The U.S. Supreme Court attempted to reconcile competing values of the law with its ruling that states and communities could enforce antidiscrimination regulations of nonintimate private clubs so long as First Amendment rights are respected.
In 1958, the U.S. Supreme Court explicitly ruled that the First Amendment implies a “freedom of association”
Title II of the Civil Rights Act of 1964
In 1969, the Court examined the Lake Nixon recreation club of Arkansas, where as many as 100,000 white patrons purchased services each year after paying a “membership fee” of twenty-five cents. The majority of the Court decided that this was a place of “public entertainment” that could not exclude African Americans. In 1972, however, the Court decided that the Loyal Order of Moose in Pennsylvania was indeed a private club that might refuse to serve African Americans. In this controversial opinion, the majority ruled six to three that the issuance of a liquor license did not constitute the kind of state action that would come under the Fourteenth Amendment.
Meanwhile, those dissatisfied with Title II were able to convince many states and communities to pass public accommodations acts
On July 3, 1984, however, the U.S. Supreme Court reversed the lower court in Roberts v. United States Jaycees,
Brennan noted that the two Minnesota chapters had about 400 members each, that there were some 300,000 members nationwide, and that the requirements for membership were minimal. The organization, moreover, was for business and community-service training; it was not concerned with the promotion of any political or religious ideas. Given that the Jaycees allowed women to join as associate members, the group had failed to demonstrate that full membership for women would force the organization to change its mission or character. Justice Sandra Day O’Connor agreed with the outcome of the decision but disagreed with Brennan’s stress on intimacy. She argued that the key point was that the U.S. Jaycees had more of the characteristics of a “commercial association” than of a private association and that the former could claim “only minimal constitutional protection.”
The Roberts decision failed to answer a number of important questions. Some observers believed that a private club might have a better case if it totally excluded women from membership, in contrast to the Jaycees’ policy of partial exclusion. More important, Brennan wrote in the Court’s decision that a smaller group such as the Kiwanis might enjoy constitutional exemption from state regulations, but he presented few guidelines about the degree of intimacy required for such protection.
In 1974, California amended its statutes to outlaw gender-based discrimination in “all business establishments of every kind whatsoever,” giving no exemption to nonprofit groups. Rotary International
The local group filed a complaint in the California Superior Court of Los Angeles, which ruled that Rotary International was not a business establishment. The Duarte club, however, won the decision in the state court of appeals, giving Rotary International the choice of readmitting the club or ceasing operations in California. After the California Supreme Court denied a petition for review, the U.S. Supreme Court accepted the petition in order to decide whether the appellate court’s decision was a violation of Rotary International’s First Amendment rights.
On March 30, 1987, the Supreme Court heard the opposing arguments. The attorney who spoke for the Duarte chapter argued that Rotary International was a “business-like organization” and that “the message to women is that we’re second-class citizens, not part of the business community’s leadership.” The attorney representing the Rotarians stressed that the organization’s goal was community service rather than career advancement and that the club was more selective than the Jaycees. On May 4, 1987, the Court, in a seven-to-zero decision, upheld the application of the California statute to the Rotarians (Justices Harry A. Blackmun and Sandra Day O’Connor did not take part in the decision because of conflicts of interest).
Justice Lewis F. Powell, Jr., wrote the opinion for the Court, using the theoretical framework that Brennan had presented in the Roberts case. First, Powell argued that individuals enjoy a “zone of privacy” that allows them to exclude people from many kinds of “intimate or private relationships,” but that the Rotarians did not constitute one of these relationships. Second, individuals enjoy the freedom to form associations that have the goal of expressing political or religious ideas, a freedom that must be respected. States, however, could regulate private clubs when necessary to serve a compelling state interest as long as they did not violate the two rights of intimate association and expressive association. In a footnote, Powell wrote that he was not making any judgment about the possible protection of other clubs and that each club’s privileges would depend on such factors as its size, selectivity, and purposes. Powell did not refer directly to O’Connor’s theory about the special limits of business-related clubs, although her perspective appears to have colored the logic of his opinion.
Very often, Supreme Court justices must attempt to reconcile competing values of the law, and this was certainly the challenge in the Roberts and Rotary decisions. The First Amendment freedom of association implies that an individual can decide to exclude some people in private relationships, whereas the Fourteenth Amendment and laws concerning public accommodations create governmental interests in providing equal opportunities for commercial and professional activities. The conflict is especially apparent in private clubs, for it is generally recognized that these institutions present important opportunities for making business contacts and for professional training. In 1975, the New York City Commission on Human Rights published a report on a survey of businesspeople in which two-thirds of the respondents said that participation in private clubs was important to their success. In addition to such considerations, feminists maintained that women’s exclusion from such organizations tended to perpetuate stereotypes of gender inequality.
After the Roberts and Rotary decisions, observers expected that in the majority of states most business-related clubs would soon be forced to include women. In 1988, women who wanted to join private clubs won another victory in the case of New York State Club Association v. City of New York.
Some libertarians were unhappy with the Roberts and Rotary decisions, protesting that they were overly broad and interfered unjustly with the personal liberty of individuals to form associations of their own choosing. Supporters of the decisions responded by noting that the Supreme Court had not taken away the rights of intimate association and expressive association. Groups of men or women might form single-sex clubs when their goals presented reasonable justification for a policy of exclusion. The Connecticut Supreme Court in 1987 ruled that the Boy Scouts of America
-
Abraham, Henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. Lawrence: University Press of Kansas, 2003. Standard text provides a broad perspective on how the Court has interpreted issues of freedom and equality over time. Presents a good summary of the topic of private clubs. Includes bibliographic references and index. -
Burns, Michael. “The Exclusion of Women from Influential Clubs: The Inner Sanctum and the Myth of Full Equality.” Harvard Civil Rights-Civil Liberties Law Review 18 (1983): 321-409. Presents a well-documented treatment of how single-sex clubs prevent women from advancement and business opportunities. Attacks a narrow view of “state action” and argues that state and local laws should not exempt private clubs. -
Marshall, William. “Discrimination and the Right of Association.” Northwestern University Law Review 81(Fall, 1988): 68-107. Theoretical discussion addresses how the freedom of association might conflict with the goal of equality in the public realm. Proposes a solution that allows freedom of expression but prohibits discriminatory actions. -
Pavchinski, Alexa. “Social Clubs as Public Accommodations: Expressive and Intimate Association v. State Anti-discrimination Legislation.” University of Florida Law Review 40 (Fall, 1988): 1035-1077. Provides excellent short summaries of the major cases that relate to the topic and argues that although the Supreme Court has allowed some infringement on association freedoms, First Amendment rights have been respected. -
Pompa, Lisa Tarin. “Rotary International v. Duarte: Limiting Association Rights to Protect Equal Access to California Business Establishments.” Pacific Law Journal 19 (January, 1988): 339-426. One of the best and most detailed analyses available of the issues and facts of the Rotary case. Argues that the case reflected the changing roles of women in the United States. -
Rhode, Deborah. Justice and Gender: Sex Discrimination and the Law. Cambridge, Mass.: Harvard University Press, 1989. Excellent treatment of all legal issues relating to gender equality takes a strong feminist point of view. On the issue of private clubs, supports the views of Justice O’Connor and criticizes the emphasis on intimate rights. Includes a very useful bibliography. -
Varela, Paul. “A Scout Is Friendly: Freedom of Association and the State Effort to End Private Discrimination.” William and Mary Law Review 30 (Summer, 1989): 919-955. Argues that zealous reformers have produced vague laws and have gone too far in limiting the freedom of association. Provides a good summary of public accommodation acts in various states. The libertarian viewpoint expressed here can be contrasted with the perspectives in the Pavchinski and Rhode works cited above.
ERA Passes Congress but Falls Short of Ratification
U.S. Congress Admits Women to Armed Services Academies
U.S. Supreme Court Rules on Affirmative Action Programs
O’Connor Is the First Woman to Serve as Supreme Court Justice