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U.S. Supreme Court
ROBERTS v. UNITED STATES JAYCEES, 468 U.S. 609 (1984)
468 U.S. 609
ROBERTS, ACTING COMMISSIONER, MINNESOTA DEPARTMENT OF HUMAN RIGHTS, ET AL.
v. UNITED STATES JAYCEES
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 83-724.
Argued April 18, 1984
Decided July 3, 1984
Appellee United States Jaycees is a nonprofit national membership corporation whose objective, as stated in
its bylaws, is to pursue such educational and charitable purposes as will promote and foster the growth and
development of young men's civic organizations. The bylaws establish several classes of membership,
including individual regular and associate members and local chapters. Regular membership is limited to
young men between the ages of 18 and 35, while associate membership is available to persons ineligible for
regular membership, principally women and older men. An associate member may not vote or hold local or
national office. Two local chapters in Minnesota have been violating the bylaws for several years by admitting
women as regular members, and, as a result, have had a number of sanctions imposed on them by appellee,
including denying their members eligibility for state or national office. When these chapters were notified by
appellee that revocation of their charters was to be considered, members of both chapters filed discrimination
charges with the Minnesota Department of Human Rights, alleging that the exclusion of women from full
membership violated the Minnesota Human Rights Act (Act), which makes it "an unfair discriminatory practice
.
. . [t]o deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages,
and accommodations of a place of public accommodation because of race, color, creed, religion, disability,
national origin or sex." Before a hearing took place on the state charges, appellee brought suit against
appellant state officials to prevent enforcement of the Act, alleging that, by requiring appellee to accept women
as regular members, application of the Act would violate the male members' constitutional rights of free
speech
and association. Ultimately, a state hearing officer decided against appellee, and the District Court
certified to
the Minnesota Supreme Court the question whether appellee is "a place of public accommodation"
within the
meaning of the Act. That court answered the question in the affirmative, and, in the course of its
holding,
suggested that, unlike appellee, the Kiwanis Club might be sufficiently "private" to be outside the Act's
scope.
Appellee then amended its federal complaint to claim [468 U.S. 609, 610] that the Minnesota Supreme
Court's
interpretation of the Act rendered it unconstitutionally vague and overbroad. After trial, the District
Court entered
judgment in appellant's favor. The Court of Appeals reversed, holding that application of the Act
to appellee's
membership policies would produce a "direct and substantial" interference with appellee's
freedom of
association guaranteed by the First Amendment, and, in the alternative, that the Act was vague as
construed
and applied and hence unconstitutional under the Due Process Clause of the Fourteenth Amendment.
Held:
1. Application of the Act to appellee to compel it to accept women as regular members does not abridge
either
the male members' freedom of intimate association or their freedom of expressive association. Pp.
617-629.
(a) Several features of appellee's organization place it outside the category of highly personal relationships
entitled to constitutional protection against unjustified interference by the State. Local chapters are neither
small
nor selective, no criteria being employed for judging applicants for membership. Moreover, many of the
activities central to the formation and maintenance of the association of members with one another involve the
participation of strangers to that relationship, numerous nonmembers of both genders regularly participating in
a substantial portion of the activities. Accordingly, local chapters lack the distinctive characteristics that might
afford constitutional protection to their members' decision to exclude women. Pp. 618-622.
(b) Minnesota's compelling interest in eradicating discrimination against its female citizens, an interest
unrelated to the suppression of expression, justifies the impact that application of the Act to appellee may
have
on its male members' freedom of expressive association. By prohibiting gender discrimination in places
of
public accommodation, the Act protects the State's citizenry from a number of serious social and personal
harms. Assuring women equal access to the goods, privileges, and advantages of a place of public
accommodation clearly furthers compelling state interests. In applying the Act to appellee, the State has
advanced those interests through the least restrictive means of achieving its ends. There is no basis in the
record for concluding that admission of women as full voting members will impede appellee's ability to engage
in its constitutionally protected civic, charitable, lobbying, fundraising, and other activities or to disseminate its
preferred views. In any event, even if enforcement of the Act causes some incidental abridgment of appellee's
protected speech, that effect is not greater than necessary to accomplish the State's legitimate purposes. Pp.
622-629. [468 U.S. 609, 611]
2. The Act is not unconstitutionally vague and overbroad. The due process concerns of the void-for-vagueness
doctrine are not seriously implicated by the Act, either on its face or as construed in this case. The Minnesota
Supreme Court's construction of the Act by use of objective criteria typically employed in determining the
applicability of antidiscrimination statutes to the membership policies of assertedly private clubs, ensures that
the Act's reach is readily ascertainable. The contrast that court drew between appellee and the Kiwanis Club
also disposes of appellee's contention that the Act is unconstitutionally overbroad. That court's articulated
willingness to adopt limiting constructions that would exclude private groups from the Act's reach, together with
the commonly used and sufficiently precise standards it employed to determine that appellee is not such a
group, establishes that the Act, as construed, does not create an unacceptable risk of application to a
substantial amount of protected conduct. Pp. 629-631.
709 F.2d 1560, reversed.
BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, POWELL, and STEVENS,
JJ.,
joined, and in Parts I and III of which O'CONNOR, J., joined. O'CONNOR, J., filed an opinion concurring in
part
and concurring in the judgment, post, p. 631. REHNQUIST, J., concurred in the judgment. BURGER, C. J.,
and
BLACKMUN, J., took no part in the decision of the case.
Richard L. Varco, Jr., Special Assistant Attorney General of Minnesota, argued the cause for appellants. With
him on the briefs were Hubert H. Humphrey III, Attorney General, Kent G. Harbison, Chief Deputy Attorney
General, Thomas R. Muck, Deputy Attorney General, and Richard S. Slowes, Assistant Attorney General.
Carl D. Hall, Jr., argued the cause for appellee. With him on the brief was Clay R. Moore.*
[Footnote *] Briefs of amici curiae urging reversal were filed for the State of New York et al. by Robert Abrams,
Attorney General of New York, Lawrence S. Kahn, Rosemarie Rhodes, Shelley B. Mayer and Kim E. Greene,
Assistant Attorney General, John K. Van De Kamp, Attorney General of California, Andrea Sheridan Ordin,
Chief Assistant Attorney General, and Marian M. Johnston, Deputy Attorney General; for the Alliance for
Women Membership by Danielle E. deBenedictis; for the American Civil Liberties Union et al. by Laurence H.
Tribe, Burt Neuborne, Isabelle Katz [468 U.S. 609, 612] Pinzler, E. Richard Larson, and Charles S. Sims; for
Community Business Leaders by Eldon J. Spencer, Jr.; for the NAACP Legal Defense and Educational Fund,
Inc., by Jack Greenberg, Beth J. Lief, and Judith Reed; for the National League of Cities et al. by Lawrence R.
Velvel and Elaine D. Kaplan; for the National Organization for Women et al. by Judith I. Avner and Charlotte M.
Fischman; and for Women's Issues Network, Inc., by Neil H. Cogan.
Briefs of amici curiae urging affirmance were filed for the Boy Scouts of America by Philip A. Lacovara,
Malcolm E. Wheeler, George A. Davidson, and David K. Park; for the Conference of Private Organizations by
Leonard J. Henzke, Jr.; and for Rotary International by William P. Sutter and Wm. John Kennedy. [468 U.S.
609,
612]
JUSTICE BRENNAN delivered the opinion of the Court.
This case requires us to address a conflict between a State's efforts to eliminate gender-based discrimination
against its citizens and the constitutional freedom of association asserted by members of a private
organization. In the decision under review, the Court of Appeals for the Eighth Circuit concluded that, by
requiring the United States Jaycees to admit women as full voting members, the Minnesota Human Rights Act
violates the First and Fourteenth Amendment rights of the organization's members. We noted probable
jurisdiction, Gomez-Bethke v. United States Jaycees, 464 U.S. 1037 (1984), and now reverse.
I
A
The United States Jaycees (Jaycees), founded in 1920 as the Junior Chamber of Commerce, is a nonprofit
membership corporation, incorporated in Missouri with national headquarters in Tulsa, Okla. The objective of
the Jaycees, as set out in its bylaws, is to pursue
"such educational and charitable purposes as will promote and foster the growth and development of young
men's civic organizations in the United States, designed to inculcate in the individual membership of such
organization a spirit of genuine Americanism and civic interest, [468 U.S. 609, 613] and as a supplementary
education institution to provide them with opportunity for personal development and achievement and an
avenue for intelligent participation by young men in the affairs of their community, state and nation, and to
develop true friendship and understanding among young men of all nations." Quoted in Brief for Appellee 2.
The organization's bylaws establish seven classes of membership, including individual or regular members,
associate individual members, and local chapters. Regular membership is limited to young men between the
ages of 18 and 35, while associate membership is available to individuals or groups ineligible for regular
membership, principally women and older men. An associate members, whose dues are somewhat lower
than
those charged regular members, may not vote, hold local or national office, or participate in certain
leadership
training and awards programs. The bylaws define a local chapter as "[a]ny young men's
organization of good
repute existing in any community within the United States, organized for purposes similar
to and consistent with
those" of the national organization. App. to Juris. Statement A98. The ultimate policymaking authority of the
Jaycees rests with an annual national convention, consisting of delegates from each local chapter, with a
national president and board of directors. At the time of trial in August 1981, the
Jaycees had approximately
295,000 members in 7,400 local chapters affiliated with 51 state organizations. There were at that time about
11,915 associate members. The national organization's executive vice president estimated at trial that women
associate members make up about two percent of the Jaycees' total membership. Tr. 56.
New members are recruited to the Jaycees through the local chapters, although the state and national
organizations are also actively involved in recruitment through a variety of promotional activities. A new regular
member pays an initial fee followed by annual dues; in exchange, he is entitled [468 U.S. 609, 614] to
participate in all of the activities of the local, state, and national organizations. The national headquarters
employs a staff to develop "program kits" for use by local chapters that are designed to enhance individual
development, community development, and members' management skills. These materials include courses in
public speaking and personal finances as well as community programs related to charity, sports, and public
health. The national office also makes available to members a range of personal products, including travel
accessories, casual wear, pins, awards, and other gifts. The programs, products, and other activities of the
organization are all regularly featured in publications made available to the membership, including a magazine
entitled "Future."
B
In 1974 and 1975, respectively, the Minneapolis and St. Paul chapters of the Jaycees began admitting women
as regular members. Currently, the memberships and boards of directors of both chapters include a
substantial
proportion of women. As a result, the two chapters have been in violation of the national
organization's bylaws
for about 10 years. The national organization has imposed a number of sanctions on the
Minneapolis and St.
Paul chapters for violating the bylaws, including denying their members eligibility for state
or national office or
awards programs, and refusing to count their membership in computing votes at national
conventions.
In December 1978, the president of the national organization advised both chapters that a motion to revoke
their charters would be considered at a forthcoming meeting of the national board of directors in Tulsa. Shortly
after receiving this notification, members of both chapters filed charges of discrimination with the Minnesota
Department of Human Rights. The complaints alleged that the exclusion of women from full membership
required by the national organization's bylaws violated the Minnesota Human Rights Act (Act), which provides
in
part: [468 U.S. 609, 615]
"It is an unfair discriminatory practice:
"To deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and
accommodations of a place of public accommodation because of race, color, creed, religion, disability,
national origin or sex." Minn. Stat. 363.03, subd. 3 (1982).
The term "place of public accommodation" is defined in the Act as "a business, accommodation, refreshment,
entertainment, recreation, or transportation facility 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." 363.01, subd. 18.
After an investigation, the Commissioner of the Minnesota Department of Human Rights found probable cause
to believe that the sanctions imposed on the local chapters by the national organization violated the statute
and
ordered that an evidentiary hearing be held before a state hearing examiner. Before that hearing took
place,
however, the national organization brought suit against various state officials, appellants here, in the
United
States District Court for the District of Minnesota, seeking declaratory and injunctive relief to prevent
enforcement of the Act. The complaint alleged that, by requiring the organization to accept women as regular
members, application of the Act would violate the male members' constitutional rights of free speech and
association. With the agreement of the parties, the District Court dismissed the suit without prejudice, stating
that it could be renewed in the event the state administrative proceeding resulted in a ruling adverse to the
Jaycees.
The proceeding before the Minnesota Human Rights Department hearing examiner then went forward and,
upon its completion, the examiner filed findings of fact and conclusions of law. The examiner concluded that
the
Jaycees organization is a "place of public accommodation" within the Act and that it had engaged in an
unfair
discriminatory practice [468 U.S. 609, 616] by excluding women from regular membership. He ordered
the
national organization to cease and desist from discriminating against any member or applicant for
membership
on the basis of sex and from imposing sanctions on any Minnesota affiliate for admitting women.
Minnesota v.
United States Jaycees, No. HR-79-014-GB (Minn. Office of Hearing Examiners for the Dept. of
Human Rights,
Oct. 9, 1979) (hereinafter Report), App. to Juris. Statement A107-A109. The Jaycees then filed
a renewed
complaint in the District Court, which in turn certified to the Minnesota Supreme Court the question
whether the
Jaycees organization is a "place of public accommodation" within the meaning of the State's
Human Rights
Act. See App. 32.
With the record of the administrative hearing before it, the Minnesota Supreme Court answered that question
in
the affirmative. United States Jaycees v. McClure, 305 N. W. 2d 764 (1981). Based on the Act's legislative
history, the court determined that the statute is applicable to any "public business facility." Id., at 768. It then
concluded that the Jaycees organization (a) is a "business" in that it sells goods and extends privileges in
exchange for annual membership dues; (b) is a "public" business in that it solicits and recruits dues-paying
members based on unselective criteria; and (c) is a public business "facility" in that it conducts its activities at
fixed and mobile sites within the State of Minnesota. Id., at 768-774.
Subsequently, the Jaycees amended its complaint in the District Court to add a claim that the Minnesota
Supreme Court's interpretation of the Act rendered it unconstitutionally vague and overbroad. The federal suit
then proceeded to trial, after which the District Court entered judgment in favor of the state officials. United
States Jaycees v. McClure, 534 F. Supp. 766 (1982). On appeal, a divided Court of Appeals for the Eighth
Circuit reversed. United States Jaycees v. McClure, 709 F.2d 1560 (1983). The Court of Appeals determined
that, because "the advocacy of political [468 U.S. 609, 617] and public causes, selected by the membership,
is
a not insubstantial part of what [the Jaycees] does," the organization's right to select its members is
protected
by the freedom of association guaranteed by the First Amendment. Id., at 1570. It further decided
that
application of the Minnesota statute to the Jaycees' membership policies would produce a "direct and
substantial" interference with that freedom, id., at 1572, because it would necessarily result in "some change
in
the Jaycees' philosophical cast," id., at 1571, and would attach penal sanctions to those responsible for
maintaining the policy, id., at 1572. The court concluded that the State's interest in eradicating discrimination
is
not sufficiently compelling to outweigh this interference with the Jaycees' constitutional rights, because the
organization is not wholly "public," id., at 1571-1572, 1573, the state interest had been asserted selectively,
id.,
at 1573, and the antidiscrimination policy could be served in a number of ways less intrusive of First
Amendment freedoms, id., at 1573-1574.
Finally, the court held, in the alternative, that the Minnesota statute is vague as construed and applied and
therefore unconstitutional under the Due Process Clause of the Fourteenth Amendment. In support of this
conclusion, the court relied on a statement in the opinion of the Minnesota Supreme Court suggesting that,
unlike the Jaycees, the Kiwanis Club is "private" and therefore not subject to the Act. By failing to provide any
criteria that distinguish such "private" organizations from the "public accommodations" covered by the statute,
the Court of Appeals reasoned, the Minnesota Supreme Court's interpretation rendered the Act
unconstitutionally vague. Id., at 1576-1578.
II
Our decisions have referred to constitutionally protected "freedom of association" in two distinct senses. In
one
line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human
relationships must [468 U.S. 609, 618] 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.
The intrinsic and instrumental features of constitutionally protected association may, of course, coincide. In
particular, when the State interferes with individuals' selection of those with whom they wish to join in a
common endeavor, freedom of association in both of its forms may be implicated. The Jaycees contend that
this is such
a case. Still, the nature and degree of constitutional protection afforded freedom of association
may vary
depending on the extent to which one or the other aspect of the constitutionally protected liberty is at
stake in a
given case. We therefore find it useful to consider separately the effect of applying the Minnesota
statute to the
Jaycees on what could be called its members' freedom of intimate association and their freedom
of expressive
association.
A
The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must
afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of
sanctuary from unjustified interference by the State. E. g., Pierce v. Society of Sisters, 268 U.S. 510, 534-535
(1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Without precisely identifying every consideration that
may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have
played a critical role in the culture [468 U.S. 609, 619] and traditions of the Nation by cultivating and
transmitting
shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the
individual and the power of the State. See, e. g., Zablocki v. Redhail, 434 U.S. 374, 383-386 (1978); Moore v.
East Cleveland,
431 U.S. 494, 503-504 (1977) (plurality opinion); Wisconsin v. Yoder, 406 U.S. 205, 232
(1972); Griswold v. Connecticut, 381 U.S. 479, 482-485 (1965); Pierce v. Society of Sisters, supra, at 535.
See also Gilmore v.
City of Montgomery, 417 U.S. 556, 575 (1974); NAACP v. Alabama ex rel. Patterson, 357
U.S. 449, 460-462
(1958); Poe v. Ullman, 367 U.S. 497, 542-545 (1961) (Harlan, J., dissenting). Moreover,
the constitutional
shelter afforded such relationships reflects the realization that individuals draw much of their
emotional
enrichment from close ties with others. Protecting these relationships from unwarranted state
interference
therefore safeguards the ability independently to define one's identity that is central to any concept
of liberty.
See, e. g., Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Smith v. Organization of Foster Families,
431 U.S.
816, 844 (1977); Carey v. Population Services International, 431 U.S. 678, 684-686 (1977);
Cleveland Board
of Education v. LaFleur, 414 U.S. 632, 639-640 (1974); Stanley v. Illinois, 405 U.S. 645,
651-652 (1972);
Stanley v. Georgia, 394 U.S. 557, 564 (1969); Olmstead v. United States, 277 U.S. 438, 478
(1928) (Brandeis,
J., dissenting).
The personal affiliations that exemplify these considerations, and that therefore suggest some relevant
limitations on the relationships that might be entitled to this sort of constitutional protection, are those that
attend
the creation and sustenance of a family - marriage, e. g., Zablocki v. Redhail, supra; childbirth, e. g.,
Carey v. Population Services International, supra; the raising and education of children, e. g., Smith v.
Organization of Foster Families, supra; and cohabitation with one's relatives, e. g., Moore v. East Cleveland,
supra. Family relationships, by their nature, involve [468 U.S. 609, 620] deep attachments and commitments to
the
necessarily few other individuals with whom one shares not only a special community of thoughts,
experiences,
and beliefs but also distinctively personal aspects of one's life. Among other things, therefore,
they are
distinguished by such attributes as 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. As a general
matter, only
relationships with these sorts of qualities are likely to reflect the considerations that have led to an
understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association
lacking these qualities - such as a large business enterprise - seems remote from the concerns giving rise to
this constitutional protection. Accordingly, the Constitution undoubtedly imposes constraints on the State's
power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's
fellow employees. Compare Loving v. Virginia, 388 U.S. 1, 12 (1967), with Railway Mail Assn. v. Corsi, 326
U.S. 88, 93-94 (1945).
Between these poles, of course, lies a broad range of human relationships that may make greater or lesser
claims to constitutional protection from particular incursions by the State. Determining the limits of state
authority over an individual's freedom to enter into a particular association therefore unavoidably entails a
careful assessment of where that relationship's objective characteristics locate it on a spectrum from the most
intimate to the most attenuated of personal attachments. See generally Runyon v. McCrary, 427 U.S. 160,
187-189 (1976) (POWELL, J., concurring). We need not mark the potentially significant points on this terrain
with any precision. We note only that factors that may be relevant include size, purpose, policies, selectivity,
congeniality, and other characteristics that in a particular case may be pertinent. In this case, however, several
features of the Jaycees clearly place the organization outside of the category of relationships worthy of this
kind
of constitutional protection. [468 U.S. 609, 621]
The undisputed facts reveal that the local chapters of the Jaycees are large and basically unselective groups.
At
the time of the state administrative hearing, the Minneapolis chapter had approximately 430 members,
while the St. Paul chapter had about 400. Report, App. to Juris. Statement A-99, A-100. Apart from age and
sex, neither the national organization nor the local chapters employ any criteria for judging applicants for
membership, and new members are routinely recruited and admitted with no inquiry into their backgrounds.
See 1 Tr. of State Administrative Hearing 124-132, 135-136, 174-176. In fact, a local officer testified that he
could recall no instance in which an applicant had been denied membership on any basis other than age or
sex. Id., at 135. Cf. Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431, 438 91973) (organization
whose only selection criterion is race has "no plan or purpose of exclusiveness" that might make it a private
club exempt from federal civil rights statute); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 236 (1969)
(same); Daniel v. Paul, 395 U.S. 298, 302 (1969) (same). Furthermore, despite their inability to vote, hold
office, or receive certain awards, women affiliated with the Jaycees attend various meetings, participate in
selected projects, and engage in many of the organization's social functions. See Tr. 58. Indeed, numerous
nonmembers of both genders regularly participate in a substantial portion of activities central to
the decision of
many members to associate with one another, including many of the organization's various community
programs, awards ceremonies, and recruitment meetings. See, e. g., 305 N. W. 2d, at 772; Report, App. to
Juris. Statement A102, A103.
In short, the local chapters of the Jaycees are neither small nor selective. Moreover, much of the activity central
to the formation and maintenance of the association involves the participation of strangers to that relationship.
Accordingly, we conclude that the Jaycees chapters lack the distinctive characteristics that might afford
constitutional protection to the decision of its members to exclude women. We turn [468 U.S. 609, 622]
therefore to consider the extent to which application of the Minnesota statute to compel the Jaycees to accept
women infringes the group's freedom of expressive association.
B
An individual's freedom to speak, to worship, and to petition the government for the redress of grievances
could
not be vigorously protected from interference by the State unless a correlative freedom to engage in group
effort toward those ends were not also guaranteed. See, e. g., Citizens Against Rent Control/Coalition
for Fair Housing v. Berkeley, 454 U.S. 290, 294 (1981). According protection to collective effort on behalf of
shared
goals is especially important in preserving political and cultural diversity and in shielding dissident
expression
from suppression by the majority. See, e. g., Gilmore v. City of Montgomery, 417 U.S., at 575; Griswold v.
Connecticut, 381 U.S., at 482-485; NAACP v. Button, 371 U.S. 415, 431 (1963); NAACP v.
Alabama ex rel.
Patterson, 357 U.S., at 462. Consequently, we have long understood as implicit in the right to
engage in
activities protected by the First Amendment a corresponding right to associate with others in pursuit
of a wide
variety of political, social, economic, educational, religious, and cultural ends. See, e. g., NAACP v.
Claiborne
Hardware Co., 458 U.S. 886, 907-909, 932-933 (1982); Larson v. Valente, 456 U.S. 228, 244-246
(1982); In re
Primus, 436 U.S. 412, 426 (1978); Abood v. Detroit Board of Education, 431 U.S. 209, 231
(1977). In view of
the various protected activities in which the Jaycees engages, see infra, at 626-627, that
right is plainly
implicated in this case.
Government actions that may unconstitutionally infringe upon this freedom can take a number of forms. Among
other things, government may seek to impose penalties or withhold benefits from individuals because of their
membership in a disfavored group, e. g., Healy v. James, 408 U.S. 169, 180-184 (1972); it may attempt to
require disclosure of [468 U.S. 609, 623] the fact of membership in a group seeking anonymity, e. g., Brown v.
Socialist Workers '74 Campaign Committee, 459 U.S. 87, 91-92 (1982); and it may try to interfere with the
internal organization or affairs of the group, e. g., Cousins v. Wigoda, 419 U.S. 477, 487-488 (1975). By
requiring the Jaycees to admit women as full voting members, the Minnesota Act works an infringement of the
last type. 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. Such a regulation may impair the
ability of the original members to express only those views that brought them together. Freedom of association
therefore plainly presupposes a freedom not to associate. See Abood v. Detroit Board of Education, supra, at
234-235.
The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be
justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that
cannot be achieved through means significantly less restrictive of associational freedoms. E. g., Brown v.
Socialist Workers '74 Campaign Committee, supra, at 91-92; Democratic Party of United States v.
Wisconsin,
450 U.S. 107, 124 (1981); Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam); Cousins v.
Wigoda, supra, at
489; American Party of Texas v. White, 415 U.S. 767, 780-781 (1974); NAACP v. Button, supra, at 438;
Shelton v. Tucker, 364 U.S. 479, 486, 488 (1960). We are persuaded that Minnesota's
compelling interest in
eradicating discrimination against its female citizens justifies the impact that application
of the statute to the
Jaycees may have on the male members' associational freedoms.
On its face, the Minnesota Act does not aim at the suppression of speech, does not distinguish between
prohibited and permitted activity on the basis of viewpoint, and does not license enforcement authorities to
administer the statute on the basis of such constitutionally impressible criteria. See [468 U.S. 609, 624] also
infra, at 629-631. Nor does the Jaycees contend that the Act has been applied in this case for the purpose of
hampering the organization's ability to express its views. Instead, as the Minnesota Supreme Court explained,
the Act reflects the State's strong historical commitment to eliminating discrimination and assuring its citizens
equal access to publicly available goods and services. See 305 N. W. 2d, at 766-768. That
goal which is
unrelated to the suppression of expression, plainly serves compelling state interests of the highest order.
The Minnesota Human Rights Act at issue here is an example of public accommodations laws that were
adopted by some States beginning a decade before enactment of their federal counterpart, the Civil Rights
Act
of 1875, ch. 114, 18 Stat. 335. See Discrimination in Access to Public Places: A Survey of State and
Federal Accommodations Laws, 7 N. Y. U. Rev. L. & Soc. Change 215, 238 (1978) (hereinafter NYU Survey).
Indeed,
when this Court invalidated that federal statute in the Civil Rights Cases, 109 U.S. 3 (1883), it
emphasized the
fact that state laws imposed a variety of equal access obligations on public accommodations. Id., at 19, 25. In
response to that decision, many more States, including Minnesota, adopted statutes
prohibiting racial discrimination in public accommodations. These laws provided the primary means for
protecting the civil rights of historically disadvantaged groups until the Federal Government reentered the field
in 1957. See NYU Survey
239; Brief for State of New York et al. as Amici Curiae 1. Like many other States,
Minnesota has progressively
broadened the scope of its public accommodations law in the years since it was first enacted, both with respect
to the number and type of covered facilities and with respect to the groups against whom discrimination is
forbidden. See 305 N. W. 2d, at 766-768. In 1973, the Minnesota Legislature added discrimination on the
basis of sex to the types of conduct prohibited by the statute. Act of May 24, 1973,
ch. 729, 3, 1973 Minn. Laws
2164. [468 U.S. 609, 625]
By prohibiting gender discrimination in places of public accommodation, the Minnesota Act protects the
State's
citizenry from a number of serious social and personal harms. In the context of reviewing state actions
under the Equal Protection Clause, this Court has frequently noted that discrimination based on archaic and
overbroad
assumptions about the relative needs and capacities of the sexes forces individuals to labor under
stereotypical notions that often bear no relationship to their actual abilities. It thereby both deprives persons of
their individual dignity and denies society the benefits of wide participation in political, economic,
an cultural life. See, e. g., Heckler v. Mathews, 465 U.S. 728, 744-745 (1984); Mississippi University for Women
v Hogan, 458 U.S. 718, 723-726 (1982); Frontiero v. Richardson, 411 U.S. 677, 684-687 (1973) (plurality
opinion).
These concerns are strongly implicated with respect to gender discrimination in the allocation of
publicly
available goods and services. Thus, in upholding Title II of the Civil Rights Act of 1964, 78 Stat. 243,
42 U.S.C.
2000a, which forbids race discrimination in public accommodations, we emphasized that its
"fundamental
object . . . was to vindicate `the deprivation of personal dignity that surely accompanies denials
of equal access
to public establishments.'" Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 250
(1964). That
stigmatizing injury, and the denial of equal opportunities that accompanies it, is surely felt as
strongly by
persons suffering discrimination on the basis of their sex as by those treated differently because of
their race.
Nor is the state interest in assuring equal access limited to the provision of purely tangible goods and
services.
See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 609 (1982). A State
enjoys broad
authority to create rights of public access on behalf of its citizens. PruneYard Shopping Center v.
Robins, 447 U.S. 74, 81-88 (1980). Like many States and municipalities, Minnesota has adopted a functional
definition of
public accommodations that reaches various forms of public, quasi-commercial conduct. [468
U.S. 609, 626] See 305 N. W. 2d, at 768; Brief for National League of Cities et al. as Amici Curiae 15-16.
This expansive
definition reflects a recognition of the changing nature of the American economy and of the
importance, both to the individual and to society, of removing the barriers to economic advancement and
political and social integration that have historically plagued certain disadvantaged groups, including women.
See Califano v.
Webster, 430 U.S. 313, 317 (1977) (per curiam); Frontiero v. Richardson, supra, at 684-686.
Thus, in
explaining its conclusion that the Jaycees local chapters are "place[s] of public accommodations"
within the
meaning of the Act, the Minnesota court noted the various commercial programs and benefits
offered to
members and stated that "[l]eadership skills are `goods,' [and] business contacts and employment
promotions
are `privileges' and `advantages' . . . ." 305 N. W. 2d, at 772. Assuring women equal access to
such goods,
privileges, and advantages clearly furthers compelling state interests.
In applying the Act to the Jaycees, the State has advanced those interests through the least restrictive means
of
achieving its ends. Indeed, the Jaycees has failed to demonstrate that the Act imposes any serious burdens
on the male members' freedom of expressive association. See Hishon v. King & Spalding, 467 U.S. 69, 78
(1984)
(law firm "has not shown how its ability to fulfill [protected] function[s] would be inhibited by a
requirement that it consider [a woman lawyer] for partnership on her merits"); id., at 81 (POWELL, J.,
concurring); see also
Buckley v. Valeo, 424 U.S., at 71-74; American Party of Texas v. White, 415 U.S., at
790. To be sure, as the
Court of Appeals noted, a "not insubstantial part" of the Jaycees' activities constitutes
protected expression on
political, economic, cultural, and social affairs. 709 F.2d, at 1570. Over the years, the
national and local levels of
the organization have taken public positions on a number of diverse issues, see id.,
at 1569-1570; Brief for
Appellee 4-5, and members of the Jaycees regularly engage in a variety of [468 U.S.
609, 627] civic,
charitable, lobbying, fundraising, and other activities worthy of constitutional protection under
the First
Amendment, ibid., see, e. g., Village of Schaumburg v. Citizens for a Better Environment, 444 U.S.
620, 632
(1980). There is, however, no basis in the record for concluding that admission of women as full
voting
members will impede the organization's ability to engage in these protected activities or to disseminate
its
preferred views. The Act requires no change in the Jaycees' creed of promoting the interests of young men,
and
it imposes no restrictions on the organization's ability to exclude individuals with ideologies or
philosophies different from those of its existing members. Cf. Democratic Party of United States v. Wisconsin,
450 U.S., at
122 (recognizing the right of political parties to "protect themselves `from intrusion by those with
adverse
political principles'"). Moreover, the Jaycees already invites women to share the group's views and
philosophy
and to participate in much of its training and community activities. Accordingly, any claim that
admission of
women as full voting members will impair a symbolic message conveyed by the very fact that
women are not
permitted to vote is attenuated at best. Cf. Spence v. Washington, 418 U.S. 405 (1974);
Griswold v.
Connecticut, 381 U.S., at 483.
While acknowledging that "the specific content of most of the resolutions adopted over the years by the
Jaycees has nothing to do with sex," 709 F.2d, at 1571, the Court of Appeals nonetheless entertained the
hypothesis that women members might have a different view or agenda with respect to these matters
so that, if
they are allowed to vote, "some change in the Jaycees' philosophical cast can reasonably be expected,"
ibid. It
is similarly arguable that, insofar as the Jaycees is organized to promote the views of young men
whatever
those views happen to be, admission of women as voting members will change the message
communicated by
the group's speech because of the gender-based assumptions of the audience. Neither
supposition, however,
is supported by the record. In claiming that women might have a different [468 U.S. 609,
628] attitude about
such issues as the federal budget, school prayer, voting rights, and foreign relations, see
id., at 1570, or that the
organization's public positions would have a different effect if the group were not "a
purely young men's
association," the Jaycees relies solely on unsupported generalizations about the relative
interests and
perspectives of men and women. See Brief for Appellee 20-22, and n. 3. Although such
generalizations may or
may not have a statistical basis in fact with respect to particular positions adopted by
the Jaycees, we have
repeatedly condemned legal decisionmaking that relies uncritically on such assumptions. See, e. g., Palmore v.
Sidoti, 466 U.S. 429, 433-434 (1984); Heckler v. Mathews, 465 U.S., at 745. In the absence of a showing far
more substantial than that attempted by the Jaycees, we decline to indulge in the sexual stereotyping that
underlies appellee's contention that, by allowing women to vote, application of the Minnesota Act will change the
content or impact of the organization's speech. Compare Wengler v. Druggists Mutual Insurance Co., 446 U.S.
142, 151-152 (1980), with Schlesinger v. Ballard, 419 U.S. 498, 508 (1975).
In any event, even if enforcement of the Act causes some incidental abridgment of the Jaycees' protected
speech, that effect is no greater than is necessary to accomplish the State's legitimate purposes. As we have
explained, acts of invidious discrimination in the distribution of publicly available goods, services, and other
advantages cause unique evils that government has a compelling interest to prevent - wholly apart from the
point of view such conduct may transmit. Accordingly, like violence or other types of potentially expressive
activities that produce special harms distinct from their communicative impact, such practices are entitled to
no
constitutional protection. Runyon v. McCrary, 427 U.S., at 175-176. Compare NAACP v. Claiborne
Hardware
Co., 458 U.S., at 907-909 (peaceful picketing), with id., at 916 (violence). In prohibiting such
practices, the
Minnesota Act [468 U.S. 609, 629] therefore "responds precisely to the substantive problem
which legitimately
concerns" the State and abridges no more speech or associational freedom than is
necessary to accomplish
that purpose. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789, 810 (1984).
III
We turn finally to appellee's contentions that the Minnesota Act, as interpreted by the State's highest court, is
unconstitutionally vague and overbroad. The void-for-vagueness doctrine reflects the principle that "a statute
which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence
must necessarily guess at its meaning and differ as to its application, violates the first essential of due
process
of law." Connally v. General Construction Co., 269 U.S. 385, 391 (1926). The requirement that
government
articulate its aims with a reasonable degree of clarity ensures that state power will be exercised
only on behalf
of policies reflecting an authoritative choice among competing social values, reduces the
danger of caprice and
discrimination in the administration of the laws, enables individuals to conform their conduct to the
requirements
of law, and permits meaningful judicial review. See, e. g., Kolender v. Lawson, 461 U.S. 352, 357-358 (1983);
Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972); Giaccio v. Pennsylvania, 382 U.S. 399, 402-404
(1966).
We have little trouble concluding that these concerns are not seriously implicated by the Minnesota Act, either
on its face or as construed in this case. In deciding that the Act reaches the Jaycees, the Minnesota Supreme
Court used a number of specific and objective criteria - regarding the organization's size, selectivity,
commercial nature, and use of public facilities - typically employed in determining the applicability of state and
federal antidiscrimination statutes to the membership policies of assertedly private clubs. See, e. g., Nesmith
v.
Young Men's Christian Assn., 397 F.2d 96 [468 U.S. 609, 630] (CA4 1968); National Organization for
Women
v. Little League Baseball, Inc., 127 N. J. Super. 522, 318 A. 2d 33, aff'd mem., 67 N. J. 320, 338 A. 2d
198
(1974). See generally NYU Survey 223-224, 250-252. The Court of Appeals seemingly acknowledged
that the
Minnesota court's construction of the Act by use of these familiar standards ensures that the reach of
the statute
is readily ascertainable. It nevertheless concluded that the Minnesota court introduced a
constitutionally fatal
element of uncertainty into the statute by suggesting that the Kiwanis Club might be
sufficiently "private" to be
outside the scope of the Act. See 709 F.2d, at 1577. Like the dissenting judge in the
Court of Appeals,
however, we read the illustrative reference to the Kiwanis Club, which the record indicates
has a formal
procedure for choosing members on the basis of specific and selective criteria, as simply
providing a further
refinement of the standards used to determine whether an organization is "public" or
"private." See id., at 1582
(Lay, C. J., dissenting). By offering this counter-example, the Minnesota Supreme
Court's opinion provided the
statute with more, rather than less, definite content.
The contrast between the Jaycees and the Kiwanis Club drawn by the Minnesota court also disposes of
appellee's contention that the Act is unconstitutionally overbroad. The Jaycees argues that the statute is
"susceptible of sweeping and improper application," NAACP v. Button, 371 U.S., at 433, because it could be
used to restrict the membership decisions of wholly private groups organized for a wide variety of political,
religious, cultural, or social purposes. Without considering the extent to which such groups may be entitled to
constitutional protection from the operation of the Minnesota Act, we need only note that the Minnesota
Supreme Court expressly rejected the contention that the Jaycees should "be viewed analogously to private
organizations such as the Kiwanis International Organization." 305 N. W. 2d. at 771. The state court's
articulated willingness to adopt [468 U.S. 609, 631] limiting constructions that would exclude private groups
from the statute's reach, together with the commonly used and sufficiently precise standards it employed to
determine that the Jaycees is not such a group, establish that the Act, as currently construed, does not create
an unacceptable risk of application to a substantial amount of protected conduct. Cf. Erznoznik v. City of
Jacksonville, 422 U.S. 205, 216-217 (1975); NAACP v. Button, supra, at 434. See New York v. Ferber, 458
U.S. 747, 769, n. 24 (1982).
IV
The judgment of the Court of Appeals is
Reversed.
JUSTICE REHNQUIST concurs in the judgment.
THE CHIEF JUSTICE and JUSTICE BLACKMUN took no part in the decision of this case.
JUSTICE O'CONNOR, concurring in part and concurring in the judgment.
I join Parts I and III of the Court's opinion, which set out the facts and reject the vagueness and overbreadth
challenges to the Minnesota statute. With respect to Part II-A of the Court's opinion, I agree with the Court that
the Jaycees cannot claim a right of association deriving from this Court's cases concerning "marriage,
procreation, contraception, family relationships, and child rearing and education." Paul v. Davis, 424 U.S. 693,
713 (1976). Those cases, "while defying categorical description," ibid., identify certain zones of privacy in
which certain personal relationships or decisions are protected from government interference. Whatever the
precise scope of the rights recognized in such cases, they do not encompass associational rights of a
295,000-member organization whose activities are not "private" in any meaningful sense of that term. [468
U.S.
609, 632]
I part company with the Court over its First Amendment analysis in Part II-B of its opinion. I agree with the
Court
that application of the Minnesota law to the Jaycees does not contravene the First Amendment, but I
reach that
conclusion for reasons distinct from those offered by the Court. I believe the Court has adopted a
test that
unadvisedly casts doubt on the power of States to pursue the profoundly important goal of ensuring
nondiscriminatory access to commercial opportunities in our society. At the same time, the Court has adopted
an approach to the general problem presented by this case that accords insufficient protection to expressive
associations and places inappropriate burdens on groups claiming the protection of the First Amendment.
I
The Court analyzes Minnesota's attempt to regulate the Jaycees' membership using a test that I find both
overprotective of activities undeserving of constitutional shelter and underprotective of important First
Amendment concerns. The Court declares that the Jaycees' right of association depends on the organization's
making a "substantial" showing that the admission of unwelcome members "will change the message
communicated by the group's speech." See ante, at 626-628. I am not sure what showing the Court thinks
would satisfy its requirement of proof of a membership-message connection, but whatever it means, the focus
on such a connection is objectionable.
Imposing such a requirement, especially in the context of the balancing-of-interests test articulated by the
Court, raises the possibility that certain commercial associations, by engaging occasionally in certain kinds of
expressive activities, might improperly gain protection for discrimination. The Court's focus raises other
problems as well. How are we to analyze the First Amendment associational claims of an organization that
invokes its right, settled by the Court in [468 U.S. 609, 633] NAACP v. Alabama ex rel. Patterson, 357 U.S.
449, 460-466 (1958), to protect the privacy of its membership? And would the Court's analysis of this case be
different if, for example, the Jaycees membership had a steady history of opposing public issues thought (by
the Court) to be favored by women? It might seem easy to conclude, in the latter case, that the admission of
women to the Jaycees' ranks would affect the content of the organization's message, but I do not believe that
should change the outcome of this case. Whether an association is or is not constitutionally protected in the
selection of its membership should not depend on what the association says or why its members say it.
The Court's readiness to inquire into the connection between membership and message reveals a more
fundamental flaw in its analysis. The Court pursues this inquiry as part of its mechanical application of a
"compelling interest" test, under which the Court weighs the interests of the State of Minnesota in ending
gender discrimination against the Jaycees' First Amendment right of association. The Court entirely neglects
to establish at the threshold that the Jaycees is an association whose activities or purposes should engage
the
strong protections that the First Amendment extends to expressive associations.
On the one hand, an association engaged exclusively in protected expression enjoys First Amendment
protection of both the content of its message and the choice of its members. Protection of the message itself
is
judged by the same standards as protection of speech by an individual. Protection of the association's right
to
define its membership derives from the recognition that the formation of an expressive association is the
creation of a voice, and the selection of members is the definition of that voice. "In the realm of protected
speech, the legislature is constitutionally disqualified from dictating . . . the speakers who may address a
public
issue." First National Bank of Boston v. Bellotti, 435 U.S. 765, 784-785 (1978); Police Dept. of Chicago
v.
Mosley, [468 U.S. 609, 634] 408 U.S. 92, 96 (1972). A ban on specific group voices on public affairs
violates
the most basic guarantee of the First Amendment - that citizens, not the government, control the
content of
public discussion.
On the other hand, there is only minimal constitutional protection of the freedom of commercial association.
There are, of course, some constitutional protections of commercial speech - speech intended and used to
promote a commercial transaction with the speaker. But the State is free to impose any rational regulation on
the commercial transaction itself. The Constitution does not guarantee a right to choose employees,
customers,
suppliers, or those with whom one engages in simple commercial transactions, without restraint
from the State.
A shopkeeper has no constitutional right to deal only with persons of one sex.
The dichotomy between rights of commercial association and rights of expressive association is also found in
the more limited constitutional protections accorded an association's recruitment and solicitation activities and
other dealings with its members and the public. Reasonable, content-neutral state regulation of the time, place,
and manner of an organization's relations with its members or with the State can pass constitutional muster,
but
only if the regulation is "narrowly drawn" to serve a "sufficiently strong, subordinating interest" "without
unnecessarily interfering with First Amendment freedoms." Village of Schaumburg v. Citizens for a Better
Environment, 444 U.S. 620, 636-637 (1980); see Secretary of State of Maryland v. Joseph H. Munson Co.,
467
U.S. 947, 960-961 (1984). Thus, after careful scrutiny, we have upheld regulations on matters such as the
financial dealings between an association and its members, see Buckley v. Valeo, 424 U.S. 1, 25 (1976),
disclosure of membership lists to the State, see NAACP v. Alabama, supra, at 463; Shelton v. Tucker, 364
U.S.
479, 486 (1960), access to the ballot, time limits on registering before elections, and similar matters,
see, e. g.,
Rosario v. Rockefeller, 410 U.S. 752 (1973); Dunn [468 U.S. 609, 635] v. Blumstein, 405 U.S. 330
(1972);
Bullock v. Carter, 405 U.S. 134 (1972); Jenness v. Fortson, 403 U.S. 431 (1971); Williams v. Rhodes,
393 U.S.
23 (1968). See also Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640,
649 (1981).
By contrast, an organization engaged in commercial activity enjoys only minimal constitutional
protection of its
recruitment, training, and solicitation activities. While the Court has acknowledged a First
Amendment right to
engage in nondeceptive commercial advertising, governmental regulation of the commercial recruitment of new
members, stockholders, customers, or employees is valid if rationally related to the government's ends.
Many associations cannot readily be described as purely expressive or purely commercial. No association is
likely ever to be exclusively engaged in expressive activities, if only because it will collect dues from its
members or purchase printing materials or rent lecture halls or serve coffee and cakes at its meetings. And
innumerable commercial associations also engage in some incidental protected speech or advocacy. The
standard for deciding just how much of an association's involvement in commercial activity is enough to
suspend the association's First Amendment right to control its membership cannot, therefore, be articulated
with simple precision. Clearly the standard must accept the reality that even the most expressive of
associations is likely to touch, in some way or other, matters of commerce. The standard must nevertheless
give substance to the ideal of complete protection for purely expressive association, even while it readily
permits state regulation of commercial affairs.
In my view, an association should be characterized as commercial, and therefore subject to rationally related
state regulation of its membership and other associational activities, when, and only when, the association's
activities are not predominantly of the type protected by the First Amendment. It is only when the association is
predominantly engaged in protected expression that state regulation of its [468 U.S. 609, 636] membership
will
necessarily affect, change, dilute, or silence one collective voice that would otherwise be heard. An
association
must choose its market. Once it enters the marketplace of commerce in any substantial degree it
loses the
complete control over its membership that it would otherwise enjoy if it confined its affairs to the
marketplace of
ideas.
Determining whether an association's activity is predominantly protected expression will often be difficult, if
only
because a broad range of activities can be expressive. It is easy enough to identify expressive words or
conduct that are strident, contentious, or divisive, but protected expression may also take the form of quiet
persuasion, inculcation of traditional values, instruction of the young, and community service. Cf. Pierce v.
Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). The purposes of an
association, and the purposes of its members in adhering to it, are doubtless relevant in determining whether
the association is primarily engaged in protected expression. Lawyering to advance social goals may be
speech, NAACP v. Button, 371 U.S. 415, 429-430 (1963), but ordinary commercial law practice is not, see
Hishon v. King & Spalding, 467 U.S. 69 (1984). A group boycott or refusal to deal for political purposes may
be
speech, NAACP v. Claiborne Hardware Co., 458 U.S. 886, 912-915 (1982), though a similar boycott for
purposes of maintaining a cartel is not. Even the training of outdoor survival skills or participation in community
service might become expressive when the activity is intended to develop good morals, reverence, patriotism,
and a desire for self-improvement.* [468 U.S. 609, 637]
The considerations that may enter into the determination of when a particular association of persons is
predominantly engaged in expression are therefore fluid and somewhat uncertain. But the Court has
recognized
the need to draw similar lines in the past. Two examples, both addressed in cases decided this
Term, stand
out.
The first concerns claims of First Amendment protection made by lawyers. On the one hand, some lawyering
activity is undoubtedly protected by the First Amendment. "[C]ollective activity undertaken to obtain meaningful
access to the courts is a fundamental right within the protection of the First Amendment." In re Primus, 436
U.S. 412, 426 (1978); see NAACP v. Button, supra, at 429-430. On the other hand, ordinary law practice for
commercial ends has never been given special First Amendment protection. "A lawyer's procurement of
remunerative employment is a subject only marginally affected with First Amendment concerns." Ohralik v.
Ohio
State Bar Assn., 436 U.S. 447, 459 (1978). We emphasized this point only this Term in Hishon v. King &
Spalding, supra, where we readily rejected a large commercial law firm's claim to First Amendment protection
for alleged gender-based discriminatory partnership decisions for associates of the firm. We found no need to
inquire into any connection between gender as a condition of partnership and the speech of the law firm, and
we undertook no weighing of "compelling" state interests against the speech interests of the law firm. As a
commercial enterprise, the law firm could claim no First Amendment immunity from employment discrimination
laws, and that result would not have been altered by a showing that the firm engaged even in a substantial
amount of activity entitled to First Amendment protection.
We have adopted a similar analysis in our cases concerning association with a labor union. A State is free to
impose rational regulation of the membership of a labor union representing "the general business needs of
employees." Railway [468 U.S. 609, 638] Mail Assn. v. Corsi, 326 U.S. 88, 94 (1945) (emphasis added). The
State may not, on the other hand, compel association with a union engaged in ideological activities. Abood v.
Detroit Board of Education, 431 U.S. 209, 236 (1977). The Court has thus ruled that a State may compel
association for the commercial purposes of engaging in collective bargaining, administering labor contracts,
and adjusting employment-related grievances, but it may not infringe on associational rights involving
ideological or political associations. Ibid. We applied this distinction in Ellis v. Railway Clerks, 466 U.S. 435
(1984), decided this Term. Again, the constitutional inquiry is not qualified by any analysis of governmental
interests and does not turn on an individual's ability to establish disagreement with the particular views
promulgated by the union. It is enough if the individual simply expresses unwillingness to be associated with
the
union's ideological activities.
In summary, this Court's case law recognizes radically different constitutional protections for expressive and
nonexpressive associations. The First Amendment is offended by direct state control of the membership of a
private organization engaged exclusively in protected expressive activity, but no First Amendment interest
stands in the way of a State's rational regulation of economic transactions by or within a commercial
association. The proper approach to analysis of First Amendment claims of associational freedom is,
therefore, to distinguish nonexpressive from expressive associations and to recognize that the former lack the
full constitutional protections possessed by the latter.
II
Minnesota's attempt to regulate the membership of the Jaycees chapters operating in that State presents a
relatively easy case for application of the expressive-commercial dichotomy. Both the Minnesota Supreme
Court and the United States District Court, which expressly adopted the state [468 U.S. 609, 639] court's
findings, made findings of fact concerning the commercial nature of the Jaycees' activities. The Court of
Appeals, which disagreed with the District Court over the legal conclusions to be drawn from the facts, did not
dispute any of those findings. United States Jaycees v. McClure, 709 F.2d 1560 (CA8 1983). "The Jaycees is
not a political party, or even primarily a political pressure group, but the advocacy of political and public
causes,
selected by the membership, is a not insubstantial part of what it does. . . . [A] good deal of what the
[Jaycees]
does indisputably comes within the right of association . . . in pursuance of the specific ends of
speech, writing,
belief, and assembly for redress of grievances." Id., at 1570.
There is no reason to question the accuracy of this characterization. Notwithstanding its protected expressive
activities, the Jaycees - otherwise known as the Junior Chamber of Commerce - is, first and foremost, an
organization that, at both the national and local levels, promotes and practices the art of solicitation and
management. The organization claims that the training it offers its members gives them an advantage in
business, and business firms do indeed sometimes pay the dues of individual memberships for their
employees. Jaycees members hone their solicitation and management skills, under the direction and
supervision of the organization, primarily through their active recruitment of new members. "One of the major
activities of the Jaycees is the sale of memberships in the organization. It encourages continuous recruitment
of
members with the expressed goal of increasing membership . . . . The Jaycees itself refers to its members
as
customers and membership as a product it is selling. More than 80 percent of the national officers' time is
dedicated to recruitment, and more than half of the available achievement awards are in part conditioned on
achievement in recruitment." United States Jaycees v. McClure, 534 F. Supp. 766, 769 (Minn. 1982). The
organization encourages record-breaking performance in selling memberships: the [468 U.S. 609, 640]
current
records are 348 for most memberships sold in a year by one person, 134 for most sold in a month, and
1,586
for most sold in a lifetime.
Recruitment and selling are commercial activities, even when conducted for training rather than for profit. The
"not insubstantial" volume of protected Jaycees activity found by the Court of Appeals is simply not enough to
preclude state regulation of the Jaycees' commercial activities. The State of Minnesota has a legitimate
interest
in ensuring nondiscriminatory access to the commercial opportunity presented by membership in the
Jaycees.
The members of the Jaycees may not claim constitutional immunity from Minnesota's
antidiscrimination law by
seeking to exercise their First Amendment rights through this commercial organization.
For these reasons, I agree with the Court that the Jaycees' First Amendment challenge to the application of
Minnesota's public accommodations law is meritless. I therefore concur in Parts I and III of the Court's opinion
and in the judgment.
[Footnote *] See, e. g., Girl Scouts of the U.S. A., You Make the Difference (1980); W. Hillcourt, The Official
Boy
Scout Handbook (1979); P. Fussell, The Boy Scout Handbook and Other Observations 7-8 (1982) ("The
Official Boy Scout Handbook, for all its focus on Axmanship, Backpacking, Cooking, First Aid, Flowers,
Hiking,
Map and Compass, Semaphore, Trees, and Weather, is another book about goodness. No home, and
certainly no government office, should be without a copy"). [468 U.S. 609, 641]
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