Protecting Civil Rights
Almost every organization that provides food, drink, lodging, or entertainment must obey the federal CIVIL RIGHTS laws and any applicable state statutes. The federal laws are designed to protect all people from interference with their right to get a job or education, participate in government, and enjoy public accommodations.
Private membership clubs are exempted from these civil rights laws in order to preserve their rights to privacy and FREEDOM OF ASSOCIATION. In attempting to determine whether an organization genuinely deserves private club status, courts have considered a number of factors, including the club's criteria for admission, membership fees, membership control over the
organization's operations, and use of facilities by nonmembers. Because the courts have applied these factors on a case-by-case basis, the results have been inconsistent. For example, recreational sports clubs such as golf, tennis, fishing and hunting, private dining, and swimming clubs have generally been found to provide public accommodations. Fraternal orders and lodges have proven to be more difficult to categorize. In four decisions dealing with these types of organizations, the Supreme Court narrowed the definition of freedom of association and upheld the constitutionality of state statutes designed to keep private clubs from discriminating.
The Jaycees In the first case, ROBERTS V. UNITED STATES JAYCEES, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984), the Supreme Court addressed the constitutionality of a state public accommodations law that had been applied to a private club. The club, the U.S. Jaycees, a major national and international civic organization, had been ordered by the Minnesota Department of Human Rights to accept women as full members. The Court rejected the Jaycees' argument that this order violated its constitutional rights. In its decision, the Court identified two distinct types of protected associations: intimate associations and expressive associations.
According to the Court, intimate associations, such as families, are distinguished by "relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship." Such associations are always subject to protection, the Court said, whereas large business enterprises are not. Private clubs such as the Jaycees fall somewhere in between the two. According to the Court, factors that may be relevant in determining whether a particular organization is an intimate association include "size, purpose, policies, selectivity, [and] congeniality."
The Court concluded that the Jaycees is not subject to protection as an intimate association because its chapters are large and unselective. With regard to the Jaycees' rights as an expressive association, the Court acknowledged that the organization has the right to associate with others for political, social, economic, educational, religious, and cultural purposes. However, the Court held that this right may be infringed by compelling state interests such as the desire to eliminate SEX DISCRIMINATION. The Court concluded that Minnesota had such a compelling interest in ensuring women equal access to the leadership skills, business contacts, and employment promotions offered by the Jaycees.
Rotary Clubs Three years after Roberts, the U.S. Supreme Court decided Board of Directors v. Rotary Club, 481 U.S. 537, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987). This case involved the application of the Unruh CIVIL RIGHTS ACT (Cal. Civ. Code § 51 [West 1996]), a California statute that prohibits gender discrimination by all "business establishments," to Rotary clubs. The Rotary is a major national and international service club. The Supreme Court held that application of the act to require the Rotary to admit women as members did not violate the club's FIRST AMENDMENT right to intimate or expressive association. The Court pointed out that Rotary chapters range in size from 20 to more than nine hundred members, the organization has a high dropout rate, and many club activities are carried out in the presence of visitors. In finding that application of the Unruh Act would not interfere significantly with the Rotary's right to expressive association, the Court stated, "Indeed, by opening membership to leading business and professional women in the community, Rotary Clubs are likely to obtain a more representative cross section of community leaders with a broadened capacity for service."
New York Clubs In 1988, in New York State Club Ass'n v. City of New York, 487 U.S. 1, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988), an association of 125 private clubs challenged the constitutionality of a New York City public accommodations ordinance that prevents discrimination. The ordinance, Local Law No. 63 of 1984, exempts clubs that are "distinctly private" in nature, specifically excluding from that status any club that has more than four hundred members, serves meals on a regular basis, and receives payments directly or indirectly from nonmembers in the pursuit of business. The Court rejected the clubs' challenge to the ordinance, finding that the law could be validly applied.
In this case, the Court went beyond its decisions in Roberts and Rotary by approving a statutory presumption that large clubs that serve food and receive payments from nonmembers are not entitled to First Amendment protection. The Court emphasized the fact that significant commerce occurs at most of the clubs and that "business deals are often made and personal contacts valuable for business purposes, employment and professional advancement are formed." Such characteristics, according to the Court, are significant in determining the nonprivate nature of clubs. The law upheld by the Court in this case narrowed the definition of a private club in order to remedy a situation deemed inappropriate by a legislative body.
Boy Scouts of America The Supreme Court clarified its position on the reach of civil rights laws in Boys Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). The Court, in a 5–4 decision, held that forcing the Boy Scouts of America (BSA) to accept gay troop leaders would violate its rights of free expression and free association under the First Amendment. The BSA is a private association and therefore was not subject to state and federal public accommodation laws.
The Supreme Court tied this ruling to its previous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). In Hurley, the Court ruled that the sponsor of Boston's St. Patrick's Day parade could not be forced to let a group of gays and lesbians participate. The Court held that parades are a form of expression and that the sponsors could not be forced to include "a group imparting a message the organizers do not wish to convey."
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