v. Price Waterhouse[80] to be a protected classification.  In that case, Hopkins, a female who displayed what her supervisors at Price Waterhouse considered to be masculine attributes, was found to have been unlawfully discriminated against because of her sex, because a male employee with those same characteristics would not have received similar treatment.[81]  In Smith v. Liberty Mutual Insurance Co.,[82] however, a male applicant was denied employment because of his effeminate characteristics which made the interviewer suspect that Smith was gay.[83]  Mr. Smith, unlike Ms. Hopkins, was held not to be protected by Title VII because Smith’s employer used the magic phrase “sexual orientation” and thus what under Hopkins was unlawful sex or gender discrimination became lawful sexual orientation discrimination.[84]
Attempts have been made to include sexual orientation in the protections of Title VII, and thus close the loophole which allows not only discrimination on the basis of sexual orientation, but also on the basis of gender.  Five years in a row, the Employment Non-Discrimination Act (ENDA) has been proposed as an amendment to Title VII which would protect gays from employment discrimination based on their sexuality, nationwide.[85]  The bill defines “sexual orientation” as “homosexuality, bisexuality, or heterosexuality, whether such sexual orientation is real or perceived.”[86]  Therefore, adverse employment decisions made on the basis of the employer’s belief about the employee’s sexuality would violate ENDA.[87]  The bill has been introduced in both the House and Senate with bipartisan support, but unfortunately not enough to pass into law (in 1996, the bill was one vote short of passing in the Senate).[88]  ENDA has the status of being the only bill in support of employment rights for gays which has received a floor vote in either house in the 25 years since the first civil rights bill was introduced in Congress.[89]  Exempted from the proposed statute would be religious organizations, the Armed Forces, small businesses, domestic partnership benefits, disparate impact claims, quotas and preferential treatment.[90]  President Clinton has stated since 1995 that he will sign the bill if it reaches his desk, but that does not seem likely to happen in the remainder of his term.[91]  At least one serious presidential candidate for the 2000 presidential election has taken a strong stand calling for expansion of Title VII protections for gays, and it is likely that whoever becomes the nominee for the Democratic party would support the amendment as well.[92]
In the realm of public employment, President Clinton signed Executive Order 13087 in May, 1998 which prohibits discrimination based on sexual orientation in the federal civil service, largely comprised of employees of administrative agencies.[93]  Extension of the Order will likely depend on which party is elected into the White House in 2000.

D. The Civil Rights Movement

1. The Progress That Has Been Made

Gays have made substantial progress towards equality since the gay civil rights movement began to take on momentum in 1969.[94]  Twenty-five states have repealed their sodomy laws, and six states have had their sodomy laws overturned by their state supreme court (including Georgia, in 1998).[95]  Twenty-one states now have hate crime laws which include protection for sexual orientation.[96]  Nineteen states and 165 municipalities have laws against discrimination which include sexual orientation.[97]  And six states and several dozen municipalities have domestic partner registries for their public employees.[98]  Recognition of this progress has resulted in increased attention to gays from the political scene,[99] as well as the advertising[100] and entertainment[101] industries, which in turn has benefited gay rights with increased awareness and publicity about discrimination.
The gay civil rights movement has also been increasingly successful and visible at getting statutory antidiscrimination legislation passed at the state level.[102]  Much of the legislation, such as that which has recently been passed in California,[103] has been targeted at discrimination in what is usually considered private matters:  Employment and public accommodations.  These strides are supported by the overwhelming majority of Americans who have indicated they are in favor of equal treatment for gays in employment,[104] particularly in light of increasing evidence and common sense showing that sexuality is not a chosen characteristic.[105]
Yet despite these polls and the progress being made by gay rights advocates (or more likely, because of it), opponents of gay rights are visible and successful in increasing the amount of discrimination faced by gays.  Successful attempts at legislating inequality were made by limiting our ability to petition the government for redress of grievances (although this legislation was later overturned by the Supreme Court),[106] and to seek protection from discrimination from our government.[107]

2. Discourse of Equivalents

The gay civil rights movement has frequently and controversially been analogized to the race and gender civil rights movements.[108]  This comparison of similarities and differences of the principles and policies affecting race, gender and sexual orientation rights, labeled by Professor Schacter as a “discourse of equivalents,” has been attacked by some as equating an immoral choice (being gay) with an immutable characteristic which has experienced a long history of discrimination (race or gender).  Supporters of the comparison remind us that while race does have a unique place in our country’s history, the race civil rights movement has provided a foundation for other civil rights movements, including gender, and that should not subtract any validity from the racial civil rights movement.  Additionally, some of those who do not support gay civil rights argue that the civil rights are really a disguise for extending “special rights”[109] to a class of persons whose identifying characteristic is a chosen action.[110]  Indeed, even within the larger civil rights movements, there is substantial disagreement about who has a property interest in extending civil rights.  Some see the analogy of sexual orientation to race or gender to be a hostile takeover of a movement which exclusively belongs to traditionally protected classes.  This is a debate which is far from over, but seems to be leaning towards the side of expanding civil rights legislation for all minorities, not just those based on race or gender.[111]

3. Confusing Sexual Orientation with Gender

There is a second aspect to the interconnection between the civil rights movements, and another important reason for gay civil rights to succeed:  Gay civil rights is not just about gays, it is also about gender.  Professor Francisco Valdez has developed the theory of conflation to explain that “there is no such thing as discrimination based only on any single endpoint,” such as race, sex, gender or sexuality.[112]  He explains that sexual orientation is a construct of gender and sex which is used to recharactarize a claim based on unlawful sex or gender discrimination into a claim based on lawful sexual orientation discrimination.[113]  Thus, it is not possible to eradicate discrimination based on gender until our society prohibits sexual orientation discrimination.[114] 
According to Valdez, the Boy Scouts discrimination against gays originated in gender discrimination, not sexuality discrimination.[115]  The Boy Scouts, he claims, were organized to counter the feminization of men which was feared to be a result of the “feminization of the workplace by the entry of women into the labor force” and the decline of physical labor required in the workplace.[116]  This may seem far fetched at first glance, but Valdez has found supporting evidence from Boy Scout publications from the early 1900’s:  “The REAL Boy Scout [was] not a sissy” and “[A scout is] a real boy, not too much like his sister.”[117]  An official Boy Scout manual stated that “No Miss Nancy need apply” for the position of scoutmaster, making reference to a term for effeminate men used in the early 1900’s.[118]   These notions of what a Boy Scout should be are not limited to early 1900’s gender bias rhetoric.  In the Boy Scouts’ October, 1999 appeal to the Supreme Court of the Dale decision, the Boy Scouts petition cited the fact that “homosexuals cannot teach true manliness” as a reason why the Supreme Court should overturn the Dale decision.[119]
The concepts of feminine and masculine are gender constructs which have nothing to do with sexual orientation.  The Boy Scouts, like the military, have managed to confuse their desire for masculine men (a gender construct) with sexuality (not a gender construct).[120]
Just like with race and gender, in order for gay civil rights to be successful, government intervention is needed in the form of laws against discrimination.  State legislation, as explored above, has proven to be a frontier for gay rights protections.  As increasing numbers of states protect gays from discrimination in employment, housing, and places of public accommodation, the gay civil rights movement gains strength.

II. Analysis:  Significance of Boy Scout Cases

The Boy Scout cases are vital to providing LADs with the teeth needed to be effective tools against discrimination.  If these laws apply to the Boy Scouts, then by analogy and by precedent, the laws are more likely apply to other similar large, quasi-public organizations which discriminate against gays.  Such a holding would be a major triumph for gay rights.  States are divided in their Boy Scout case holdings,[121] and the issue has not yet received much attention on the federal court level.[122]  Yet the cases which have been decided have set forth a groundwork for increased protections for gays in private associations.  All of the cases focus on three important aspects of analyzing the LADs:  A public policy interest in defeating discrimination, a standard that defines the scope of the statute, and the freedom of expression protection.

A. Public Policy:  Why it is important that LADs apply to the Boy Scouts

Many if not most large quasi-public organizations which have been in existence for a significant period of time have at some point discriminated in choosing members.[123]  This raises two issues to be examined:  First, why do quasi-public organizations such as the Boy Scouts discriminate, and second, why that discrimination should not be tolerated. 

1. Why the Boy Scouts discriminate

In answer to the first question, organizations have traditionally been formed for any number of purposes, but with one common theme:  Establishing a sense of community by associating with people who share a similar characteristic, in pursuit of a common goal.[124]  Many of these organizations, while discriminatory in choosing members, do not offend society’s senses, because the characteristics upon which the organization discriminates are not those which we have chosen to protect.  For example, an organization may limit membership to those who perform certain community service, or who live in a certain geographic area, and few would object to those classifications.  However, if the organization limited its membership to whites, society would find that classification repugnant, and as a result society has enacted legislation to prohibit discrimination on those classifications, making them protected.[125]  The exception to the prohibition of discrimination based on protected classifications is when the expressive purpose of the organization is directly related to the discrimination.[126]  For example, the KKK is permitted to discriminate against non-whites, because the purpose of the KKK is inextricably tied to being able to exclude non-whites from its organization.[127]
Why, then, do the Boy Scouts exclude gays?  In the Boy Scouts’ brief to the California Supreme Court in the Curran case, the Scouts focused on their “long held belief” of the immorality of homosexual conduct,[128] and uncleanliness of gays.[129]  The brief cited the “close, personal relationship” which the boys form with the leaders,[130] and the inability of a gay person to be a “personal example of an ethical person”.[131]  These references are indicative of a fear that gay scout leaders would have a desire to negatively influence the boys, or possibly try to “convert” their sexuality. 
The Family Research Council stated in a press release following the Dale decision that the reasons supporting the Boy Scouts’ discrimination policy are “moral values,” providing a “safe environment where young boys can mature into young men,” and virtue.[132]  The Claremont Institute, in their amicus brief in the Dale case, feared that increasing antidiscrimination protections for gays would lead to “Every boy will be taught in school that it is a matter of personal choice alone whether he marries a man or woman” and that gays are unable to achieve a “triumph of love over lust”[133] and views of  “morality” which “do not depend upon stereotypes.”[134]  They warned about the “death of Scouting,” which would be caused by public accommodations laws that were “ready to destroy the entire Bill of Rights.”[135]  They further stated that “it is not for this Court, or anyone else, to question the Boy Scouts’ formal view of its own beliefs, or to engage in a debate over the wisdom of those beliefs.”[136]  The brief even made reference to the Founding Fathers support for discriminatory institutions of civil society, including volunteer associations, which “inculcate a sense of moral values in the young.”[137]
Similar arguments, complete with their own quotations from the Founding Fathers, have been used to defend slavery and antimiscegenation laws.  Respecting and enforcing the right of gays to equal treatment by public and quasi-public organizations has never been shown to have any of the negative repercussions which the Boy Scouts so vehemently describe in their briefs.

2. Why the Boy Scouts’ discrimination should not be tolerated.

In response to the second part of the question I posed, discrimination based on what we consider to be protected classifications should not be tolerated, aside from ideological reasons, because of the injuries which result from exclusion.  In the case of the Boy Scouts, the class of people who are excluded are young people who are gay.  An immediate effect of this discrimination is to cause both the excluded gays and those who see the gays excluded to internalize negative stereotypes of gay people.[138]  Prohibiting young gay people from having the opportunity to become Scouts denies them socialization, educational, and growth opportunities, which tens of millions of other people have.[139]  The Dale court noted that Boy Scout membership “is both a privilege and advantage” in life, and that the Boy Scouts “provide its members with numerous benefits” including networking with heads of state, businessmen and community leaders.  Denial of these benefits directly harms young gay people.  These opportunities are not merely learning how to build a pinewood derby car or how to tie knots; they are substantive, identifiable benefits which place non-Scouts at a societal disadvantage.  The discrimination also denies non-gay scouts the opportunity to socialize with gay people.  This type of “right to an integrated environment” has been held to be a cause of action for majority (white) landowners in battling racial discrimination.[140]
Unless the exclusion of a protected class of people is directly related to the expressive purposes of the organization, organizations which are generally open to the public, such as the Boy Scouts, should not be able to discriminate based on personal characteristics, because those who are excluded will not be able to succeed in our society to the same degree as those who are not excluded.[141]  This is the same principle which led to the desegregation of public schools[142] and other quasi-public organizations.[143]

B. Freedom of Expression Defense

Freedom of expression is a vast area of law which is substantially outside the scope of this paper, so I will only highlight the concept.  The Supreme Court has held in Roberts v. United States Jaycees[144] and Rotary International v. Rotary Club of Duarte[145] that the First Amendment freedom of association involves two interests:  Intimate association and expressive association.   Intimate association encompasses mainly highly personal interests, and state interference is by and large not tolerated.[146]  Expressive association includes the right for a group of people to associate and engage in expressive activity.[147]  The degree to which the purpose of the organization is itself expressive activity which would be impaired by the antidiscrimination law is a controlling factor of the First Amendment defense, weighed against a compelling governmental interest.[148]  The Supreme Court has found that elimination of discrimination in the context of an organization is a compelling government interest which is permitted to infringe upon the freedom of expressive association,[149] so long as the government utilizes the least restrictive means of doing so.[150]  In the three cases since 1984 in which the Supreme Court has heard the defense of freedom of association applied to forced integration of quasi-public organizations, the Court has rejected the defense each and every time.[151]
In the Dale case, the New Jersey State Supreme Court expanded the compelling state interest in eradicating discrimination, capable of overriding the freedom of expression, to apply to discrimination based on sexuality.[152]  This interest was not held to be offset by the Boy Scouts’ purported moral and religious positions, because the court found that the Boy Scouts do not endorse a specific set of moral beliefs, do not espouse any one religion, and leave discussion of sex and family life to the parents.[153]

C. Standard Applied:  A public accommodation without a place

The Boy Scouts are, as an organization, substantially similar in size, purpose and selectivity to the Jaycees and the Rotary Club, both of which have been held by courts to be within the scope of LADs.[154]  However, the outcome of the Boy Scout cases has been less predictable than one would hope in light of the Jaycees and Rotary Club precedents, mainly due to the phrasing of the LADs which define the scope of the statute.
LADs prohibit discrimination in “public accommodations,” but how the statutes define this term varies by state.  California defines “public accommodations” in terms of the business characteristics of the organization, and the Boy Scouts have been held to be outside that definition.[155]  Other states focus on the physical location utilized by the organization,[156] while others, including New Jersey, apply their LADs to all organizations not exempt by the freedom of expression.[157]  The New Jersey Supreme Court recently decided in Dale that the Boy Scouts are considered a “public accommodation”[158] in light of the legislative intent backed by numerous judicial decisions which broadly interpret “place” as not placing restrictions on the scope of the statute.[159]
The application of LADs to the Boy Scouts has been considered more in the context of gender than in the context of sexuality.  The gender cases may provide an analogy for future sexuality cases.  In Boy Scouts of America, Inc. v. Commission on Human Rights and Opportunities,[160] a Connecticut woman with extensive ties to the local Boy Scout troop was denied a position in the organization as a volunteer scoutmaster and sued the Boy Scouts.  Connecticut has a Law Against Discrimination which prohibits discrimination "in every place of public accommodation, resort or amusement ... by reason of race, creed, color, national origin, ancestry, sex, marital status, age or physical disability."[161]  The Boy Scouts do not permit women to volunteer for the organization in certain capacities, including scoutmaster.   The state supreme court found that the Boy Scouts were included in the statute's definition of "place of public accommodation,” because the word "place" does not refer to a "site" but to "any establishment".[162]  The court found this was supported by the intent of the legislature,[163] the unconditional language of the statute, and a compelling government interest in eradicating discrimination.[164]  However, the court found that the plaintiff was not denied a public accommodation by being denied a scoutmaster position, because this was not a position open to the general public.[165]  Arguably, membership in the Boy Scouts, as opposed to a leadership position, is open to the general public,[166] and thus would be covered by the Connecticut statute.
In Schwenk v. Boy Scouts of Am.,[167] the court held that the Oregon LAD did not apply to force the Boy Scouts to admit a female member.  The court held that the legislative history of the act, and particularly the term “place,” required the plaintiffs to show that the defendants had more of a physical location than the Boy Scouts maintained.  The court rejected the plaintiff’s argument that a “service” should be able to substitute for a “place”.[168] 
These cases indicate the courts’ focus on the end, namely, keeping the Boy Scouts as a “boys-only” organization, rather than the means used to evaluate the state statutes, which, backed by legislative history, have a clear mandate to eliminate discrimination.

III. Proposed solutions

In an era where supporters of antidiscrimination cheer when a court applies a LAD to an organization, judicial activism is the heroine which counters the whims of the electorate in battling the evil forces of discrimination by the masses.[169]  But I would much rather have the legislative branch implement my proposed solutions, rather than the judiciary.  My reasons are two-fold:  First of all, the source of the desire to end discrimination should come from the people who make up our society.  We should, as a people, decide that we will not tolerate discrimination based on personal characteristics, and issue legislation to that effect.  Second, majoritarian societal support of antidiscrimination legislation authenticates and validates the laws, and eliminates the resentment towards judicial activism which induces the backlash of the majority which has resulted in measures such as DOMA and Amendment 2.  Our progress is for naught if for each step we take forward, we are forced to retreat a step.  The good news is that there are increasing amounts of legislation, particularly on the state and local levels, which protect gays from discrimination, and it appears that public pressure alone is causing quasi-public organizations, including the Boy Scouts, to reexamine their discriminatory policies.[170]

A. Increased bite in LADs

It is unlikely in today’s political climate that the federal government will be passing any meaningful protections for gays against discrimination in the near future.  Therefore, it remains up to states to enact and enforce LADs.  In doing so, the state legislatures should use the strongest possible language such that the courts will not be able to construe the statutes in favor of discriminatory quasi-public organizations.  The public policy supporting such language is found in the landmark Heart of Atlanta Motel case:  “[prevention of] the deprivation of personal dignity that accompanies denials of equal access to public establishments.”[171]  California’s Unruh Act should be strengthened adding “and public accommodations” to the language of the Act:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or blindness or other physical disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments [and public accommodations] of every kind whatsoever.

This change would protect all persons, not just gays, from unlawful discrimination not just in commercial establishments, but also in forums which serve the public but which are permitted to discriminate under the present statute.  The language would not be significantly different from the language of other states’ statutes which uses the public accommodations test, such as New Jersey.[172]

B. Federal protections

As noted above, I am pessimistic that any laws protecting gays will be implemented on the federal level in the foreseeable future.  Nonetheless, there are some proposals being worked on, which, if enough momentum was gained in support of the proposals, could eventually lead to federal protections for gays.  In the wake of recent violence against gays, there has been an increased demand for passage of a hate crimes statute which would protect gays.  The Hate Crimes Prevention Act[173] includes language which enhances penalties for persons committing hate motivated crimes against gays.  In addition, the bill authorizes funds for programs which are designed to reduce violence.  In order to make the statute effective, Congress must fully fund the Act, and the President must fully enforce the Act.  In addition to specific statutes addressing hate crimes against gays, Title IX should be amended to clarify that all forms of anti-gay harassment in primary and secondary schools are illegal.
Apart from addressing crimes and harassment, passage of a Civil Rights Act for gays would, as discussed above, be a monumental step towards equality, as would passage of the Employment Non-Discrimination Act, which would amend Title VII to include sexual orientation.  In the meantime, the President must continue to authorize Executive Order No. 13087, protecting gays from discrimination in Executive Branch agencies.

C. Supreme Court

Of course, one cannot suggest to the Supreme Court what they should and should not do – the Court has no constituency to listen to.  But in the interest of public policy and progressive thinking, one would hope that the Supreme Court would interpret existing laws protecting gays from discrimination in the broadest possible fashion.  This will be tested in the coming months, as the Court has been asked to review the New Jersey Boy Scout case.  A favorable decision for Dale and gay rights activists will most likely set the groundwork for implementing stronger protections, while a decision for the Boy Scouts could set gay rights back a decade or more.
While I strongly believe that the Boy Scouts and other quasi-public organizations should not be permitted to arbitrarily discriminate against the public based on a personal characteristic, I have a sinking feeling that the Supreme Court will not agree with me.  Justice David Souter, citing the First Amendment freedoms of both speech and association, held in Hurley that the LADs could not "trespass on the [parade sponsor's] message" by forcing it to include marchers who would be proclaiming their homosexuality.[174]  Similarly, the Boy Scouts argue that the government should not be able to interfere with their message by forcing them to accept Scouts who have publicly proclaimed their homosexuality.  While the degree of expression of a parade is quite different than the Boy Scouts, Justice Souter, in comments that seem to be directed at the Boy Scouts, stated that "a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members."[175]  If a majority of the remaining Justices agree with Souter, the Supreme Court’s decision in Dale may be a major setback for gay rights.

D. Local governments

Local governments have begun to actively legislate against discrimination, an area which until recently was the exclusive domain of the federal and state governments.[176]  The ACLU was successful in negotiating a binding settlement with the Boy Scouts in Chicago, whereby the city of Chicago ended all support for Scouting programs which discriminate against atheists and gays.[177]  Increasing numbers of municipalities have ordinances prohibiting discrimination against gays, and if such ordinances could be construed to prohibit discrimination by organizations such as the Boy Scouts, these ordinances could go a long way in effecting change.  Local ordinances are generally easier to enact than changing federal law, and thus I believe this forum is an excellent arena for building support for state and federal protections.

E. Public Pressure

Possibly equally effective as attempts to legislatively change the discriminatory policies of quasi-public organizations is public policy.  Legislation runs the risk of alienating conservatives and encouraging attempts at passing anti-gay legislation in retaliation.  Public pressure has proven effective all across the country, and is indicative of a growing trend:  Providence, Rhode Island; San Francisco; Davis, California; and Toronto. 
The Providence, Rhode Island chapter of the Boy Scouts secured permission from the national Boy Scouts of America organization to institute a ‘Don’t Ask, Don’t Tell’ policy which allows gay scouts to remain in the organization so long as they aren’t open about being gay.[178]  In San Francisco, the United Way and several major corporations stopped providing funding for the Boy Scouts in the wake of the anti-gay policy.  To ease tensions, the local Boy Scout chapter, similar to Rhode Island, instituted its own ‘Don’t Ask, Don’t Tell’ policy which promises not to expel gay Boy Scouts unless they engage in “public homosexual conduct or advocacy” and ceases the usual background check into sexuality which was previously done on all applicants for leadership positions.[179]  The attorney for the Dale case pointed out that these types of ad hoc policies are inconsistent with the principles of scouting, “such as being open and truthful.”[180]
The Davis, California school district announced in December, 1999 that until the Boy Scouts end their discrimination against gays, the District will no longer permit the Boy Scouts to use school bulletin boards, parent-teacher association meetings and newsletters, and student folders for recruiting and communicating with students.  The District terminated these “special privileges” after parent complaints regarding the Boy Scouts’ policy of discriminating against gays, which conflict with the District’s nondiscrimination policy dating back to 1978.[181]  The city of Davis has advised the Boy Scouts that unless the discriminatory policy is changed, the city will not renew the Boy Scouts’ lease on a historic Boy Scouts Cabin in downtown Davis, and not permit them to rent a lot they traditionally use for fund raising Christmas tree sales.[182]
In Toronto, Canada, a troop of ten scouts affiliated with the Scouts Canada organization, an alternative to Boy Scouts, has become the first scout troop in history to be chartered to specifically include gay scouts.[183]  Naturally, wherever gays make some progress, Fred Phelps is not far behind to try to beat that progress into submission.  Phelps protested the troop by burning a Canadian flag outside the Scouts Canada headquarters, and stated that the organization was “recruiting young people into filth and shame.”[184]
In Oregon, Cub Scout Den 2 of Pack 320 unanimously decided to withdraw from the Boy Scouts after determining that the ban on gays was intolerant, and not conducive to raising responsible and caring young men.[185]  If elementary school children are able to realize that discrimination is wrong, so should their mentors in the Boy Scouts.

VI. Conclusion

Discrimination against people on the basis of their personal characteristics, whether it be skin color, religion, gender, or even sexual orientation, should not be permitted to occur in organizations which are open to the public.  When an organization solicits members from the general public, and does not connect its selection criteria to the expressions of the organization, and proceeds to utilize taxpayer-provided facilities for its own purposes, the government should and must step in to prohibit discrimination.  The Boy Scouts are such an organization, and in accordance with a long line of legislation and case law, backed by sound public policy reasons, discrimination on the basis of sexual orientation should not be permitted by these quasi-public organizations.  Until organizations which hold themselves out as public and take advantage of public resources are no longer permitted to discriminate against gays, millions of people will be forced to deceive others and themselves under this “Don’t Ask – Don’t Tell” policy, no longer limited to the military, but now required in everyday public life.
36
 

[1] Until October, 1999, gays were not protected by the California Fair Employment and Housing Act (FEHA), Cal. Gov. §12900, et seq.  No other state nor federal laws presently protect gays from housing and employment discrimination on such a broad scale.
[2] See id.  Title VII provides no protections to gays.  10 U.S.C. § 654 provides that gays may not be employed by the armed forces.
[3] See Marc A. Fajer, Can Two Real Men Eat Quiche Together?  Storytelling,  Gender-Role Stereotypes, And Legal Protection For Lesbians And Gay Men, 46 U. Miami L. Rev. 511, 577 (1992).  The author states that “the prohibition on gay marriage may be the most significant form of discrimination against gay couples.”
[4] See Curran v. Mount Diablo Council of The Boy Scouts of America, 17 Cal.4th 670 (1998).  See also Tim Curran, Tim Curran’s Boy Scout Lawsuit (visited November 10, 1999) <http://www.gate.net/~tcurran/Scout.htm>.
[5] 10 U.S.C. § 654.  The “don’t ask, don’t tell” policy was summarized in Able v. United States, 880 F. Supp. 968 (E.D.N.Y. 1995), as:  “[The directives] provided that an applicant to become a member will not be asked about his or her sexual orientation, that "homosexual orientation is not a bar" to "service entry or continued service," but that "homosexual conduct" is.  Such "conduct" includes not only homosexual "acts" but also a statement by a member or applicant that "demonstrates a propensity or intent to engage" in such acts.  A statement that demonstrates the "propensity" will thus require separation unless the member rebuts a presumption that he or she engages or intends to engage in "homosexual acts" or has a "propensity" to do so.”
[6] See Michael Mello, Scouts Issue ‘Don’t Ask, Don’t Tell’ Policy Toward Gays, Associated Press, August 12, 1999 (The Providence, Rhode Island Boy Scouts chapter has, with the permission of the national Boy Scouts of America organization, instituted a ‘Don’t Ask, Don’t Tell’ policy whereby gay scouts can remain in the Scouts so long as they aren’t open about being gay.  The attorney for the Dale case responded that this policy is inconsistent with the principles of scouting, “such as being open and truthful.”), and Boy Scouts Revise Gay Policy, Associated Press, December 10, 1996 (The San Francisco Boy Scouts adopted a ‘Don’t Ask, Don’t Tell’ policy which does not expel gay Boy Scouts unless they engage in ‘public homosexual conduct or advocacy’ and forbids the usual background check into a Boy Scout leader’s sexuality.  The policy was approved by the national Boy Scout office.).
[7] See Rotary Int’l v. Rotary Club, 481 U.S. 537, 544 (1987).  The court found that the freedom of association was not a defense to discrimination against women.
[8] See id.
[9] See Romer v. Evans, 517 U.S. 620 (1996).
[10] I use the terms “quasi-public organization” to describe organizations which have no direct government affiliation, which would make them a public organization and thus susceptible to equal protection challenges, but which are overwhelmingly open to public membership and embraced by the public as an organization to which the public has a right to belong.
[11] See Cynthia A. Leiferman, Private Clubs: A Sanctuary For Discrimination?, 40 Baylor L. Rev. 71 (1988).
[12] See Roberts v. United States Jaycees, 468 U.S. 609 (1984).  See also Rotary Int’l, supra note 7.
[13] See Dale v. Boy Scouts of America, 160 N.J. 562 (1999).  But see Curran, supra note 4.
[14] See id.
[15] The Boy Scouts of America (BSA) operates four scout membership programs for young boys of various ages, which I collectively refer to in this paper as “Boy Scouts”: Cub Scouts, Boy Scouts, Varsity Scouts and Explorers.
[16] Laws Against Discrimination, or “LADs,” are typically state laws which provide that covered entities may not discriminate against protected classes, generally in the provision of public accommodations.  The characteristics of these statutes are examined in detail, below.
[17] See Coggs v. Bernard, 92 Eng. Rep. 107 (1703).
[18] See Blackstone, 4 Commentaries, Ch. 13.
[19] See Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U.L. Rev. 1283, 1307 (1996).
[20] Id. at 1311.
[21] See id. at 1319.
[22] 36 U.S.C. § 30901.
[23] See Dale, supra note 13, at 2.  The Boy Scouts presently has over five million active members in the United States.
[24] See Singer, supra note 19, at 1333.  See also Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
[25] 109 U.S. 3 (1883).
[26] See Steven B. Arbuss, The Unruh Civil Rights Act: An Uncertain Guarantee, 31 UCLA L. Rev. 443, 444 (1983).
[27] U.S. Const. amend. XIII, XIV.
[28] Isbister v. Boys' Club, Inc., 40 Cal. 3d 72, 84 (1995).
[29] See Patty Henetz, Some LDS Members in California Question Same-Sex Marriage Ban Campaign, Salt Lake Tribune, August 22, 1999, at A1.
[30] See id.
[31] See Ibister, supra note 28.
[32] Cal. Civ. Code §51.
[33] See Ibister, supra note 28.  See also Steven Wyllie, The Unruh Civil Rights Act: A Weapon To Combat Homophobia In Military On-Campus Recruiting, 24 Loy. L.A. L. Rev. 1333, 1335 (1991).
[34] Cal. Civ. Code §51.
[35] See Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 1155-56 (1991) (citing with approval cases holding sexual orientation to be a personal characteristic upon which discrimination is prohibited by the Unruh Act); Beaty v. Truck Ins. Exchange, 6 Cal.App.4th 1455, 1460 (1992) (“The decisions hold the Unruh Act forbids discrimination against individuals on the basis of sexual orientation.”); Curran, supra note 4, at 734 (“Thus, we conclude that the Unruh Act prohibits arbitrary discrimination against homosexuals.”).  See also In re Cox, 3 Cal. 3d 205 (1970) (Unruh Act protects people from arbitrary discrimination based on their appearance).
[36] See 10 Cal.4th 594, 620 (1995).  There has only been one case which has held a club to be “distinctly private”:  See also Kiwanis International v. Ridgewood Kiwanis Club, 806 F.2d 468, 475 (1986) (In the only case in which a club has been held to be “distinctly private,” the court held that the “distinctly private” club is the opposite of a “public accommodation.”  The club was very small, and new members had to be sponsored by existing members and pass rigorous screening procedures.); and  Dale, supra note 13 (the court noted that the Kiwanis characteristics were the exact opposite of the Boy Scouts).
[37] Curran, supra note 4.
[38] Dale, supra note 13.
[39] See id.
[40] See id.  (The Boy Scouts claimed to be “a bona fide religious or sectarian institution.”  The court dismissed this claim based on the Scout’s repeated statements in its materials that it is nonsectarian.).
[41] Chuck Colson, The Gay Nineties: The Courts and the Boy Scouts (visited October 20, 1999) <http://www.breakpoint.org/scripts/80304.htm>.
[42]  See Dale, supra note 13.
[43] See Curran, supra note 4.
[44] Cal. Civ. Code §51.  The failure of the Unruh Act to be interpreted as broadly as those statutes which use the “public accommodations” language is highly ironic in light of the fact that the Unruh Act was adopted as a response to judicial decisions interpreting the previous “public accommodations” language too narrowly.  See Randall v. Orange County Council, Boy Scouts of Am., 17 Cal. 4th 736 (1998) (California Supreme Court decided that two atheist scouts were not protected by the Unruh Act because the Boy Scouts could not be considered a business establishment due to its charitable characteristics.  The court refused to analogize the Boy Scouts to a traditional place of public amusement or accommodation.); Seabourn v. Coronado Area Council, 891 P.2d 385, 404 (Kan. 1995) (Held that the Boy Scouts were not subject to the Kansas public accommodations statute due to a lack of business purpose; declining to “divorce the concept of public accommodation from the usual meaning and the common understanding of the word business”); and Schwenk v. Boy Scouts of America, 551 P.2d 465, 469 (Ore. Supr. Ct. 1976) (“[T]he primary concern and purpose of the Oregon legislature in its enactment of the Oregon Public Accommodations Act was to prohibit discrimination by business or commercial enterprises which offer goods or services to the public … not intended by the Oregon legislature to include the Boy Scouts of America”).
[45] See N.J.S.A. 10:5-4.
[46] Id.  The statute, amended in 1991 to include sexual orientation as a protected class, makes it unlawful: “[f]or any owner, … agent, or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against any person in the furnishing thereof, … on account of the … affectional or sexual orientation … of such person.”
[47] See Dale, supra note 13.
[48] See Steven B. Arbuss, The Unruh Civil Rights Act: An Uncertain Guarantee, 31 UCLA L. Rev. 443, 447, 450 (1983) (Citing thirty-two states which have statutes prohibiting discrimination in places of “public accommodation,” which the statutes then specifically define.  California does not follow this model.).  See also Isbister, supra note 28 (The court held that the local Boys’ Club was a “business establishment” in view of its prominent recreational facilities which made the Club similar to places of amusement which had traditionally been covered by public accommodation statutes); and Warfield v. Peninsula Golf & Country Club, 10 Cal.4th 594 (1995) (court found that a private country club was a business establishment despite its non-profit status and characteristics of a private club because of the regular business transactions which took place at the club, and thus qualified it as a business establishment).
[49] Warfield, supra note 48 (applied to private country club which conducted business transactions with its members and guests).  See also Isbister, supra note 28 (applied to the non-profit Boys’ Club due to the organization’s business-like attributes even if it was not strictly a place of public accommodation); and Sharon Swaim, Forcing Open The Doors Of Private Clubs: Warfield V. Peninsula Golf & Country Club -- Did The Court Go Too Far?, 30 U.C. Davis L. Rev. 909, 912 (1997).
[50] Id. at 673.
[51] See id. at 692.
[52] Id. at 700.
[53] See Note, Statutory Protection For Gays And Lesbians In Private Employment, 109 Harv. L. Rev. 1625 (1996).
[54] See id. at 1629 (e.g. Connecticut, Minnesota and Rhode Island).
[55] Cal. Gov't Code §§ 12900‑12996.
[56] See Matthew Yi and Robert Salladay, Governor Signs Trio of Gay Rights Bills, San Francisco Examiner, October 3, 1999, at A1.
[57] See Todd Dickey, Reorienting The Workplace: Examining California's New Labor Code Section 1102.1 And Other Legal Protections Against Employment Discrimination Based On Sexual Orientation, 66 S. Cal. L. Rev. 2297 (1993).
[58] See Seabourn v. Coronado Area Council, Boy Scouts of Am., 891 P.2d 385, 406 (Kan. 1995).
[59] 109 U.S. 3 (1883).
[60] See Steven B. Arbuss, The Unruh Civil Rights Act: An Uncertain Guarantee, 31 UCLA L. Rev. 443, 444 (1983).
[61] 42 U.S.C. § 2000a.  See also Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
[62] Id.
[63] See 42 U.S.C. §2000a(b)
[64] 42 U.S.C. § 2000a(b)(3)
[65] See Singer, supra note 19, at 1412.
[66] 742 F.Supp. 1413 (N.D.Ill. 1990).
[67] Id. at 1538.
[68] See Dale, supra note 13.
[69] See Curran, supra note 4.
[70] See Lynne Y. Fletcher, The First Gay Pope 77 (1992).
[71] See Carol Ness, Feds Push To End Gay Youth Bashing Title 9 Of Civil Rights Act May End School Attacks, S.F. Examiner, November 1, 1998, at A6.
[72] See Jeffrey Schmalz, Poll Finds an Even Split on Homosexuality's Cause, N.Y. Times, Mar. 5, 1993, at A14. (78%); Chris Bull, Still Sittin' on Capitol Hill: Lobbyists Adopt a New Tack to Get a Federal Gay Rights Bill Passed, Advocate, May 31, 1994, at 28 (76%); The Numbers: How the Movement Measures Up, Advocate, June 25, 1996, at 18 (84%); Richard L. Berke, Chasing the Polls on Gay Rights, N.Y. Times, Aug. 2, 1998, § 4, at 3 (84%).
[73] See David E. Morrison, Note, You've Built the Bridge, Why Don't You Cross It?  A Call for State Labor Laws Prohibiting Private Employment Discrimination on the Basis of Sexual Orientation, 26 U. Mich. J.L. Reform 245, 252‑56 (1992) (“Title VII of the Civil Rights Act of 1964 provides no protection against discrimination on the basis of sexual orientation.”).
[74] 42 U.S.C. § 2000e-2.
[75] See Age Discrimination in Employment Act of 1967 (ADEA), 42 U.S.C. § 6101.
[76] See Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101.  The ADA and the Rehabilitation Act (29 U.S.C. §706) explicitly exclude sexual orientation from being considered a “disability”.
[77] See Immigration Reform and Control Act, 8 USC 1324B.
[78] See DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 F.2d 327 (9th Cir.1979); Voyles v. Ralph K. Davies Medical Ctr., 403 F. Supp. 456, 457 (N.D. Cal. 1975).  But see Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, (1998) (Court allowed a claim based on same-sex harassment).
[79] Francisco Valdez, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of “Sex,” “Gender,” and “Sexual Orientation” in Euro-American Law and Society, 83 Calif. L. Rev. 1, 1 (1995).
[80] 490 U.S. 228 (1989).
[81] Id.
[82] 395 F. Supp. 1098 (N.D. Ga. 1975).
[83] See Valdez, supra note 79, at 140.
[84] See id. at 147.
[85] See Jack M. Battaglia, Religion, Sexual Orientation, And Self-Realization: First Amendment Principles And Anti-Discrimination Laws, 76 U. Det. Mercy L. Rev. 189, 193 n.5 (1999).
[86] Lexis Bill tracking Report S 1276 §3(9) (1999).
[87] See Edward J. Reeves, Emerging Trends in Human Resources Management, in Lavender Law Getting Connected 6 (1999).
[88] See US Job Rights Bill Reintro'd (visited October 17, 1999) <http://www.planetout.com/pno/newsplanet/article.html?1999/06/24/2>.
[89] See Id.
[90] See Reeves, supra note 87.
[91] See Id.
[92] See Bradley Calls For Expanded Gay Rights, Cin. Post, September 20, 1999, at 2A. (Bradley also stated that he supports equal rights for gays serving in the military).
[93] Exec. Order No. 13087, (1998).
[94] See Jonathan Mandell, Struggling Still, Newsday , June 22, 1992, at 44. (The Stonewall riots of 1969, which occurred in response to police raids on a New York gay bar , are often considered the beginning of the gay rights movement.)
[95] See William Myers, States With No Sodomy Laws (visited October 11, 1999) <http://www.actwin.com/eatonohio/gay/sodomy.html>.
[96] See William Myers, States Cities and Towns With Laws Penalizing Crimes Motivated by Bias on the Basis of Sexual Orientation (visited October 11, 1999) <http://www.actwin.com/eatonohio/gay/biaslaws.htm>.
[97] See William Myers, States Counties Cities and Towns With Anti-Discrimination Laws Based on Sexual Orientation (visited October 11, 1999) <http://www.actwin.com/eatonohio/gay/gayri.htm>.
[98] See William Myers, States Counties Cities and Towns With Some Type of Benefit or Recognition to Domestic Partners for Homosexuals (visited October 11, 1999) <http://www.actwin.com/eatonohio/gay/dompar.htm>.
[99] See John Nichols, Courting the Gay Vote, The Progressive, September 1, 1999, at 20.
[100] See Katherine Sender, Selling Sexual Subjectivities: Audiences Respond to Gay Window Advertising, Critical Stud. Mass Comm. 172, June 1, 1999.
[101] See Paul Brownfield, As Minorities’ TV Presence Dims, Gay Roles Proliferate, L.A. Times, July 21, 1999, at A1.
[102] See Cal Ingram, Davis Signs 3 Bills Supporting Domestic Partners, Gay Rights Legislation, L.A. Times, October 3, 1999, at A24.
[103] FEHA, supra note 1.
[104] See Hanna Rosin and Richard Morin, As Tolerance Grows, Acceptance Remains Elusive, Washington Post, December 26, 1998, at A1 (87% of Americans support equal employment rights for gays).
[105] See Lesbians May Have Biological Differences, The Cincinnati Post, March 3, 1998, at 3A.  Robert Dawidoff, Equal Protection for the Last Outcasts Gay Rights: Being Homosexual Is Not A Choice, Lifestyle or Otherwise, L.A. Times, February 27, 1998, at B9.
[106] See Romer v. Evans, 517 U.S. 620, 635 (1996).
[107] See Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 518 U.S. 100 (1996).
[108] See Jack Battaglia, Religion, Sexual Orientation, and Self-Realization: First Amendment Principles and Anti-Discrimination Laws, 76 U. Det. Mercy L. Rev. 189, 356 (1999); Jane S. Schacter, The Gay Civil Rights Debate In The States: Decoding The Discourse Of Equivalents, 29 Harv. C.R.-C.L. L. Rev. 283 (1994).
[109] See Mark Payser, Battling Backlash, Newsweek, August 11, 1998, at 50.
[110]  See The Real Question on Gays, Salt Lake Tribune, August 29, 1998, at A10.
[111] See Muriel Dobbin, Civil Rights Groups Make Case For Hate-Crime Legislation, The News & Observer, July 13, 1999, at A7.
[112] Valdez, supra note 79, at 1.
[113] See id. (Professor Valdez defines “gender” as how society understands “male” and “female” or “masculine” and “feminine,” and states that “every theory of sexual orientation yet devised by Euro-American minds is implicitly, if not explicitly, constructed primarily on gender,” see id. at 25).
[114] See id. at 26.
[115] See id. at 100.
[116] Id.
[117] Id. at 101.
[118] Id.
[119] Frank J. Murray, Boy Scouts Ask High Court To OK Homosexual Ban, Washington Times, October 27, 1999, at A6.
[120] See Valdez, supra note 79.
[121] See Curran, supra note 4.  But see Dale, supra note 13.
[122] See Welsh, supra note 66.
[123] For example, The Rotary Club, United States Jaycees, Harvard Club, Boy Scouts, etc.  See, e.g., Roberts, supra note 12; Rotary Int’l, supra note 7, at 544.
[124] See Sally Frank, The Key to Unlocking the Clubhouse Door:  The Application of Antidiscrimination Laws to Quasi-Private Clubs, 2 Mich. J. Gender & L. 27, 32 (1994).  The author states that prohibiting gay scouts victimizes children by reinforcing the falsity that it is unsafe to have gays around young boys.
[125] See Jamie Diaz, Shoal Creek Club Agrees To Begin Admitting Blacks, N.Y. Times, Aug. 1, 1990, at A13.  When the PGA scheduled a golf tournament at the Shoal Creek Country Club, civil rights leaders threatened protests because the Country Club did not admit blacks.  The Club decided to change its membership policy, the PGA no longer holds events at discriminatory clubs, and the protesters called off their demonstrations.
[126] See Hurley v. Irish‑American Gay, Lesbian and Bisexual Group of Boston ("GLIB"), 515 U.S. 557 (1995).
[127] See Ku Klux Klan v. Mayor of Thermont, 700 F.Supp. 281 (D Md 1988) (Holding that the KKK’s exclusion of nonwhites and non-Christians from its parade is protected by the freedom of speech).
[128] Brief for the Boy Scouts of America at 12, Curran v. Mount Diablo Council of the Boy Scouts of America, 17 Cal.4th 970 (1998).
[129] Id. at 13.
[130] Id. at 24.
[131] Id. at 25.
[132] Family Research Council Reaction to CA Scout Ruling, PRNewswire, March 23, 1998.
[133] The Claremont Institute, The ACLU vs. The Boy Scouts (visited October 20, 1999) <http://www.claremont.org/Scouts_vs_ACLU.cfm>.
[134] Amicus brief by the Claremont Institute, Dale v. Boy Scouts of America, 160 N.J. 562 (1999) (No. 45-761). 
[135] Id.
[136] Id.
[137] Id.
[138] See Sally Frank, The Key to Unlocking the Clubhouse Door:  The Application of Antidiscrimination Laws to Quasi-Private Clubs, 2 Mich. J. Gender & L. 27, 35 (19__).
[139] See Dale, supra note 13.
[140] See Coles v. Haves Realty Corporation, 633 F.2d 384, 386 (1980) ("[The white plaintiffs] have been denied the right to rent real property in Henrico County and therefore have been deprived of the advantages and conveniences they would have enjoyed from living in this area, namely the right to the important social, professional, *387 business and economic, political and aesthetic benefits of interracial associations that arise from living in integrated communities free from discriminatory housing practices.").
[141] See Frank, supra note 124 (The author notes that the “key to power within a community is often the same: membership in the community’s elite organizations.”  She notes that denial of such membership makes the ability of the excluded to break through glass ceilings.).
[142] See Brown v. Board of Education, 347 U.S. 483, 495 (1954) ("Separate educational facilities are inherently unequal").
[143] See, e.g., Roberts, supra note 12.
[144] Roberts, supra note 12  (Holding that eliminating discrimination based on gender was a compelling interest which justified infringing on Jaycees’ freedom of association).
[145] 481 U.S. 537 (1987).
[146] See Roberts, supra note 12, at 618-9.
[147] See id. at 622.
[148] See Jack Battaglia, Religion, Sexual Orientation, and Self-Realization: First Amendment Principles and Anti-Discrimination Laws, 76 U. Det. Mercy L. Rev. 189, 356, 375 (1999) (Compelling governmental interests may include rectifying the institutional subrogation which gays face at the hands of the legal system, and avoiding the societal costs which permitting discrimination against gays places on the entire society).
[149] See Roberts, supra note 12, at 623, 627.  But see Hurley, supra note 126 (U.S. Supreme Court found that application of the state’s LAD to a parade, forcing the parade organizers to include a gay contingent, would violate the parade organizers’ freedom of expression).  The Hurley decision is not contrary to the Boy Scout cases and would not apply to the Boy Scouts because the Boy Scouts do not express themselves through their selection of members in the way which, for example, the Ku Klux Klan does, or in the way in which a parade itself directly expresses the views of the organizers.
[150] See id. at 626.
[151] See New York State Club Ass'n v. City of New York, 108 S. Ct. 2225  (1988); Rotary Int'l, supra note 7; Roberts, supra note 12.  See also Hart v. Cult Awareness Network, 13 Cal.App.4th 781, (1993) (Requiring nondiscrimination of a protected class of people (women) in an all-male group has been held not to “change the content or impact of the organization’s speech”.).  For examples of successful challenges to discrimination under the Unruh Act, see Rotary, id., and Isbister, id.
[152] See Dale, supra note 13.
[153] See id.
[154] See Lisa A. Hammond, Boy Scouts And Non‑Believers: The Constitutionality Of Preventing
Discrimination, 53 Ohio St. L.J. 1385, 1391 (1992).
[155] See Curran, supra note 4.
[156] See, e.g., Welsh v. Boy Scouts of Am., 993 F.2d 1267, 1267 (7th Cir.) (The Boy Scouts is not a “place of public accommodation” under Title II of the Civil Rights Act of 1964 because the intent of Congress was to apply the act only to organizations which maintain a close connection to a structural facility.)
[157] N.J.S.A. 10:5-4 (The statute exempts “any institution, bona fide club, or place of accommodation which is in its nature distinctly private; nor shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution…”); See also Sally Frank, The Key to Unlocking the Clubhouse Door:  The Application of Antidiscrimination Laws to Quasi-Private Clubs, 2 Mich. J. Gender & L. 27, 41 (19__).
[158] See Dale, supra note 13 (The court stated that the factors which determine if an organization is a “public accommodation” include: “Whether the entity engages in broad public solicitation, whether it maintains close relationships with the government or other public accommodations, and whether it is similar to enumerated or other previously recognized public accommodations.”  The court found that the Boy Scouts met each element of this test.).
[159] See id. at 8.  (The court interpreted “place” to include an accommodation which is provided at “a moving situs.”)
[160] 204 Conn. 287 (1987).
[161] General Statutes (Rev. to 1977) § 53-35(a).
[162] Quinnipiac Council, Boy Scouts of America, Inc. v. Commission on Human Rights and Opportunities, 204 Conn. 287, 295 (1987).
[163] See id. at 296.
[164] See id. at 297.
[165] See id. at 302.
[166] See Dale, supra note 13 (The court found that in addition to its vast membership numbers, the fact that the Boy Scouts itself states that “Neither [our federal] charter nor the bylaws of the Boy Scouts of America permits the exclusion of any boy.  The National Council and Executive Board have always taken the position that Scouting should be available for all boys who meet the entrance age requirements” refutes the Boy Scouts claim, and the holding in Welsh, that membership in the Boy Scouts is selective vis-à-vis the Boy Scout Oath and Law, which the Dale court found to be superficial.).
[167] 551 P.2d 465 (Or. 1976).
[168] Id. at 468.
[169] See The Federalist No. 10 (James Madison).
[170] See The Claremont Institute, The ACLU vs. The Boy Scouts (visited October 20, 1999) <http://www.claremont.org/Scouts_vs_ACLU.cfm> (“In April, the Scout Association, the governing board of the Boy Scouts in Great Britain, announced a change of policy.  Henceforth, the Scouts in that country will admit homosexuals both as scouts and as scout leaders.”).
[171]  Heart of Atlanta Motel v. United States, 379 U.S. 241, 250.
[172] N.J.S.A. 10:5-4.
[173] S. 622 and H.R. 1082.
[174] Hurley, supra note 126.
[175] Id.
[176] Maria LaGanga, Judge Backs S.F. Law on Partner's Benefits, Los Angeles Times, April 11, 1998, at A18.
[177] See ACLU, Chicago Ends Boy Scout Sponsorship (visited October 20, 1999) <http://www.aclu.org/news/n020498a.html>.
[178] See Michael Mello, Scouts Issue ‘Don’t Ask, Don’t Tell’ Policy Toward Gays, Associated Press, August 12, 1999.
[179] Boy Scouts Revise Gay Policy, Associated Press, December 10, 1996.
[180] See Mello, supra note 178.
[181] Davis, CA Schools Stifle Scouts, Yahoo! News, December 15, 1999.
[182] See id.
[183] New Gay Scout Troup in Toronto, PlanetOut Yahoo! News, November 11, 1999.
[184] See OR Cubs Roar, PlanetOut Yahoo! News, November 11, 1999.
[185] Id.

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