The ACLU of Southern California argues Curran vs Mt. Diablo Council of the Boy Scouts of America before the California Supreme Court, in Los Angeles on Monday, Jan. 5. The case concerns the 1980 exclusion of former Eagle Scout, Timothy Curran, as an adult member of Scouting by the Mt. Diablo Boy Scout Council in Berkeley, California after a local newspaper story on gay teens indicated that Curran, then 18, was gay. The case challenges the Boy Scout policy of blocking participation in Scouting by those who are gay, a policy that the ACLU says violates California's Unruh Civil Rights Act prohibiting discrimination by business establishments.
The case is being argued by ACLU/SC cooperating attorney Jon Davidson, currently Supervising Attorney with Lambda Legal Defense and Education Fund, who argued the case through the lower courts while a staff attorney with the ACLU/SC. Plaintiff Timothy Curran, who will attend the argument is currently a 35yearold documentary director living in Miami, Florida.
After years of discovery and pretrial motions, the first phase of the trial began on September 20, 1990 and concerned whether the Boy Scouts are a business establishment as defined by the Unruh Civil Rights Act. On November 6, 1990, the Los Angeles Superior Court ruled that Scouting is a business, but, on July 25, 1991, the same Court said the Boy Scouts may discriminate against those it learns are gay. On March 29, 1994, the Court of Appeal ruled that the Boy Scouts is not a business and may discriminate to further the organization's rights of intimate and expressive association.
Attorney Jon Davidson said that the 1994 California Court of Appeal ruling gave ". . .the Boy Scouts, and numerous other charitable organizations, an exemption from California's antidiscrimination laws and the unfettered ability to exclude whomever they want, on any basis."
However, in Randall vs Boy Scouts of America, Orange County Council, a case concerning the expulsion of two boy scouts who refused to affirm the existence of "God" in taking the Scout oath, the Orange County Superior Court ruled on May 7, 1992 that the Boy Scouts are a business establishment and could not exclude the boys due to the antidiscrimination protections of the Unruh Civil Rights Act, a decision affirmed by a different district of the Court of Appeal on February 28, 1994.
Referring to the conflict between the rulings Davidson said, "I cannot believe that the court would have reached the result it did in Tim's case if he had been excluded by the Boy Scouts because of his race or religious beliefs."
The ACLU of Southern California won two significant rulings from the California Supreme Court in recent years based on the enforcement of the state's Unruh Civil Rights Act. In Warfield vs Peninsula Golf and Country Club, also argued by Davidson, a female real estate agent won a landmark ruling by the California Supreme Court on June 29, 1995 in a discrimination case against a private golf club.
In that 14 year old legal battle, the Peninsula Golf and Country Club refused to honor the family membership of a real estate agent which she won as part of a divorce settlement based on the club's policy that membership could only be held in a man's name. The ACLU of Southern California successfully argued that as a business, whether private or not, clubs cannot discriminate against an entire class of people based solely on their status.
On April 9, 1996, the California Supreme Court ruled in Smith vs Fair Employment and Housing Commission that a landlord could not refuse to rent to an unmarried couple on the basis of religious belief. The ACLU submitted an amicus brief in this case.
The ACLU believes that both of these rulings indicate that the California Supreme Court will not support discrimination in violation of California's laws.