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In recent years, a cherished American right, freedom of association, has come into conflict with laws designed to prevent discrimination by private organizations. Michigan's Public Act 70 of 1992 is one such law. Examining P.A. 70, as well as Michigan's famed Elliot-Larsen law, University of Detroit Law Professor Stephen J. Safranek finds that the act was unnecessary, misdirected, and economically harmful. Individual consumers of club services are the real losers. P.A. 70 is government intervention without regard to the right of private clubs to engage in freedom of association. 16 pages.
It is an irony of American government that our most noble political freedoms have been established and preserved while protecting groups and individuals which most people find reprehensible. The defense of communists, anti-American propagandists and pornographers has preserved our freedoms of speech and press. The defense of neo-Nazi protestors and Ku Klux Klan parades has defined our freedom to assemble and redress our grievances.
This defense of what is often a distasteful minority has helped to define the very civil liberties that have allowed United States citizens to create the richest and most diverse literary, political, artistic, and social traditions in the world. It is vital to the preservation of those civil liberties that all people – not just the few extremists – be defended in their rights to form private associations with their own private qualifications. Freedom, after all, does not mean the right to do only that which certain others may approve.
Now comes the State of Michigan with an assault on another basic civil liberty, the freedom of association, and its corollary, the freedom not to associate. It seems that certain members of the Michigan Legislature find it reprehensible that private clubs in our state reserve their dining rooms for particular membership categories, or establish separate tee times on the golf courses for men and women. And they have passed legislation, Public Act 70 of 1992, intended to prevent this from occurring.
Aside from some politicians' lack of sophistication on matters of civil liberty, this new law will simply not achieve its intended result. As Professor Safranek demonstrates in the following report, the economics of the situation will force clubs to reduce or elim-inate services to the entire membership, not just allocate them as the Legislature deems appropriate.
At a time when political discourse is dominated by the superficial tenets of class warfare sociology and exploitation economics, government intervention in private clubs may find few voices in opposition. However, like minor encroachments on our basic freedoms of speech, press and assembly, this assault on freedom of association has implications that reach far beyond the borders of Michigan country clubs. Those who appreciate the rich culture and diversity of American life should understand the threat posed by this misguided legislation.
Joseph P. Overton
Vice President
Mackinac Center for Public Policy
Freedom of association has long been cherished by Americans. Alexis De Toqueville noted during his travels through America, "There's one country in the world which, day in, day out, makes use of unlimited freedom of political association. And the citizens of this same nation, alone in the world have thought of using the right of association continually in civil life, and by this means have come to enjoy all the advantages which civilization can offer."[1]
Similarly, this country has had a long history of equality. Under our Constitution, all citizens are equal under the law and the right to vote is guaranteed to our citizenry. Freedom and equality came into apparent conflict when Congress and the states began enacting laws preventing discrimination by associations. Such laws infringe on the individual's ability to associate by promoting equality. This infringement occurs because associations of all types discriminate by their very nature, i.e. the Irish/American Club discriminates against persons without Irish ancestry.
When seen in the context of a club like the Irish/American club, few persons are moved to promote a law preventing such an association from discriminating. However, many clubs are not so benign. Certainly, groups such as the Skinheads or the Ku Klux Klan, which promote racial hatred, are criticized, and many want to regulate them. Because laws are written in universal terms, if lawmakers enact laws that regulate the Skinheads, they will in turn regulate organizations whose purposes are universally respected. This tension between freedom of association and government enforcement of equality is not easy to maintain at a point where most wish. Instead, government is often seen as not acting enough – thereby ignoring the values of equality – or as acting too much, thereby preventing free association:
This issue was recently enlivened by the adoption of Public Act 70 of 1992 ("P.A. 70" or "the Act") by the state of Michigan.[2] P.A. 70 modified M.C.L.A. 37.2301 of the Elliot-Larsen law dealing with clubs. Before the adoption of P.A. 70, private clubs were exempt from federal and state laws dealing with discrimination. Their exemption existed as long as they were deemed private.[3] The pertinent part of the law recategorized private clubs as public.
Chapter 37 of the Michigan Compiled Law was modified, according to the original sponsor of P.A. 70, "to eliminate discrimination against women and minority members of private country and golf clubs."[5] However, this report will show that the law does not have any effect on discrimination due to race or gender. Instead, the Act limits the freedom of clubs to provide the spouses of members access to the club. If any access is allowed, the law requires equal access even though the spouse does not pay membership dues. Whether or not the law will accomplish any useful purpose and what other problems it may create will be explored here. The law will clearly be seen to fail the purpose set forth by its own author.
It is necessary to investigate P.A. 70 within the context of other state and federal laws to understand the value of the law. First, this report will explain P.A. 70 in the context of Michigan's Elliot-Larsen law. In considering Michigan's Elliot-Larsen statute, this report will consider some of the practical difficulties faced by those trying to implement P.A. 70. This review will show that P.A. 70 will not have any positive effects beyond what could have been achieved without the Act and that the Act may force the closure of some clubs because they will not be able economically to manage its mandates. Second, this report will look at the federal law regarding discrimination and whether or not a law like P.A. 70 was necessary or duplicative. Because an extensive net of federal law exists to prevent discrimination and because state law was equally comprehensive, the stated purpose for enacting P.A. 70 is suspect.
Finally, this report will explore the value of freedom of association and how P.A. 70 might affect this constitutional right. P.A. 70 will be seen as law that severely limits nondiscriminatory behavior by clubs.
A. Introduction
Michigan adopted P.A. 70 in 1992 to amend the Elliot-Larsen Act to include private clubs.[6] Prior to these amendments, discrimination was outlawed in a "place of public accommodation."[7] The term was defined as "a business or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution 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."[8] Because of concern that "not so private clubs have been restricting the access to and use of their facilities by women,"[9] P.A. 70 was proposed. The changes made in the Elliot-Larsen statute by P.A. 70 and their potential impact will be considered in this section.
B. The Enumeration
Unhappy with the legal definition of places of public accommodation, Michigan specifi-cally included certain clubs under P.A. 70. It states:
Place of public accommodation also includes the facilities of the following private clubs:
i. A country club or golf club.
ii. A boating or yachting club.
iii. A sports or athletic club.
iv. A dining club, except a dining club that in good faith limits its membership to the members of a particular religion for the purpose of furthering the teachings or principles of that religion, and not for purpose of excluding individuals of a particular gender, race or color.[4]
The degree of specificity found in this litany of places represents typical legal jargon. The inclusion of such clubs by explicit iteration leaves numerous other clubs exempted. Because of this enumeration, entities may try to redefine themselves so that they are not "country clubs" or other enumerated clubs. Courts will then be forced to determine what factors make something a "country club" or other enumerated club. As a consequence, clubs that have the same number of members as included clubs may be exempt from the law. Besides this definitional problem, P.A. 70 also created numerous practical ones.
C. Places of Public Accommodation
The Elliot-Larsen statute made an exception for private clubs before the adoption of P.A. 70. The current statute applies to certain enumerated clubs without regard to their public or private status. However, the actual embrace of the modified Act may be less encompassing than appears on the face of the statute because legislatures may not regulate truly private clubs because of limits placed on regulations by the United States Constitution.
Before being modified in 1992, M.C.L.A §37.2301 applied only to "places of public accommodation." In Rogers v. International Association of Lions Clubs,"[10] a federal court was called upon to decide whether or not the Lions Club was included under M.C.L.A. 37.2301. In that case, a woman had been admitted into a Lions Club in violation of the International Lions Club rules."[11] The local Lions Club challenged the national club's action as violative of M.C.L.A. §37.2302.[12] The defendant claimed that it was protected by the statutory exemption for private clubs.[13]
The federal court noted that this provision had not been interpreted by the Michigan courts.[14] It proceeded to interpret the statute in light of Roberts v. United States Jaycees, discussed below. The court there held, "the essence of privacy is selectivity."[15] Without selectivity a place cannot be considered private. If a club is private though, it has constitutional protection from state intrusion. Thus, the Constitution prevents P.A. 70 from regulating truly private clubs even though it attempts to do so. The impact of the Lions Club and Roberts opinions cannot be overlooked.
No matter what the Michigan statute may say, states may not prohibit private clubs from discriminating because truly private clubs are protected by the First Amendment as understood in Roberts. Therefore, insofar as P.A. 70 attempts to regulate private clubs regarding discrimination, it is unconstitutional. States may not prevent discrimination by private associations.
On the other hand, since the Lions Club court interpreted M.C.L.A. §37.2302 in light of Roberts, discrimination by any but private clubs was prohibited before the passage of P.A. 70. Nevertheless, P.A. 70 did add regulations to clubs. These added regulations will have severe practical effects detrimental to most members of most clubs.
D. The Regulations in P.A. 70
Not content with prohibiting race or gender discrimination, P.A. 70 added an entirely new section regulating the economic affairs of clubs to the Elliot-Larsen statute. This addition will require clubs to change the way memberships are handled, thereby hurting most members of the club. Because the regulations imposed by P.A. 70 are bad economics, they will not serve the purpose of eliminating discrimination and may even contribute to it because clubs may have to prevent entirely spouses from using their facilities. Since the stockholding member of most golf and dining clubs currently are men, women may find that P.A. 70 will result in their being unable to participate in activities at their spouses' clubs.
The likelihood of P.A. 70 actually causing discrimination can be seen by looking at its language in light of the practical workings of golf and dining clubs. M.C.L.A. §37.2302a states:
(2) If a private club allows use of its facilities by one or more adults per membership, the use must be available to all adults entitled to use the facilities under the membership. All classes of membership shall be available without regard to race, color, gender, religion, marital status, or national origin. Memberships that permit use during restricted times may be allowed only if the restricted times apply to all adults using that membership.
This section's most troublesome aspect is found in its first and last sentences. These sentences require clubs that allow use of their facilities by one or more adults per membership to allow all such adults equal use of the facilities at all times.
However, this part of the statute was enacted to change the fact that some golf clubs were not allowing women the use of certain tee times because they were reserved to members.[16] Certainly, if such a practice were followed at a country club, it would have been illegal before adoption of P.A. 70 if such action constituted discrimination on the basis of gender.
It is true that clubs – including golf clubs – may have prevented women and men from using the facilities at certain times. Insofar as such actions were not based on gender discrimination, but membership discrimination, they should be allowed. A consideration of the actual practice of clubs in this matter is informative.
E. Practical Matters
Many athletic, golf, and dining clubs have long accommodated people who apply and become members of the clubs (the "shareholders") by allowing children and spouses to enjoy some of the same benefits as the shareholders. They do this because opening the clubs to the shareholders' families allows the club facilities to be more fully used and serves the shareholders better. However, the shareholders recognize that at certain times the demands on the clubs exceed capacity and use must be limited. At these times, shareholders have agreed to limit the use of club facilities to the shareholders or to the shareholders and their paying guests. The club managers can gauge demand at certain times and try to accommodate the shareholders first. The consequence of this policy is generally that women have been pre-vented from using certain tee times because they are not shareholders at the clubs. If a woman were a shareholder and were discriminated against, Elliot-Larsen and other laws have long provided a remedy. Before P.A. 70, clubs could and did make certain times available only to shareholders. As a result of P.A. 70, club management appears incapable of legally making such distinctions between shareholders and their spouses or children. Thus, clubs seem to have two equally problematic choices.
On the one hand they can require that spouses and children of shareholders acquire their own memberships. The cost of such memberships will make this impractical for virtually all members. Thus, spouses will not be able to use the facilities at all because if they are allowed to use the facilities, the law demands that they have equal access to the facilities. Because of P.A. 70, clubs must strictly adhere to allowing only members to use their facilities. As a consequence, even if a club is unused at certain times when a non-shareholder family member would want to use it, club managers will have to prevent the family member from using the facility. This will harm those persons related to the spouse who are not members. Since most shareholders at most clubs are men, the effect of P.A. 70 will be to shut the clubhouse doors to women.
On the other hand, the club may allow family memberships. If it does so, it must allow all the members equal access to the club facilities. Because clubs will no longer be able to reserve the use of facilities at certain times for the shareholding members, the facilities will be overcrowded at prime use times. As a result, the value of the membership will decrease for those who want to or can use the membership only during such times.
Again, this will mean that some facilities will close or lower their standards. Women will be hurt by such closures more than men because, as noted above, the men will join clubs whose high dues ensure access to shareholders at prime times.
Several presidents of some of the golf and country clubs in the metropolitan Detroit area discussed how the law has been interpreted by them and the results of these interpretations. Some of these club leaders were, however, unwilling to be quoted because of their fear of prosecution or litigation. Their reactions provide insight into the legal implications of P.A. 70.
Responding to P.A. 70, clubs have done a variety of things. Some clubs have immediately established different membership classes.[17] They think that if the membership is divided into classes, then these different classes may be allowed different use of club facilities. Apparently, the sponsor of the bill, Senator Lana Pollack, has indicated that she thinks such actions are legal.[18] The clubs are arguing that by so acting they are not allowing "use of [their] facilities by one or more adults per membership."[19] Therefore the club need not make its facilities open to all at all times. If this interpretation of the law is correct, P.A. 70 will have done nothing except encumber clubs with this process. In short, the law will be meaningless.
Other clubs have established regulations so that only one designated person per member-ship may use certain facilities at set times. The members may designate different people every month. This action is another attempt to deal with the rule and it too seems to have received a nodding approval. These, and other measures adopted by clubs, highlight the quandary in which the clubs find themselves.
Golf courses and country clubs are limited in capacity. If the law forces clubs nearly to double the number of persons who can use those facilities during prime times, the clubs "run a risk of detracting from the benefits of the club."[20] Virtually all the club officers who responded to inquiries indicated that they had as yet had "no problems." This lack of problems was due to the clubs changing their rules or relying on the understood customs of the club.[21] However if these new regulations are struck down, or if the understood rules change as new members join the club, the current standoff will not last.
F. Conclusion
P.A. 70 is a failure because it threatens to prevent market forces from working at clubs. Under the law, it appears that a club cannot gauge the demand for its services at various times and develop different types of services for different membership classes. In short, in this day when computers are allowing businesses to pinpoint demand curves and supply needs, the Michigan legislature has prevented clubs from using these business tools. The loser, as the planned economies of Eastern Europe have shown, is the consumer. The effect of P.A. 70 has nothing to do with race, gender, or any other personal characteristic. It only involves economics – and economics at its worst.
A. Introduction
The United States Congress has passed numerous pieces of civil rights legislation since the Civil War. Among these laws are three that involve discrimination as it appears in places like country clubs and golf clubs. Each of these laws was enacted to prohibit public places from discriminating generally on the basis of race, gender, or alienage. Taken together, these laws outlaw discrimination as well as, if not better than, P.A. 70. The first of these statutes, 42 U.S.C. §2000, involves access at places of public accommodation.[22] In addition, 42 U.S.C. §1985 prevents conspiracies to deprive persons of their civil rights. This statute is similar to 42 U.S.C. §1981, which prohibits discrimination regarding contracts. These three statutes all prohibit discrimination and can be used to prevent some types of discrimination by clubs. Their effect on discrimination has been dramatic. All these laws implicate golf clubs and similar types of facilities.
B. 42 U.S.C. §2000
One of the most important civil rights laws enacted in the United States is 42 U.S.C. §2000. This statute provides for equal access at places of public accommodation. It states in part:
(a) All persons shall be entitled to the 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.[23]
An exception has been provided for private clubs under this law.[24] This statute on its face makes racial discrimination at places of public accommodation illegal. Whether or not golf clubs and dining clubs are included under this provision or are excepted as private clubs has been delineated by the courts. Generally, the courts have excepted only clubs that appear to be private due to seven factors.
These factors were outlined in a recent case which has implications for all types of clubs and associations. In Welsh v. Boy Scouts of America[25], the Seventh Circuit had to decide whether or not the Boy Scouts could deny membership to someone who refused to take the Scout Oath, which professes a belief in God.[26] The Seventh Circuit first found that although Title II includes "bowling alleys, golf courses, tennis courts, gymnasiums, swimming pools and parks,"[27] it does not include the Scouts. Unlike the included associations, the Scouts' "purpose is not closely connected to a particular facility."[28] The court noted that some state courts have interpreted similar state statutes broadly, while others have not.[29] Not a single federal court had held that an association that was not closely connected to a physical facility was to be a place of public accommodation.[30]
To determine whether or not the Scouts met the private club exception of Title II,[31] the Seventh Circuit relied on the case of United States v. Lansdowne Swim Club.[32] The decision in that case set forth seven factors in establishing whether or not a facility is a private club:[33] (1) the genuine selectivity of the group; (2) the membership's control over the operations of the establishment; (3) the history of the organization; (4) the use of facilities by non members; (5) the club's purpose; (6) whether the club advertises for members; and, (7) whether the club is non-profit or for profit.[34]
The fact that the Boy Scouts have over 5 million members was not deemed critical by the court. Instead, courts rely on whether or not there is "a plan or purpose of exclusiveness ."[35] Criteria that are contrary to the purposes of Title II, such as race discrimination, or criteria that act as a subterfuge to avoid Title 11, will not protect a club.[36] Since the Scouts do require someone "to nurture belief in God," which is not contrary to the goal of Title II, the Scouts were found to be an exclusive organization. Indeed, the Scout Oath evidences a plan and purpose of selectivity.[37] The criteria of selectivity will probably not be met by many golf or dining clubs, and, insofar as the organizations discriminate on race or gender, their actions will not be protected by §2000. Other factors will also have to be considered to determine whether or not the clubs are excepted from §2000.
The Scouts' history and purpose favored an exemption for them. Since the Oath had been required of members for over eighty years, the historical practice was well entrenched.[38] If any club could show a similar history regarding its policies, it might also survive this test.
Similarly, the court did not see how the Scouts' purpose could be achieved without requiring a belief in God.[39] Clubs that attempt to rely on this case would need to show that their policies could not be achieved without the policies they have enacted.[40]
The court did not elaborate on the three other criteria because it clearly thought that the Boy Scouts fit an exception to Title 11. Golf clubs and athletic clubs, though, will certainly undergo scrutiny on these factors and will have to determine whether or not their policies and position make them likely to fit the exception.
Because Title II does not include discrimination on the basis of gender, associations do not need to fear its application to them insofar as they set policies on a gender basis only. If, however, they set policies on the basis of race, they will be subject to Title II if they are not considered private associations. The courts are much less willing to recognize that an association that discriminates on the basis of race is a private association because of a strong public policy to end racial discrimination.
Since civil remedies are provided for violations of §2000, substantial relief is available for those who have faced discrimination based upon race. Certainly, unless some federal provisions exist for women as well, the states might decide to pass laws to protect women as well as racial minorities from discrimination. However, federal law does protect women from discrimination.
C. 42 U.S.C. §1985
One of the most important federal statutes dealing with discrimination is found at 42 U.S.C.§1985. This section prohibits two or more persons from conspiring to deprive any person of the equal protection of the law.[41] However, it is unclear whether or not state action is necessary for a violation of this statute or whether women are protected by it. The courts have determined that §1985 does apply to the actions of private persons when an independent law exists which protects an individual from others. Thus, for example, if someone commits a tort or violates a contract against a party and does so consciously due to race or gender, §1985 can be used to remedy that violation and increase the penalty. The actions of conspirators to deprive a person of the equal protection of the law constitutes a violation of §1985 only when persons purposefully conspire. In Michigan, women as well as men are protected by this statute. As a consequence, golf clubs could be found to have violated §1985 if they prevent women or racial minorities from joining the club or enjoying the use of the facilities on a discriminatory basis.
The Sixth Circuit clarified the application of §1985 in Volunteer Medical Clinic, Inc. v. Operation Rescue.[42] In that case, Operation Rescue was being sued for blocking an abortion facility. The Sixth Circuit recognized that private actors may be liable for deprivations of constitutional rights.[43] However, since §1985(3) recognizes no substantive rights itself, a plaintiff must allege that he or she has suffered the violation of a right protected by the Constitution or by statute. If the right exists against all actors, no state action is required.[44] If, however, the right is only protected against state interference, such as Fourteenth Amendment rights, then state action is necessary.[45]
The Supreme Court further clarified this issue in Bray v. Alexandria Women's Health Clinic.[46] In that decision, the Court stated that a violation under §1985(3) occurs only when a right is impaired by "a conscious objective of the enterprise."[47] This requirement was made regarding private actors to prevent §1985(3) from becoming "a general federal tort law."[48]
Therefore, to state a cause of action under §1985(3), persons must first show that someone has deprived them of rights protected by state or federal statute or the Constitution. If the violator is either the state or a private actor, the person must also show that an invidious discriminatory purpose lay behind the actions.[49] In addition to these showings, the persons must show that they are part of a protected class. In Bray, the Supreme Court did not decide whether or not §1985(3) extended to women.[50] Race is clearly included in §1985(3).[51] However, for purposes of Michigan courts, the Sixth Circuit's decision in Operation Rescue is determinative. In that case, the court concluded "women constitute a cognizable class under §1985(3)."[52] Therefore women may bring claims under this section in Michigan state and federal courts.
Because this is a fairly recent case, no reported decisions reflect whether or not 1985(3) has been used by women to seek a remedy for violation of private rights or rights protected by the Constitution or state. Nevertheless, women and racial minorities could use §1985(3) to remedy rights similar to those protected by P.A. 70. Any discrimination by clubs, including the prevention of a formation of a contract with a club, could involve a violation of 1985(3).
D. 42 U.S.C. §1981
Probably the most extensive civil rights law is found at chapter 42 U.S.C. §1981. This section prevents persons from allowing parties freely to contract.[53] This statute prevents discrimination on the basis of race or alienage.[54] Under this statute, if a private person is not allowed to contract due to the person's race or alienage, the party may seek compensatory and punitive damages.
The Sixth Circuit elaborated on the rights a party has under this statute in Watson v. Fraternal Order of Eagles.[55] In that case, blacks had been denied the power to buy drinks at an Eagles Club at which they were invited guests.[56] The Sixth Circuit decided that §1981 provides a private party with unique protection.[57] Under this statute an individual must show that the defendant's actions were intentional.[58] A plaintiff who can make such a showing may be entitled to compensatory and punitive damages as well as injunctive and declaratory relief.[59] In Watson, the court held that plaintiffs had shown that they had tried to contract for drinks at the club and had been prevented from doing so by the defendant.[60]
The Eagles Club tried to argue that to allow plaintiff to sue under §1981 violated the club's rights to associational freedom protected by the First Amendment.[61] However, the court rejected such protection for the Eagles by relying on several Supreme Court prece-dents. These cases will be discussed below.
Therefore, those who face discrimination on the basis of race or alienage may sue under §1981. No showing of state action is necessary and only ,clubs that are truly private will be exempt from the reach of §1981. However, §1981 does not provide any protection for women.
E. Conclusion
The federal civil rights laws prevent discrimination on the basis of race and gender by clubs that are not considered private. The extensive protections provided under federal law are duplicated by many states' laws, including Michigan's. Given this extensive web of protection, the modification of Elliot-Larsen by P.A. 70 cannot fairly be said to be a civil rights law.
A. Introduction
State and federal statutes may be struck down as applied to certain situations if they violate Constitutional rights. Both state and federal civil rights statutes have been challenged on constitutional grounds. Two possible constitutional objections might be raised against a law like P.A. 70.[62] Groups might claim that the regulations imposed by the law violate their right to freely associate or that they violate the establishment of religion clause. An investigation of these rights will reveal the limits of the federal civil rights laws which have been discussed.
The courts have protected certain groups as private associations when those groups have a high degree of selectivity, relative smallness and seclusion from others in certain respects. Courts have carefully scrutinized organizations under this test because the legislature has clearly expressed a desire to eliminate discrimination and clubs have used the freedom of association as a pretext for discriminatory practices.
B. Freedom of Association
Numerous groups have tried to overcome discrimination claims by asserting their First Amendment right to associate.[63] The assertion of this right is subject to court scrutiny and has been carefully considered by the courts. In many cases involving discrimination claims, defendants assert their right to associate freely. Since this is a constitutional right, statutes may not take it away.
In Roberts v. United States Jaycees,[64] the United States Supreme Court dealt with associational rights in a case where it had to determine whether or not the Jaycees had the right to prohibit the admission of women as regular members.[65] The Jaycees argued that a Minnesota statute that made illegal its prohibition against women members violated the Jaycees' freedom of association.[66] The Court identified two types of freedom of association.
In one line of decision, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our Constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment – speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.[67]
The Court continued by listing attributes of intimate associations: "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."[68] Since the Jaycees are a large organization and select members only on the criteria of being males between 18 and 35, members of the Jaycees did not have intimate associations entitled to constitutional protection.[69]
The Court then looked to the expressive associations of the Jaycees, noting that an individual's First Amendment freedoms entitle him to a correlative freedom to "engage in group effort toward those ends."[70] The Court held that interference in the internal affairs of a group – requiring women to be voting members, for instance – violated the Jaycees' freedom of expressive association. However, the Court held that such a freedom was not absolute and may be infringed by "regulations adopted to serve a compelling state interest, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms."[71] The Court found that the ending of gender-based discrimination was indeed a compelling state interest.[72] Moreover, the Court found that the law was no more restrictive than necessary in responding to that interest.[73] As the Supreme Court has noted, the regulations adopted must serve the government's compelling state interests that cannot be achieved by means significantly less restrictive of associational freedoms. If a club can show that its expressive association is being violated, the state must show that no significantly less restrictive means exist to serve compelling ends. The elimination of discrimination is a compelling end. As has been seen above, the means of achieving this goal could have been achieved through significantly less restrictive means.
The lower courts have closely followed the Supreme Court's decision regarding associational freedom. Other groups claiming exemptions as private clubs have failed because they lack the necessary plan or purpose of exclusiveness. In Brown v. Loudoun Golf & Country Club, Inc.,[74] a private golf course was held to be a place of public accommodation because it hosted athletic teams or other sources of entertainment that moved in commerce.[75] The court then held that the golf club was not a private club because although the club had admission procedures, it had no admission policies and only four white members had been rejected since the procedures took effect. In short, virtually every white person who applied for membership in the club was accepted. Thus, it appeared that true selectiveness was lacking.[76]
The court carefully scrutinized the element of selectiveness as expressed by the club.[77] It noted that although formal admission procedures existed in theory, they did not indicate that persons were judged on moral, religious or other social standards before admission.[78] Since it appeared that few non-minority applicants were rejected, the policy was a seen as a pretext for racial discrimination. Such policies by clubs have never withstood court scrutiny.
The freedom of association is a cherished right. The courts might be willing to strike down laws that infringe on this right if it could be shown that the effect of it was not to limit or end discrimination and that any discrimination that existed could be eliminated by less intrusive laws. If clubs can show that P.A. 70 fails to achieve the goals it has set for itself and that it curbs the activities of the clubs, they might succeed in blunting the impact of the Act.
C. Establishment of Religion
If a statute makes an exception for religious groups, as P.A. 70 did, groups may challenge the application of the law to them, but not to religious groups, on the grounds that an establishment of religion has occurred. P.A. 70, codified in part as M.C.L.A. §37.2301(a)(iv) makes an accommodation for a dining club "that in good faith limits its membership to the members of a particular religion for the purpose of furthering the teachings or principles of that religion, and not for the purpose of excluding individuals of a particular gender, race, or color."[79] This exception in the statute raises two issues. On the one hand, does such a statute impermissibly benefit religion contrary to the Establishment Clause of the First Amendment? On the other hand, since only dining clubs are explicitly exempted, are golf clubs that are religious implicitly exempted? The court decisions in this area make it virtually impossible for to challenge P.A. 70 on establishment grounds.
The Supreme Court has indicated that the Establishment Clause does not prohibit making exceptions for religion. In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos,[80] the Court had to consider whether or not an exception for religious institutions in 42 U.S.C. §2000e-1 violated the Establishment Clause. The original plaintiff was a building engineer who worked at a gymnasium operated through the Church of Jesus Christ of Latter-Day Saints.[81] In looking at that case, the Court noted "[t]here is ample room under the Establishment Clause for benevolent neutrality which will permit religious exercise to exist without sponsorship."[82]
The exception for religions in §2000 does not violate what the courts have called the Lemon test. This so-called test is used to judge laws that involve the state in promoting religion. This test has three parts, all which the statute at issue passed. First, the court said that legislation may "alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions."[83] The Court also saw that the government was not advancing religion through the exemption because the religious activity seems to have been left in the same place it had been before the passage of civil rights legislation (part two of the test).[84] Finally, the Court summarily dismissed the entanglement part of Lemon by noting that the statute "effectuates a more complete separation of the two (the church and the state) and avoids a kind of intrusive inquiry into religious belief."[85]
As a consequence of this opinion, a challenge to P.A. 70's exception for religious dining clubs will be ineffective. The analysis in Amos would certainly protect the constitutionality of the statute here under consideration.
The Michigan legislature passed a law in 1992 that had the goal of eliminating discrimination. The law has no language or enacting legislation that deals with race or gender discrimination. Instead, it is a law that prevents economic decisions by clubs to limit the times at which shareholding members and nonshareholders may use the club facilities. The state generally has the power to make such laws. In this case, the state has caused and will cause economic consequences that have nothing to do with discrimination. As a result, individuals will have fewer choices to make and the lack of choices will have nothing to do with discrimination. Apparently, the cry of discrimination kept the legislature from seeing the true nature of its legislation. P.A. 70 therefore perverts the law because it has no relationship to discrimination. One is left to wonder what other economic regulation will be enacted to further the goal of ending discrimination. Every business in the world, every club and organization, and every school and association must realize that its ratio of men/women or majority/minority probably fails to meet the ratio of such in the real world. In light of P.A. 70, the Michigan legislature has shown that these entities may be next in line for regulation.
Stephen J. Safranek is Assistant Professor of Law at University of Detroit Mercy in Detroit, Michigan, where he teaches classes in Constitutional Law, Jurisprudence, and Civil Procedure. He is also a policy analyst with the Mackinac Center for Public Policy.
Professor Safranek earned a B.A. degree in Philosophy from the University of San Francisco, an M.A. degree from the University of Dallas, and J.D. and M.A. degrees from the University of Notre Dame and is currently completing his dissertation to earn a Ph.D. from the University of Dallas.
He has published numerous articles in newspapers and legal journals and is the author of a recent (1993) book, The Constitutional Case for Term Limits.
Discrimination at Private Clubs in Michigan: Freedom of Association After Public Act 70 by Stephen J. Safranek is published by the Mackinac Center for Public Policy. Nothing in this report should be taken as an effort to aid or hinder the passage of any legislation by the Congress or the Michigan Legislature. Permission is hereby granted to reprint passages from this report in editorials, reviews, or news articles, provided credit is given to the author and the Mackinac Center for Public Policy.
Additional copies of this report are available for $10.00 each, postpaid, from the Mackinac Center for Public Policy. For bulk quantities and prices, contact the Center at (989) 631-0900.
Alexis De Tocqueville, Democracy In America, 520 (George Lawrence 1969).
Codified as MICH. COMP LAW §37.2301 et seq. (West 1993).
Id.
M.C.L.A 37.2301(a)
Letter from State Senator Lana Pollack to Oakland Hills Country Club, July 28, 1992. 6
M.C.L.A. 37.2301.
M.C.L.A. 37.2301.
M.C.L.A. 37.2301(a).
See SFA Bill Analysis, Sb351/9192 at l.
636 F. Supp. 1476 (E.D. Mich. 1986).
Id. at 1477.
Id. at 1478.
Id. at 1478.
Id. at 1479.
Id. at 1480.
Letter of Senator Lana Pollack to Oakland Hills Country Club, July 28, 1992.
James Mulvoy, past president of Forest Lake Country Club stated that his club has done this.
A source who sought anonymity reported this.
M.C.L.A. §37.2302A(2).
Comment of James Mulvoy.
I spoke with Mike Callaway, former President of the Detroit Golf Club, Mike Moldegen, past president of the Dearborn Country Club, and Emil Bair, President of Great Oaks Golf Club.
42 U.S.C. §2000 (West 1992). The statute states: "All persons shall be entitled to the 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." Inns, hotels and restaurants were included as places of public accommodation. Id. at 2000b.
42 U.S.C.A. §2000(a) (West 1992).
42 U.S.C.A. §2000a(e) (West 1992) "The provisions of this subchapter shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b) of this section."
993 F.2d 1267 (7th Cir. 1993).
Id. at 1268.
Id. at 1269.
Id. at 1269.
Id. at 1271.
Id. at 1272. Golf clubs are places of public accommodation. Wesley v. City of Savannah, 294 F. Supp. 698, 701-02 (S.D. Ga. 1969).
Id. at 1276.
713 F. Supp. 785, 796-97, (F.D. Pa. 1989), aff'd 894 F.2d 83 (3rd Cir. 1990).
Welsh at 1276.
Id.
Id. at 1276. (citing Sullivan v. Little Hunting Park, 396 U.S. 229, 236 90 S.Ct. 400, 404, 1969).
Id. at 1276.
Id. at 1276.
Id. at 1277.
Id. at 1277.
Id. at 1277.
42 U.S.C.A. §1985 (West 1992).
948 F.2d 218 (6th Cir. 1991).
Id. at 225 (citing Griffen v. Breckenridge, 403 U.S. 88, 96-98, 1971. See also: United Brotherhood of Teamsters, Local 610 v. Scott, 463 U.S. 825, 833, 1993).
Id. at 226.
Id. at 226.
113 S. Ct. 753 (1993).
Id. at 762 (opinion of Scalia, A.)
Id. at 759. (citations omitted).
Id. at 759.
Id. at 759.
Id. at 759.
948 F.2d 218, 224 (6th Cir. 1991).
42 U.S.C. § 1981 states, "All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
St. Louis v. Alverno College 744 F. 2d 1314, 1317. See also Runyon v. McCary, 427 U.S. 160, 167 (1976).
Id.
Id. at 238-39.
Id. at 240-41.
Id,. at 241.
Id. at 241.
Id. at 243.
Id. at 243.
M.C.L.A. 2301 et seq. (West 1993)
U.S. Const. Amend 1. The Amendment prohibits government from abridging the "right of the people peaceably to assemble."
468 U.S. 609 (1983).
Id. at 614.
Id. at 617.
Id. at 617-618.
Id. at 620.
Id. at 621.
Id. at 622.
Id. at 623.
Id. at 626.
Id. at 626.
573 F.Supp. 399 (E.D.Va. 1983).
Id. at 402.
Id. at 403
Id. at 403.
Id. at 403.
483 U.S. 327, (1987).
Id. at 2865.
Id. at 2867-68.
Id. at 2868.
Id. at 2869.
Id. at 2870.
