State power and discrimination by private clubs: First amendment protection for nonexpressive associations

Harvard Law Review

Volumn 104, Issue 8, 1991, Pages 1835-1856

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EID: 12044251856     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341620     Document Type: Article

References (146)

1. 3, col. 1.
2. 3, col. 1.
3. 3, col. 1.
4. 3, col. 1.
5. See infra p. 1836.
6. See New York State Club Ass'n v. City of New York, 487 U.S. 1, 11-12 (1988); Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 547, 549 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 621, 628-29 (1984).
7. See Frank v. Ivy Club, 120 N.J. 73, 576 A.2d 241 (1990), cert, denied, 111 S. Ct. 799 (1991) For a discussion of this case, see infra pp. 1855-56.
8. See U.S. CONST, amend. XIV, § 1; see also Gilmore v. City of Montgomery, 417 U.S. 556, 575 (1974) (stating that invidious discrimination cannot be protected when it involves state action).
9. The essence of the problem of compelled association is "drawing the line between the public and private sectors of our common life." Emerson, Freedom of Association and Freedom of Expression, 74 YALE L.J. I, 20 (1964).
10. See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 436 (1968).
11. See Runyon v. McCrary, 427 U.S. 160, 176 (1976).
12. See Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 437 (1973); Daniel v Paul, 395 U.S. 298, 305 (1969); cf. Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964) (upholding congressional power to provide equal access to places of public accommodation under the commerce power).
13. See Hishon v. King & Spalding, 467 U.S. 69, 78 (1984).
14. As of 1983, 40 states and the District of Columbia had enacted public accommodation statutes. See Note, Freedom of Association: The Attack on Single-Sex College Social Organizations, 4 YALE L. & POL'Y REV. 426, 426 & n.4 (1986).
15. Title II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a to 2000a-6 (1988), which provides that "[a]ll persons shall be entitled to full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin," id. § 2000a(a), is the most important of these statutes. Others include 42 U.S.C. §§ 1981, 1982, 1985 (1988), the Fair Housing Act, id. §§ 3601-3631, and title VII of the Civil Rights Act of 1964, id. §§ 2000e to 2000e-17.
16. They accomplished this either through specific private club exemptions, see, e.g., Civil Rights Act of 1964, 42 U.S.C. § 2000a(e) (1988) (exempting "a private club or other establishment not in fact open to the public"); N.J. STAT. ANN. § 10:5-5(l) (West Supp. 1990) (excluding "distinctly private" clubs and institutions), or through narrow definitions of "public accommodation," see, e.g., United States Jaycees v. Massachusetts Comm'n Against Discrimination, 391 Mass. 594, 608, 463 N.E.2d 1151, 1159 (1984).
17. For example, many states are using their tax codes and liquor licensing authority to hurt private discriminatory clubs. See, e.g., State v. Burning Tree Club, Inc., 315 Md. 254, 259, 554 A.2d 366, 369, cert. denied, 110 S. Ct. 66 (1989). See generally Burns, supra note 1, at 385-91 (suggesting methods of attacking single-sex clubs through the denial of tax exemptions or deductions). Much of the analysis in this Note may be different when the government is not seeking to dictate membership directly but rather is threatening to withhold a benefit or advantage unless a group changes its membership policies. The unconstitutional conditions analysis is beyond the scope of this Note.
18. Note, Discrimination in Private Social Clubs: Freedom of Association and Right to Privacy, 1970 DUKE L.J. 1181, 1184-85.
19. See Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 541-42 (1987).
20. See Lee, 121 Years of Men Only Ends at Club, N. Y. Times, July 28, 1989, at B1, col. 2.
21. See Vennochi, . . . And Ladies of the Clubs, Boston Globe, Oct. 13, 1988, at 85, col. 4.
22. 3, col. 1 ("'I view this as pretty fascistic. . . . We now have examples in Eastern Europe of what happens when the government tries to tell you how to run your life.'" (quoting a club attorney)); Marcus, Club Memberships: An Unresolved Issue for Judicial Nominees, Wash. Post, Aug. 8, 1988, at A11, col. 1 ("'[A]fter a century of undisturbed, quiet existence, minding its own private affairs, [the club] finds itself forced to defend the fundamental rights of its members against the strong arm of political oppression."' (quoting the President of San Francisco's Olympic Club)).
23. 3, col. 1 ("'I view this as pretty fascistic. . . . We now have examples in Eastern Europe of what happens when the government tries to tell you how to run your life.'" (quoting a club attorney)); Marcus, Club Memberships: An Unresolved Issue for Judicial Nominees, Wash. Post, Aug. 8, 1988, at A11, col. 1 ("'[A]fter a century of undisturbed, quiet existence, minding its own private affairs, [the club] finds itself forced to defend the fundamental rights of its members against the strong arm of political oppression."' (quoting the President of San Francisco's Olympic Club)).
24. 3, col. 1 ("'I view this as pretty fascistic. . . . We now have examples in Eastern Europe of what happens when the government tries to tell you how to run your life.'" (quoting a club attorney)); Marcus, Club Memberships: An Unresolved Issue for Judicial Nominees, Wash. Post, Aug. 8, 1988, at A11, col. 1 ("'[A]fter a century of undisturbed, quiet existence, minding its own private affairs, [the club] finds itself forced to defend the fundamental rights of its members against the strong arm of political oppression."' (quoting the President of San Francisco's Olympic Club)).
25. At the same time the Court ruled against the clubs in Jaycees, Rotary, and New York State Club Ass'n, it declared the right of intimate association "a fundamental element of personal liberty" that plays an essential role in "safeguarding the individual freedom that is central to our constitutional scheme." Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984). In her concurrence in New York State Club Ass'n, Justice O'Connor stated explicitly the subtext of the majority's emphasis on the fact that the case involved only facial challenges: [T]here surely will be organizations that fall within the potential reach of Local Law 63 and yet are deserving of constitutional protection. . . . [A] club with over 400 members may still be relatively intimate in nature, so that a constitutional right to control membership takes precedence. . . . The associational rights of such organizations must be respected. New York State Club Ass'n v. City of New York, 487 U.S. 1, 19 (1988). The Court made the same point forcefully in Gilmore v. City of Montgomery, 417 U.S. 556 (1974): "The associational rights which our system honors permit all whitell 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." Id. at 575 (quoting Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179-80 (1972) (Douglas, J., dissenting)).
26. A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 174 (J. Mayer & M. Lerner eds. 1966) (1st ed. 1835, 1840).
27. Id. at 178.
28. Id. at 485.
29. See Linder, Freedom of Association after Roberts v. United States Jaycees, 82 MICH. L. REV. 1878, 1897 & n.95 (1984); Rhode, Association and Assimilation, 81 NW. U.L. REV. 106, 113 & n.25 (1986); Note, supra note n, at 444.
30. See Linder, Freedom of Association after Roberts v. United States Jaycees, 82 MICH. L. REV. 1878, 1897 & n.95 (1984); Rhode, Association and Assimilation, 81 Nw. U.L. REV. 106, 113 & n.25 (1986); Note, supra note n, at 444.
31. See Linder, supra note 24, at 1882; Soifer, "Toward a Generalized Notion of the Right to Form or Join an Association": An Essay for Tom Emerson, 38 CASE W. RES. L. REV. 641, 652 (1988). As Justice Brennan commented, protecting freedom of association "safeguards the ability independently to define one's identity that is central to any concept of liberty." Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984).
32. See McConnell, The Public Virtues of the Private Association, in NOMOS XI: VOLUNTARY ASSOCIATIONS 147, 148-50 (J. Pennock & J. Chapman eds. 1969); Starr, Men's Clubs, Women's Rights, PUBLIC INTEREST, Fall 1987, at 57, 68-69.
33. See McConnell, The Public Virtues of the Private Association, in NOMOS XI: VOLUNTARY ASSOCIATIONS 147, 148-50 (J. Pennock & J. Chapman eds. 1969); Starr, Men's Clubs, Women's Rights, PUBLIC INTEREST, Fall 1987, at 57, 68-69.
34. See, e.g., Michelman, Law's Republic, 97 YALE L.J. 1493, 1531 (1988); Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1573 (1988). Modern republican theorists, however, typically argue that republicanism rightly understood should also embody a strong antidiscrimination principle. See Michelman, supra, at 1531; Sunstein, supra, at 1571. Nevertheless, these theorists have also recognized that this understanding is in fundamental tension with the historical republican tradition. See Sunstein, supra, at 1539.
35. See, e.g., Michelman, Law's Republic, 97 YALE L.J. 1493, 1531 (1988); Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1573 (1988). Modern republican theorists, however, typically argue that republicanism rightly understood should also embody a strong antidiscrimination principle. See Michelman, supra, at 1531; Sunstein, supra, at 1571. Nevertheless, these theorists have also recognized that this understanding is in fundamental tension with the historical republican tradition. See Sunstein, supra, at 1539.
36. Private clubs can be both loci of actual power outside the government and settings in which individual citizens learn to think independently. See, e.g., Lakoff, Private Government in the Managed Society, in NOMOS XI: VOLUNTARY ASSOCIATIONS, supra note 26, at 170, 170-77; Sullivan, Rainbow Republicanism, 97 YALE L.J. 1713, 1719, 1721 (1988).
37. Private clubs can be both loci of actual power outside the government and settings in which individual citizens learn to think independently. See, e.g., Lakoff, Private Government in the Managed Society, in NOMOS XI: VOLUNTARY ASSOCIATIONS, supra note 26, at 170, 170-77; Sullivan, Rainbow Republicanism, 97 YALE L.J. 1713, 1719, 1721 (1988).
38. See Linder, supra note 24, at 1880; McConnell, supra note 26, at 154-57; Sullivan, supra note 28, at 1714. In addition, pluralism creates the rich social texture that gives modern life its color and interest. For example, although one might dislike discrimination, one might nonetheless believe that a college campus is more lively, interesting, and diverse if it has allmale groups, all-female groups, and mixed-gender groups, rather than simply a uniform platter of mixed-gender groups. Cf. Fried, The Supreme Court, 1989 Term -Comment: Metro Broadcasting, Inc. v. FCC: Two Concepts of Equality, 104 HARV. L. REV. 107, 121 (1990) (arguing that state-enforced intragroup "diversity" has the potential to tend "not toward richness and difference at all, but to a particularly leaden kind of uniformity").
39. See, e.g., Emerson, supra note 6, at 1; Ingber, Rediscovering the Communal Worth of Individual Rights: The First Amendment in Institutional Contexts, 69 TEX. L. REV. 1, 35 (1990).
40. As the Court put the matter in Jaycees, freedom of association "plainly presupposes a freedom not to associate." Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984).
41. See Sullivan, supra note 28, at 1719, 1721.
42. See Linder, supra note 24, at 1902 ("[N]othing strikes closer to the heart of American Pluralism than a law which tells an association who it must accept as a member.").
43. 468 U.S. 609 (1984).
44. MINN. STAT. §§ 363.01-.15 (199O).
45. Id. § 363.03, subd. 3(1).
46. Jaycees, 468 U.S. at 618.
47. Id. at 620.
48. Id. at 623.
49. See id. at 623-27.
50. 481 U.S. 537 (1987).
51. CAL. CIv. CODE § 51 (West 1982 & Supp. 1991).
52. Id.
53. See Rotary, 481 U.S. at 544-49.
54. 487 U.S. 1 (1988).
55. See NEW YORK, N.Y., ADMIN. CODE & CHARTER § 8-102(a) (1986).
56. See New York State Club Ass'n, 487 U.S. at 11-14. The Court repeatedly stressed that the legal challenges to the ordinance were facial attacks, which could succeed only if thelaw could never be validly applied or if it were substantially overbroad. See id. at 11 (citing City Council v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984)). The Court implied that it might have decided the case differently had the law been attacked as applied to a particular club. The Court recognized that "there may be clubs that would be entitled to constitutional protection," but concluded that "surely it cannot be said that Local Law 63 is invalid on its face because it infringes the private associational rights of each and every club covered by it." Id. W 12. The Court emphasized that constitutional challenges to applications of the law to individual clubs could not be precluded. See id. at 14-15.
57. See Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984); Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107, 121 (1981); Buckley v. Valeo, 424 U.S. 1, 65 (1976).
58. Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 294 (1981).
59. City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (emphasis in original) (quoting City of Dallas v. Stanglin, 744 S.W.2d 165, 168 (1987))
60. See Jaycees, 468 U.S. at 623; Healy v. James, 408 U.S. 169, 184 (1972). Justice O'Connor wrote separately in both Jaycees and New York State Club Ass'n to articulate a different view. Whereas the majority purported to apply strict scrutiny to governmental interference with any group that engages in some protected expression, Justice O'Connor believed strict scrutiny unwarranted for organizations whose activities "are not predominantly of the type protected by the First Amendment." Jaycees, 468 U.S. at 635 (O'Connor, J., concurring in part and concurring in the judgment). For her, the critical factor in assessing a claim of a right to discriminate was the state's "profoundly important goal of ensuring nondiscriminatory access to commercial opportunities in our society," id. at 632; thus, she posited a "dichotomy between rights of commercial association and rights of expressive association," id. at 634. When an association is more commercial than expressive, Justice O'Connor would uphold any rational regulation of its activities or membership. See id. at 635.
61. Cf. Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (rejecting a claim to freedom of association in the context of law firm partnership decisions). The precise showing of expressiveness required is unclear. See infra p. 1843.
62. Jaycees, 468 U.S. at 620.
63. The right of expressive association is of long vintage and is relatively well defined. The Court first protected expressive association in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), when it held that the NAACP had a right to keep its membership lists secret from state authorities in Alabama, see id. at 460. Since then, the Court not only has protected the basic right of an individual to pursue lawful ends through an expressive association, see, e.g., Elfbrandt v. Russell, 384 U.S. 11, 18-19 (1966), but also has held that the organization has a right to keep its membership secret if disclosure would threaten it with harassment, see, e.g., Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 97-98 (1982); Buckley v. Valeo, 424 U.S. 1, 74 (1976), to establish its own internal procedures, see, e.g., Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981); Cousins v. Wigoda, 419 U.S. 477, 487-91 (1975), and to spend money for political communication free from state regulation, see Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 263-65 (1986); NAACP v. Button, 371 U.S. 415, 438-45 (1963).
64. See Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 545 (1987).
65. These include the size, purpose, and selectivity of the association, the participation of strangers in its activities, the presence of trade or business activity, and the extent to which it excludes others from critical aspects of the relationship. See New York State Club Ass'n v. City of New York, 487 U.S. 1, 11-12 (1988); Rotary, 481 U.S. at 546.
66. See, e.g., Jaycees, 468 U.S. at 622-23.
67. New York State Club Ass'n, 487 U.S. at 13.
68. Jaycees, 468 U.S. at 628; accord Rotary, 481 U.S. at 549 (characterizing the effect on protected expression as a "slight infringement").
69. See New York State Club Ass'n, 487 U.S. at 13; Rotary, 481 U.S. at 548; Jaycees, 468 U.S. at 627.
70. See, e.g., New York State Club Ass'n, 487 U.S. at 13.
71. Justice O'Connor's approach in Jaycees, see supra note 51, although considered superior by several commentators, see, e.g., Linder, supra note 24, at 1896-97; Soifer, supra note 25, at 655-56, probably provides no more protection for a private club's control over its membership than does the majority's approach. The critical difficulty with Justice O'Connor's approach is that private social clubs seem to fall wholly outside her framework for protecting expressive association. The dichotomy between commercial and expressive associations, although useful in many contexts, is essentially a false one. Just as some groups, such as media outlets, are both entirely expressive and entirely commercial, many groups are neither expressive nor commercial. The vast majority of private social clubs, the main parties currently seeking protection for their discriminatory membership policies, fall into the latter category.
72. See Jaycees, 468 U.S. at 626-27.
73. In City of Dallas v. Stanglin, 490 U.S. 19 (1989), the Court rejected the idea that purely social interaction could be protected as expressive association when it upheld a Dallas law that created a class of dance halls exclusively for minors. The Court said that opportunities for minors to dance with adults "simply do not involve the sort of expressive association that the First Amendment has been held to protect." Id. at 24.
74. See, e.g., IDK, Inc. v. County of Clark, 836 F.2d 1185, 1192-93 (9th Cir. 1988); Easterbrook, Implicit and Explicit Rights of Association, 10 HARV. J.L. & PUB. POL'Y 91, 91 (1987); Soifer, supra note 25, at 655.
75. Karst, The Freedom of Intimate Association, 89 YALE L.J. 624, 625 (1980).
76. See Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 750-70 (1989). Commentators have frequently noted that privacy cases tend to center around sexuality, see, e.g., id. at 744, but in light of Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld a Georgia antisodomy law as applied to two consenting adult men in their own home, this explanation is no longer satisfactory. Other explanations have tended to emphasize the concept of "personhood," a right to make the fundamental choices that define one's personality, see, e.g., Craven, Personhood: The Right to Be Let Alone, 1976 DUKE L.J. 699, but this explanation is subject to severe logical infirmities, see Rubenfeld, supra, at 754-70. Still others have argued on classic libertarian grounds that privacy is grounded in autonomy, the right to engage in self-regarding acts that do no material harm to others. See, e.g., Feinberg, Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?, 58 NOTRE DAME L. REV. 445, 486 (1983). In light of the wide variety of moral legislation the constitutionality of which seems secure, see, e.g., Bowers, 478 U.S. at 196, this account has little explanatory power. The Court itself appears to have abandoned all pretense of searching for a unifying principle and has simply described privacy doctrine in terms of the discrete contexts in which privacy holdings have occurred: privacy deals with "child rearing and education; with family relationships; with procreation; with marriage; with contraception; and with abortion." Id. at 190 (citations omitted).
77. See Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 750-70 (1989). Commentators have frequently noted that privacy cases tend to center around sexuality, see, e.g., id. at 744, but in light of Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld a Georgia antisodomy law as applied to two consenting adult men in their own home, this explanation is no longer satisfactory. Other explanations have tended to emphasize the concept of "personhood," a right to make the fundamental choices that define one's personality, see, e.g., Craven, Personhood: The Right to Be Let Alone, 1976 DUKE L.J. 699, but this explanation is subject to severe logical infirmities, see Rubenfeld, supra, at 754-70. Still others have argued on classic libertarian grounds that privacy is grounded in autonomy, the right to engage in self-regarding acts that do no material harm to others. See, e.g., Feinberg, Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?, 58 NOTRE DAME L. REV. 445, 486 (1983). In light of the wide variety of moral legislation the constitutionality of which seems secure, see, e.g., Bowers, 478 U.S. at 196, this account has little explanatory power. The Court itself appears to have abandoned all pretense of searching for a unifying principle and has simply described privacy doctrine in terms of the discrete contexts in which privacy holdings have occurred: privacy deals with "child rearing and education; with family relationships; with procreation; with marriage; with contraception; and with abortion." Id. at 190 (citations omitted).
78. See Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 750-70 (1989). Commentators have frequently noted that privacy cases tend to center around sexuality, see, e.g., id. at 744, but in light of Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld a Georgia antisodomy law as applied to two consenting adult men in their own home, this explanation is no longer satisfactory. Other explanations have tended to emphasize the concept of "personhood," a right to make the fundamental choices that define one's personality, see, e.g., Craven, Personhood: The Right to Be Let Alone, 1976 DUKE L.J. 699, but this explanation is subject to severe logical infirmities, see Rubenfeld, supra, at 754-70. Still others have argued on classic libertarian grounds that privacy is grounded in autonomy, the right to engage in self-regarding acts that do no material harm to others. See, e.g., Feinberg, Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?, 58 NOTRE DAME L. REV. 445, 486 (1983). In light of the wide variety of moral legislation the constitutionality of which seems secure, see, e.g., Bowers, 478 U.S. at 196, this account has little explanatory power. The Court itself appears to have abandoned all pretense of searching for a unifying principle and has simply described privacy doctrine in terms of the discrete contexts in which privacy holdings have occurred: privacy deals with "child rearing and education; with family relationships; with procreation; with marriage; with contraception; and with abortion." Id. at 190 (citations omitted).
79. 478 U.S. 186 (1986).
80. Griswold v. Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, J., concurring) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).
81. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383 (1978); Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold, 381 U.S. at 480, 486; Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); see also Michael H. v. Gerald D., 491 U.S. 110, 123 (1989) (plurality opinion) (relying on "the historic respect - indeed, sanctity would not be too strong a term - traditionally accorded to the relationships that develop within the unitary family" to override the claims of a natural father to parental rights over his illegitimate child when the child was living with her legal Parents). Although it is true that Eisenstadt v. Baird, 405 U.S. 438 (1972), and Roe v. Wade, 410 U.S. 113 (1973), protect rights to contraception and abortion even outside the context of a traditional family or historically protected conduct, these decisions are best explained as protections of the choice to become a parent, the choice whether to start a family in the first place. see Eisenstadt, 405 U.S. at 453. As Justice Scalia wrote in Michael H., "[t]he family unit accorded traditional respect in our society . . . also includes the household of unmarried parents and their children." Michael H., 491 U.S. at 123 n.3.
82. See Cornelius v. Benevolent Protective Order of Elks, 382 F. Supp. 1182, 1202 (D. Conn. 1977); Note, supra note 11, at 436.
83. Cf. Village of Belle Terre v. Boraas, 416 U.S. 1, 8-9 (1974) (denying protection to unrelated individuals).
84. ; Kenneth Karst, for example, has identified four essential features of a constitutionally significant intimate relationship. These are "society," or physical access to another person; "caring and commitment," or the opportunity to fulfill one's needs to love and be loved; "intimacy," or a close and enduring relationship marked by informational privacy; and "self-identification," or the fact of a relationship being critical to one's identity. See Karst, supra note 66, at 630-37. Although almost all social associations will involve society and many will involve at least some degree of self-identification, it would be the rare club that fostered close and enduring love relationships between its members.
85. See, e.g., Pacific Mut. Ins. Co. v. Haslip, 111 S. Ct. 1032, 1043 (1991); Michael H., 491 U.S. at 122-23. Despite the conceptual difficulties with historical analysis, see L. TRIBE & M. DORF, ON READING THE CONSTITUTION 97-106 (1991), it is the most objective method yet devised for disciplining the Justices when they decide to place certain interests beyond the legislature's reach without relatively clear constitutional authority.
86. See Michael H., 491 U.S. at 122.
87. See, e.g., Haslip, in S. Ct. 1032.
88. Cf. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1053-56 (1984) (arguing that widespread and determined majorities of the people can, through legislative action, change prevailing understandings of the nation's fundamental law).
89. Cf. Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting) (citing Loving v. Virginia, 388 U.S. 1 (1967), as authority for the proposition that "neither history nor tradition could save a law prohibiting miscegenation from constitutional attack"). If the Court were to undertake a historical analysis of the rights of private social groups to discriminate, it would ond that the usual difficulties of historical analysis are particularly vexing. Plausible arguments could be made for and against a right of private club discrimination, depending upon the level of specificity used to define the relevant tradition and upon the time period on which the Court focused. Cf. Michael H., 491 U.S. at 127 n.6 (Scalia, J., joined by Rehnquist, CJ.) (arguing that the Court must focus on the most specific level at which a relevant tradition can be found).
90. Soifer, supra note 25, at 661.
91. Easterbrook, supra note 65, at 99.
92. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
93. A different conclusion might be reached in the context of federal legislation designed to ensure equal access for African-Americans. The thirteenth amendment empowers Congress to eliminate "slavery with all its badges and incidents." The Civil Rights Cases, 109 U.S. 3, 21 (1883). This amendment could be interpreted to authorize Congress to redress purely dignitary harms, even if that meant allowing the state to assume power within private social groups. See U.S. CONST, amend. XIII, § 2.
94. See, e.g., Bowers v. Hardwick, 478 U.S. 186, 196 (1986); Gertz v. Robert Welch, Inc., 418 U.S. 323, 345-46 (1974); Griswold v. Connecticut, 381 U.S. 479, 498 (1965) (Goldberg, J., concurring).
95. 85 See U.S. CONST, amend, 1 ("Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.").
96. See, e.g., Thomas v. Collins, 323 U.S. 516, 530 (1945); De Jonge v. Oregon, 299 U.S. 353, 365 (1937)
97. See, e.g., Presser v. Illinois, 116 U.S. 252, 267 (1886); United States v. Cruikshank, 92 U.S. 542, 552 (1876).
98. See, e.g., United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222-23 (1967); Thomas, 323 U.S. at 531-34.
99. See, e.g., Edwards v. South Carolina, 372 U.S. 229, 235-38 (1963); Thomas, 323 U.S. at 532-38.
100. See, e.g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761-65 (1976) (protecting commercial advertising); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58 (1975) (protecting musical theater).
101. Most commentators who have considered the possibility of protecting nonexpressive association under first amendment principles have rejected it. See, e.g., Emerson, supra note 6, at 27; Ingber, supra note 30, at 19; Marshall, Discrimination and the Right of Association, 81 Nw. U.L. REV. 68, 77-78 (1986). These commentators have presumed that first amendment protection for an association would have to be based on a theory that joining an association is itself a form of expression. See, e.g., Marshall, supra, at 77 (citing Lathrop v. Donohue, 367 U.S. 820, 882 (1961) (Douglas, J., dissenting) ("Joining is one method of expression.")). If joining an organization contains an implied assertion that the organization is worthy or just, however, every human action contains a similar, implicit assertion that the actor believes in it. If association were thus protected, "[t]he First Amendment would . . . be stretched to cover all our constitutional freedoms." Karst, supra note 66, at 654. But protection of the membership decisions of private associations under the first amendment need not rest on the premise that associating is communicating. The right of private associations to discriminate, which derives from the assembly clause, is an instrumental right; it secures basic values of pluralism against state orthodoxy.
102. 402 U.S. 611 (1971).
103. Id. at 615.
104. 364 U.S. 479 (1960).
105. Id. at 486-87.
106. Id. at 488.
107. Rubenfeld, supra note 67, at 807.
108. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 759-63, 772 (1986); Wooley v. Maynard, 430 U.S. 705, 715 (1977); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
109. See Texas v. Johnson, 491 U.S. 397, 414-18 (1989); Collin v. Smith, 578 F.2d 1197, 1206 (7th Cir.), cert, denied, 439 U.S. 916 (1978); see also L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 15-18, at 1410 (2d ed. 1988) ("[H]arms existing only in the eye or mind of the voluntary beholder cannot justify restricting otherwise protected behavior.").
110. Wooley, 430 U.S. at 717.
111. 102 See Sullivan, supra note 28, at 1721.
112. Bauer, The Grail of Equality, in AGAINST EQUALITY: READINGS ON ECONOMIC AND SOCIAL POLICY 360, 360 (W. Letwin ed. 1983) [hereinafter AGAINST EQUALITY].
113. See Broadrick v. Oklahoma, 413 U.S. 601, 612-13 (1973).
114. See Mapp v. Ohio, 367 U.S. 643, 655 (1961).
115. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943).
116. See, e.g., Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 549 (1987).
117. This issue of a right of private discrimination presents a conflict between civil liberties and civil rights similar to that presented by the current debate over "hate speech." See Keyes, Freedom Through Moral Education, 14 HARV. J.L. & PUB. POL'Y 165, 165 (1991).
118. See, e.g., Korematsu v. United States, 323 U.S. 214, 216 (1944).
119. See Roberts v. United States Jaycees, 468 U.S. 609, 625 (1984).
120. See, e.g., New York State Club Ass'n v. City of New York, 487 U.S. 1, 18-20 (1988) (O'Connor, J., concurring); Cornelius v. Benevolent Protective Order of the Elks, 382 F. Supp. 1182, 1204 (D. Conn. 1974); Linder, supra note 24, at 1880-81.
121. See United States Jaycees v. McClure, 709 F.2d 1560, 1572 (8th Cir. 1983) (stating that it is important to "clear the channels of commerce of the irrelevancy of sex"), rev'd sub nom. Roberts v. United States Jaycees, 468 U.S. 609 (1984).
122. Morain, Next Target: Sex Bias in Men's Clubs, L.A. Times, Nov. 15, 1985, pt. 1, at 1, col. 1 (quoting a letter from a state senator to the California Attorney General).
123. An emphasis on state interests rather than private rights, although not typical of the broad run of first amendment cases, is fully consonant with traditional first amendment jurisprudence. A number of important constitutional cases are best explained in terms of reining in impermissible state motivations. See City of Cleburne v. Cleburne Living Center, 473 U.S 432 (1985); Wallace v. Jaffree, 472 U.S. 38 (1985); Shapiro v. Thompson, 394 U.S. 618 (1969); Loving v. Virginia, 388 U.S. 1 (1967). Many of the privacy cases, as well, have their soundest explanations in the "remarkably weak" state interests supporting regulation. Linder, supra note 24, at 1886-87.
124. See Hishon v. King & Spalding, 467 U.S. 69, 78 (1984).
125. See New York State Club Ass'n v. City of New York, 487 U.S. 1, 19-20 (1988) (O'Connor, J., concurring).
126. Similarly, Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), which upheld a zoning ordinance that prevented six college students from living together in the village, see id. at 7-10, cannot be explained by the lack of associational interests. Instead, the holding springs from the Court's unwillingness to interfere with local zoning laws, see id. at 3-6, 9, broad discretion over which had been granted to local authorities by earlier cases, see Berman v. Parker, 348 U.S. 26, 32 (1954); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 394-95 (1926).
127. "'College years are very formative years, and students should not be taught the lesson that discrimination is acceptable and legitimate. It's important to stop the lesson by stopping the behavior.'" Goodstein, Raucous Tiger Inn and the Male Bonding, Thing, Wash. Post, Dec. 21, 1990, at A3, col. 1 (quoting Sally Frank).
128. In Cornelius v. The Benevolent Protective Order of the Elks, 382 F. Supp. 1182 (D. Conn. 1974), for instance, the District Court examined a fraternal order and concluded that "[t]he State's interest in prohibiting discrimination in this context seems far from compelling," id. at 1202. The Court found that the Elks were not important to economic success; rather, they were at most "'ludicrous, harmless, innocent, anachronistic, defensive, evanescent, [or] inconsequential.'" Id. at 1203 (quoting Bittker & Kaufman, Taxes and Civil Rights: Constitutionalizing the Internal Revenue Code, 82 YALE L.J. 51, 86 (1972)).
129. Goodstein, supra note 118, at A3, col. 1.
130. See, e.g., New York State Club Ass'n v. City of New York, 487 U.S. 1, 5-6 (1988) (citing the findings of the New York City Council that exclusive private clubs harm the business opportunities available to women and minorities); Note, supra note 15, at 1188-89; Note, supra note 1, at 119.
131. See O. ELLIOT, MEN AT THE TOP 166-67 (1959) (describing the congregation of steel and oil executives at the Duquesne Club and stating that "Pittsburgh would not be the production marvel it is without the exchange of information, techniques and ideas that takes place every noontime at the Duquesne"); see also Whitten v. Petroleum Club, 508 F. Supp. 765, 767 (W.D. La. 1981) (describing a club dedicated to serving the business needs of the oil industry but holding for the defendants due to a lack of state action).
132. See, e.g., Burns, supra note 1, at 381-84.
133. See Starr, supra note 26, at 68-69.
134. See Quindlen, Skullduggery, N.Y. Times, Apr. 18, 1991, at A25, col. 5 ("One moving-and-shaking woman groused constantly about the all-male Century Club, then had no interest in joining when the walls came tumbling down. 'Beside the point,' she said.").
135. See Roberts v. United States Jaycees, 468 U.S. 609, 612 (1984).
136. See id. at 639-40 (O'Connor, J., concurring in part and concurring in the judgment).
137. Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 546 (1987) (quoting 1 ROTARY BASIC LIBRARY: Focus ON ROTARY 60-61 (1981)).
138. See New York State Club Ass'n v. City of New York, 487 U.S. 1, 15 (1988).
139. Frank v. Ivy Club, 120 N.J. 73, 576 A.2d 241 (1990), cert, denied, 111 S. Ct. 799 (1991).
140. See Petition for a Writ of Certiorari at 3-4, Tiger Inn v. Frank, 111 S. Ct. 799 (1991) (No. 90-575).
141. Petitioner's Reply Memorandum in Further Support of Petition for a Writ of Certiorari and Application for Stay at 5, Tiger Inn (No. 90-575).
142. Petition for Writ of Certiorari at 3, Tiger Inn (No. 90-575).
143. See supra note 118.
144. The New Jersey Supreme Court required Tiger Inn to accept women members without even addressing the constitutional issue that Tiger had consistently pressed. The court relied on the "functional interdependence of the Clubs and the University" to hold that Tiger could be required to accept women. Frank v. Ivy Club, 120 N.J. 73, 108, 576 A.2d 241, 259 (1990), cert, denied, in S. Ct. 799 (1991).
145. Cf. Lucas, Against Equality Again, in AGAINST EQUALITY, supra note 103, at 73, 78 ("In an imperfect world inhabited by imperfect men, many things will go wrong, which are indubitably wrong, but which cannot be remedied except at the cost of much greater evils.").
146. Browne, Biology, Equality, and the Law: The Legal Significance of Biological Sex Differences, 38 Sw. L.J. 617, 687 (1984).