While the most famous and talked about all-male golf club in the United States is Augusta National Golf Club in Augusta, Georgia1, the topic of golf clubs excluding women is no where more relevant than the Chicago land area, which contains four of the twenty-four, or one-sixth, of the all-male golf clubs in the United States as of 2003.2 In considering all-male clubs and the legality of them, it is important to note that the federal 1964 Civil Rights Act did not cover discrimination based on gender.3 With this in mind, the United States Supreme Court has decided several cases pertaining to private groups excluding unprotected classes which are informative as to the legal issues involved with private clubs or associations excluding people based on gender.
II. Roberts v. United States Jaycees
The first case decided by the United States Supreme Court regarding the exclusion of people by private clubs or associations based on gender is Roberts v. United States Jaycees.4 At issue in Roberts was a conflict between a national organization’s policy of allowing only male members between the ages of eighteen and thirty-five, and two local chapters of the organization that admitted women as members in violation of the national organization’s policy.5 The Jaycees is a private organization whose objective is: "to pursue ‘such educational and charitable purposes as will promote and foster the growth and development of young men’s civic organizations…to inculcate in the individual membership…a spirit of genuine Americanism and civic interest, and…to develop true friendship and understanding among young men of all nations.’"6 The Jaycees had almost 300,000 members nationally and approximately 7,400 local chapters.7 The national organization limited membership to men between the ages of eighteen and thirty-five.8
The conflict arose because two local chapters in Minnesota had been admitting women as members for years.9 The national organization told the two chapters that their charters would be revoked, and in response the two chapters filed allegations of discrimination with the Minnesota Department of Human Rights.10 The two chapters contended that the demands of the national organization violated the Minnesota Human Rights Act ("MHRA"), which prohibited discrimination in places of public accommodation based on, among other things, gender.11 The national organization countered with an argument that forcing it to abide by the MHRA would violate its constitutional right of free speech and association.12
In its holding, the Court reiterated how the freedom of association is protected. In one situation, the Court has found a freedom of association because:
. . . 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.13
In the other type of situation, "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."14 The Court also indicated that only certain types of relationships among people are most likely to warrant freedom of association protection, and those relationships are often characterized by a small number of members, highly selective membership admissions policies, and seclusion of the group from non-members.15 If an organization has these characteristics, then the Court demonstrated that it will be very protective of the organization in any attempt by a State to infringe on the organization’s right of association.16 The Court stated, "There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire…. Freedom of association therefore plainly presupposes a freedom not to associate."17
However, in the case of the Jaycees, the Court found that they had several characteristics that made their membership policies unworthy of constitutional protection.18 In particular the Court pointed to the fact that the local Jaycee chapters in Minnesota had approximately four hundred members, which the Court did not consider to be a small membership number.19 In addition, the local chapters and the national organization were unselective when admitting new members—the only apparent criteria the selection of members depended on was gender and age, with members regularly admitted without any inquiry into their backgrounds.20
In addition to relying on the characteristics of the Jaycees in determining that the First Amendment did not prohibit forcing the organization to accept women members, the Court also relied on the MHRA which included a broad definition of public accommodation.21 In finding that the local Jaycee chapters were "public accommodations", the Court, relying on the holding of the Minnesota Supreme Court, found that the Jaycees provided members with: "commercial programs and benefits…leadership skills…business contacts and employment promotions."22 The Court determined that all of these benefits constituted goods, privileges, and advantages which could not be denied a person based on gender under the MHRA in a place of public accommodation, and therefore the national Jaycees organization cannot prevent the Minnesota chapters from admitting women members.23
III. Board of Directors of Rotary International v. Rotary Club of Duarte
Three years after Roberts, the Court decided a similar case, Board of Directors of Rotary International v. Rotary Club of Duarte, which involved a conflict between the international organization of Rotary International and a local Rotary Club in California.24 Rotary International is an organization of professional and business men which promotes humanitarianism, ethics, and benevolence throughout the world.25 The organization had almost 20,000 local chapters with over 900,000 members worldwide.26 Each local club admitted one or two members from every business or professional classification in the local community in an attempt to represent a variety of interests.27 Each local club could adopt its own rules and procedures for admitting new members, although it could not admit any women members.28
The conflict arose when the Duarte, California club admitted three women as members in 1977.29 The international organization informed the Duarte Club that this was against policy and revoked its charter.30 The Duarte club and two of the women then sued Rotary International claiming its policy and the revocation of the charter violated California’s Unruh Civil Rights Act (Unruh Act).31 The Unruh Act is very similar to the Minnesota Human Rights Act in that it reflects California’s attempt to end discrimination based on, among other things, gender in "accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."32 The California Court of Appeal determined that the terms "business" and "establishment" have very liberal meanings and can include several of the functions of Rotary clubs.33 The California Court of Appeals also found that Rotary International has several attributes which make it act like a business, namely "its complex structure, large staff and budget, and extensive publishing activities."34
In analyzing this case, the Suupreme Court relied heavily on the analysis from Roberts.35 The Court held that the relationship among Rotary Club members was not the type of private and intimate relationship that deserved constitutional protection.36 The facts the Court weighed in reaching this conclusion were: the size of some local Rotary Clubs reached over nine hundred members and there was no maximum membership total for any of the local clubs; the clubs typically lost around ten percent of their members each year and therefore the clubs were instructed to continuously bring in new members; the purpose of the clubs was to be inclusive, not exclusive, because they wanted to represent all of the local occupations.37 Likewise, the Court noted that the clubs are encouraged to seek media coverage of their activities and meetings, which the Court held was not what a private organization would do.38 In light of these characteristics, the Court held that the Unruh Act did apply to Rotary International and it could not keep the Duarte Club from admitting women members.39
IV. New York State Club Association, Inc. v. City of New York
A year after the Duarte decision, the Court faced another situation where an organization claimed a state anti-discrimination law infringed on its constitutional rights in New York State Club Association, Inc. v. City of New York.40 New York City passed a law in 1965 prohibiting discrimination in any "place of public accommodation, resort or amusement."41 The law included many establishments, but specifically exempted "any institution, club or place of accommodation which proves that it is in its nature distinctly private."42 However, in 1984 New York City amended the law to forbid discrimination in particular private clubs deemed to be public.43 The amendment covered "any ‘institution, club or place of accommodation [that] has more than four hundred members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business’"44
Shortly after the passage of the 1984 amendment, the New York State Club Association, which is a nonprofit corporation that comprises 125 private clubs and associations in New York, brought suit challenging the amendment as a violation of the First and Fourteenth Amendments.45 The fate met by the New York State Club Association’s challenge, however, was the same one met by the challenges of the Jaycees and Rotary International—it was rejected by the Court.46
In finding the amendment constitutional on its face, the Court relied on several important factors. First, the Court noted that the only clubs included under the amendment are those with at least four hundred members.47 This number is analogous to the size of the local chapters in Roberts and is larger than many of the local clubs in Duarte.48 Second, the amendment also covers clubs which "provide ‘regular meal service’ and receive regular payments ‘directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business.’"49 These situations were noteworthy because they often demonstrated to the city "organizations which are ‘commercial’ in nature, ‘where business deals are often made and personal contacts valuable for business purposes, employment and professional advancement are formed.’"50 The Court found these characteristics as important, if not more important, than the consistent participation and attendance of nonmembers at meetings, which the Court found vital in deciding whether the associations were non-private in both Roberts and Duarte.51
In a last ditch effort, the New York State Club Association also argued that the amendment was overbroad because it would cover some associations that should be exempt from it.52 However, the Court did not accept this argument because no evidence was given of even a single club whose members’ freedom of association was impaired by the amendment.53
V. The Illinois Human Rights Act
Illinois, like the states mentioned in the cases cited above, does have a statute which prohibits discrimination based on gender in places of public accommodation.54 The Illinois Human Rights Act makes it unlawful to discriminate against any individual on the basis of a number of certain factors, including the individual’s gender.55 However, the Illinois statute, like the 1964 Civil Rights Act, also contains an exemption clause for private clubs.56 The exemption applies to "a private club, or other establishment not in fact open to the public, except to the extent that the goods, services, facilities, privileges, advantages, or accommodations of the establishment are made available to the customers or patrons of another establishment that is a place of public accommodation."57 A club which falls within this exemption does not have to abide by the anti-discrimination mandate of the Act.58
VI. Boy Scouts of America v. Dale
A more recent case which may give guidance on the rights of private clubs is Boy Scouts of America v. Dale.59 The case involved a challenge under New Jersey’s public accommodation law, which is similar to the other state anti-discrimination laws in the previous cases.60 Dale was a Boy Scout adult member who was forced out of the Boy Scouts after it was made public that he was a homosexual.61 The Boy Scouts argued that allowing Dale to remain would harm the message the Boy Scouts wanted to get across to its members, which is that homosexual conduct is not an acceptable form of behavior.62 The Court agreed and did not reinstate Dale in the Boy Scouts.63
The factual situation in this case is different from the prior three cases because Dale concerns the freedom of associational expression rather than the freedom of association from a privacy standpoint, which the other three cases addressed.64 However, Dale is still pertinent to the all-male private country club situation for two reasons. First, it represents a decision by, and the viewpoints of, the current members of the Court, while the Court for the other three decisions contained at least four members who are no longer on the Court.65 Second, several of the statements and analytical processes used by the current Court could be applicable to a situation dealing with the freedom of association in a privacy case.
One of the approaches the Court takes in this case is to give great deference to the Boy Scouts and to the Boy Scouts’ opinion that allowing Dale to remain in the organization would harm the Boy Scouts’ message about leading a clean and morally straight lifestyle.66 This is a departure from the approach the Court took in Roberts, where instead of deferring to the Jaycees’ opinion that admitting women members would harm the members’ freedom of association, the Court placed the burden on the Jaycees to demonstrate how allowing women into the organization would harm the members’ freedom of association.67
Another important approach taken by the Court in Dale is that it did not consider the public perception or opinion regarding homosexuality in the United States in making its decision, as the dissent in the case would have preferred.68 The Court stated, ". . .it appears that homosexuality has gained greater societal acceptance….But this is scarcely an argument for denying First Amendment protection to those who refuse to accept these views."69
The Illinois legislature, like the legislatures in Minnesota, California, and New York, decided that discrimination based on gender in public accommodations should be prohibited.70 This prohibition does not apply to all-male clubs, as long as they comply with the terms of the exemption provided in the Illinois Human Rights Act.71 In order to ensure that the exemption applies, an all-male club should keep in mind the above-cited United States Supreme Court cases and keep its membership highly selective, relatively small, and limit its exposure with the public. By doing this, a club can ensure that its members’ freedom of association rights are protected.
1 Michael O’Keeffe, Daily News Sports Writer, N.Y. Daily News, June 11, 2003, pg. 60.
2 Id. (identifying the four clubs as Black Sheep Golf Club in Sugar Grove, IL, Bob O’Link Golf Club in Highland Park, IL, Butler National Golf Club in Oak Brook, IL, and Old Elm Club in Highland Park, IL).
3 42 U.S.C. § 2000a (2004).
4 Roberts v. United States Jaycees, 468 U.S. 609 (1984).
5 Id. at 614.
6 Id. at 612-13.
7 Id. at 613.
9 Id. at 614.
10 Roberts, 468 U.S. at 614.
11 Id. at 614-15.
12 Id. at 615.
13 Id. at 617-18.
14 Id. at 618.
15 Id. at 620.
16 Roberts, 468 U.S. at 623.
18 Id. at 620.
19 Id. at 621.
21 Id. at 625.
22 Roberts, 468 U.S. at 626.
23 See id. at 626-27 (stating that applying the MHRA to the Jaycees would not seriously burden their freedom of association).
24 Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 541 (1987).
25 Id. at 539.
26 Id. at 539-40.
27 Id. at 540.
28 Id. at 540-41.
29 Id. at 541.
30 Duarte, 481 U.S. at 541.
32 Id. at 542.
34 Id. at 542-43.
35 See id. at 544 (stating that framework for the analysis of this case is based on Roberts).
36 Duarte, 481 U.S. at 546.
38 Id. at 547.
40 New York State Club Association, Inc. v. City of New York, 487 U.S. 1, 4 (1988).
42 Id. at 5.
44 Id. at 6.
45 Id. at 7-8.
46 New York State Club Association, Inc., 487 U.S. at 12.
52 New York State Club Association, Inc., 487 U.S. at 14.
54 775 ILCS 5/5-102 (2005).
55 775 ILCS 5/1-102 (2005).
56 775 ILCS 5/5-103 (2005).
59 Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
60 Id. at 661-63 (text of New Jersey statute).
61 Id. at 644.
62 Id. at 651-53.
63 Id. at 661.
64 Id. at 644.
65 See List of Members of the Supreme Court of the United States, available at http://www.supremecourtus.gov/about/members.pdf (last visited Jan. 6, 2005) (demonstrating that four members of the Court, Justices Souter, Thomas, Ginsburg and Breyer, joined after 1988 when the New York State Club Association case was decided).
66 See Dale, 530 U.S. at 653 (stating "As we give deference to an association’s assertions regarding the nature of its expression, we must also give deference to an association’s view of what would impair its expression").
67 See Roberts, 468 U.S. at 626 (stating "the Jaycees has failed to demonstrate that the Act imposes any serious burdens on the male members’ freedom of expressive association").
68 Dale, 530 U.S. at 660.
70 775 ILCS 5/1-102 (2005).
71 775 ILCS 5/5-103 (2005).
Keith Jones is a third year law student at Northern Illinois University College of Law and is on the Board of Editors of the Northern Illinois University Law Review.