U.S. Supreme Court
BD. OF DIRS. OF ROTARY INT'L v. ROTARY CLUB, 481 U.S. 537 (1987)
481 U.S. 537
BOARD OF DIRECTORS OF ROTARY INTERNATIONAL ET AL. v. ROTARY CLUB OF DUARTE ET AL.
APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT
Argued March 30, 1987
Decided May 4, 1987
Rotary International is a nonprofit corporation composed of local Rotary Clubs. Its purposes are to provide
humanitarian service, to encourage high ethical standards in all vocations, and to help build world peace and
good will. Individuals are admitted to local club membership according to a "classification system" based on
business, professional, and institutional activity in the community. Although women are permitted to attend
meetings, give speeches, receive awards, and form auxiliary organizations, the Rotary constitution excludes
women from membership. Because it had admitted women to active membership, the Duarte, California,
Rotary Club's membership in the international organization was terminated. That club and two of its women
members filed a suit alleging that the termination violated California's Unruh Act (Act), which entitles all
regardless of sex, to full and equal accommodations, advantages, facilities, privileges, and services
business establishments in the State. The state trial court entered judgment for Rotary International,
that neither it nor the Duarte Club is a "business establishment" within the meaning of the Act.
State Court of Appeal reversed on this point, and rejected the contention that Rotary's policy of
women is protected by the First Amendment. Accordingly, the court ordered the Duarte Club's
and enjoined the enforcement of the gender requirements against it.
1. The Unruh Act does not violate the First Amendment by requiring California Rotary Clubs to admit women.
(a) Application of the Act to local Rotary Clubs does not interfere unduly with club members' freedom of private
association. In determining whether a particular association is sufficiently intimate or private to warrant
constitutional protection, consideration must be given to factors such as size, purpose, selectivity, and whether
others are excluded from critical aspects of the relationship. Here, the relationship among Rotary Club
members does not warrant protection, in light of the potentially large size of local clubs, the high turnover rate
among club members, the inclusive nature of each club's membership, the public purposes behind clubs'
service activities, and the fact that the clubs encourage the [481 U.S. 537, 538] participation of strangers in,
and welcome media coverage of, many of their central activities. Pp. 544-547.
(b) Application of the Act to California Rotary Clubs does not violate the First Amendment right of expressive
association. Although clubs engage in a variety of commendable service activities that are protected by the
First Amendment, the evidence fails to demonstrate that admitting women will affect in any significant way the
existing members' ability to carry out those activities. Moreover, the Act does not require clubs to abandon or
alter their classification and admission systems, but, in fact, will permit them to have an even more
representative membership with a broadened capacity for service. Even if the Act does work some slight
infringement of members' rights, that infringement is justified by the State's compelling interests in eliminating
discrimination against women and in assuring them equal access to public accommodations. The latter
extends to the acquisition of leadership skills and business contacts as well as tangible goods and
2. The contentions that the Act is unconstitutionally vague and overbroad were not properly presented to the
state courts, and therefore will not be reviewed by this Court. Pp. 549-550.
178 Cal. App. 3d 1035, 224 Cal. Rptr. 213, affirmed.
POWELL, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BRENNAN, WHITE,
MARSHALL, and STEVENS, JJ., joined. SCALIA, J., concurred in the judgment. BLACKMUN and
O'CONNOR, JJ., took no part in the consideration or decision of the case.
William P. Sutter argued the cause for appellants. With him on the briefs were Peter F. Lovato III and Wm.
Judith Resnik argued the cause for appellees. On the brief were Carol Agate, Sanford K. Smith, Blanche C.
Bersch, Paul Hoffman, and Fred Okrand.
Marian M. Johnston argued the cause for intervenor State of California. With her on the brief were John K. Van
de Kamp, Attorney General, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Beverly Tucker,
Deputy Attorney General.*
[Footnote *] Briefs of amici curiae urging reversal were filed for the Boy Scouts of America by Ronald C.
Redcay, George A. Davidson, and David K. Park; for the Conference of Private Organizations by Thomas P.
Ondeck; for the [481 U.S. 537, 539] Legal Foundation of America by Jean F. Powers and David Crump; and
Pilot Club International et al. by Stephen G. Seliger.
Briefs of amici curiae urging affirmance were filed for the State of Minnesota et al. by Hubert H. Humphrey III,
Attorney General of Minnesota, Richard S. Slowes, Assistant Solicitor General, and Peter M.
Special Assistant Attorney General, and for the Attorneys General for their respective States as follows:
I. Lieberman of Connecticut, Neil F. Hartigan of Illinois, William J. Guste of Louisiana, W. Cary
Edwards of New
Jersey, Anthony J. Celebrezze, Jr., of Ohio, Dave Frohnmayer of Oregon, Jim Mattox of
Texas, David L.
Wilkinson of Utah, and Donald S. Hanaway of Wisconsin; for the city of New York et al. by
Doron Gopstein and
Leonard Koerner; for the American Jewish Congress et al. by Marc D. Stern; for the
Anti-defamation League of
B'nai B'rith by Abigail T. Kelman, Justin J. Finger, Jeffrey P. Sinensky, Steven M.
Freeman, and Meyer
Eisenberg; for California Women Lawyers et al. by Lorraine L. Loder and Fredric D.
Woocher; for the Kiwanis
Club of Ridgewood, Inc., et al. by Marcia K. Baer; for the Lloyd Lyons Club by Marla
J. McGeorge and Allen T.
Murphy, Jr.; and for the Rotary Club of Seattle et al. by M. Margaret McKeown and
Eugene C. Chellis.
Joan M. Graff and Douglas R. Young filed a brief for the Employment Law Center of the Legal Aid Society of
San Francisco as amicus curiae. [481 U.S. 537, 539]
JUSTICE POWELL delivered the opinion of the Court.
We must decide whether a California statute that requires California Rotary Clubs to admit women members
violates the First Amendment.
Rotary International (International) is a nonprofit corporation founded in 1905, with headquarters in Evanston,
Illinois. It is "an organization of business and professional men united worldwide who provide humanitarian
service, encourage high ethical standards in all vocations, and help build goodwill and peace in the world."
Rotary Manual of Procedure 7 (1981) (hereinafter Manual), App. 35. Individual members belong to
Rotary Club rather than to International. In turn, each local Rotary Club is a member of International. Ibid. In
August 1982, shortly before the trial in this case, International [481 U.S. 537, 540] comprised 19,788 Rotary
Clubs in 157 countries, with a total membership of about 907,750. Brief for Appellants 7.
Individuals are admitted to membership in a Rotary Club according to a "classification system." The purpose
this system is to ensure "that each Rotary Club includes a representative of every worthy and recognized
business, professional, or institutional activity in the community." 2 Rotary Basic Library, Club Service 67-69
(1981), App. 86. Each active member must work in a leadership capacity in his business or profession. The
general rule is that "one active member is admitted for each classification, but he, in turn, may propose an
additional active member, who must be in the same business or professional classification."1 Id., at 7, App.
Thus, each classification may be represented by two active members. In addition, "senior active" and
service" members may represent the same classifications as active members. See Standard Rotary
Constitution, Art. V, 2-5, Record 97-98. There is no limit to the number of clergymen, journalists, or
who may be admitted to membership. Manual 31, 33, App. 38-39.
Subject to these requirements, each local Rotary Club is free to adopt its own rules and procedures for
admitting new members. Id., at 7, App. 35. International has promulgated Recommended Club By-laws
providing that candidates for membership will be considered by both a "classifications committee" and a
"membership committee." The classifications committee determines whether the candidate's business or
profession is described accurately and fits an "open" classification. The membership committee evaluates the
candidate's "character, business and social standing, and general [481 U.S. 537, 541] eligibility." Brief for
Appellants 7-8. If any member objects to the candidate's admission, the final decision is made by the club's
board of directors.
Membership in Rotary Clubs is open only to men. Standard Rotary Club Constitution, Art. V, 2, Record 97.
Herbert A. Pigman, the General Secretary of Rotary International, testified that the exclusion of women results
an "aspect of fellowship . . . that is enjoyed by the present male membership," App. to Juris. Statement
and also allows Rotary to operate effectively in foreign countries with varied cultures and social mores.
women are not admitted to membership, they are permitted to attend meetings, give speeches, and
awards. Women relatives of Rotary members may form their own associations, and are authorized to
Rotary lapel pin. Young women between 14 and 28 years of age may join Interact or
sponsored by Rotary International.
In 1977 the Rotary Club of Duarte, California, admitted Donna Bogart, Mary Lou Elliott, and Rosemary Freitag
to active membership. International notified the Duarte Club that admitting women members is contrary to the
Rotary constitution. After an internal hearing, International's board of directors revoked the charter of the
Club and terminated its membership in Rotary International. The Duarte Club's appeal to the
Convention was unsuccessful.
The Duarte Club and two of its women members filed a complaint in the California Superior Court for the
County of Los Angeles. The complaint alleged, inter alia, that appellants' actions violated the Unruh Civil
Act, Cal. Civ. Code Ann. 51 (West 1982).2 Appellees sought to enjoin [481 U.S. 537, 542] International
enforcing its restrictions against admitting women members, revoking the Duarte Club's charter, or
delivery of the charter to any representative of International. Appellees also sought a declaration
actions had violated the Unruh Act. After a bench trial, the court concluded that neither Rotary
the Duarte Club is a "business establishment" within the meaning of the Unruh Act. The court
"some individual Rotarians derive sufficient business advantage from Rotary to warrant
deduction of Rotarian
expenses in income tax calculations, or to warrant payment of those expenses by their
employers . . . ." App. to Juris. Statement B-3. But it found that "such business benefits are incidental to the
principal purposes of the
association . . . to promote fellowship . . . and . . . `service' activities." Ibid. The court
also found that Rotary clubs
do not provide their members with goods, services, or facilities. On the basis of
these findings and conclusions,
the court entered judgment for International.
The California Court of Appeal reversed. 178 Cal. App. 3d 1035, 224 Cal. Rptr. 213 (1986). It held that both
Rotary International and the Duarte Rotary Club are business establishments subject to the provisions of the
Unruh Act. For purposes of the Act, a "`business' embraces everything about which one can be employed,"
an "establishment" includes "not only a fixed location, . . . but also a permanent `commercial force or
organization' or a `permanent settled position (as in life or business).'" O'Connor v. Village Green Owners
Assn., 33 Cal. 3d 790, 795, 662 P.2d 427, 430 (1983) (quoting Burks v. Poppy Construction Co., 57 Cal. 2d
463, 468-469, 370 P.2d 313, 316 (1962)). The Court of Appeal identified several "businesslike attributes" of
Rotary International, including its complex structure, large staff and budget, and extensive [481 U.S. 537, 543]
publishing activities. The court held that the trial court had erred in finding that the business advantages
afforded by membership in a local Rotary Club are merely incidental. It stated that testimony by members of
Duarte Club "leaves no doubt that business concerns are a motivating factor in joining local clubs," and
"business benefits [are] enjoyed and capitalized upon by Rotarians and their businesses or employers."
Cal. App. 3d, at 1057, 224 Cal. Rptr., at 226. The Court of Appeal rejected the trial court's finding that the
Duarte Club does not provide goods, services, or facilities to its members. In particular, the court noted that
members receive copies of the Rotary magazine and numerous other Rotary publications, are entitled to wear
and display the Rotary emblem, and may attend conferences that teach managerial and professional
The court also held that membership in Rotary International or the Duarte Club does not give rise to a
"continuous, personal, and social" relationship that "take[s] place more or less outside public view." Ibid.
(internal quotation marks and citations omitted). The court further concluded that admitting women to the
Club would not seriously interfere with the objectives of Rotary International. Finally, the court rejected
appellants' argument that their policy of excluding women is protected by the First Amendment principles set
out in Roberts v. United States Jaycees, 468 U.S. 609 (1984). It observed that "[n]othing we have said
or can prevent, International from adopting or attempting to enforce membership rules or restrictions
this state." Id., at 1066, 224 Cal. Rptr., at 231. The court ordered appellants to reinstate the Duarte
Club as a
member of Rotary International, and permanently enjoined them from enforcing or attempting to
gender requirement against the Duarte Club.
The California Supreme Court denied appellants' petition for review. We postponed consideration of our
jurisdiction to the hearing on the merits. 479 U.S. 929 (1986). We [481 U.S. 537, 544] conclude that we have
appellate jurisdiction,3 and affirm the judgment of the Court of Appeal.
In Roberts v. United States Jaycees, supra, we upheld against First Amendment challenge a Minnesota
statute that required the Jaycees to admit women as full voting members. Roberts provides the framework for
analyzing appellants' constitutional claims. As we observed in Roberts, our cases have afforded constitutional
protection to freedom of association in two distinct senses. First, the Court has held that the Constitution
protects against unjustified government interference with an individual's choice to enter into and maintain
certain intimate or private relationships. Second, the Court has upheld the freedom of individuals to associate
for the purpose of engaging in protected speech or religious activities. In many cases, government
with one form of protected association will also burden the other form of association. In Roberts
the nature and degree of constitutional protection by considering separately the effect of the
action on individuals' freedom [481 U.S. 537, 545] of private association and their freedom of
association. We follow the same course in this case.4
The Court has recognized that the freedom to enter into and carry on certain intimate or private relationships is
a fundamental element of liberty protected by the Bill of Rights. Such relationships may take various forms,
including the most intimate. See Moore v. East Cleveland, 431 U.S. 494, 503-504 (1977) (plurality opinion).
have not attempted to mark the precise boundaries of this type of constitutional protection. The intimate
relationships to which we have accorded constitutional protection include marriage, Zablocki v. Redhail, 434
U.S. 374, 383-386 (1978); the begetting and bearing of children, Carey v. Population Services International,
431 U.S. 678, 684-686 (1977); child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510,
534-535 (1925); and cohabitation with relatives, Moore v. East Cleveland, supra, at 503-504. Of course, we
have not held that constitutional protection is restricted to relationships among family members. We have
emphasized that the First Amendment protects those relationships, including family relationships, that
presuppose "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." Roberts v. United States Jaycees, supra, at 619-620. But in Roberts we observed that
"[d]etermining the limits of state authority over an individual's freedom to enter into a particular association . . .
unavoidably entails a careful [481 U.S. 537, 546] assessment of where that relationship's objective
characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments."
468 U.S., at 620 (citing Runyon v. McCrary, 427 U.S. 160, 187-189 (1976) (POWELL, J., concurring)). In
determining whether a particular association is sufficiently personal or private to warrant constitutional
protection, we consider factors such as size, purpose, selectivity, and whether others are excluded from
aspects of the relationship. 468 U.S., at 620.
The evidence in this case indicates that the relationship among Rotary Club members is not the kind of
or private relation that warrants constitutional protection. The size of local Rotary Clubs ranges from
20 to more than 900. App. to Juris. Statement G-15 (deposition of Herbert A. Pigman, General
Rotary International). There is no upper limit on the membership of any local Rotary Club. About
10 percent of
the membership of a typical club moves away or drops out during a typical year. 2 Rotary Basic
Service 9-11 (1981), App. 88. The clubs therefore are instructed to "keep a flow of prospects
coming" to make
up for the attrition and gradually to enlarge the membership. Ibid. The purpose of Rotary "is
to produce an
inclusive, not exclusive, membership, making possible the recognition of all useful local
enabling the club to be a true cross section of the business and professional life of the
community." 1 Rotary
Basic Library, Focus on Rotary 60-61 (1981), App. 84. The membership undertakes a
variety of service
projects designed to aid the community, to raise the standards of the members' businesses
and to improve international relations.5 Such an inclusive [481 U.S. 537, 547] "fellowship for
service based on
diversity of interest," ibid., however beneficial to the members and to those they serve, does
not suggest the
kind of private or personal relationship to which we have accorded protection under the First
be sure, membership in Rotary Clubs is not open to the general public. But each club is
instructed to include in
its membership "all fully qualified prospective members located within its territory," to
avoid "arbitrary limits on
the number of members in the club," and to "establish and maintain a membership growth pattern." Manual 139,
Many of the Rotary Clubs' central activities are carried on in the presence of strangers. Rotary Clubs are
required to admit any member of any other Rotary Club to their meetings. Members are encouraged to invite
business associates and competitors to meetings. At some Rotary Clubs, the visitors number "in the tens and
twenties each week." App. to Juris. Statement G-24 (deposition of Herbert A. Pigman, General Secretary of
Rotary International). Joint meetings with the members of other organizations, and other joint activities, are
permitted. The clubs are encouraged to seek coverage of their meetings and activities in local newspapers. In
sum, Rotary Clubs, rather than carrying on their activities in an atmosphere of privacy, seek to keep their
"windows and doors open to the whole world," 1 Rotary Basic Library, Focus on Rotary 60-61 (1981), App.
We therefore conclude that application of the Unruh Act to local Rotary Clubs does not interfere unduly with
members' freedom of private association.6 [481 U.S. 537, 548]
The Court also has recognized that the right to engage in activities protected by the First Amendment implies
"a corresponding right to associate with others in pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends." Roberts v. United States Jaycees, 468 U.S., at 622. See NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 907-909, 932-933 (1982). For this reason, "[i]mpediments to the
exercise of one's right to choose one's associates can violate the right of association protected by the First
Amendment . . . ." Hishon v. King & Spalding, 467 U.S. 69, 80, n. 4 (1984) (POWELL, J., concurring) (citing
NAACP v. Button, 371 U.S. 415 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)). In this
case, however, the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any
significant way the existing members' ability to carry out their various purposes.
As a matter of policy, Rotary Clubs do not take positions on "public questions," including political or
international issues. Manual 115, App. 58-59. To be sure, Rotary Clubs engage in a variety of commendable
service activities that are protected by the First Amendment. But the Unruh Act does not require the clubs to
abandon or alter any of these activities. It does not require them to abandon their basic goals of humanitarian
service, high ethical standards in all vocations, good will, and peace. Nor does it require them to abandon their
classification system or admit members who do not reflect a cross section of the community. Indeed, by [481
U.S. 537, 549] opening membership to leading business and professional women in the community, Rotary
Clubs are likely to obtain a more representative cross section of community leaders with a broadened
Even if the Unruh Act does work some slight infringement on Rotary members' right of expressive association,
that infringement is justified because it serves the State's compelling interest in eliminating discrimination
against women. See Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam) (right of association may be limited
by state regulations necessary to serve a compelling interest unrelated to the suppression of ideas). On its
the Unruh Act, like the Minnesota public accommodations law we considered in Roberts, makes no
on the basis of the organization's viewpoint. Moreover, public accommodations laws "plainly
state interests of the highest order." 468 U.S., at 624. In Roberts we recognized that the
interest in assuring equal access to women extends to the acquisition of leadership skills
contacts as well as tangible goods and services. Id., at 626. The Unruh Act plainly serves this
therefore hold that application of the Unruh Act to California Rotary Clubs does not violate the
expressive association afforded by the First Amendment.8
Finally, appellants contend that the Unruh Act is unconstitutionally vague and overbroad. We conclude that
contentions were not properly presented to the state courts. [481 U.S. 537, 550] It is well settled that this
will not review a final judgment of a state court unless "the record as a whole shows either expressly or
implication that the federal claim was adequately presented in the state system." Webb v. Webb, 451
496-497 (1981). Appellants did not present the issues squarely to the state courts until they filed
for rehearing with the Court of Appeal. The court denied the petition without opinion. When "`"the
court has failed to pass upon a federal question, it will be assumed that the omission was due to
want of proper
presentation in the state courts, unless the aggrieved party in this Court can affirmatively show
Exxon Corp. v. Eagerton, 462 U.S. 176, 181, n. 3 (1983) (quoting Fuller v. Oregon, 417 U.S.
40, 50, n. 11
(1974) (in turn quoting Street v. New York, 394 U.S. 576, 582 (1969))). Appellants have made no
in this case.9
The judgment of the Court of Appeal of California is affirmed.
It is so ordered.
JUSTICE SCALIA concurs in the judgment.
JUSTICE BLACKMUN and JUSTICE O'CONNOR took no part in the consideration or decision of this case.
[Footnote 1] Rotary Clubs may establish separate classifications for subcategories of a business or
as long as the classification "describe[s] the member's principal and recognized professional
activity . . . ." 2
Rotary Basic Library, Club Service 8 (1981), App. 87. For example, a single Rotary Club may
and subcategories of lawyers: e. g., trial, corporate, tax, labor, and so on. Ibid.
[Footnote 2] The Unruh Civil Rights Act provides, in part:
"All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color,
religion, ancestry, or national origin [481 U.S. 537, 542] are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Cal.
Code Ann. 51 (West 1982).
[Footnote 3] We have appellate jurisdiction to review a final judgment entered by the highest court of a State in
which decision could be had "where is drawn in question the validity of a statute of any state on the ground of
being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its
validity." 28 U.S.C. 1257(2). Appellants squarely challenged the constitutionality of the Unruh Act, as applied,
and the Court of Appeal sustained the validity of the statute as applied. "We have held consistently that a state
statute is sustained within the meaning of 1257(2) when a state court holds it applicable to a particular set of
facts as against the contention that such application is invalid on federal grounds." Japan Line, Ltd. v. County
Los Angeles, 441 U.S. 434, 441 (1979) (citing Cohen v. California, 403 U.S. 15, 17-18 (1971); Warren
Post v. Arizona Tax Comm'n, 380 U.S. 685, 686, and n. 1 (1965); Bantam Books, Inc. v. Sullivan, 372
61, n. 3 (1963); Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 288-290 (1921)).
[Footnote 4] International, an association of thousands of local Rotary Clubs, can claim no constitutionally
protected right of private association. Moreover, its expressive activities are quite limited. See infra, at
548-549. Because the Court of Appeal held that the Duarte Rotary Club also is a business establishment
subject to the provisions of the Unruh Act, we proceed to consider whether application of the Unruh Act
the rights of members of local Rotary Clubs.
[Footnote 5] We of course recognize that Rotary Clubs, like similar organizations, perform useful and
community services. Rotary Clubs in the vicinity of the Duarte Club have provided meals and
the elderly, vocational guidance for high school students, a swimming program for
handicapped children, and
international exchange programs, among many other service activities. Record 217H-217J.
[Footnote 6] Appellants assert that we "approved" a distinction between the Jaycees and the Kiwanis Club in
Roberts v. United States Jaycees, 468 U.S. 609, 630 (1984). Brief for Appellants 21. Appellants misconstrue
Roberts. In that case we observed that the Minnesota court had suggested Kiwanis Clubs were outside the
scope of the State's public accommodations law. We concluded that this refuted the Jaycees' arguments that
the Minnesota statute was vague and overbroad. We did not consider whether the relationship among
members of the Kiwanis Club was sufficiently intimate or private to warrant constitutional protection. Similarly,
[481 U.S. 537, 548] we have no occasion in this case to consider the extent to which the First Amendment
protects the right of individuals to associate in the many clubs and other entities with selective membership
are found throughout the country. Whether the "zone of privacy" established by the First Amendment
a particular club or entity requires a careful inquiry into the objective characteristics of the particular
relationships at issue. Roberts v. United States Jaycees, supra, at 620. Cf. Moose Lodge No. 107 v. Irvis, 407
U.S. 163, 179-180 (1972) (Douglas, J., dissenting).
[Footnote 7] In 1980 women were reported to make up 40.6 percent of the managerial and professional labor
force in the United States. U.S. Department of Commerce, Statistical Abstract of the United States 400
[Footnote 8] Appellants assert that admission of women will impair Rotary's effectiveness as an international
organization. This argument is undercut by the fact that the legal effect of the judgment of the California Court
Appeal is limited to the State of California. See supra, at 543. Appellants' argument also is undermined by
fact that women already attend the Rotary Clubs' meetings and participate in many of their activities.
[Footnote 9] Appellants point to a passage in the brief they filed in the California Court of Appeal that quotes
this Court's opinion in NAACP v. Button, 371 U.S. 415, 435 (1963): "`It is enough [for unconstitutionality] that a
vague and broad statute lends itself to selective enforcement against unpopular causes.'" Brief for
Respondents in B001663 (Cal. Ct. App.), p. 26 (brackets in original) (quoted in Brief for Appellants 37-37).
quotation occurs in the course of an argument that the Unruh Act should be applied only to memberships
entities that are a vehicle for the public sale of goods, services, or commercial advantages. This casual
reference to a federal case, in the midst of an unrelated argument, is insufficient to inform a state court that it
has been presented with a claim subject to our appellate jurisdiction under 28 U.S.C. 1257(2). [481 U.S. 537,