Schwenk v. Boy Scouts of America

551 P.2d 465, 275 Or. 327, 1976 Ore. LEXIS 794

• Court: Oregon Supreme Court
• Decided: June 24, 1976
• Status: Published

Opinions

TONGUE, J.

This is an action brought by a nine-year-old girl, through her mother as her guardian ad litem, to recover damages for the violation of the Public Accommodation Act (ORS 30.670 et seq.) resulting from defendant’s refusal to accept plaintiff’s application for membership as a cub scout. Defendant demurred to plaintiff’s complaint on the ground that it failed to state a cause of action. The demurrer was sustained and plaintiff appealed. We affirm.

The complaint alleges that defendant is a congressionally-chartered corporation (36 USCA § 21 et seq.); that it operates a program of cub scouting in Oregon through its Columbia-Pacific Council located in Portland; that membership in the cub scouts is open to a person who has completed the second grade, or is eight years of age or older but is not yet 11, and who is of the male sex; that plaintiff submitted a registration form to defendant requesting that she be admitted to Boy Scouts of America through her local cub scout pack but that defendant, through its Columbia-Pacific Council, rejected plaintiff’s registration form on the ground that plaintiff is female. It is further alleged that plaintiff meets all of the qualifications for participation in Boy Scouts of America except that plaintiff is female rather than male; that defendant is a "place of public accommodation” (within the meaning of ORS 30.675) in that it is an organization which is sponsored in part by public schools and public funds and offers scouting services and programs to members of the public in Oregon; that defendant’s exclusion of plaintiff from the cub scouting program and defendant’s policy of limiting its membership to persons of the male sex is a distinction, discrimination or restriction on account of sex in violation of ORS 30.680. Plaintiff prays for $100 general damages and a declaration that defendant’s exclusion of plaintiff from the Boy Scouts of America constitutes a violation of ORS 30.675.

Plaintiff makes no contention that defendant’s refusal to accept her application constitutes a violation of her constitutional rights under either the United States or Oregon Constitution, nor does she contend that defendant’s conduct violates the Federal Civil Rights Act of 1964 (42 USCA §§ 2000a et seq.). Her sole contention is that defendant’s refusal to grant membership in the Boy Scouts of America violates Oregon’s Public Accommodation Act (ORS 30.670-30.685). The Act provides as follows:

"30.670 All persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, religion, sex, marital status, color or national origin.

"30.675 (1) A place of public accommodation, subject to the exclusion in subsection (2) of this section, means any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise.

"(2) However, a place of public accommodation does not include any institution, bona fide club or place of accommodation which is in its nature distinctly private.

"30.680 All persons against whom any distinction, discrimination or restriction on account of race, religion, sex, marital status, color or national origin has been made by any place of public accommodation, as defined in ORS 30.675, by any person acting on behalf of such place or by any person aiding or abetting such place or person in violation of ORS 30.685 shall have a cause of action to recover compensatory and punitive damages from the operator or manager of such place or the employe or person acting on behalf of such place or the aider or abettor of such place or person. In the action the operator or manager of such place, the employe or person acting on behalf of such place or the aider or abettor of such place or person shall be jointly and severally liable. Any person recovering damages under this section shall be entitled to reasonable attorney fees as determined by the court in addition to costs and necessary disbursements.

"30.685 It is unlawful for any person to aid or abet any place of public accommodation, as defined in ORS 30.675 or any person acting on behalf of such place to make any distinction, discrimination or restriction on account of race, religion, color, sex, marital status or national origin.”

Defendant contends to the contrary, among other things, that the legislative history of ORS 30.670 et seq. shows that the purpose of the Public Accommodation Act is to bar discrimination in businesses which offer goods or services to the public and that "the legislature did not intend to force * * * organizations like Boy Scouts to change long established membership policies,” and that to so interpret that law would lead to "absurd, unreasonable results.”

In our judgment, this court need not decide whether the "broad” interpretation of the Public Accommodation Act urged by the plaintiff would or would not lead to such results as a flood of applications by boys to attend and participate in all "accommodations” and "services” provided for girls in summer camps operated by such organizations as the Camp Fire Girls, including dormitory accommodations, or whether such a result would be "absurd or unreasonable.” The reason, in our view, is that the term "place or service” is "ambiguous,” at least in a legal sense, because the words "place” and "service” are general terms and the intended meaning of such words in any given context may depend upon the intent with which such words were used.¹ For that reason, this court may properly consider the legislative history of ORS 30.675 for the purpose of determining, if possible, the intent of the legislature in the use of that term.²

The Public Accommodation Act was first enacted in 1953. As originally enacted, it prohibited discrimination "on account of race, religion, color or national origin” in any "place of public accommodation,” which was defined as follows:

"* * * any hotel, motel or motor court, any place offering to the public food or drink for consumption on the premises, or any place offering to the public entertainment, recreation or amusement; * * Oregon Laws 1953, 872, 873, ch 495, § 2.

According to a statement by one of the principal sponsors of that statute at a hearing during its consideration by the State and Federal Affairs Committee of the Oregon House of Representatives on April 7,1953, it appears that the intended purpose of the bill was to prevent "operators and owners of businesses catering to the general public to subject Negroes to oppression and humiliation * * *.” (Emphasis added)

In 1957, the law was amended to define a "place of public accommodation” as:

"(a) Any hotel, motel, motor court, trailer park or campground.

"(b) Any place offering to the public food or drink for consumption on the premises.

"(c) Any place offering to the public entertainment, recreation or amusement.” Oregon Laws 1957, 1328, ch 724, § 1.

According to the minutes of the Senate Judiciary Committee for May 10, 1957, Senator Anthony Yturri asked Representative Shirley Field, one of the sponsors of that amendment, whether fraternal organizations would be included and she replied that "private clubs or institutions would not be covered.”

In 1961, the definition of a "place of public accommodation” was again amended to read:

"(a) Any hotel, motel, motor court, trailer park or campground.

"(b) Any place offering to the public food or drink for consumption on or off the premises.

"(c) Any place offering to the public entertainment, recreation or amusement.

"(d) Any place offering to the public goods or services.” Oregon Laws 1961, 301, ch 247, § 1.

According to testimony by E. Shelton Hill, Executive Director of the Urban League of Portland, at a hearing of the Senate State and Federal Affairs Committee on February 9,1961, and others who testified at that time in support of that amendment, the purpose of adding subsection (d) was to end discrimination in health and beauty salons, barber shops and medical services.

The Public Accommodation Act was last amended in 1973 to include discrimination based upon sex and marital status and to define a "place of public accommodation” as:

"* * * any place, or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise.” (Emphasis added) ORS 30.675(1)

In view of plaintiff’s contention that the legislature intended by this amendment to include such "services” as "the provision of scouting services” by an organization such as the Boy Scouts of America, the legislative history of this 1973 amendment is also of particular significance.

On March 2, 1973, Eleanor M. Meyers, Director of the Women’s Equal Employment Opportunity Program in the Civil Rights Division of the Bureau of Labor testified to the House Committee on State and Federal Affairs that the 1973 amendment

"* * * including in the definition of a public accommodation 'any place offering to the public goods and services’ would include literally all phases of any business soliciting public patronage, including the granting of the use of credit and financing and loan services which is one of the most widespread areas of discrimination based on sex.” (Emphasis added)

To the same effect, it appears from the audio records of the March 2, 1973, meeting of the House State and Federal Affairs Committee, that this question was specifically considered:

Unidentified Representative: "I’m not certain of the role that the YMCA and YWCA have taken, but would this [bill] in fact affect them? I presume they are segregated by sex?”

Eleanor Meyers: "Well, basically they are private membership organizations. I don’t know whether there are any questions about their being distinctly private or not, but I think basically they are private organizations. Now where they open facilities for public accommodation without membership rights, that’s another thing. But I believe most of them do. I believe that use of their facilities is open to people of both sexes. It is the membership that is not open on an equal basis.”

Unidentified Representative: And this [bill] wouldn’t affect them?”

Eleanor Meyers: "I don’t believe it would as such. That’s a question that needs further research. It depends on what services could be called distinctly private.” (Emphasis added)

It would appear from the foregoing that the primary concern and purpose of the Oregon legislature in its enactment of the Oregon Public Accommodation Act was to prohibit discrimination by business or commercial enterprises which offer goods or services to the public.

This conclusion is also supported by the views expressed by the then Administrator of the Civil Rights Division of the Oregon Bureau of Labor in a summary of the Public Accommodation Act entitled "House Bill 2116 — 1973 Amendments to Laws Against Discrimination” and prepared shortly after passage of the 1973 Amendments.³ There, the purpose of the amendment to the definition of a "place of public accommodation” was stated to be as follows:

" Clarifies and simplifies definition of place of public accommodation to read 'any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise.’ The legislative history is clear that this definition is intended to be a broad one and to apply to all types of businesses which offer goods and/or services to the public. This includes the services of credit, financing mortgages, loans, and insurance as well as hotels, motels, retail sales, etc.” (Emphasis added)

It may be true, as contended by plaintiff, that the Boy Scouts of America is not a "bona fide club or place of accommodation which is in its nature distinctly private,” so as to come within the exemption provided by ORS 30.675(2) from compliance with provisions of the Oregon Public Accommodation Act. The same may also be true of the YMCA and YWCA.

If, however, as would appear from the legislative history of that Act, the Oregon legislature intended that services offered by the YMCA and YWCA would not be subject to the provisions of the act (with the possible exception of the operation of facilities for "public accommodation” without membership rights), it is difficult to see how the legislature could have intended any different application of that Act to the Boy Scouts of America.

The Boy Scouts of America has been chartered by Act of Congress as an organization for boys and is expressly exempt from federal laws relating to sex discrimination. 36 USC § 21 et seq.; 20 USC § 1681(a)(b). It may be, as stated by the dissent, that in spite of such statutes the Oregon legislature has the power to require such an organization to comply with Oregon statutes, including those relating to discrimination. It may also be true, as stated by the dissent, that similar statutes adopted by the legislatures of other states have been construed in such a manner as to be applicable to the Boy Scouts of America. We need not, however, decide those questions in this case, because the issue presented in this case is whether the Oregon legislature intended this statute to have such an application.

We are fully aware of the limitations which this court has recognized in considering, as a part of the legislative history of any statute, including this statute, statements made at committee hearings and statements made after the enactment of a statute.⁴ In our opinion, however, the legislative history of the Oregon Public Accommodation Act, when taken as a whole, is sufficiently clear so as to compel the conclusion that the term "place of public accommodation,” as defined by ORS 30.675, as amended in 1973, was not intended by the Oregon legislature to include the Boy Scouts of America, at least to the extent of requiring it to accept applications by girls for membership.⁵

It follows that plaintiff’s complaint failed to allege facts sufficient to constitute a cause of action and that the trial court properly sustained a demurrer to that complaint.

Affirmed.

1 See Allen v. Multnomah County, 179 Or 548, 553-54, 173 P2d 475 (1946); 2A Sutherland Statutory Construction 4-5, § 45.02 (4th ed Sands 1973).

2 See State v. Sisney, 250 Or 198, 200-01, 440 P2d 372 (1968). See also Sunshine Dairy v. Peterson et al, 183 Or 305, 317, 193 P2d 543 (1948). See generally 2A Sutherland Statutory Construction, supra note 1, 181-227, ch 48.

3 For the text of that summary, see Oregon State Bar CLE, 1973 Legislation 186 (1973).

4 See Thompson v. IDS Life Ins. Co., 274 Or 649, 652-53, 549 P2d 510 (1976). Cf. 2A Sutherland Statutory Construction 203,209-10, §§ 48.06 and 48.10 (4th ed Sands 1973). The weight to be accorded such legislative history is different in this case than in Thompson, where much better evidence of legislative intent was available in the form of other contemporaneous Oregon statutes.

5 Because the decision by the trial court may be properly affirmed on this ground, it is not necessary for this court to consider the additional contentions by defendant to the effect that to interpret the Oregon Public Accommodation Act to cover it would render the statute unconstitutional and would violate constitutional Rights of Association as protected by the Constitution of the United States and the State of Oregon, as well as the Supremacy Clause of the Constitution of the United States, as also discussed by the dissent.