In the late 1960s, John and Ruth Mallery founded a Boys’ Club in a poor, blighted neighborhood in Santa Cruz, California. After John died, Ruth, inspired by her childhood memories of boys who got into legal trouble because they had nothing to keep them busy, donated $1.5 million to endow the Club. She stipulated that her gift was to be used only to help boys. Eight-year-old Victoria Isbister, a resident of the neighborhood in which the Boys’ Club was located, probably did not understand or even know about Ruth’s reasons for marking her donation for boys only. What Victoria did know was that she thought it was unfair that she could not use the only swimming pool in the neighborhood, the one at the Boys’ Club. Her parents agreed, and with the help of local American Civil Liberties Union attorneys, Victoria sued the Boys’ Club for excluding her from its facilities.1
Victoria’s lawsuit hinged on a California law banning sex discrimination in all ‘‘business establishments.’’ The Club’s attorneys argued that the Boys’ Club was a charitable recreation facility, not a business establishment, so the law should not apply. The California Supreme Court held that because the Club had a fixed location, it was a business establishment within the meaning of the law. Dissenting Justice Stanley Mosk, a liberal civil libertarian, ridiculed his colleagues: ‘‘The majority opinion conjures up visions of young boys, who have been skinny-dipping in their club pool, donning three-piece suits to attend the board meeting of their ‘business establishment’ where they may discuss such matters as the antitrust implications of a proposed takeover of girl scout cookies. Precocious indeed these teen and preteen youngsters must be.’’
The Club’s attorneys also asserted that it should be exempt from the law for public policy reasons. If enough girls decided to join the Boys’ Club, it might need to drop its open-door policy and limit access to the club at certain hours. The Club’s attorneys insisted that it had good reasons to spend its limited resources on boys—namely, that they are far more likely than girls to be arrested and to become the perpetrators or victims of violence. The California Supreme Court majority responded that the Club had presented no hard 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.’’ In the absence of hard evidence on these issues, the court saw only arbitrary and illegal discrimination.
In contrast, Justice Mosk saw an open and diverse philanthropic arena with room for all kinds of charitable clubs, including sex-specific ones. He observed that allowing philanthropists like Mallery to donate to sex-segregated clubs does not prohibit other donors from sponsoring coed clubs. On the other hand, requiring all children’s organizations to be coed, as the California Supreme Court had now done, prevented those with a different vision of how to help children from trying to realize it. Mosk accused his colleagues of quashing ‘‘pluralism [and] all the values that connotes—values such as a diversity of views, a variety of ideas, and preservation of traditions.’’ Justice Otto Kaus, who also dissented, cited studies showing that boys and girls benefit from being separated from each other for at least part of their day. He added, ‘‘Who are we to say it is unreasonable for the club’s management to believe that there is a rational basis for giving boys a few hours a day when they do not have to carry their machismo on their sleeves?’’
Chief Justice Rose Bird, concurring with the majority, wrote an opinion scoffing at the dissenters’ defense of pluralism, which she reduced to defending the right of ‘‘wealthy patrons who prefer to confer largess in a sexually discriminatory fashion.’’ Bird saw Ruth Mallery and people like her not as kindly philanthropists trying to aid society as best they know how, but as a contemptible ‘‘select few’’ who wish to be ‘‘insulated from the 20th century.’’ Bird’s intemperate opinion attacking an altruistic elderly widow became an issue in a reelection battle that ultimately cost Bird her seat on the state supreme court.
One result of bans on single-sex charitable organizations is that some donors are not able to fully satisfy their preferences. The logical response of these frustrated would-be donors is to either reduce their donations to children’s charities or to stop donating at all. Although the California Supreme Court could dictate that Boys’ Clubs must admit girls, it could not force donors to continue to fund the clubs. Mallery, upset that the court had thwarted her goal of helping boys, withdrew the unspent portion of her endowment of the Boys’ Club. Her view was that if the ACLU and the California Supreme Court wanted Santa Cruz to have a ‘‘Boys’ and Girls’ Club,’’ they could go ahead and pay for it themselves.2
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The Boys’ Club case exemplifies the vast expansion of public accommodations law at the federal and especially state levels since the passage of the granddaddy of public accommodations laws, Title II of the federal 1964 Civil Rights Act. Title II bans discrimination on the basis of race, color, religion, or national origin in public accommodations.
The law was motivated in part by testimony before Congress that African Americans traveling in the South often had difficulty finding motels and restaurants that would serve them. Title II also reflected a growing belief that any establishment that holds itself out as being open to the public, and that is not otherwise selective about who it admits, should not be permitted to discriminate against members of minority groups.
A few libertarians objected to Title II because it conflicted with property rights and freedom of association. Novelist-philosopher Ayn Rand, for example, wrote that ‘‘[j]ust as we have to protect a communist’s freedom of speech, even though his doctrines are evil, so we have to protect a racist’s right to the use and disposal of his own property.’’3 Future Supreme Court nominee Robert Bork, who was more libertarian in those days, famously referred to legally compelled association as a ‘‘principle of unsurpassed ugliness.’’ He added that the issue was not ‘‘whether prejudice or preference is a good thing but whether individual men ought to be free to deal and associate with whom they please for whatever reasons appeal to them.’’4
Libertarian objections to Title II’s regulation of public accommodations were largely overshadowed by southern congressmen’s arguments that Title II violated ‘‘states’ rights’’ by overturning Jim Crow laws that required segregation in public accommodations. Libertarian concerns regarding private accommodations, however, received a serious hearing. At the time, even very liberal members of the legal elite agreed that members of private clubs had a right to choose their associates without government interference. Supreme Court Justice Arthur Goldberg, for example, wrote that there is a constitutional right to close one’s home or club ‘‘to any person . . . solely on the basis of personal prejudices, including race.’’ Several years later, Justice William O. Douglas proclaimed, ‘‘The associational rights which our system honors permit all white, all black, all brown, and all yellow clubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be. The individual can be as selective as he desires.’’5
Congress ultimately agreed to exempt private clubs from Title II’s dictates, but this exemption begged the pivotal question of what makes a club ‘‘private.’’ Many restaurants in the South began to call themselves ‘‘private’’ in an attempt to evade Title II, but their alleged privateness was obviously pretextual, as all whites were admitted and all African Americans were excluded.6 Federal courts eventually developed a test to distinguish private clubs from public accommodations: the factors that weigh in favor of private status include selectivity in membership, limiting use of facilities and services to members and bona fide guests, nonprofit status, and an absence of advertising to the general public.
Consideration of these factors perhaps resulted in a narrower private club exemption than Congress had intended, and led to a broader definition of ‘‘public accommodations’’ than a literal interpretation of the phrase would allow. For example, courts applied Title II to such seemingly private organizations as a swim club, a hunting club, a youth football league, and an African American teachers’ association.7 On the other hand, the Supreme Court rejected—over the dissent of three liberal Justices—an attempt to define all private organizations that receive government licenses and permits as ‘‘state actors’’ subject to the same prohibitions on discrimination as is the government.8
Many state and local public accommodations laws prohibit discrimination on bases not covered by Title II, such as sex, sexual orientation, weight, appearance, political affiliation, and even, in Minnesota, membership in a motorcycle gang.9 Moreover, some laws exempt only ‘‘distinctly private’’ clubs, a narrower category than the ‘‘private’’ clubs exempted by federal law. Some legislatures have even amended their states’ laws to ensure that the term ‘‘distinctly private’’ is construed narrowly. New York State, for example, amended its public accommodations law to explicitly state that private clubs with more than 100 members that provide regular meal service are not ‘‘distinctly private.’’ This change in the law overturned a judicial decision holding that the Kiwanis Club and other large membership organizations are distinctly private.10
In other states, courts, rather than legislatures, have driven the expansion of public accommodations law. For example, in 1969, the New Jersey Supreme Court announced that it would give New Jersey’s public accommodations law ‘‘a broadly sympathetic construction’’ to ‘‘eradicate the cancer of discrimination.’’11 A few years later, the court diverged from federal precedent and held that an organization need not meet in a fixed location to be considered a ‘‘place of public accommodation.’’ As a result, the Little League Baseball organization, though certainly not any kind of place at all in normal parlance, was held to be a ‘‘place of public accommodation’’ under New Jersey law and was therefore required to admit girls.12 A cat fanciers’ club is also a ‘‘place of public accommodation’’ in New Jersey and therefore may not discriminate against Jews.13 Other state courts have held that such membership organizations as a boating club, the United States Jaycees, and the Boy Scouts of America are ‘‘places of public accommodation,’’ even though they have no fixed meeting place.14
Not content to merely redefine the word ‘‘place,’’ state courts have also ignored the ordinary meaning of the word ‘‘private’’ to reject private club defenses to the application of public accommodations laws. Perhaps the most egregious case along these lines involved three of Princeton’s 13 historic private eating clubs.15 Although the clubs have no legal ties to Princeton University, they function as nonresidential fraternities, providing food, entertainment, and social services to most juniors and seniors at the school.
Princeton University junior Sally Frank filed a complaint under New Jersey’s public accommodations law against three eating clubs that refused to admit women. New Jersey’s law provided an exemption for private clubs, but Frank alleged that the clubs were actually public accommodations because they functioned as ‘‘arms of Princeton.’’ After several years of litigation, the New Jersey Supreme Court ruled in Frank’s favor. The court acknowledged that the clubs had ‘‘assiduously maintained legal separateness’’ from the university: the clubs operated off-campus, in their own facilities, and they received no university funding. To find that the clubs were nevertheless public because of their purported ties to the university, the court focused instead on the ‘‘gestalt’’ of the clubs’ relationship with the school.16 The state supreme court concluded that ‘‘the Clubs and Princeton have an interdependent relationship that deprives the Clubs of private status.’’ Frank , as the clubs’ attorney, George McCarter, has written, is notable ‘‘as an almost defiant exercise of raw judicial power, and for its indifference to traditional legal analysis.’’17 One might add a similar note about the New Jersey Supreme Court’s refusal to seriously consider the plain English meaning of the statutory language it was charged with interpreting.
Some state courts have interpreted their public accommodations laws much less expansively. Like federal courts, these courts have held that membership organizations with no fixed meeting place, such as the Boys Scouts of America, cannot be considered places of public accommodation.18 After all, they simply aren’t places. Some courts have even held that organizations with fixed meeting places may use discriminatory criteria in selecting members, even when the clubs are not otherwise selective, because membership is not an ‘‘accommodation.’’19 However, the trend continues to favor an expansive definition of the phrase ‘‘places of public accommodation.’’ In 2001, for example, the Supreme Court held that under the Americans with Disabilities Act, the PGA tour is a place of public accommodation and therefore could not ‘‘discriminate’’ against disabled golfer Casey Martin by prohibiting him from using a golf cart.20 This was obviously a stretch, but the Court didn’t stop there. For the ADA to apply to Martin, he had to be a ‘‘customer’’ of the PGA, and so the Court absurdly deemed him to be one—and a very strange customer he is, playing in the PGA tour on his Court-authorized motorized golf cart, sometimes collecting prize money but never seeming to buy anything from the PGA.
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As we have seen, the battle over the scope of public accommodations laws has focused for the most part on the definition of ‘‘public accommodation’’ (or, in California, ‘‘business establishment’’). Whether Boys’ Clubs, eating clubs, or other organizations must comply with antidiscrimination laws depends on whether these organizations fit the statutory definition of places of public accommodation, as construed by the courts.
However, there is more to this story. The expansion of public accommodations laws also has constitutional ramifications. The U.S. Supreme Court has acknowledged that the right to privacy, which arises out of the First and Fourteenth Amendments, protects a sphere of certain intimate relationships from antidiscrimination laws.21 Therefore, the question arises as to when membership in an organization is such a relationship. In determining whether the right to ‘‘intimate association’’ is implicated, courts must assess ‘‘where [a] relationship’s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments.’’22 Protected relationships include, but are not limited to, ‘‘creation and sustenance of a family—marriage, childbirth, the raising and education of children, and cohabitation with one’s relatives.’’ Between the extremes of a business association and a family lays ‘‘a broad range of human relationships that may make greater or lesser claims to constitutional protection.’’
The Supreme Court has not yet invalidated an antidiscrimination law as a violation of the right to intimate association, and no doubt the parameters of what constitutes a protected relationship will be clearer once it does. The Court, however, has, at least for the time being, put an outer limit on potential intimate association claims by holding that the Rotary Club, a national organization made up of local chapters, some quite small, was not an intimate association, because it lacked selectivity and had a business-oriented agenda.23 Most recently, the Court declined the Boy Scouts of America’s invitation to determine whether its exclusion of gays is constitutionally protected by the right to intimate association, though it found for the Boy Scouts on other grounds (see Chapter 8).24 Lower courts, meanwhile, have been loathe in the absence of further Supreme Court guidance to find that the right to intimate association trumps antidiscrimination law in particular cases.
Two courts have, however, held that the right of intimate (or ‘‘private’’) association protects specific private clubs from antidiscrimination laws. One case arose in New Orleans, Louisiana—a city that proscribes discrimination by any club that has more than 75 members and provides regular meal service. An African American man filed a complaint with the city’s Human Rights Commission against four social clubs, alleging that they had denied him membership because of his race. The Commission initiated an investigation of the clubs’ membership policies and practices.
When the clubs sued in federal court seeking to enjoin the Commission from continuing the investigation, the Fifth Circuit Court of Appeals held that the Commission’s investigation violated the intimate association rights of the clubs and their members.25 The court explained that the clubs existed exclusively for private, social purposes, and they prohibited the transaction or discussion of any commercial business on their premises. The clubs had very small memberships and very restrictive admission policies. There were no signs identifying the club’s buildings to outsiders, and the clubs did not advertise to the public in any way. Club members shared common social interests and often preexisting family or religious ties, so there was a close nexus between the clubs’ purposes and their membership criteria. Finally, the clubs rarely permitted guests. For these reasons, the clubs were held to be sufficiently private to be entitled to constitutional protection.
The court then turned to the issue of whether the Commission was violating the clubs’ right of private association by merely investigating charges of discrimination. Association rights, the court noted, ‘‘can be abridged even by government actions that do not directly restrict individuals’ ability to associate freely.’’ The court concluded that the investigatory techniques at issue did not adequately protect the clubs’ private association rights, because the Commission had the authority to force the clubs to turn over their membership lists.26
Members of the Pacific Union Club in San Francisco also defeated an antidiscrimination investigation by invoking the right to intimate association.27 California’s Franchise Tax Board had demanded the club’s membership list so it could investigate whether members had illegally deducted club dues and expenditures. California tax law forbids members of private clubs that discriminate to deduct their club dues, and the club had admitted that it engaged in age discrimination. But the club argued that its members had a constitutional right to keep its membership list private.
The California Court of Appeal agreed. It found that the club had a purely social purpose; limited its size; did not actively recruit new members; required membership candidates to undergo a rigorous admissions process, including many personal interviews to assess the applicant’s congeniality; excluded nonmembers from functions; and kept its membership list strictly private. The court concluded that ‘‘the Club is more than sufficiently intimate’’ to be entitled to claim the right of intimate association. Further, compelled disclosure of the club’s membership list to the tax authorities would have a chilling effect on people’s willingness to be members of the club, because their membership could lead to an audit. The court held that the goal of investigating potentially illegal tax deductions was not sufficiently compelling to override the privacy rights of the club and its members. The membership list stayed private.
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Public accommodations laws are most effective against outliers who disagree with a broader societal consensus, such as when the rest of the United States imposed nondiscrimination norms on the recalcitrant South in the 1960s. More often, court decisions banning purely social discrimination target discrimination that is already in precipitous decline due to changing social attitudes and that would likely die a natural death if left alone. For example, most of Princeton’s eating clubs had already begun admitting women by the time Sally Frank began her litigation in the 1970s. The litigation did not conclude until 1992,28 by which time changing social mores had led the very clubs Frank was suing to admit women regardless of the outcome of the court battle.29 Yale and Harvard’s fraternal clubs also admitted women voluntarily. The last of Yale’s single-sex secret societies, the Order of Skull and Bones, voted to admit women in 1991,30 and Harvard’s last all-male club, the Fly Club, voted to admit women in 1993.31 The most positive thing one can say about Frank’s litigation is that it may have forced sex integration to commence a bit earlier than it would have otherwise. Meanwhile, it established a damaging precedent for freedom of association in New Jersey.
Similarly, although the U.S. Supreme Court held in 1987 that states may force service organizations such as the Rotary Club to admit women (see Chapter 8), by 1992, very few states had chosen to enact such rules. Nevertheless, almost all major service organizations— a notable exception being the women-only Junior Leagues—had decided by then to admit both sexes nationwide to avoid the massive membership losses that could result from the perception that they are sexist and anachronistic. As we have seen, the California Supreme Court in 1983 ruled that Boys’ Clubs in that state must admit girls. Few states followed California’s lead but, by 1987, 80 percent of Boys’ Clubs served girls and 60 percent of them admitted girls as members, continuing a trend that had begun before the California ruling for the pragmatic reason that many boys apparently found single-sex organizations to be ‘‘uncool.’’ In 1990, the organization officially changed its name to the Boys & Girls Clubs of America. The California court was ahead of the curve, but just barely.
On the other hand, if judicial interpretations of public accommodations laws stray beyond what society supports, the judiciary will generally back down. When she wrote her scathing concurrence in the Boys’ Club case attacking single-sex youth organizations, Chief Justice Rose Bird suggested that such organizations were a relic of a less enlightened era and would soon be abolished. She was wrong. The Girls Clubs of America, for example, did not join the Boys’ Clubs in turning coed. The GCA leadership continued to believe that many girls, especially girls growing up in poor urban neighborhoods in which teen pregnancy is rampant, benefit from a single-sex social environment. The GCA changed its name to ‘‘Girls, Inc.’’ and continues to offer programs tailored to at-risk girls, such as a program that discourages early sexual activity and attempts to reduce adolescent pregnancy rates. Those looking for single-sex youth organizations also still have the option of joining the Boy Scouts or Girl Scouts, among other organizations, while other groups, such as 4-H clubs and most religious youth groups, are coed. The California Supreme Court itself later backed away from the clear implications of its Boys’ Club opinion when it held that the Boy Scouts of America is not a business establishment subject to antidiscrimination law. The public seems to support pluralism, and pluralism has triumphed—so far.
College fraternities have also survived the onslaught of antidiscrimination law. Unlike other single-sex social organizations, ‘‘Greek’’ fraternities have never been forced to go coed. Fraternities are explicitly exempt from the federal prohibition against sex discrimination in education (Title IX),32 from the Fair Housing Act,33 and from many states’ public accommodations laws. Predictions that the Princeton eating clubs case would lead to the abolition of fraternities in New Jersey have not been vindicated and the California Supreme Court has indicated that, unlike Boys’ Clubs and country clubs, fraternities are not business establishments and may engage in sex discrimination.34
The different treatment shown to discriminatory country clubs on the one hand and single-sex fraternities on the other is hardly a result of lesser government interest in eliminating discrimination by fraternities. All of the rationales for eliminating discrimination by other clubs apply to fraternities—for example, many important lifelong business contacts are made through friendships developed in fraternities. Yet the law has left fraternities alone because single-sex fraternities are still widely accepted as an appropriate form of socialization and because they have a significant political constituency. The public may be ready for the forced integration of golf and tennis clubs, but it is not willing to force frats to go coed, so the courts do not push it.
The inability of public accommodations laws to stray far beyond societal consensus stems from the U.S. system of government. Americans rely on democratically elected representatives to pass laws, and they look to judges, administrators, and juries to enforce them. There is little reason to believe that these government actors hold opinions far different than those of the public regarding whether traditional forms of social discrimination are harmful. Law can accelerate the process of social change somewhat, as voluntary social change is (or at least can be) a more drawn-out process than the enforcement of legislative edicts. The question is whether sacrificing freedom of association—with the attendant risk that the government will unnecessarily stifle pluralism or even ultimately codify regressive social norms, as it so disastrously did in the Jim Crow era—is worthwhile for slightly quicker social change and the suppression of a few outliers who refuse to conform to changing social attitudes.
This question is especially pertinent today, because the social context of discrimination has changed a great deal. At one time, public accommodations laws primarily targeted social organizations dominated by elite Protestant white males. The laws therefore arguably served the cause of pluralism by opening up such organizations to less-established outsiders. Today, by contrast, clubs with policies favoring the traditional elite are increasingly rare, while all-black (e.g., 100 Black Men of America), all-Jewish (e.g., B’nai B’rith), and all-female (e.g., the Junior Leagues), among others, are going strong and creating significant social and economic capital for their members. However, these organizations are at risk of being dissolved by public accommodations laws’ nondiscriminatory membership policies because they practice social discrimination. The bottom line is that if the government is permitted to dictate policies to private social organizations, there is a strong chance that American society will be the worse for it.
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Many private organizations that promote political or social messages have been deemed to come within the purview of state public accommodations laws. If these ‘‘expressive associations’’ are forced to obey antidiscrimination mandates, the content of their messages will likely change. For example, B’nai B’rith, an all-Jewish fraternal organization, would likely promote or emphasize a different political agenda if the government required it to admit gentiles. The regulation of expressive associations implicates First Amendment concerns and is the subject of the next chapter.