The opinion
COLEMAN, Circuit Judge
(dissenting).
Even the half-alert will quickly grasp what this decision means. So far as I know, or can find out, this is the first time in the history of American jurisprudence that a federal court has assumed jurisdiction over the membership policies of a genuinely private club. Since the City of Miami has absolutely nothing to do with the support, the internal operation, or the membership policies of this private yacht club and since the club performs no public function whatever, this decision means that hereafter in the Fifth Circuit no private club, private individual, or collection of private individuals may lease public property for private use and be able thereafter to remain private. If there is a lease there is significant state involvement. The far reaching consequences of this unprecedented action will be discussed in a moment.
Since I remain entirely unconvinced that the Constitution imposes such a re *354 strictive covenant upon purely private activities, and since I am more than convinced that the majority opinion conflicts with a prior decision of this Court rendered less than ninety days ago (Greco v. Orange Memorial Hospital), I am compelled, however regretfully, to dissent.
All we have in this case is that the City of Miami leased the use of the wat-erbottoms to a lessee which, beyond dispute, has been a private club for 88 years. As already pointed out, the City exercises no control over the club, it does not participate in its operations in any form, it has nothing to do with club membership policies. The club performs no function ordinarily attributable to the public domain. The lease is the sole nexus between the club and the city.
The majority opinion attaches much significance to the fact that without the lease there would be no yacht club. It is equally true, however, that if the Moose Lodge had been without a state liquor license it could not have sold drinks to its members and their guests, Moose Lodge No. 107 v. Irvis, 1972, 407 U.S. 163 , 92 S.Ct. 1965 , 32 L.Ed.2d 627 . The Supreme Court held that the issuance of the liquor license did not supply the necessary state action. The significant point was that the state license required the Lodge to abide by its racially discriminatory constitution and by-laws. That was state action, but there is nothing of that kind in this case.
I think the true rule for situations of this kind was recently enunciated by the Second Circuit in New York Jaycees, Inc. v. United States Jaycees, 512 F.2d 856 (1975), a case which involved grants of federal funds to an organization which restricted its membership:
Plaintiff concedes, as it must, that private action is immune from the restrictions of the Fifth and Fourteenth Amendments. See, e. g., Shelley v. Kraemer, 334 U.S. 1, 13 , 68 S.Ct. 836 , 92 L.Ed. 1161 (1948); The Civil Rights Cases, 109 U.S. 3 , 3 S.Ct. 18 , 27 L.Ed. 835 (1883). However, plaintiff claims that National’s receipt of federal funds and tax exemptions, as well as its performance of civic functions, constitutes state action sufficient to subject it to scrutiny under the constitutional standard. We disagree.
The mere existence of government ties to a private organization is not sufficient to support a finding of state action. Moose Lodge No. 107 v. Irvis, 407 U.S. 163 , 92 S.Ct. 1965 , 32 L.Ed.2d 627 (1972); Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). As this court stated in Powe , “[t]he state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury.” 407 F.2d at 81 . The Supreme Court has recently reaffirmed the principle that the determination of state action must be based on a particularized inquiry focusing on whether there is “a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Company, 419 U.S. 345, 351 , 95 S.Ct. 449, 453 , 42 L.Ed.2d 477 (1974). In this case the requisite connection between government and the offending activity has not been shown. Plaintiff does not charge discrimination in the operation of federally funded Jaycee programs; indeed such a claim could not be supported since not only do women participate both in the selection of local recipients for funding and in the implementation of programs, but also the benefits of all federally funded Jaycee programs are distributed without regard to sex or other impermissibly discriminatory criteria. Plaintiff’s constitutional challenge is addressed solely to the internal membership, policies of the Jaycees; yet plaintiff has made no showing that the government is substantially, or even minimally, involved in the adoption or enforcement of these policies.
*355 I respectfully submit that the majority in this case signally fails in its efforts to distinguish Greco v. Orange Memorial Hospital, 5 Cir., 1975, 513 F.2d 873 .
In Greco the defendant was a private hospital, patronized by the public, which leased not only the land but the building from the county. Neither the state nor the county bad anything to do with its actual operation. The hospital refused to permit elective abortions. This Court held that neither federal financial assistance nor the lease of the building and grounds supplied the necessary nexus for a finding of state involvement. It was declared that the federal courts had no jurisdiction.
A hospital to which the general public has access is a far cry from a private club, which owns its facilities and performs no public function. But the present majority opinion says that state action is not in what the state does but is to be determined by who it does it to, that is, there is one law for a racial or religious complaint and yet another law for the denial of an abortion which the state is constitutionally forbidden to deny. I simply cannot grasp the logic for this kind of judicial picking and choosing.
To pursue the factual similarities, and dissimilarities, between Greco and the instant case, the following comparison is, I think, of considerable significance:
The Yacht Club Case
I
The Club owns the building and the land upon which it is situated and has since 1932.
II
The Club was built and operated with private funds and is a private organization.
III
Years subsequent to the construction of docks into and over Biscayne Bay by the Club, the City laid claim to the bay bottom land in 1962 over which such docks extended and subsequent thereto the Club has leased such bay bottom land beneath such docks for $1.00 per year.
IV
Under lease the Club assumed no no obligation to the City.
V
The City has never directly or indirectly participated in the disputed alleged club policy.
The Greco Case
I
The County owns the building and the land upon which the hospital is situated and has since its inception.
II
The hospital was constructed with $1,762,000 county funds and $1,250,000 Hill-Burton funds and is open to the public.
III
The hospital leases the land and the building from the county for $1.00 per year and has since its inception.
IV
Under lease, the hospital agreed to provide certain services and operate in a prescribed manner.
V
The County neither directly nor indirectly participated in the disputed hospital policy.
*356 From this comparison it can readily be seen that the relationship existing between the County and Orange Memorial Hospital was indeed far closer, far more significant, of longer standing and far more controlling than the relationship between the yacht club and the City of Miami. Despite such substantial involvement and interrelationship, the Greco opinion determined that the necessary “symbiotic relationship” of state action was lacking and the necessary nexus between the state’s involvement and the conduct or policy complained of was absent.
The inescapable end result of the majority opinion is that a private club which leases any part of its premises from a public owner thereby loses its private status and its membership policies will be grist for the courts. As if we did not already have more to do than we can possibly perform, judges now become ex-officio managers of the membership policies of all such private clubs. One wonders what is to become of the heretofore loudly trumpeted constitutionally guaranteed rights of privacy and freedom of association.
I now take a look at other practical effects of this decision. All around the Gulf of Mexico, the waterbottoms are publicly owned. They are trust property and cannot be sold. They can only be leased for a term of years. Under this decision we say farewell to private yacht clubs, private hunting clubs, or any other private club operating on such property and leased exclusively to a named private lessee.
But the matter does not stop there. In Mississippi, for example, there are hundreds of thousands of acres of Sixteenth Section School land (Northwest Ordinance of 1787). The State cannot sell the land. It can only lease it for a term of years. It is used for private homes, for farming, and for numerous other private purposes involving no public function. Before today it had never occurred to me that because of the leases the many private activities and occupations pursued on these lands involve significant state action.
I would hold that no significant state action is involved in this private yacht club case. I respectfully dissent.