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

707 P.2d 212, 40 Cal. 3d 72, 219 Cal. Rptr. 150, 1985 Cal. LEXIS 398

• Court: California Supreme Court
• Decided: October 21, 1985
• Docket: S.F. 24623
• Status: Published

Opinions

Opinion

GRODIN, J.

The Unruh Civil Rights Act (Civ. Code, § 51) guarantees every person in California “full and equal” access to “all business establishments of every kind whatsoever.”¹ The Act is this state’s bulwark against arbitrary discrimination in places of public accommodation. Absent the principle it codifies, thousands of facilities in private ownership, but otherwise open to the public, would be free under state law to exclude people for invidious reasons like sex, religion, age, and even race. The Legislature’s desire to banish such practices from California’s community life has led this court to interpret the Act’s coverage “in the broadest sense reasonably possible.” (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 468 [20 Cal.Rptr. 609, 370 P.2d 313].)

The Boys’ Club of Santa Cruz, Inc., is a private charitable organization which operates a community recreational facility.² The Club is open to any local boy for a nominal membership fee, but plaintiffs in this case were excluded because they are girls. We must decide, among other things, whether the Club is among those “business establishments” covered by the Act. If the Act does not apply, state law allows the Club to discriminate against female children, or on any other basis it chooses.

This state’s law, as we shall demonstrate, has long prohibited arbitrary discrimination in places of public accommodation or amusement. Viewing the Unruh Act in its historical context, and in light of prior decisions of this court, we conclude that the term “business establishment” was meant to embrace, rather than reject, that well established principle. On the particular record before us, there can be no doubt that the facility operated by the Boys’ Club comes within the scope of that principle: its recreational facilities are open to the community generally but closed to members of a particular group. These facilities are the Club’s principal activity and reason for existence. We therefore agree with the Santa Cruz Superior Court, which found that the Club is a “business establishment” for purposes of the Act.

Like the superior court, we also reject the contention that the Club may nonetheless discriminate against girls because their participation would contravene “the nature of its business enterprise and ... the facilities provided.” (See Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 741 [180 Cal.Rptr. 496, 640 P.2d 115, 30 A.L.R.4th 1161], cert. den., 459 U.S. 858 [74 L.Ed.2d 111, 103 S.Ct. 129] (hereafter Marina Point).) There is no substantial evidence on this record that the Club’s programs, services, and facilities are unsuitable for girls, or that inclusion of both sexes in these programs would diminish their value or effectiveness. Nor is there proof that female memberships would cause serious and permanent danger to the Club’s funding or its relationship with its national organization. We will therefore affirm the judgment of the trial court.

We emphasize the limited scope of our holding. Nothing in our analysis necessarily extends to organizations which operate facilities not generally open to the public, or which maintain objectives and programs to which the operation of facilities is merely incidental. Nor does our holding necessarily apply to an organization which can demonstrate a compelling need to maintain single-sex facilities. Finally, we do not preclude the Legislature from amending the Act to allow the Boys’ Club to maintain its male-only policy. The validity of any such future legislation is not before us.

Facts

The Boys’ Club of Santa Cruz, Inc., a private nonprofit California corporation, owns and operates a building which includes such recreational facilities as a gymnasium, an indoor competition-size swimming pool, a snack bar, and craft and game areas. The local Club is affiliated with the Boys’ Clubs of America, Inc., a congressionally chartered organization. (See 36 U.S.C.A. § 691 et seq.)

Only members may use the Club’s programs and facilities, but membership is open to all Santa Cruz children between eight and eighteen, so long as they are male. Members pay only a $3.25 annual membership fee. The principal source of funding for the Club—providing approximately 50 percent of its annual budget—is a gift in trust from John T. and Ruth M. Mallery (the Mallery Trust). The Mallerys also donated the money for the Club building. The trial court found that the Mallery Trust was “unrestricted” as to gender. In 1978, after this suit began, the Mallerys made a $200,000 donation which was expressly conditioned on restriction of membership to boys. Remaining funds come from the United Way campaign, an annual golf event, and miscellaneous private donations.

The Club is run by an adult board of directors, officers of the corporation, and a paid staff headed by an executive director. Club members have no power over Club affairs or membership policies.

The Club is unique in northern Santa Cruz County in the range and low cost of the recreational facilities and programs it provides under one roof. No single program or facility open to girls offers a similar range of activities at similar cost.

In 1977, plaintiff girls were denied access to the Boys’ Club’s membership and facilities solely on the basis of their sex. This action for injunctive and declaratory relief followed. After a trial on the merits, the court found that the Club’s membership policy violated the Unruh Act, caused harm to the rejected girls, and deprived members of a nondiscriminatory environment. It permanently enjoined the Club from denying membership or access to its facilities to girls.

Analysis

1. The Boys’ Club is a “business establishment” covered by the Unruh Act.

The Club first contends that it is not a “business establishment” covered by the Act. We disagree.

Adopted in 1959, the Unruh Act, “[e]manat[es] from and [is] modeled upon” California’s earlier statute forbidding arbitrary discrimination in “public accommodations. (Marina Point, supra, 30 Cal.3d at p. 731.) The prior law, first adopted in 1897, derived from the common law doctrine that certain public enterprises are obliged to serve all without arbitrary discrimination. (In re Cox (1970) 3 Cal.3d 205, 212 [90 Cal.Rptr. 24, 474 P.2d 992]; see Tobriner & Grodin, The Individual and the Public Service Enterprise in the New Industrial State (1967) 55 Cal.L.Rev. 1247, 1250 [fns. omitted].) The Unruh Act “expanded the reach of [the prior public accommodations statute] from common carriers and places of public accommodation and recreation, e.g., railroads, hotels, restaurants, theaters, and the like, to include ‘all business establishments of every kind whatsoever.’” (Marina Point, supra, 30 Cal.3d at p. 731 (italics added), citing Horowitz, The 1959 California Equal Rights in “Business Establishments” Statute—A Problem in Statutory Application (1960) 33 So.Cal.L.Rev. 260, 272-294 (hereafter Horowitz).)

By its use of the emphatic words “all” and “of every kind whatsoever,” the Legislature intended that the phrase “business establishments” be interpreted “in the broadest sense reasonably possible.” (Burks, supra, 57 Cal.2d at p. 468.) Indeed, the Unruh Act was adopted out of concern that the courts were construing the 1897 public accommodations statute too strictly.

That prior law, a model for subsequent civil rights legislation in other jurisdictions both state and federal, prohibited arbitrary discrimination by enumerated lodging, eating, transportation, recreational, and entertainment facilities as well as “all other places of public accommodation or amusement, . . .” (See Stats. 1897, ch. 108, § 1, p. 137, as amended.) However, despite periodic additions to the list of covered facilities (see Stats. 1919, ch. 210, § 1, p. 309 [public conveyances]; Stats. 1923, ch. 235, § 1, p. 485 [soda fountains]), lower appellate courts used the principle ejusdem generis to limit the law’s reach. (See, e.g., Reed v. Hollywood Professional School (1959) 169 Cal.App.2d Supp. 887, 890 [338 P.2d 633] [private school not covered]; Coleman v. Middlestaff (1957) 147 Cal.App.2d Supp. 833, 834-836 [305 P.2d 1020] [dentist’s office not covered]; Long v. Mountain View Cemetery Assn. (1955) 130 Cal.App.2d 328, 329 [278 P.2d 945] [private cemetery not covered].) “Accordingly, the Legislature, enacting the Unruh Act, modified the [prior] mandate . . . and broadened its scope [to include] all business establishments of every kind whatsoever.” (Cox, supra, 3 Cal.3d at p. 214.)

The original version of the bill which became the Unruh Act extended its antidiscriminatory provisions to “all public or private groups, organizations, associations, business establishments, schools, and public facilities; ...” (See Assem. Bill No. 594, as introduced Jan. 21, 1959.) Later versions dropped all the specific enumerations except “business establishments” but added to the latter phrase the modifying words “of every kind whatsoever.”

“The broadened scope of business establishments in the final version of the bill, in our view, is indicative of an intent by the Legislature to include therein all private and public groups or organizations [specified in'the original bill] that may reasonably be found to constitute ‘business establishments of every type [sic] whatsoever.’ ” (O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 795-796 [191 Cal.Rptr. 320, 662 P.2d 427], italics added.³) Considering the Act’s ancestry, its phrase “business establishments” clearly includes at least those facilities subject to the predecessor statute—i.e., “places of public accommodation or amusement.” (See 34 Ops.Cal.Atty.Gen. 230, 232 (1959); Horowitz, supra, 33 So.Cal.L.Rev. 260, 289; cf., Burks, supra, 57 Cal.2d at p. 471.)

Courts in other jurisdictions have consistently held that broad-based nonprofit community service organizations like the Boys’ Club are “public accommodations” covered by statutes analogous to California’s pre-1959 civil rights law. For example, in language similar to our prior law, title II of the federal Civil Rights Act of 1964 (42 U.S.C.A. § 2000a et seq.) grants “all persons” the right to “full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.”⁴ A “place of public accommodation” includes, among other specified facilities, “any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment. ” (Id., § 2000a(b)(3), italics added.) Title II has been applied to private, nonprofit recreational organizations which offer memberships to the public at large and exclude only a particular class of persons protected by the statute. (E.g., Smith v. Young Men’s Christian Ass’n of Montgomery (5th Cir. 1972) 462 F.2d 634, 649; Nesmith v. Young Men’s Christian Ass’n of Raleigh, N.C. (4th Cir. 1968) 397 F.2d 96, 100; United States v. Slidell Youth Football Ass’n (E.D.La. 1974) 387 F.Supp. 474, 482-484; cf., Daniel v. Paul (1969) 395 U.S. 298, 306-308 [23 L.Ed.2d 318, 325-327, 89 S.Ct. 1697].)⁵

The same rule has obtained under “public accommodations” legislation in other states. New Jersey’s Law Against Discrimination bars sexual bias, among other things, in “places of public accommodation.” These are defined to include, without limitation, a long list of facilities and services, as well as “other placets] of amusement.” (N.J.Stat. Ann., § 10:5-5, subd. 1.) There is an express exception for accommodations which are “distinctly private” (ibid.) or “in [their] nature reasonably restricted exclusively to individuals of one sex.” (N.J. Stat. Ann., § 10:5-12, subd. f.) The New Jersey courts have ruled that a local Little League was a covered “place of amusement,” too unselective in membership to be “distinctly private,” and suited in its goals and facilities to participation by girls. (National Org. for W., Essex Ch. v. Little L. Base., Inc. (1974) 127 N.J.Super. 522 [318 A.2d 33, 35 et seq., 66 A.L.R.3d 1247], affd. summarily (1974) 67 N.J. 320 [338 A.2d 198],)⁶ Recently the New York Court of Appeals said that state’s similar Human Rights Law (Exec. Law, § 290 et seq.) prohibits gender-based membership restrictions by United States Power Squadrons, a national boating safety and educational organization. (U.S. Power Squad, v. State Human R. App. Bd. (1983) 59 N.Y.2d 401 [465 N.Y.S.2d 871, 874-877, 452 N.E.2d 1199].)⁷

These principles and authorities persuade us that the Boys’ Club of Santa Cruz is a “place of public accommodation or amusement,” and thus a “business establishment” covered by the Act. The Club certainly qualifies as a “place of amusement.” Indeed, its primary function is to operate a permanent physical plant offering established recreational facilities which patrons may use at their convenience during the hours the Club is open.

Moreover, the Club is classically “public” in its operation. It opens its recreational doors to the entire youthful population of Santa Cruz, with the sole condition that its users be male. (See National Org. for W., Essex Ch. supra, 318 A.2d at pp. 37-38.) There is no attempt to select or restrict membership or access on the basis of personal, cultural, or religious affinity, as a private club might do.⁸

While there are some organized activities, the emphasis is on drop-in use of the Club’s facilities, thus minimizing any sense of social cohesiveness, shared identity, or continuity. Boys who join the Club have no power in its affairs and no control over who else may be members. A fee, though not a large one, is charged for the annually renewable membership. Thus, the Club provides an atmosphere deemed characteristic of a “public accommodation” by the principal commentator on the Unruh Act; relations with and among its members are of a kind which take place more or less in “public view,” and are of a “relatively nongratuitous, noncontinuous, non-personal, and nonsocial sort.” (Horowitz, supra, 33 So.Cal.L.Rev. 260, 287, 288.)⁹

The Club, its amici, and Justice Mosk urge that the statutory phrase “business establishments” includes only commercial or profit-seeking ventures. They point to Chief Justice Gibson’s statement in Burks, supra, that a “business” is generally defined as a “ ‘calling, occupation, or trade, engaged in for the purpose of making a livelihood or gain.’ ” (57 Cal.2d at p. 468.) When that language is read in context, however, it provides no support for the Club’s view.

The principal issue in Burks was whether the sale of tract homes was a “business establishment” covered by the Act. In discussing the statutory words “all,” “business,” “establishments,” and “of every kind whatsoever,” Burks intended only to make clear that the Act applies “without any exception and without specification of particular kinds of enterprises.” (Ibid.) Burks implied, as O’Connor later confirmed, that the expansive phrase “all business establishments of every kind whatsoever,” as it appeared in the final version of the Act, was intended to encompass many of the private groups and organizations mentioned in the original bill but removed before passage. (Id., 57 Cal.2d at pp. 468-469, and fn. 3.)¹⁰

Burks did not consider whether a nonprofit enterprise might come within the Act. In O’Connor, however, this court subsequently found “no reason to insist that profit-seeking be a sine qua non for coverage under the [A]ct.” The opinion held that the Act’s regulation of “business establishment[s]” included a nonprofit condominium owners’ association whose “businesslike” functions, including its responsibility for enforcing an arbitrary adults-only rule, were intended to protect and enhance the condominium project’s economic value. (33 Cal.3d at p. 796.)

The Boys’ Club insists it is further removed from the commercial world, since it collects no substantial fees from its users and has no economic function. Of course, it has some of the “businesslike attributes” noted in O’Connor; like the nonprofit hospital there cited as an example of a nonprofit “business establishment,” the Club employs a substantial paid staff and “care[s] for an extensive physical plant” used for public purposes. (Ibid.)

However, we need not rely exclusively on the Club’s functional similarity to a commercial business.¹¹ As we have seen, the Unruh Act replaced a statute governing all “places of public accommodation or amusement” and was intended at a minimum to continue the coverage of “public accommodations.” The Santa Cruz Boys’ Club, as a public recreational facility, fits within that category. In these circumstances, the fact that its purposes and operations are not strictly commercial does not bar a conclusion that it is a “business establishment” to which the Act applies.¹²

The Club and its amici note that parallel California statutes banning discrimination in housing and employment—also originally adopted in 1959— contain express exemptions which refer to “association[s] or corporation[s] not organized for private profit.” (See Gov. Code, §§ 12926, subd. (c), 12927, subd. (d).)¹³ They urge that by excluding “nonprofit” groups from the housing and employment laws, the Legislature demonstrated its intent that the phrase “business establishments,” as used in the Unruh Act, should have a strictly commercial meaning. We cannot agree. The disparate grammar of three statutes attests to their different legislative histories and purposes.

If the specific exemption in the housing and employment laws proves anything, it is that the Legislature knows how to draft such exceptions when it wishes to. The Unruh Act covers “all” business establishments “of every kind whatsoever,” and the Legislature has never added any exemption, exception, or restriction. We are not free to import one from another law.

Indeed, as we noted in Marina Point, the FEHA specifically provides that “nothing contained in this part shall be construed, in any manner or way, to limit or restrict the application of Section 51 of the Civil Code [i.e., the Unruh Act].” (Gov. Code, § 12993, subd. (c), italics added; see Marina Point, supra, 30 Cal.3d at p. 731, fn. 5.) We conclude that the fair employment and housing provisions imply no restrictions on the Unruh Act which would exempt the Club from its requirements.

It is suggested that extension of the Unruh Act to the Boys’ Club will threaten all private organizations which traditionally serve the special cultural or charitable needs of particular minority groups with common interests. But we have emphasized that the Club’s status as a “business establishment” covered by the act arises from its “public” nature; it offers basic recreational facilities to a broad segment of the population, excluding only a particular group expressly recognized by the Act as a traditional target of discrimination.¹⁴

Finally, and belatedly, the Club contends that forcing female participation in its activities would interfere with its current members' rights of association guaranteed by the state and federal Constitutions. The United States Supreme Court has recently rejected the identical argument in a similar context. In Roberts v. United States Jaycees (1984) 468 U.S. 609 [82 L.Ed.2d 462, 104 S.Ct. 3244], the court ruled that First Amendment associational rights do not prevent application of the Minnesota Human Rights Act to prohibit sex-segregated membership policies by the Jaycees. (See fn. 8, ante.)

Roberts acknowledged that the Constitution protects both “intimate” and “expressive” associational rights. (468 U.S. at p. 618 [82 L.Ed.2d at p. 471].) However, it found no unconstitutional infringement of either of these separate interests.

The court quickly dismissed the claim that the Jay cees’ membership rules involved rights of “intimate” association. It noted that the Jaycees’ character as a large, socially unselective membership institution places it “outside the category of relationships” to which the individual right of personal choice applies. (Id., at p. 621 [82 L.Ed.2d at pp. 473-474].) The same is true of the Boys’ Club, as we have seen.

The Jaycees also argued in Roberts that their rights of “expressive” association would be infringed by forced admission of women, since the organization’s cohesive purpose and creed was to promote the special views and interests of young men. The court disagreed, though it conceded, as the court of appeals had noted, that a “ ‘not insubstantial part’ of the Jaycees’ activities constitutes protected expression on political, economic, cultural, and social affairs.” (Id., at p. 626 [82 L.Ed.2d at pp. 477-478].) The Minnesota law, the court observed, was not aimed at protected speech, and it imposed no direct restraint on the Jaycees’ freedom to express their views.

On the other hand, the statute’s protection of equal access rights, said the court, was the least intrusive means of satisfying a compelling state interest—the redress of historical discrimination against full participation by women in political, economic, and cultural life. (Id., at pp. 627-628 [82 L.Ed.2d at p. 478].) The court refused to entertain unproven assumptions, based on stereotypes, that participation of women would substantially alter the expressive character of the Jaycees. (Ibid.)

The Boys’ Club, though it purports to focus on the particular needs of male youth, does not suggest that it is substantially engaged in protected “expression of views.” In any event, our construction of the Unruh Act intrudes no further, and for no less compelling purpose, than was the case in Roberts. No federal constitutional violation is shown.

We reach a similar conclusion under California’s Constitution, though we recognize it affords greater privacy, expressive, and associational rights in some cases than its federal counterpart. (Cal. Const., art. I, §§ 1, 2; see City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130, fn. 3 [164 Cal.Rptr. 539, 610 P.2d 436, 12 A.L.R.4th 219]; Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 908 [153 Cal.Rptr. 854, 592 P.2d 341] affd. (1980) 447 U.S. 74 [64 L.Ed.2d 741, 100 S.Ct. 2035].) Considering this state’s special constitutional sensitivity to sexual discrimination (see Hawkins v. Superior Court (1978) 22 Cal.3d 584, 600 [150 Cal.Rptr. 435, 586 P.2d 916]; Sail’er Inn v. Kirby (1971) 5 Cal.3d 1, 17 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351]), we see no basis to hold that a statutory requirement of equal access to the recreational facilities of a public, nonselective, nonexpressive community service organization offends rights guaranteed by the California charter. We decline to do so.

2. The Boys’ Club’s male-only membership policy is prohibited by the Unruh Act.

The Club next argues that, even if it is a covered “business establishment,” its “traditional” membership policy is “reasonable” and therefore permitted by the Act. Justice Kaus also urges that view. Under the facts of this case, we cannot accept the contention.

The Unruh Act accords every person an individual right against “arbitrary” discrimination of any kind, whether or not set forth expressly in the statute. (Marina Point, supra, 30 Cal.3d 721, 732, quoting Cox, supra, 3 Cal.3d at p. 216.) Plaintiffs suggest that by condemning in particular those discriminations based on sex, race, color, religion, ancestry, and national origin, the Legislature deemed them arbitrary and unreasonable per se.

Plaintiffs find support for this view in the legislative history of the 1974 amendment to the Act, which added a specific reference to sexual discrimination. (Stats. 1974, ch. 1193, § 1, p. 2568.) Intermediate versions of the amending bill, they note, proposed to ban “arbitrary discrimination ... on account of sex” (italics added), but the modifying phrase was deleted from the final statute. Plaintiffs also emphasize the Legislative Counsel’s view that the addition of sex to the Act would not extend its reach, since sexual discrimination would probably be considered a form of arbitrary discrimination already prohibited. (See discussion, post.)

After examining the history of the 1974 amendment in Marina Point, this court affirmed the Cox rule that the Act’s “identification of particular bases of discrimination ... is illustrative rather than restrictive.” (See 3 Cal.3d at p. 216.) The Marina Point opinion emphasized a letter to Governor Reagan from Senator Petris, Chairman of the Select Committee on Housing and Urban Affairs and also the author of the 1974 bill. (30 Cal.3d at p. 734.) Urging the Governor’s signature on the sex amendment, Senator Petris explained: “The purpose of the bill is to bring it to the attention of the legal profession that the Unruh Act provides a remedy against arbitrary discrimination against women (or against men) in public accommodations which are business enterprises. This bill does not bring such discrimination under the Unruh Act, because that Act has been interpreted as making all arbitrary discrimination illegal, on whatever basis. The listing of possible bases of discrimination has no legal effect, but is merely illustrative.” (Second and third italics in original.) If the last quoted sentence is true, the mere fact that sex is listed as a prohibited ground of discrimination does not give it a special “arbitrary per se” status, as plaintiffs suggest.

Official comments by other persons and agencies involved in passage of the 1974 amendment do not appreciably advance plaintiffs’ argument. The most complete analysis is that of the Legislative Counsel, included by Senator Petris with his letter to the Governor. This report took mutually contradictory views of the Act and the proposed amendment. First, it noted that, under Cox, the listed bases of discrimination are “ illustration[s] of what [constitute] arbitrary discrimination.” Hence, it said, the bill “would not extend the application of the Unruh Civil Rights Act under existing case law,” since “discrimination based solely on sex would [probably] be considered arbitrary” even without addition of that word to the statute.

The Legislative Counsel cautioned, however, that “a construction of the act that would prohibit discrimination on any of the grounds enumerated therein whether or not such action was arbitrary would lead to absurd results.” (Italics added.) Noted in particular was the opposition mounted against the 1974 amendment by those who feared it would prohibit sex-segregated dormitories, institutional housing, and residence hotels. Such distinctions, the Legislative Counsel speculated, could probably be justified under both existing law and the proposed amendment as not based “solely” on sex. (See also Sen. Com. on Judiciary, Digest of Sen. Bill No. 1380 (Aug. 13, 1974) p. 2.) This confusing appraisal is scant evidence of a legislative intent to alter Cox’s determination that the identified bases of discrimination in the Act merely illustrate what may constitute arbitrary discrimination. Accordingly, we affirm that holding.¹⁵

In Marina Point, the court discussed the nature of arbitrary discrimination. Though one may be excluded from a “business establishment” on an individual basis “if he conducts himself improperly or disrupts the operations of the enterprise,” it is “arbitrary,” and therefore prohibited, to exclude an entire class on the basis of stereotyped notions. (30 Cal.3d at pp. 738-739; see Cox, supra, 3 Cal.3d at pp. 217-218.)

Marina Point left open the possibility, however, that the Act might allow the exclusion of an entire class whose presence “basically [would] not accord with the nature of [the] business enterprise and of the facilities provided.” (30 Cal.3d at p. 741.) Specifically, it suggested that limitation of access to members of certain groups might operate in certain cases “as a reasonable and permissible means under the Unruh Act of establishing and preserving specialized facilities for those particularly in need of such services or environment. [Citation and fn. omitted.]” (Italics added.) An example was housing facilities reserved for the elderly, which by design and function served the unique physical, social, and psychological needs of this minority group. (Id., at pp. 742-743.)

The court suggested that the “social need” served by such a “specialized institution” must be well-documented and established as a matter of public policy. The case for “specialization” is strengthened if the facility was designed to satisfy the particular concerns and characteristics of the needy group, making it less suitable for general use. (Ibid.)

The Marina Point complex, the opinion said, could not qualify under those standards. As designed, it was suitable for children; indeed, the adults-only policy was of recent vintage. Moreover, compared to the special housing needs of the elderly, the preference of some childless adults to live away from children was not a “similarly compelling societal interest.”¹⁶ In fact, the no-children rule exacerbated a more serious social problem than it purported to alleviate, since there is considerable evidence that families with small children have particular trouble finding affordable housing. (Ibid.)

Nonetheless, the Club argues here that it falls within the Marina Point exception as a “specialized facility” designed and operated solely to serve the particular “social needs” of boys. But the Club has failed to make the showing on this issue that Marina Point demands. There is no indication that the crafts, games, counseling programs, and recreational facilities offered by the Club are suited or safe only for males. Indeed, plaintiffs seek admission to membership because of their interest in using those programs and facilities. (See National Org. for W., Essex Ch., supra, 318 A.2d at pp. 38-39.)¹⁷

The Club contends that its primary purpose—to combat delinquency—is an important social interest best served by concentrating on male youth. It introduced juvenile hall statistics suggesting that Santa Cruz boys are four times more likely than their female counterparts to get into trouble with the law. By extending service to girls, the Club urges, it will have to dilute its efforts with boys, who present the greater social problem.¹⁸

It was conceded, however, that delinquency affects substantial numbers of girls. There was no evidence that boys need the recreation offered by the Club more than girls, that a sex-segregated “drop-in” recreational facility is more effective in combating juvenile delinquency than one open to both sexes, or that extension of membership to girls would cause an impractical net increase (or decrease) in membership.¹⁹

Most fundamentally, the Club argues that it nonetheless has the absolute right to choose to focus on the needs of boys alone. Again, the analogy is drawn to the many organizations which limit their services and programs to particular minority subgroups. As we have seen, however, noncommercial organizations open only to such well-defined subgroups are not “public accommodations” and thus may not be “business establishments” covered by the Act. Here, by contrast, the Club will admit without distinction fully half the youthful population of Santa Cruz. The sole group excluded, though not numerically a minority, has been a traditional target of discrimination.²⁰

The effect of this policy in Santa Cruz is to deny the excluded group, and that group alone, access to recreational opportunities available nowhere else in the vicinity. Thus, as was true of Marina Point, the Club may be creating a more compelling social problem than the one it seeks to alleviate.

Even the Club’s argument that it traditionally serves only boys can no longer be sustained. There was undisputed evidence that a number of local Clubs, including several in California, have admitted girls with no untoward effects.²¹ Under these circumstances, we cannot conclude that the Club is a “specialized facility” entitled, despite the broad proscription of the Unruh Act, to deny access to girls.

The Club suggests that its funding is in jeopardy if its membership policies change. But the trial court found on substantial evidence that the original Mallery Trust, the Club’s major financial source, is unrestricted on that score. We recognize with concern that the Mallery’s 1978 gift of $200,000 is conditioned on continuation of the male-only policy. But admission of girls may well produce offsetting new revenue sources. There is no evidence of severe, permanent financial danger should the Club be forced to comply with the Act. In sum, this record provides no basis for an exception to the Act’s rule against arbitrary discrimination by “business establishments.”

Conclusion

We have decided that the Boys’ Club of Santa Cruz is a “business establishment” covered by the Unruh Act, and that its male-only membership policy is an arbitrary form of discrimination prohibited by that statute. In our view, these conclusions are compelled by the Legislature’s very broad antidiscrimination policy. We caution again, however, that our holding is based on the particular nature and function of the Club. Nothing we say necessarily requires a similar result in the case of other single-sex youth organizations. Nor may we foreclose the Legislature from a more precise formulation of the situations in which private discrimination is forbidden.

Both dissenting opinions focus upon the question of sex discrimination, blithely ignoring the significance of the question presented here upon discrimination of other sorts. Under the dissenters’ view, organizations such as appellant would be free to exclude members on the basis of race, or national ancestry, as well. Justice Poché, dissenting in the Court of Appeal, made a pertinent observation in that regard: “Perhaps the violation would be clearer if the Boys’ Club of Santa Cruz had discriminated on the basis of race, not sex. But that lack of clarity is not the fault of the language of the statute. Instead, the difficulty is the long and well-ingrained tradition of women’s dependency which even today causes statutory recognition of the equality of women to have a strange and unreal ring to it.”

The judgment is affirmed.

Broussard, J., Reynoso, J., and Chesney, J.,

* concurred.

1 Section 51 provides in pertinent part: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” We sometimes refer to the statute hereafter as the Unruh Act, or simply the Act.

2 We hereafter sometimes refer to both the local facility and the national organization with which it is affiliated as the Boys’ Club or the Club. In other instances, the local Club is identified separately.

3 Thus, this court has already rejected Justice Mosk’s view that the amendment of the original bill was intended to eliminate all coverage of “private groups,” organizations, and facilities.

4 Title II, the “public accommodations” provision of the Civil Rights Act, only prohibits discrimination on the specified “ground[s].” Hence, it does not cover gender-based discrimination. (E.g., Seidenberg v. McSorley’s Old Ale House (S.D.N.Y. 1969) 308 F.Supp. 1253, 1255-1256; compare Cox, supra, 3 Cal.3d at p. 216 [because pre-1974 Unruh Act granted “all persons” rights against discrimination “no matter what” their race, color, religion, ancestry, or national origin, it barred all arbitrary discrimination, even if on the basis of a class membership not specifically mentioned in the statute].) Nor is gender-based discrimination on a ground for denial of status as a “private club” exempt from federal income tax. (26 U.S.C.A. § 501(c)(7), (h)(8)(i).) The employment provisions of the Civil Rights Act (tit. VII, 42 U.S.C.A. § 2000e et seq.) do ban discrimination on the basis of sex, except where gender is a “bona fide occupational qualification.” (Id.., § 2000e-2(a), (e).)

5 Each of these cases rejected contentions that the defendant organizations were free to discriminate as “private club[s] . . . not in fact open to the public.” (42 U.S.C.A. § 2000a(e).) The evidence suggested that “members” were not selected on a social basis, that there was no “plan or purpose” to exclude the public at large except on a single, prohibited ground (see Tillman v. Wheaton-Haven Recreation Assn. (1973) 410 U.S. 431, 438 [35 L.Ed.2d 403, 409, 93 S.Ct. 1090]), and that the organizations provided public services with public funding support. That these facts are also true of the Boys’ Club is undisputed.

6 The appellate division opined that facilities or activities which would involve breaches of bodily privacy were properly confined to one sex under New Jersey’s specific statutory exception. (318 A.2d at p. 38.) The Boys’ Club fits that description, but our statute contains no similar single-sex exemption. The language of the Unruh Act treats sex just like every other form of prohibited discrimination.

7 All persons could take the Squadrons’ basic boating safety course, but only men over 18 could become members. Only members could take the advanced boating course; “[o]ther advantages of membership include reduced rates on boat insurance, free admission to boat shows, discounts on nautical equipment and reduced rates for . . . Squadrons publications. Members also have the right to fly a United States Power Squadrons flag which identifies them as capable boaters.” (465 N.Y.S.2d at p. 874.)

8 The Second District Court of Appeal recently held that the Boy Scouts’ similar extension to the youthful public of a membership invitation limited only by sex made it a “public” organization covered by the Unruh Act. (Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 730-733 [195 Cal.Rptr. 325, 38 A.L.R.4th 607], app. dism. (1984) 468 U.S. 1205 [82 L.Ed.2d 873, 104 S.Ct. 3574].) We reserve judgment as to whether any organization or entity serving a substantial segment of the public on a nonselective basis is a “business establishment” within the Act’s meaning.

9 We are not persuaded by Justice Mosk’s contention that the relative smallness of the Club’s membership fee makes its memberships “gratuitous,” as Professor Horowitz used that term. The Club’s expenses are subsidized from various private and public sources so that it may offer its facilities to the youthful population regardless of ability to pay a large fee. Moreover, while members are expected to benefit from the general social values and opportunities the Club’s environment promotes, as they would from many community activities, the Club is not the selective, close-knit organization for which Professor Horowitz reserved the terms “social” and “personal.”

10 Indeed, when the sentence in Burks from which the Club and Justice Mosk draw sustenance is read in full, the breadth of Chief Justice Gibson’s meaning becomes clearer. The sentence reads: “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.’ [Citation.]’’ (Italics added.)

11 We note, however, a recent decision interpreting Minnesota’s closely analogous Human Rights Act. That statute prohibits the denial of “full and equal enjoyment ... of a place of public accommodation because of . . . sex.” (Minn. Stats. (1982) § 363.03, subd. 3.) A “public accommodation” includes any “business . . . facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold or otherwise made available to the public.” (Id., § 363.01, subd. 18, italics added.) The state supreme court concluded that the Minneapolis and St. Paul chapters of the United States Jaycees, though strictly nonprofit, are public “business facilities” whose membership policies are covered by the Act. The court noted in particular that national Jaycee policy views the recruitment of unselective paid memberships as the sale of “goods” and “privileges”—in that case, leadership training and social contacts which give members an “edge” in business life. (United States Jaycees v. McClure (Minn. 1981) 305 N.W.2d 764, 768-769.) The record here discloses no such blatantly commercial approach by the Boys’ Club to membership policy. Nor are the benefits of membership in the Club so closely tied to aspirations for business success. Nonetheless, the Club does extend to members, in return for their dues, the special privilege of access to its recreational facilities. It also offers paid members counseling, craft classes, and other programs designed to promote healthy development toward adulthood. In the words of our own statute, these certainly could be deemed “advantages, facilities, privileges, or services” offered by a “business establishment.”

12 Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493 [86 Cal.Rptr. 88, 468 P.2d 216] is not contrary. Alcorn said, “there is no indication that the Legislature intended to broaden the scope of section 51 to include discriminations other than those made by a 'business establishment’ in the course of furnishing goods, services or facilities to its clients, patrons, or customers. [Citation omitted].” (P. 500.) In context, the statement meant only that the employer-employee relationship was not covered by the Act, which was confined to discriminations against recipients of the “business establishment’s . . . goods, services or facilities.” Discrimination in services and facilities is precisely what is alleged here.

13 At first, the two statutes were codified separately, but they have now been consolidated in the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.)

14 In a similar vein, Justice Mosk complains that our interpretation threatens many traditionally sex-segregated institutions, such as fraternities and sororities, private schools, and scouting organizations. Nothing we have said compels that result. The Act covers “business establishments” of every kind, and these include traditional “public accommodations.” Yet we have emphasized that the statute does not govern relationships which are truly private&emdash; to paraphrase Horowitz’ words, those which are “continuous, personal, and social” (33 So.Cal.L.Rev. at p. 281) and take place more or less outside “public view.” (Id., at pp. 287, 289.) “Private” groups and institutions do not fall prey to the Act simply because they operate “nongratuitous” residential or recreational facilities for their members or participants; an “accommodation” must be “public” to be covered. Conversely, we have stressed that the statute was intended to include those kinds of recreational facilities traditionally deemed “accommodations.” Wc have not suggested that noncommercial groups which do not operate such facilities arc covered “business establishments.” We simply affirm the trial court’s conclusion that the Boys’ Club of Santa Cruz in particular operates “accommodations” which are “public” in nature.

15 Of course, discrimination against a racial minority is always invidious, and where such discrimination is prohibited, it is prohibited absolutely.

16 Seizing on this phrase in Marina Point, a Ninth Circuit panel has recently concluded that “blanket exclusion’’ of a particular class, such as women, from a “business establishment” covered by the Unruh Act can only be justified by a “compelling” social concern. (Martin v. International Olympic Committee (1984) 740 F.2d 670, 677; see also Koire v. Metro Car Wash (1985) ante, pp. 24, 38 [216 Cal.Rptr. 133, 707 P.2d 195].) We need not decide whether this is the precise semantic definition of the Marina Point test, since the Club has not proven, as Marina Point certainly requires, that its all-male policy directly ameliorates a well-documented need and aids a well-established public policy. (See discussion, post.)

17 A member of the Club’s staff testified that any necessary rearranging of restroom and dressing facilities would not be a major problem.

18 There was testimony that the current “drop-in” policy of the Club would have to be altered, and a system of specific hours for specific groups instituted, if membership rose much above the current fairly stable figure of 1,200.

19 Amicus Tustin Boys’ Club suggests that, because of their “macho” culture, Latino boys from high-delinquency neighborhoods might refuse to attend a Club which admitted girls as members. On this record, that is bare conjecture. There is no evidence that the Santa Cruz facility has such cultural or demographic problems.

Nor can we accept Justice Kaus' suggestion that the Club has obeyed the Act because its decision to devote its resources to the greater delinquency problem it perceives among male youth was “rational” and taken in “good faith.” Marina Point made clear that “reason” and “good faith” are not enough to avoid a finding of “arbitrary” discrimination. Our opinion condemned the adults-only policy there at issue even to the extent it rested on true assumptions about the general difficulties of living with children. (30 Cal.3d at pp. 736-740.) There are any number of plausible reasons why the owner of a “business establishment” serving the public might wish, in good faith, to exclude or discriminate against a particular group. But the Legislature has decreed that, once a “business establishment” attains that public status, it has responsibilities to the entire community which cannot be lightly ignored. Were good faith and bare rationality sufficient to permit group discrimination, the Act would have little meaning.

20 For this reason, recent cases have suggested that sex is a “suspect classification” for purposes of constitutional analysis. (Sail’er Inn, Inc., supra, 5 Cal.3d at pp. 17-20; see Frontiero v. Richardson (1973) 411 U.S. 677, 688 [36 L.Ed.2d 583, 592-593, 93 S.Ct. 1764] [opn. of Brennan, J.].) Though sexual discrimination is not arbitrary per se under the Unruh Act (sec discussion, ante), the 1974 addition of “sex” to the Act's list of prohibited discriminations was intended to highlight the problems of inequality traditionally faced by girls and women. (See discussion, ante.)

21 The Club contends that its single-sex membership policy, like housing for the elderly, serves public policy, since it has won legislative approval at both the state and national level. It suggests that prohibition of that policy under the Unruh Act would violate the supremacy clause. At the least, it urges, legislative approval of the Club’s practices in other contexts goes against the notion that the Unruh Act was intended to alter them.

The Club points out that the national organization’s “purpose,” as stated in its congressional charter (36 U.S.C.A. § 691 et seq.), is “to promote the health, social, educational, vocational, and character development of boys . . . .” (Id., § 693, italics added.) We find no preemptive purpose in that phrase. State remedial legislation is preempted only if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," and the congressional intent to preempt must be “unambiguous." (Perez v. Campbell (1971) 402 U.S. 637, 649-650 [29 L.Ed.2d 233, 242, 91 S.Ct. 1704]; Florida Avocado Growers v. Paul (1963) 373 U.S. 132, 146-147 [10 L.Ed.2d 248, 259, 83 S.Ct. 1210].) Here, the charter itself provides that the Club has power “to adopt, amend, and alter a constitution and bylaws not inconsistent with the laws of the United States or any State in which the corporation is to operate, ...” (36 U.S.C.A. § 694(5), italics added.) Its reference to boys seems more a passive recognition of the Club’s then traditional character than a statement of affirmative congressional purpose to exclude girls. (See National Org. for W., Essex Ch. v. Little L. Base., Inc., supra, 318 A.2d 33, 39-41.) According to the evidence, a number of local clubs have admitted girls, and the trial court found that this change in policy does not violate the national charter.

As the Club notes, federal law also specifically permits tax-exempt “voluntary youth service organizations” which traditionally serve one sex only to receive Education Act funds despite their policy of sex discrimination. (20 U.S.C.A. § 1681(a)(6)(B).) That provision is consistent with general federal “public accommodations” policy, which, unlike California’s, does not prohibit gender-based discrimination. (See fn. 3, ante.) The federal choice not to do so does not preclude this state from more stringent regulation.

Finally, the Club emphasizes a California statute permitting use of public school property by community organizations, including the Camp Fire Girls and the Boy Scouts. (Ed. Code, § 40041, subd. (a).) Nothing in that provision reflects an intent to approve sex discrimination by a monopolistic local recreational facility otherwise open to the youthful public.

Assigned by the Chairperson of the Judicial Council.