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Membership rules – “Private Organization” Supreme Court Cases

“Private Organization” Supreme Court cases

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)

Roberts v. United States Jaycees, 468 U.S. 609 (1984)


Bd. Of Dirs. of Rotary Int’l v. Rotary Club, 481 U.S. 537 (1987)


New York State Club Assn. v. New York City, 487 U.S. 1 (1988)

Club Assn

Boy Scouts of America et al. v. Dale (2000) 


Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) 


Appellee Irvis, a Negro guest of a member of appellant, a private club, was refused service at the club’s dining room and bar solely because of his race. In suing for injunctive relief, appellee contended that the discrimination was state action, and thus a violation of the Equal Protection Clause of the Fourteenth Amendment, because the Pennsylvania liquor board had issued appellant a private club liquor license. The District Court found appellant’s membership and guest practices discriminatory, agreed with appellee’s view that state action was present, and declared the liquor license invalid as long as appellant continued its discriminatory practices. Appellant’s motion to have the final decree limited to its guest policy was opposed by appellee, and the court denied the motion. Following the District Court’s decision, the applicable bylaws were amended to exclude as guests those who would be excluded as members.


The operation of Pennsylvania’s regulatory scheme enforced by the state liquor board does not sufficiently implicate the State in appellant’s discriminatory guest practices so as to make those practices “state action” within the purview of the Equal Protection Clause, and there is no suggestion in the record that the State’s regulation of the sale of liquor is intended overtly or covertly to encourage discrimination.

Roberts v. United States Jaycees, 468 U.S. 609 (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 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.


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.

(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.

(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.

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.

Bd. Of Dirs. of Rotary Int’l v. Rotary Club, 481 U.S. 537 (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 persons, regardless of sex, to full and equal accommodations, advantages, facilities, privileges, and services in all business establishments in the State. The state trial court entered judgment for Rotary International, concluding that neither it nor the Duarte Club is a “business establishment” within the meaning of the Act. However, the State Court of Appeal reversed on this point, and rejected the contention that Rotary’s policy of excluding women is protected by the First Amendment. Accordingly, the court ordered the Duarte Club’s reinstatement, and enjoined the enforcement of the gender requirements against it.


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 sizepurposeselectivity, 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 participation of strangers in, and welcome media coverage of, many of their central activities.

(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 interest extends to the acquisition of leadership skills and business contacts as well as tangible goods and services.

New York State Club Assn. v. New York City, 487 U.S. 1 (1988) 


New York City’s Human Rights Law forbids discrimination based on race, creed, sex, and other grounds by any “place of public accommodation, resort or amusement,” but specifically exempts “any institution, club or place of accommodation which is in its nature distinctly private.” However, a 1984 amendment (Local Law 63) provides that any “institution, club or place of accommodation,” other than a benevolent order or a religious corporation, “shall not be considered in its nature distinctly private” if it “has more than four hundred members, provides regular meal service and regularly receives payment . . . directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business.” Immediately after Local Law 63 became effective, appellant association filed a state-court suit against the city and some of its officials, seeking, inter alia, a declaration that the Law is unconstitutional on its face under the First and Fourteenth Amendments. The trial court entered a judgment upholding the Law, and the intermediate state appellate court and the Court of Appeals of New York affirmed.


Appellant’s facial First Amendment attack cannot prevail. That attack must fail insofar as it is based on the claim that Local Law 63 is invalid in all of its applications. As appellant concedes, the Human Rights Law’s antidiscrimination provisions may be constitutionally applied to at least some of the large covered clubs under Roberts v. United States Jaycees. In finding that clubs comparable in size to, or smaller than, clubs covered by the Human Rights Law were not protected private associations, Roberts and Rotary emphasized the regular participation of strangers at club meetings, a factor that is no more significant to defining a club’s nonprivate nature than are Local Law 63’s requirements that covered clubs provide “regular meal service” and receive regular nonmember payments “for the furtherance of trade or business.” Similarly, Local Law 63 cannot be said to infringe upon every club member’s right of expressive association, since, in the absence of specific evidence on the characteristics of any covered club, it must be assumed that many of the large clubs would be able to effectively advance their desired viewpoints without confining their membership to persons having, for example, the same sex or religion. Nor has appellant proved its claim that the Law is overbroad in that it applies to “distinctively private” clubs, since there is no evidence of any club, let alone a substantial number of clubs, for whom the Law impairs the ability to associate or to advocate public or private viewpoints. Thus, it must be assumed that the administrative and judicial opportunities available for individual associations to contest the Law’s constitutionality as it may be applied against them are adequate to assure that any overbreadth will be curable through case-by-case analysis of specific facts.

Appellant’s facial equal protection attack on Local Law 63’s exemption deeming benevolent orders and religious corporations to be “distinctly private” must also fail. The City Council could have reasonably believed that the exempted organizations are different in kind from appellant’s members, in the crucial respect of whether business activity (and therefore business opportunities for minorities and women) is prevalent among them. New York state law indicates that benevolent orders and religious corporations are unique and thus that a rational basis exists for their exemption here. Appellant has failed to carry its considerable burden of showing that this view is erroneous and that the issue is not truly debatable, since there is no evidence that a detailed examination of the practices, purposes, and structures of the exempted organizations would show them to be identical to the private clubs covered by the Law in the critical respect of whether business activity is prevalent among them.

Boy Scouts of America et al. v. Dale (2000) 


Petitioners are the Boy Scouts of America and its Monmouth Council (collectively, Boy Scouts). The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Respondent Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. He filed suit in the New Jersey Superior Court, alleging, inter alia, that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. That court’s Chancery Division granted summary judgment for the Boy Scouts, but its Appellate Division reversed in pertinent part and remanded. The State Supreme Court affirmed, holding, inter alia, that the Boy Scouts violated the State’s public accommodations law by revoking Dale’s membership based on his avowed homosexuality. Among other rulings, the court held that application of that law did not violate the Boy Scouts’ First Amendment right of expressive association because Dale’s inclusion would not significantly affect members’ ability to carry out their purposes; determined that New Jersey has a compelling interest in eliminating the destructive consequences of discrimination from society, and that its public accommodations law abridges no more speech than is necessary to accomplish its purpose; and distinguished Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, on the ground that Dale’s reinstatement did not compel the Boy Scouts to express any message. 


(comments in parentheses are questions about how the principles of this case might be applied differently if the issue were women in Masonry — note that I am not advocating anything, but just pointing out how a Court would analyze this issue):

Applying New Jersey’s public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts’ First Amendment right of expressive association. Government actions that unconstitutionally burden that right may take many forms, one of which is intrusion into a group’s internal affairs by forcing it to accept a member it does not desire. Such forced membership is unconstitutional if the person’s presence affects in a significant way the group’s ability to advocate public or private viewpoints. 

(Exactly what viewpoints does Freemasonry advocate that would be affected by the presence as a member of a woman?)

However, the freedom of expressive association is not absolute; it can be overridden 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.

(Could a state say it has a compelling interest in preventing gender discrimination in Freemasonry, that is completely unrelated to any ideas that are promoted by Masonry?)

To determine whether a group is protected, this Court must determine whether the group engages in “expressive association.” The record clearly reveals that the Boy Scouts does so when its adult leaders inculcate its youth members with its value system. Thus, the Court must determine whether the forced inclusion of Dale would significantly affect the Boy Scouts’ ability to advocate public or private viewpoints. The Court first must inquire to a limited extent, into the nature of the Boy Scouts’ viewpoints.

(What “expressive association” does Masonry engage in — probably morality — and how would the forced inclusion of women affect Masonry’s ability to advocate this position?)

The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms “morally straight” and “clean,” and that the organization does not want to promote homosexual conduct as a legitimate form of behavior. The Court gives deference to the Boy Scouts’ assertions regarding the nature of its expression. 

(How would the inclusion of women in Masonry promote anything that is inconsistent with the values expressed by Masonry?)

The Court then inquires whether Dale’s presence as an assistant scoutmaster would significantly burden the expression of those viewpoints. Dale, by his own admission, is one of a group of gay Scouts who have become community leaders and are open and honest about their sexual orientation. His presence as an assistant scoutmaster would interfere with the Scouts’ choice not to propound a point of view contrary to its beliefs. 

(Would the inclusion in Masonry of women burden the expression of Masonry’s viewpoints?)

This Court disagrees with the New Jersey Supreme Court’s determination that the Boy Scouts’ ability to disseminate its message would not be significantly affected by the forced inclusion of Dale.

First, contrary to the state court’s view, an association need not associate for the purpose of disseminating a certain message in order to be protected, but must merely engage in expressive activity that could be impaired. Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues, its method of expression is protected. Third, the First Amendment does not require that every member of a group agree on every issue in order for the group’s policy to be “expressive association.”

Given that the Boy Scouts’ expression would be burdened, the Court must inquire whether the application of New Jersey’s public accommodations law here runs afoul the Scouts’ freedom of expressive association, and concludes that it does.

Such a law is within a State’s power to enact when the legislature has reason to believe that a given group is the target of discrimination and the law does not violate the First Amendment.

The Court rejects Dale’s contention that the intermediate standard of review should be applied here to evaluate the competing interests of the Boy Scouts and the State. Rather, the Court applies an analysis similar to the traditional First Amendment analysis.

A state requirement that the Boy Scouts retain Dale would significantly burden the organization’s right to oppose or disfavor homosexual conduct. The state interests embodied in New Jersey’s public accommodations law do not justify such a severe intrusion on the freedom of expressive association.

(Could a state say that its interest in preventing gender discrimination would not significantly burden Masonry’s right to express whatever moral opinions it wishes to express, and is not an intrusion, let alone a severe one?)

In so ruling, the Court is not guided by its view of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong. Public or judicial disapproval of an organization’s expression does not justify the State’s effort to compel the organization to accept members in derogation of the organization’s expressive message.

While the law may promote all sorts of conduct in place of harmful behavior, it may not interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may seem.

(Would a court say that if a state requires Masonry to accept women, that is not an interference with any speech or opinions Masonry wishes to express?)

(I hope this helps give everyone a better understanding of what that case did and did not decide. It did not say that a private organization can choose whatever members it wishes.)

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