Appendix — Roberts v. United States Jaycees

Supreme Court, U.S.

FILED

OCT 31 1983

83-724

No. ALEXANDER L STEVAS,

— ns 0-4

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1983

IRENE GOMEZ-BETHKE, Commissioner,

Minnesota Department of Human Rights;

HUBERT H. HUMPHREY III, Attorney

General of the State of Minnesota;

and GEORGE A. BECK, Hearing Examiner

of the State of Minnesota,

Appellants,

vs.

THE UNITED STATES JAX CEEsS, a non-profit

Missouri corporation, on behalf of

itself and its qualified members,

Appellee.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

APPENDIX TO APPELLANTS’

JURISDICTIONAL STATEMENT

HUBERT H. HUMPHREY, III

Attorney General

State of Minnesota

KENT G. HARBISON

Counsel of Record

Chief Deputy

Attorney General

102 State Capitol Building

St. Paul, Minnesota 55155

Telephone: (612) 296-2351

Counsel for Appellants

Of Counsel:

RICHARD L. VARCO, JR.

Special Assistant

Attorney General

State of Minnesota

October 81, 1983

n — Ries Pilih Ge, 27 EO. BP, i I

CONTENTS

Opinion of the United States Court of Appeals for the

Eighth Circuit dated June 7, 1983 .

Memorandum Opinion and Order for Judgment of the

United States District Court dated March 25, 1982 ...

Opinion of the Minnesota Supreme Court

dated May 8, 1981

Findings of Fact, Conclusions of Law, Order, Exhibit

List, and Memorandum of Hearing Examiner

George A. Beck of the Minnesota Office of

Hearing Examiners dated October 9, 1979

Order of the United States Court of Appeals for

the Eighth Circuit denying petition for rehearing

and suggestion for rehearing en banc dated

pS ere .

Notice of Appeal to the Supreme Court of the

United States, filed October 7, 1983

Page

A-52

A- 69

. A-98

4131

A-1384

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APPENDIX

No, 82-1498

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The United States Jaycees, a non-profit Missouri

corporation, on behalf of itself and its qualified members,

Appellant,

vB.

Marilyn E. McClure, Commissioner, Minnesota

Department of Human Rights; Warren Spannaus,

Attorney General of the State of Minnesota;

and George A. Beck, Hearing Examiner of

the State of Minnesota,

Appellees,

On Appeal from the United States District Court for the Dis-

trict of Minnesota.

Submitted: November 11, 1982

Filed: June 7, 1988

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge,

and ARNOLD, Circuit Judge.

ARNOLD, Circuit Judge.

The United States Jaycees, a young men’s civic and service

organization, does not admit women to full membership. A

Minnesota statute, as amended in 1972, forbids discrimination

on the basis of sex in “places of public accommodation.”

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Minn, Stat. Ann, §§363.01 subd. 18, 363.08 subd. 8. The Su-

preme Court of Minnesota has interpreted this phrase to in-

clude the Jaycees, and the Minnesota Department of Human

Rights has ordered the Jaycees to admit women to its local

chapters in Minnesota. In this suit brought by the Jaycees, we

are asked to declare the statute, as so applied and interpreted,

unconstitutional, as in violation of the rights of speech, peti-

tion, assembly, and association guaranteed by the First and

Fourteenth Amendments.

We hold that the Jaycees, a substantial part of whose activ-

ities involve the expression of social and political beliefs and

the advocacy of legislation and constitutional change, does

have a right of association protected by the First Amendment.

In our opinion, the interest of the state, in the circumstances

of this case, is not strong enough to deserve the label “com-

pelling,” so as to override this right. In addition, the state

law is unconstitutionally vague. The Jaycees is therefore en-

titled to an injunction restraining the state from efforts to

prohibit its membership policy under state law as presently

written. This is not to say that no state law could be written

to redress this kind of nongovernmental! discrimination. Still

less do we intend to express our own view of what the Jaycees

is doing. But if, in the phrase of Justice Holmes, the First

Amendment protects “the thought that we hate,” it must also,

on occasion, protect the association of which we disapprove.

The First Amendment guarantees freedom of choice in a cer-

tain area. That freedom must, on occasion, include the free-

dom to choose what the majority believes is wrong. For rea-

sons to be described, we think this is one of those occasions.

The Jaycees’ refusal to admit women has given rise to several

other court or agency opinions. See Junior Chamber of Commerce

of Kaneas City, Missouri v. Missouri State Junior Chamber of

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1

The United States Jaycees is a nonprofit corporation or-

ganized under the laws of Missouri. Its national head-

quarters is in Tulsa, Oklahoma. It is a private (in the sense of

nongovernmental) membership organization, It receives no

federal or state funds, though it is exempt from federal in-

come taxation under Section 501 of the Internal Revenue Code.

At the time of the trial before the District Court in August of

1981, the Jaycees had about 295,000 regular members in 7400

local chapters. Article 2 of the Jaycees’ By-Laws sets out the

organization's purpose:

A. This Corporation shall be a non-profit Corpora-

tion, organized for such educational and charitable pur-

poses as will promote and foster the growth and develop-

ment of young men’s civic organizations in the United

Commerce, 508 F.2d 1031 (8th Cir. 1975) (receipt of federal funds

(a practice since discontinued) does not make Jaycees a govern-

mental actor for purposes of the Fifth Amendment); New York

City Jaycees, Inc. v. The United States Jaycees, Inc., 512 F.2d 85.

(2d Cir. 1975) (same); Junior Chamber of Commerce of Rochester,

Inc. v. United States Jaycees, 495 F.2d 883 (10th Cir.), cert. denied,

419 U.S. 1026 (1974) (same); United States Jaycees v. Bloomfield,

434 A.2d 1379 (D.C. App. 1981) (Jaycees is not a “place of public

accommodation” within the meaning of the D.C. Human Rights

Act of 1977, D.C. Code §6-2241(a)(1) (Supp. 1978)); Richardet v.

Alaska Jaycees, No. 3AN-79-424 CIV (Super. Ct. 3d Jud. Dist. of

Alaska Sept. 15, 1980) (Jaycees is a place at which amusement or

business services or commodities are offered to the public within

the meaning of the Alaska public- accommodations law, Alaska

Stat. §§18.80.230(1), .300(7)); Fletcher v. U.S. Jaycees, No. 78-BPA-

0058-0071 (Mass. Comm'n Against Discrimination Jan. 27, 1981)

(Jaycees is a place of public accommodation within the meaning

of Mass. Gen. Laws Ann. ch. 272, §§92A, 98).

The question has also been vigorously debated within the organ-

ization. On three occasions a resolution favoring the admission of

women has been defeated, but each time a larger minority has

voted for it.

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States, designed to inculcate in the individual membership

of such organization a spirit of genuine Americanism

and civic interest, and as a supplementary education insti-

tution to provide them with opportunity for personal de-

velopment and achievement and an avenue for intelligent

participation by young men in the affairs of their com-

munity, state and nation, and to develop true friendship

and understanding among young men of all nations.

B. Towards these ends, this Corporation shall adopt

the following as its Creed:

We believe

That faith in God gives meaning and

purpose to human life;

That the brotherhood of man transcends

the sovereignty of nations;

That economic justice can best be won by

free men through free enterprise;

That government should be of laws rather

than of men;

That earth’s great treasure lies in human

personality ;

And that service to humanity is the best

work of life.

This case centers around the Jaycees’ requirements for

membership. Article 4 of the By-Laws creates seven classes of

membership, including Individual! Members, also known as

regular members, Associate Individual Members, and Local

Organization Members, that is, local chapters, Between 1975

and 1978 women were permitted to become regular members

in a few states“ as part of a “pilot program,” but the experi-

2 The Minnesota State Jaycees voted not to participate in the pilot

program.

A

ment was discontinued in 1978. As matters now stand, Article

4-2 of the By-Laws establishes the following requirements for

regular membership:

Young men between the ages of eighteen (18) and thirty-

five (85), inclusive, of Local Organization Members in

good standing in this Corporation shall be considered In-

dividual Members of this Corporation (unless the ages for

membership shall have been changed by the State Organi-

zation Member as hereinabove permitted by By-Law

4-4.A.).* Such Individual Members shall be qualified

by, and represented through, the Local Organization

Member so long as he shall pay the dues to the Local

Organization Member specified in its by-laws, constitu-

tion or articles of incorporation (which shall include a

subscription to FUTURE magazine).

Associate Individual Members may be businesses, associa-

tions, groups, or individuals, such as men over 35 or women,

who are not eligible for regular membership. Associate mem-

bers may not vote or hold office, but they may otherwise par-

ticipate fully in Jaycee activities, except that they may not

receive certain national awards. Local chapters must be

“young men’s organization [s] of good repute . . organized

for purposes similar to and consistent with those of this

Corporation. By-Laws Art. 4-4A. The constitution,

certificate of incorporation, and by-laws of local chapters

must be consistent with and subject to the national and State

by-laws, id. Art. 4-4C2; local chapters that change their rules

so as to be inconsistent with the national by-laws may have

their charters revoked, id. Art. AF; and local chapters who

Under By-Law Art. 44A a State Organization may restrict the

minimum age of regular members to an age more than 18 but not

more than 21.

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lose their charter are forbidden to continue using the name

“Jaycees,” id. Art. 4-4I.

In 1974 the Minneapolis and St. Paul, Minnesota, local

chapters began accepting women as full-fledged individual

members. The U.S. Jaycees threatened to revoke the charters

of these local organizations because of this infraction of its

rules. Members of the Minneapolis and St. Paul chapters then,

late in 1978, filed complaints with the Minnesota Department

of Human Rights, a state agency created by statute to enforce

the Minnesota Human Rights Act, Minn. Stat. Ann. §§363.01-

14. The complaints alleged that the Jaycees’ exclusion of

women from full membership violated Minn. Stat. Ann-

8363.08 subd. 8, which read as follows:

Subd. 8. Public Accommodations. It is an unfair dis-

criminatory 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. It is an unfair discriminatory practice for

a taxicab company to discriminate in the access to, full

utilization of or benefit from service because of a per-

son’s disability.

The term “place of public accommodation” is defined in Minn.

Stat. Ann. 5868.01 subd. 18:

Subd. 18. Public Accommodations. “Place of accom-

modation” means a business, accommodation, refresh-

ment, entertainment, recreation, or transportation facil-

ity of any kind, whether licensed or not, whose goods,

services, facilities, privileges, advantages or accommoda-

tions are extended, offered, sold, or otherwise made

available to the public.

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On January 25, 1979, the Commissioner of the Department

of Human Rights found probable cause to believe that the

statute had been violated and ordered that an evidentiary

hearing be held before a state hearing examiner. On February

27, 1979, the Jaycees brought suit in the United States Dis-

trict Court for the District of Minnesota, seeking declaratory

and injunctive relief against the enforcement of the Human

Rights Act. The plaintiff claimed that application of the Act

to force it to accept women as regular members would violate

its rights of speech and association under the First and Four-

teenth Amendments to the Constitution of the United States.

It asked the District Court to abstain from deciding the

constitutional question until the state administrative agency

had decided whether the Jaycees fit the definition of “place

of public accommodation” in the state law. The District

Court, with the agreement of all parties, dismissed the suit

without prejudice, stating that it could be renewed if the

state administrative decision turned out to be adverse to the

Jaycees. The parties continue to agree on this procedure,

under which the state forum decides the meaning of the

statute, and the federal courts decide its validity under the

federal Constitution.‘

This procedure is said to be in accord with England v. Louisiana

State Board of Medical Examiners, 375 U.S. 411 (1964). But in

England the federal suit was brought long before any state pro-

ceedings had begun, see 375 U.S. at 413 n.1. England holds only

that parties remitted to the state forum under the doctrine of

abstention to get an authoritative construction of state law, may

thereafter return to the federal courts to litigate their federal

constitutional claim. We are not sure that it is properly applied to

a case in which state enforcement proceedings have already been

instituted. In such a case, the state officials might well argue that

the federal courts should bow out altogether, under the rule of

Younger v. Harris, 401 U.S. 37 (1971), leaving the plaintiff to pre-

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The state agency proceeding thereupon went forward,

and an evidentiary hearing was held before a hearing ex-

aminer. Following the hearing, the examiner filed findings

of fact and conclusions of law. He held that “the United

States Jaycees are a place of public accommodation” and

that the Jaycees had committed an unfair discriminatory

practice. State of Minnesota, by William L. Wilson, and

his successor, Marilyn E. McClure, Commissioner, Depart-

ment of Human Rights v. The United States Jaycees, No.

HR-79-014-GB, slip op. p. 9 (Minn. Office of Hearing Ex-

aminers, for the Dept. of Human Rights, findings, conclu-

sions, and order filed October 9, 1979). The examiner en-

tered the following order, id. at 9-10:

It is hereby ordered that the United States Jaycees

shall cease and desist and is hereby enjoined from:

(1) Revoking the charter of any Jaycee local organi-

zation member (“local chapter“) or state organization

member (the “Minnesota Jaycees“) within the State of

Minnesota or denying any privilege or right of mem-

bership, or otherwise discriminating in any manner

against a local or state organization member within the

State of Minnesota because either extends to women all

the rights and privileges of individual and regular

membership.

sent all of its arguments, state and federal, to the state adminis-

trative agency, to the state courts on review of the agency's deci-

sion, and then to the Supreme Court of the United States on appeal

from or certiorari to the Supreme Court of the state. The defen-

dants here have never made this suggestion. Younger is a doctrine

of equitable discretion, not of subject-matter jurisdiction, and it

can hardly have been an abuse of discretion for the District Court

(or this Court) to decide the merits of plaintiff's federal claim

when both sides urge precisely that.

25

A-9

(2) Discriminating on the basis of sex against any

member or applicant for membership of a Jaycee local

chapter within the State of Minnesota with respect to the

terms, conditions, or privileges of membership in the

local chapters or in the Minnesota Jaycees or in the

United States Jaycees.

The Jaycees then came back to the District Court and, on

October 31, 1979, filed the present suit, asking that the en-

forcement of the state agency’s order be enjoined on federal

constitutional grounds. The District Court certified to the

Supreme Court of Minnesota the following question of state

law:

Is the United States Jaycees a “place of public ac-

commodation” within the meaning of Minn. Stat. 5863.01

Subdivision 18?

In an opinion filed on May 8, 1981, the Supreme Court of

Minnesota answered yes. United States Jaycees v. McClure,

305 N.W.2d 764 (1981) (6-3 decision). The Court held that

the plaintiff organization is “a business ... facility ...

whose goods, privileges, [and] advantages are

sold or otherwise made available to the public.” See id. at

772. Men between 18 and 35 are indiscriminately admitted

to membership, it said, without any selectivity. The organiza-

tion is in the business of selling memberships, a business it

assiduously promotes. Commercial language, ¢.g., “market-

ing,” is used to describe the recruitment of new members,

and recruitment is heavily emphasized. There is no evidence

that any man between 18 and 85 who wished to join the

Jaycees has ever been refused. The leadership skills and per-

sonal-development techniques promised to new members if

they become active Jaycees are the goods and advantages

3

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that members buy when they pay their dues. The Court dis-

claimed any intention to affect “private organizations such

as the Kiwanis International Organization”:

Private associations and drganizations—those, for ex-

ample, that are selective in membership—are unaf-

fected by Minn. Stat. 5863.01 (18) (1980). Any suggestion

that our decision today will affect such groups is un-

founded.

We, therefore, reject the [Jaycees] national organiza-

tion’s suggestion that it be viewed analogously to pri-

vate organizations such as the Kiwanis International

Organization.

Id. at 771.

Chief Justice Sheran, joined by Justices Peterson and

Todd, dissented. The Chief Justice said:

Although the result reached in the majority opinion

is felicitous, I cannot believe that the members of the

Minnesota legislature who voted for the law we have

been called upon to construe thought the Junior Cham-

ber of Commerce, a service organization, to be “a place

of public accommodation.” The obligation of the judiciary

is to give that meaning to words accorded by common

experience and understanding. To go beyond this is to

intrude upon the policy-making function of the legisla-

ture. The majority opinion does that in this case to a

degree which compels this expression of dissent.

Id. at 774.

The parties then returned to the District Court, which con-

ducted an additional evidentiary hearing. On March 26,

1982, the District Court filed its opinion holding the Jaycees’

constitutional claims without merit and dismissing the com-

plaint with prejudice. United States Jaycees v. McClure, 534

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F. Supp. 766 (D. Minn. 1982). The Court first considered

whether the Jaycees’ claimed right to ‘associate for the pur-

pose of advancing only the interests of young men, id.

at 770, was part of the freedom of association protected by

the First Amendment. The Court noted that “[i]t is ques-

tionable whether association not directed at the exercise of

other First Amendment rights enjoys constitutional pro-

tection,” ibid., but concluded that it need not resolve that

question, because “if there is such a right, it has not been un-

constitutionally denied to the Jaycees.” /bid. Two related rea-

sons were given for this conclusion: that invidious private

discrimination is not entitled to affirmative constitutional

protection, and that the State’s interest in preventing dis-

crimination in access to public accommodations is in any event

sufficiently compelling to override whatever right of associa-

tion exists. The Court stressed, as had the Minnesota Su-

preme Court, that the Jaycees holds itself out as a leader-

ship training organization, giving members an advantage in

business and civic advancement. It characterized the process

of recruitment as the sale of memberships. “The Jaycees

itself refers to its members as customers and membership as a

product it is selling.” Id. at 769.

The District Court also rejected the Jaycees’ arguments

based on vagueness and overbreadth. As to vagueness the

Court held that the “term ‘place of public accommodation’

when construed with normal aids to statutory construction

can be understood by those of common understanding to

apply to the Jaycees,” id. at 778, especially in light of the

opinion of the Minnesota Supreme Court. The overbreadth

challenge was also rejected. As construed by the Supreme

Court of Minnesota, “the statute is only applicable to public

business facilities which practice sex discrimination.” The

Misr we’

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District Court rejected the argument that the statute as

interpreted by the Supreme Court might apply to other or-

ganizations, “including the Boy Scouts, the Kiwanis, the

Sweet Adelines, and the like,” because [t] here is insufficient

evidence in the record pertaining to the activities of these

groups to allow any determination whether the statute would

apply to them and whether the groups engage in protected

First Amendment activity.” Jd. at 773.

The plaintiff appeals, pressing again its threefold claim

that the Minnesota Human Rights Act, as construed by the

Supreme Court of Minnesota, violates its freedom of associa-

tion, is void for vagueness, and is unconstitutionally over-

broad.

II

The First Amendment, which the Fourteenth has made

applicable to the states, reads as follows:

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise there-

of; or abridging the freedom of speech, or of the press;

or the right of the people peaceably to assemble, and

to petition the Government for a redress of grievances.

The Amendment does not contain the word “association,”

nor does any other portion of the Constitution, as, for ex-

ample, the Ninth Amendment or the Due Process Clause of

the Fourteenth Amendment, protect by express words any

“right” or “freedom” “of association.” [sic] Defendants argue

that association is constitutionally protected only as an

incident of the specific rights listed in the First Amendment

—religion, speech, press, and assembly to petition for re-

dress of grievances. Since the Jaycees is nothing more than

a business selling memberships and leadership training, they

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argue, it has no right to First Amendment protection, ex-

cept possibly the lesser degree of protected status enjoyed by

purely commercial speech. Our first task, therefore, is to de-

termine to what extent freedom of association is constitu-

tionally protected, and whether the Jaycees’ activities qualify

for whatever protection the law affords. We of course take

as a given that the Jaycees is a “place of public accommoda-

tion” within the meaning of the Minnesota statute. The Su-

preme Court of Minnesota has answered that question, and

it has the last word. Its “construction fixes the meaning of

of the statute [and] ... puts... words in the statute

as definitely as if it had been so amended by the legislature.”

Winters v. New York, 833 U.S. 507, 514 (1948). On the fur-

ther question, though, whether the activity in question, what-

ever its significance under state law, is protected by the

federal Constitution, we are not concluded by the opinion of

the state court. We must decide that issue for ourselves.

„[A] State cannot foreclose the exercise of constitutional

rights by mere labels.” NAACP v. Button, 871 U.S. 415, 429

(1968) ; Bigelow v. Virginia, 421 U.S. 809, 826 (1975).

A.

Many of the cases that have discussed freedom of associa-

tion have arisen in the context of speech or political activity

that is at the core of the First Amendment. NAACP v.

Alabama, 357 U.S. 449 (1958), is such a case. There, the Su-

preme Court struck down a state-imposed requirement that

the names of members of a politically unpopular group be

made public, on the ground that the group’s advocacy of

political and legal change would thereby be unacceptably re-

tarded. Similar protection has been extended to group use of

litigation as a means for changing the law. NAACP v. But-

ton, supra. See also Buckley v. Valeo, 424 U.S. 1, 25 (1976)

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(per curiam) (association in support of political candidates).

We know of no Supreme Court opinion, however, that

rigidly limits the right of association to the context of political

beliefs or expression. On the contrary, NAACP v. Alabama

itself states that “it is immaterial whether the beliefs

sought to be advanced by association pertain to political,

economic, religious or cultural matters, and state action

which may have the effect of curtailing the freedom to as-

sociate is subject to the closest scrutiny.” 357 U.S. at 460-61.

“It is beyond debate that freedom to engage in association

for the advancement of beliefs and ideas is an inseparable

aspect of the ‘liberty’ assured by the Due Process Clause

of the Fourteenth Amendment, which embraces freedom of

speech.” Jd. at 460.

Other cases go well beyond any concrete connection with

the specific language of the First Amendment in describing

the right of association. In Shelton v. Tucker, 364 U.S. 479

(1960), for example, the Court had before it an Arkansas

statute requiring every teacher in a state-supported school

or college, on pain of dismissal, to file each year an affidavit

listing every organization to which he or she had belonged

or regularly contributed within the last five years. The law

was held invalid. The Court noted, among other things, that

the statute “requires [teachers] to list, without number,

every conceivable kind of associational tie—social, profes-

sional, political, avocational, or religious. Many such rela-

tionships could have no possible bearing upon the teacher’s

occupational competence or fitness.” Jd. at 488. The Court

declared that “to compel a teacher to disclose his every as-

sociational tie is to impair that teacher’s right of free as-

sociation, a right closely allied to freedom of speech and a

>

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right which, like free speech, lies at the foundation of a free

society.” Id. at 485-86. The Court may have suspected—and

not without reason—that the statute under attack was part of

a broader scheme to thwart the efforts of the NAACP to en-

force the law of school desegregation. But the opinion is not

placed on that ground (in fact, one of the plaintiffs went so

far as to aver that he did not belong to the NAACP), and

the Court does not imply that nonpolitical associations or

groups (“social, professional, . avocational,” id. at 488)

are less protected than political or religious ones. Rather,

the right of association is portrayed as a “fundamental per-

sonal libert[y],” ibid., which the state may not broadly

stifle if less drastic means are available to serve its legitimate

purposes.

A more striking case is United Mine Workers v. Illinois

State Bar Ass’n, 8389 U.S. 217 (1967). The Supreme Court

of Illinois, purporting to exercise the power to regulate the

practice of law that courts had possessed (or thought they

had) from time immeraorial, had forbidden the United Mine

Workers to employ a salaried attorney to prosecute workers’

compensation claims for union members who “wished

services.” Id. at 218. Such conduct, the Illinois courte

thought, amounted to the unauthorized practice of law. The

Supreme Court reversed and held the union’s conduct pro-

tected by the First and Fourteenth Amendments. An attempt

to distinguish NAACP v. Button, supra, “as concerned chief-

ly with litigation that can be characterized as a form of politi-

cal expression” was rejected. 389 U.S. at 221. “We do not

think our decisions in [Railroad] Trainmen [v. Virginia

Bar, 877 U.S. 1 (1964),] and Button can be so narrowly

limited. We hold that freedom of speech, assembly, and peti-

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tion guaranteed by the First and Fourteenth Amendments

gives petitioner the right to hire attorneys on a salary basis

to assist its members in the assertion of their legal rights.”

889 U.S. at 221-22 (footnote omitted). “The litigation in

question is, of course, not bound up with political matters

of acute social moment, as in Button, but the First Amend-

ment does not protect speech and assembly only to the extent

it can be characterized as political.” Jd. at 223.

Griswold v. Connecticut, 381 U.S. 479 (1965), contains per-

haps the broadest statement of the right of association,

though it may be dictum. “The association of people is not

mentioned in the Constitution nor in the Bill of Rights,” Jus-

tice Douglas said for the Court. “Yet the First Amendment

has been construed to include” that right. Jd. at 482. [Wle

have protected forms of ‘association’ that are not political in

the customary sense but pertain to the social, legal, and eco-

nomic benefit of the members.” Id. at 483. The Court added,

in words that have definite implications for the case before

us:

The right of “association,” like the right of belief, is

more than the right to attend a meeting; it includes

the right to express one’s attitvdes or philosophies by

membership in a group or by affiliation with it or by

other lawful means. Association in that context is a

form of expression of opinion; and while it is not ex-

pressly included in the First Amendment its existence

is necessary in making the express guarantees fully

meaningful.

Ibid. (citation omitted). Cf. Healy v. James, 408 U.S. 169,

181 (1972); Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555, 577-79 (plurality opinion of Burger, C.J., joined

by White and Stevens, JJ.) (there is a right to assemble in

A-17

public places for any lawful purpose; the Constitution recog-

nizes certain “important rights not enumerated,” including

“the rights of association and of privacy”).

Our own cases have recognized a right of association in

similar broad terms.“ In American Federation of State,

County, and Municipal Workers v. Woodward, 406 F.2d 187

(8th Cir. 1969), we held that the discharge of public em-

ployees on account of union activities was a violation of the

First Amendment. “The First Amendment protects the right

of one citizen to associate with other citizens for any lawful

purpose free from government interference.” Id. at 139.

The broad language from Griswold, just quoted in this opin-

ion, was cited as authority for that proposition. Gay

Lib v. University of Missouri, 558 F.2d 848, rehearing en banc

denied by an equally divided Court, 558 F.2d 859 (8th Cir.

1977), upheld the right of a student organization “comprised

largely of homosexuals,” id. at 850, to recognition by a uni-

versity, despite the fact that homosexual conduct was a crime

under the law of Missouri, a law whose validity the Court

did not seem to question at the time. We quoted the passage

from Justice Harlan’s opinion in NAACP v. Alabama, supra,

holding that freedom to associate for the purpose of advanc-

ing cultural beliefs is protected, 558 F.2d at 856, and we

noted that the purpose of Gay Lib was not alone to advocate

changes in the law—an activity within the narrowest inter-

pretation of the First Amendment—but also to allow its

members an opportunity for “meeting one another to discuss

their common problems and possible solutions to those prob-

The District Court observed that “Certain language in decisions

of this circuit . . . suggests that freedom of association itself may

be a ‘basic constitutional freedom.“ 534 F. Supp at 770. We agree.

A-18

„

©

lems... .” Jd, at 858 n.9 (quoting Gay Alliance of Students

v. Matthews, 544 F.2d 162, 166 (4th Cir. 1976)). See also

Greminger v. Seaborn, 584 F.2d 275, 278 (8th Cir. 1978)

(“Freedom of association includes membership in unions or

other organizations concerned with ‘business or economic

causes“ (quoting ANSCME v. Woodward, supra, 406

F.2d at 139)).

We must be properly cautious, of course, about drawing

broad conclusions from rather general statements in court

opinions. The context in which a statement is made always

colors or limits the apparent generality of the statement, to

a greater or lesser degree. The job of courts is to decide cases.

We do not write texts or law-review articles. But this much

at least seems tolerably clear from our canvass of the Su-

preme Court’s and our own opinions in this area: There are

rights protected by the federal Constitution that are not

specifically spelled out in so many words in that document.

Among these rights is the right or freedom of association,

and this right has not been rigidly limited to groups whose

activities fall clearly within the specific guarantees of the

First Amendment. One kind of association, ¢.g., a political

party, see Cousins v. Wigoda, 419 U.S. 477 (1975), may en-

joy a greater degree of protection than another. It may be,

for example, that association for ends specifically mentioned

in the First Amendment will prevail against all state

interests not regarded as “compelling,” while other kinds of

association may be required to yield to less imperative de-

mands of public policy. The latter species of association, on

this view, would be protected not by the specific guaran-

tees of the Bill of Rights, but by the more nebulous concept

of substantive due process, an oxymoron if there ever was

A-19

one.“ Before deciding how far we must pursue this excur-

sion into constitutional theory, however, we return to the

specifics of this case, and inquire just what kind of associa-

tion is involved here.

B.

Defendants' description of the Jaycees is simple and logi-

cal: The plaintiff organization is simply a business selling

memberships, and the leadership training that goes with

them, indiscriminately to any man between 18 and 35 who

wishes to buy. The activity is purely commercial, and the

State has the undoubted power to purge it of discrimina-

tion on the basis of irrelevant personal characteristics like

sex. If the facts were as asserted, this case would be easy.

No extended analysis would be necessary to show that the

Jaycees must lose. With all deference to those who have

reached a contrary conclusion, however, our study of the

record leads us to the definite and firm conviction that this

view of the Jaycees is so partial as to be distorted. The

organization does not fit the bed of Procrustes that the de-

fendants designed for it.

Certainly the Jaycees vigorously recruits new members,

and stresses the supposed benefits of membership to its pros-

pects’ business careers as well as to their personal lives.

Its activities are said to train members to manage their time

better, to speak better, and to be better citizens. The term

“marketing” has been used to describe this promotional

process, and by using that and similar language the Jaycees

*This seems to be what Professor Tribe means when he suggests

that association unrelated to the specific guarantees of the First

Amendrnent “has been protected, if at all, only as an aspect of the

less well pedigreed rights of privacy and personhood .. ..” Tribe,

American Constitutional Law 701 (1977).

A-20

has been to some extent justifiably hoist with its own petard.

So far the similarities with, say, the Dale Carnegie organiza-

tion are plain. But much more is involved here. The Jaycees

does not simply sell seats in some kind of personal-develop-

ment classroom. Personal and business development, if they

come, come not as products bought by members, but as by-

products of activities in which members engage after they

join the organization. These activities are variously social,

civic, and ideological, and some of them fall within the nar-

rowest view of First Amendment freedom of association.

Some of what local chapters do is purely social. They have

parties, with no purpose more complicated than enjoying

themselves. Some of it is civic. They have conducted a

radio fund-raising drive to combat multiple sclerosis, They

have conducted a women’s professional golf tournament.

They have engaged in many other charitable and educa-

tional projects for the public good. (And there is no claim,

incidentally, of any discrimination in the offering to the

public of the benefits of these projects. Money raised to

fight disease, for example, is not used to benefit only male

patients.) And they have advocated, through the years, a

multitude of political and social causes. Governmental affairs

is one of the chief areas of the organization’s activity. Mem-

bers on a national, state, and local basis are frequently meet-

ing, debating issues of public policy, taking more or less

controversial stands, and making opinions known to local,

state, and national officials.

The record contains many examples of this political and

ideological activity. We mention only a representative selec-

tion. The By-Laws and Policy Manual in effect at the time of

trial in the District- Court contains, even before the By-Laws

*

A-21

themselves, four “Declarations of External Policy” adopted

by the membership as represented in national convention.

These resolutions support a balanced budget, a fund drive to

fight muscular dystrophy and juvenile diabetes, legislation

to permit “voluntary prayer in American schools,” and the

economic development of Alaska. All of these propositions,

except the second one, relate to highly controversial political

questions, The prayer policy recites, for example, that “the

framers of our Constitution never meant for [sic] federal

restrictions on free exercise of religious practice or speech”

and that [tjhe United States Jaycees is built on a founda-

tion of faith, as witnessed by the first line of the Jaycee

Creed, ‘We believe that faith in God gives meaning and pur-

pose to human life.“

Over the years, the national organization has taken stands

in favor of the draft, the efforts of the FBI “to eliminate

disloyalty” in this country before World War II, the forma-

tion of the United Nations, an increase in the corporate in-

come tax, the recommendations of the Hoover Commission

on reorganization of the federal government, the ratifica-

tion of the Panama Canal Treaty, the 18-year-old vote, the

vote for citizens of the District of Columbia, the “defense of

freedom” in Vietnam, and (apparently at a later time) the

withdrawal of U.S. troops from Southeast Asia. It has op-

posed “one-man” congressional committees, “socialized medi-

cine,” federal funds for teachers’ salaries and school con-

struction, and pornography. More recently, the Jaycees has

embarked on a nation-wide program in support of President

Reagan’s economic policies, called “Enough is Enough,” and it

has advocated passage of a bill to limit the appellate jurisdic-

tion of the Supreme Court in cases involving “voluntary

A-22

prayer.” Local and state groups have also taken political

stands. Sixteen state organizations have asked their respective

legislatures to join in calling a constitutional convention to

adopt a balanced-budget amendment to the Constitution of the

United States—an activity within the most literal reading of

the Assembly Clause of the First Amendment. State and local

Jaycee groups have advocated a reduction in the size of the

Minnesota Legislature, a bill to save seals, and a change in the

form of city government in El Dorado, Arkansas. These and

similar actions are reported from time to time in a magazine

called Future, published by the Jaycees.

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 insub-

stantial part of what it does. Further, all of its doings are

colored by the adoption and recitation at meetings of the

Jaycee “Creed,” quoted ante at 4, which espouses “faith in

God” and “free enterprise” and declares that “the brother-

hood of man transcends the sovereignty of nations.” Most

Americans may regard these sentiments as no more than

pious platitudes, but they nonetheless have a distinct ideo-

logical content. Some people do not believe in God; some

do not agree that “free enterprise” is the best way to win

“economic justice,” and some care more about “the sover-

eignty of nations,” or a particular nation, than they do about

“the brotherhood of man.” Those who join the Jaycees

identify themselves, emotionally and philosophically, with

the beliefs expressed in this Creed. The same cannot be said

of Dale Carnegie and similar self-improvement enterprises.

We conclude that a good deal of what the plaintiff does

indisputably comes within the right of association, even as

limited to association in pursuance of the specific ends of

A-28

speech, writing, belief, and assembly for redress of griev-

ances. That there is a right involved, however, does not get

the plaintiff all the way to the legal haven where it would

be. Even First Amendment rights, the Supreme Court has

often held, must yield at times to state interests, just as that

“liberty” which the Due Process Clause protects is not in-

sulated from every assault of government, but only from

deprivation without due process of law.“ We turn, there-

fore, to consideration of the degree to which the State wishes

to interfere with the plaintiff's right of association, and

of the nature of the State interest advanced to support the

challenged interference.

C.

There are a number of ways in which government may

seek to abridge the freedom of association. It may directly

punish the act of membership; it may intrude upon the

group’s internal organization or integral activities; it may

withhold a benefit or privilege from members of the associa-

tion; or it may compel disclosure of the fact of membership.

See Tribe, American Constitutional Law 708 (1977). The

validity of a particular abridgement-in-fact can be deter-

mined only after a careful analysis of the extent and nature

of the abridgement, the state interest asserted to justify the

abridgement, the extent to which this interest will be impaired

if the abridgement is set aside by the courts, and the extent

to which this interest can be vindicated in less intrusive

ways. All of these factors, and the balance among them,

must be considered. None of them, considered in isolation,

will be dispositive. As, for example, the type of abridgement

grows more burdensome, the state interest may need to be

relatively more compelling in order to sustain it. The in-

quiry is inescapably somewhat imprecise, and for that rea-

4

5

1

rat’

AAS

A-24

son may not be so satisfying, and will not be so logically

demonstrable, as the answers to some other kinds of legal

questions. But it must nevertheless be undertaken.

The abridgement at issue here is of the second type listed

above. Government asserts the power to determine who shall

be eligible for membership in the Jaycees. This kind of as-

sertion of state power is not often encountered. It goes to

the heart of the kind of association that plaintiff has had

and desires to continue, an association for the advancement

of the interests of young men. If the statute is upheld, the

basic purpose of the Jaycees will change. It will become an as-

sociation for the advancement of young people, Young men

will no longer be its only beneficiaries. It is natural to

expect that an association containing both men and women

will not be so single-minded about advancing men’s inter-

ests as an association of men only. Moreover, government

will be deciding the membership of a group one of whose

major activities is to petition the government for redress of

grievances. It is true enough that the specific content of

most of the resolutions adopted over the years by the Jay-

cees has nothing to do with sex. Men are no more likely than

women, as such, to favor the United Nations or a balanced

budget. But some change in the Jaycees’ philosophical cast

can reasonably be expected. It is not hard to imagine, for

example, that if women become full-fledged members in any

substantial numbers, it will not be long before efforts are

made to change the Jaycee Creed. Young women may take

a dim view of affirming the “brotherhood of man,” or

declaring how “free men” can best win economic justice.

Such phrases are not trivial. The use of language betrays an

attitude of mind, even if unconsciously, and that attitude is

part of the belief and expression that the First Amendment

A-25

protects. An organization of young people, as opposed to

young men, may be more “felicitous,” more socially desir-

able, in the view of the State Legislature, or in the view of

the judges of this Court, but it will be substantially dif-

ferent from the Jaycees as it now exists.

The State emphasizes, and rightly, that the Jaycees is

not an intimate group. It has about 800,000 members na-

tionwide, and there is no evidence in this record that any

particular man who wanted to be a member has ever been re-

jected. On one occasion new members were even sought door-

to-door. So far as the national By-Laws are concerned, mem-

bers need only be male, between 18 and 35 years of age, and

willing to pay the first year’s dues (in the neighborhood of

$25). This is hardly a private club, in the customary sense

of that word, and it is certainly not “exclusive.” There is a

sense in which the word “public” is justly used of such an

organization. We have no doubt that if the Jaycees operated

a swimming pool, a bar, or a restaurant, the facility would

have to be open to women as well as men. See, e. g., Tillman

v. Wheaton-Haven Recreation Ass'n, 410 U.S. 481 (1978);

United States v. Trustees of the Fraternal Order of Eagles,

472 F. Supp. 1174 (E.D. Wis. 1979).

But more is at stake here than swimming, food, or drink.

The Jaycees is a genuine membership organization, whose

members govern its affairs and decide its policies, not just

a vehicle for the delivery of commercial goods and services.

Furthermore, the state has overstated to some extent the

degree to which membership is open to young men indis-

criminately. The eligibility criteria we have discussed up to

now are all in the national By-Laws. Local chapters are free,

to some extent, to impose other requirements, and the St.

Paul chapter has done so. (No one may be a member of the

A-26

national group without being a member of a local chapter.)

The St. Paul By-Laws require that applicants be of “good

character and reputation.” I H.E. Tr. 184." No one has ever

been rejected under that clause, but “[u]nder the appro-

priate circumstances,” ibid., someone could be. In addition,

walk-in applicants are rare. Id. at 144. One important means

of recruitment is individual contacts between existing mem-

bers “and friends or acquaintances of theirs or people they

run into.” Ibid. Perhaps for this reason, the membership is

homogeneous to a substantial degree. About 30 per cent

of the members ef the Minneapolis chapter are “upper man-

agement,” and perhaps another 20 per cent are “middle

management,” although far less than half the population

from which members are drawn are involved in either mid-

dle or upper corporate management. Id. at 148. Recruitment

for membership in the Minneapolis Jaycees is not held out

“to all members of the public.“ Ibid. Of the St. Paul chapter,

about 60 per cent of the members are in “corporate man-

agement,” id. at 183, and no more than five members out of

about 400 work in government, although of all the communi-

ties in Minnesota, St. Paul presumably “is the most heavily

populated by Government employees.” Id. at 183-84. There

is, in other words, a certain de facto process of selection at

work here. The Jaycees is not exclusive or private, in the

sense of small or intimate; but neither is it a cross-section

of the community, even of the young male community.

We next examine the nature of the interference with the

Jaycees’ membership practices that state policy would pro-

duce. The intrusion is both direct and substantial. The State

is not merely making the Jaycees’ desired policy more dif-

— —

This reference is to Volume I of the Transcript of the hearing

before the hearing examiner, held on April 23, 1979.

A-27

ficult, or more expensive. We have here no mere disclosure

law, no simple withholding of state favor or benefits. The

membership practice at issue is directly prohibited. The

Jaycees’ membership policy will have to be changed, if the

State statute is upheld. If it is not, every person responsible,

including those who aid or abet the violation, will be guilty

of a misdemeanor, Minn. Stat. Ann. §363.101 (West Cum.

Supp. 1988). In addition, if the Jaycees fails to comply, the

Commissioner of the Department of Human Rights may

apply to a state district court for an order directing com-

pliance, Minn. Stat. Ann. §363.091 (West Cum. Supp. 1983),

and violation of such a court order would presumably be

punishable as a contempt. Furthermore, it is not clear that

the effect of the Department of Human Rights’ cease-and-

desist order can be avoided simply by withdrawing from the

State of Minnesota. In theory, the Jaycees can choose to

leave the state; but the order may mean that they may not do

so for the purpose of preserving their preferred member-

ship policy, and there is no reason to suppose that they would

ever wish to do so for any other reason.

The defendants assert that the state interest involved is

“compelling” enough to override whatever right of associa-

tion plaintiff possesses in its male-only membership policy.

The state interest preventing discrimination in public

accommodations on the basis of sex,” United States Jaycees

v. McClure, 584 F. Supp. 766, 771 (D. Minn. 1982)—is cer-

tainly “compelling” in the general sense of that word. To

clear the channels of commerce of the irrelevancy of sex, to

make sure that goods and services and advancement in the

business world are available to all on an equal basis, with-

out regard to immaterial personal characteristics—these

are public purposes of the first magnitude. But whether the

A-28

asserted interest is “compelling” in a particular set of cir-

cumstances, whether the interest is “compelling” enough to

override the right asserted, is a question that requires, we

think, a more particularized analysis.

Here, upholding the claimed right of association would im-

pair the asserted compelling state interest, but only to a

limited extent. Places of public accommodation in the ordi-

nary sense of business establishments at which goods and

services are sold to the public would continue to be subject

to the full vigor of the law. So would the Jaycees, insofar

as any of their community activities, sales uf goods, or em-

ployment practices are concerned. All of these activities

would be free of discrimination in the future, as (so far as

the record before us shows) they have been in the past. It is

only the Jaycees’ membership practices that would be af-

fected if this particular application of the state public-ac-

commodations law is prohibited. In this regard, we think it

significant that the state interest being asserted is the inter-

est in freedom from discrimination in public accommoda-

tions generally. If we were dealing with a statute that

straightforwardly forbade membership discrimination in

groups of more than a certain size that derived a substantial

amount of support from business, or if the record showed

that membership in the Jaycees was the only practicable

way for a woman to advance herself in business or profes-

sional life, a different sort of weighing would have to take

place, and such a statute might be upheld. But that is not

this case. We know that some of the Jaycees’ support comes

from businesses which pay dues for their employees, but we

do not know how much, either in absolute dollars or as a

share of the Jaycees’ total dues income. We know that mem-

bership in the Jaycees has been of some help to the com-

A-29

plaining individuals in their corporate careers, but we do

not know whether similar organizational experience in other

clubs or associations, open either to both sexes or to women

only, has been or could be of similar or greater help to these

or other women. Either a legislative or a judicial record

illuminating these and similar questions of fact would have

been of substantial use to the state in this case.

Other factors also dilute somewhat the force of the state’s

interest here. The Jaycees is the only group whose membership

practices have ever been subjected to this law. Yet, there are

hundreds of private (in the sense of nongovernmental) as-

sociations in this country whose membership is limited

either to men or to women. See Gale, Encyclopedia of

Private Associations (16th ed. 1981).* Some of these groups

seem pretty close to the Jaycees, and yet the Supreme Court

of Minnesota has held that the law does not apply to one of

them, the Kiwanis. Of this, more hereafter in Part III of this

opinion, in which we deal with the vagueness argument. We

mention the point here only because an asserted state inter-

est that is being applied only selectively appears to that ex-

tent weaker than a state policy applied consistently and

across the board.

Finally, there are other ways in which the state can ex-

press its displeasure with the Jaycees’ discriminatory mem-

bership practice, ways less directly and immediately intru-

sive on the freedom of association than an outright prohi-

bition enforced or enforceable by the criminal law. State

officials could be instructed not to appear at any function

of any discriminatory club, not to do any business with such a

A previous edition of this treatise was introduced into evidence at

trial, but it was not made available to us as part of the Designated

Record.

5 ae

n

A-30

club, and to give no official recognition to it. State officials

and employees, at least those above a certain level, could be

instructed not to join such a club. Those who seek public of-

fice or preferment may validly be required to accept it cum

onere, to divorce themselves from groups or activities that

indulge in invidious discrimination. Any state tax conces-

sions, e. g., the deduction for charitable contributions, could

be withdrawn. It could also be made unlawful (indeed, it

may be already) for an employer to subsidize an employee’s

membership in any discriminatory club, or to give that

membership any favorable weight in deciding whether to

promote an employee. We cannot say that these measures,

less direct than the fiat prohibition before us in this case,

would be just as effective in eliminating discrimination.

Probably they would not be. The record simply does not

answer that question. But the existence of less intrusive

means for effectuating state policy, even if less than com-

pletely effective, is still a relevant factor. At some point the

right of association claimed may be so strong, and the state

interest asserted comparatively so weak, that the existence

of somewhat less effective alternative means may be enough

to tip the constitutional balance against the state.

Obviously these are questions of degree. The lines are not

always clear, just as the line is not always clear between

collective-bargaining activities, for which members of the

bargaining unit, whether or not they are members of the

union, may be compelled to contribute, and ideological ac-

tivities unrelated to collective bargaining, for which such

compulsion is prohibited.” Abood v. Detroit Board of Edu-

cation, 431 U.S. 209, 236 (1977). The degree of constitu-

tional protection to which certain conduct is entitled be-

comes progressively greater as the element of “speech” or

A-31

“expression” grows, and that of “act” or “conduct” in-

creases, It becomes progressively less as the speech begins

to appear more “commercial.” Despite the impre ision of

these categories, “a court may not escape the task of assess-

ing the First Amendment interest at stake and weighing

it against the public interest allegedly served by the regula-

tion.” Bigelow v. Virginia, 421 U.S. 809, 826 (1975). In

determining how the balance should be struck here, we turn

to an examination of certain cases claimed by one side or

the other to be persuasive.

D.

The parties refer us to various opinions of the Supreme

Court that are claimed to support their positions. Plaintiff

stresses the following passage from a dissenting opinion

of Justice Douglas, joined by Justice Marshall, in Moose

Lodge No. 107 v. Irvis, 407 U.S. 168, 179-80 (1972) (foot-

note omitted) :

My view of the First Amendment and the related

guarantees of the Bill of Rights is that they create a

zone of privacy which precludes government from inter-

fering with private clubs or groups. The associational

rights which our system honors permit all white, all

black, all brown, and all yellow clubs to be formed. They

also permit all Catholic, all Jewish, or all agnostic clubs

to be established. Government may not tell a man or

woman who his or her associates must be. The individ-

ual can be as selective as he desires. So the fact that

the Moose Ledge allows only Caucasians to join or come

as guests is constitutionally irrelevant, as is the deci-

sion of the Black Muslims to admit to their services

only members of their race.

A-32

It also cites the concurring opinion of Justice Goldberg,

joined by Warren, C.J., and Douglas, J., in Bell v. Maryland,

878 U.S. 226, 286, 313 (1964):

Prejudice and bigotry in any form are regrettable, but

it is the constitutional right of every person to close

his home or club to any person or to choose his social

intimates and business partners solely on the basis of

personal prejudices including race. These and other

rights pertaining to privacy and private association are

themselves constitutionally protected liberties.

We cannot agree that these passages are of much help,

despite our respect for the authors. For one thing, they ap-

pear in separate opinions, not opinions of the Court. And for

another, it is not clear to us that the Jaycees is a “private

club” in the sense in which that phrase is used in the opin-

ions cited. In Moose Lodge the opinion of the Court de-

scribed Lodge No. 107 as “a private club in the ordinary

meaning of that term,” 407 U.S. at 171, and noted that it had

“well-defined requirements for membership.” Ibid.“ The

Jaycees’ membership requirements may be less restrictive

than those of the Moose Lodge. Our holding above that the

Jaycees have a constitutionally protected right of association

turns more on the presence of traditional First Amendment

activity such as speech and advocacy of public causes, than

on notions of privacy or intimacy.

Defendants refer us to Norwood v. Harrison, 418 U.S.

455, 470 (1973), where the Court said that “[i]nvidious

® But cf. Commonwealth Human Relations Comm’n v. Loyal Order

of Moose, 448 Pa. 451, 294 A.2d 594 (1972) (the Moose Lodge is a

place of public accommodation” under a Pennsylvania statute,

43 Pa. Stat. §954; dining room may not refuse a member’s black

guest; but discrimination as to membership itself is not forbidden,

294 A.2d at 598-599).

A-33

private discrimination may be characterized as a form of

exercising freedom of association protected by the First

Amendment, but it has never been accorded affirmative

constitutional protections.” But that phrase appears in the

course of an opinion invalidating the provision by a state

of textbooks to a discriminatory school. The context—af-

firmative aid by the state to a discriminatory activity—

is quite different from the present case, The Court’s holding

had only the effect of withdrawing official sanction from

discrimination.

Runyon v. McCrary, 427 U.S. 160 (1976), is probably

stronger authority for the defendants here. That case holds

that 42 U.S.C. §1981 prohibits a private school from exclud-

ing students on the basis of race. The school was commercial-

ly operated and advertised broadly for applicants without in

any way implying that all races would not be equally wel-

come. After holding that §1981 applies to this kind of con-

duct, the Court went on to reject the school’s claim that the

statute, as so applied, violated the First Amendment right of

association. The Court quoted the passage from Norwood

v. Harrison, supra, which we have already described, and

then added that the school had not shown that the admission

of black students would in any way inhibit the teaching of

any ideas or dogma. 427 U.S. at 176.

We believe Runyon is not in point, for several reasons.

The Court was careful to state, at the outset of its opinion,

that the cases before it “do not present any question of the

right of a private social organization to limit its member-

ship on racial or any other grounds.” 427 U.S. at 167 (foot-

note omitted). The Jaycees may not be “private” or “social”

in quite the sense that the Runyon Court used those terms,

A-34

but it comes closer to those categories than a school that

holds itself out as willing to sell its services to any member

of the public. Moreover, admission of a student to a school

has nothing necessarily to do with the school’s own internal

governance. Nonpublic schools are governed by their owners

or boards of trustees, not by a vote of the student body. The

Jaycees, on the other hand, is governed by its members and

their elected representatives, and a change in the makeup of

the membership could well result in a change in the ideas

or dogma that the organization propagates. Furthermore, a

student at a school is a consumer of educational services.

The school does not normally take positions on public issues,

or have a “Creed,” or ask the government, state or federal,

for redress of grievances. Members of the Jaycees receive

educational services, in a sense, in the form of leadership

training and experience, but they do much more than that,

as we have tried to illustrate earlier in this opinion. Runyon

is not controlling, though it may help the defendants here

more than it does the plaintiff.

A closer case, in some ways, is Railway Mail Ass’n v.

Corsi, 8326 U.S. 88 (1945). A New York statute prohibited

labor organizations from denying membership to anyone on

account of race, color, or creed. The Railway Mail Associa-

tion, an organization of postal clerks, limited membership

to males of the Caucasian or native American Indian race.

The association argued that the statute violated the Four-

teenth Amendment “as an interference with its right of

selection to membership and abridgement of its property

rights and liberty of contract.” Id. at 98. The controversy had

arisen when a branch association attempted to admit persons

not of the Caucasian race. Id. at 98 n.10. The Supreme Court

upheld the state law. It noted, among other things, “that the

A-35

terms imposed by a dominant union apply to all employees,

whether union members or not.” Jd. at 94. And therein lies

the crucial distinction between Corsi and this case. We do

not for a moment doubt the validity of a law, state or fed-

eral, forbidding sex as well as race discrimination by unions.

Indeed, federal law now does just that. 42 U.S.C. §2000e-

2(c)(1). But unions are not the Jaycees. The consequence

of being excluded from a union, for a person who must work

under an agreement between the union and the employer, is

much more severe than the consequence of being excluded

from any other group that does not have the quasi-govern-

mental power to affect non-members through collective bar-

gaining. !“

In short, our decision is not controlled by precedent. We

must look to principle and reason. Several factors are im-

portant to our analysis. The regulaticn at issue here, though

not overtly related to the content of what the Jaycees are

saying, nevertheless has the potential of changing that con-

tent, because it purports to specify, in one respect at least,

10 We note briefly certain other cases of peripheral relevance. Va-

tional Org. for Women v. Little League Baseball, Inc., 127 N.].

Super. 522, 318 A.2d 33 (1974), aff'd mem., 67 N. J. 320, 388 A.2d 198

(1974), held that Little League baseball is a “place of public accom-

modation” within the meaning of N.J. Stat. Ann. §10:5-12(f). No

First Amendment or freedom-of-association argument was made,

and the Court noted that the Little League could withdraw from

New Jersey, if it wished, in order to avoid letting girls play base-

ball as well as boys. B. P. O.. Lodge No. 2043 v. Ingraham, 297 A.2d

607 (Me. 1972), appeal dismissed for want of a substantial federal

question, 411 U.S. 924 (1973), upheld 17 Me. Rev. Stat. Ann. §1301-A,

simply forbids the sale of liquor and food by those who do dis-

criminate.

A-36

the identity of those who may be Jaycees, and who there-

fore determine the content of what Jaycees say. Speech and

advocacy are not the only things Jaycees do, but they are a

significant part of it. We are not in the less well protected

area of commercial speech. The special tests, easier for the

state to pass, that apply in that area come to bear only when

speech is “related solely to the economic interests of the

speaker and its audience.” Central Hudson Gas & Elec.

Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557,

561 (1980) (emphasis supplied). Nor are we dealing with

speech that itself proposes an illegal act, as in Pittsburgh

Press Co. v. Pittsburgh Comm'n on Human Rights, 413 U.S.

876 (1973). The state wants the Jaycees’ activities ex-

panded, not forbidden. And, even though we might think

that the Jaycees would survive, even be improved, if women

were admitted, some scope must be given to the private

choice of those who are now in the organization. The right

to choose with whom one will associate necessarily implies,

within some limits, the right also to choose with whom one

will not associate.

The interest of the state, though compelling in the general

sense, will be less seriously impaired than at first appears

if this challenged interference is prevented, for reasons we

have already explained. And the state has other ways, per-

haps less effective, but still powerful, to vindicate its inter-

est. Once a serious incursion on a First Amendment right of

association is shown, the normal presumption of constitu-

tional validity is reversed. The state must show that its

interference with the claimed right is clearly justified. We

are not persuaded that the required showing has been made

here, and we therefore hold that the application of the state

public-accommodations law to the Jaycees’ membership

A-87

policies is, in the circumstances of this case, invalid under

the First and Fourteenth Amendments.

III.

Plaintiff also claims that the statute is invalid on grounds

of vagueness and overbreadth, Either of these doctrines, if

applicable, would furnish an adequate and independent basis

for invalidating the public-accommodations law as applied to

the membership practices of nongovernmental organiza-

tions, entirely apart from the invalid-as-applied ground de-

scribed in Part II of this opinion. At first glance, the statute

seems anything but vague in the present context. Whatever

might have been its initial uncertainty as to the application

of the phrase “place of public accommodation,” and how-

ever startled it may be at that phrase’s interpretation by the

Supreme Court of Minnesota, the Jaycees now knows that

it is a “place of public accommodation,” and it knows precise-

ly what its legal duties are under the Department of Human

Rights’ cease-and-desist order, and what the penal conse-

quences may be of violating that order. But the Minnesota

Supreme Court, in the course of interpreting the key stat-

utory phrase, has, in our view, introduced such an element

of uncertainty as to make it impossible for people of common

intelligence to know whether their organizations are subject

to the law or not.

The Supreme Court’s opinion at first seems to include any

large membership organization that aggressively recruits

among a broad segment of people—a definition that prob-

ably is not vague, though it might raise overbreadth prob-

lems, in the sense that some clearly protected activities (¢.g.,

political parties) may be drawn within the zone of prohibi-

tion. (We take it, for example, that a single-issue political

party devoted to either the passage or the defeat of the

A-38

Equal Rights Amendment could assert a well-founded First

Amendment right to limit its membership to one or the other

sex.) The Supreme Court’s opinion then seems to draw back

from the full implications of its rationale. It explains that

it is interpreting the law to apply only to public“ organiza-

tions—like the Jaycees—but not to “private” organizations

—like the Kiwanis. Perhaps this passage in the opinion is

evidence of the Court’s solicitude for the rights of “private”

groups, and of a desire to avoid an overbreadth challenge

based on the theory that the law, even if valid as to the

Jaycees, is invalid on its face because it applies to clearly

protected private clubs. An “overbroad” law may be chal-

lenged even by a plaintiff whose speech or conduct is not

constitutionally protected, if it does not clearly distinguish

between speech that is protected and speech that is not. C/.

Gooding v. Wilson, 405 U.S. 518 (1972) (Georgia “fight-

ing words” statute invalid because it had not been authorita-

tively construed not co prohibit protected speech); Village

of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 508 (1982) (White, J., concurring). The difficulty

is that in attempting to limit the reach of the law to “public”

groups, the state Supreme Court has left us without any

discernible standard by which to distinguish “public” from

“private.” The opinion does not say what it is about the

Kiwanis that makes it “private.” it says only that the law

applies to the Jaycees and not to the Kiwanis. All other

groups are left to guess as to whether the law applies to

them, and the Jaycees is left to guess as to how it might

change itself in order to become “private.”

The state answers that the Supreme Court of Minnesota

did not really mean to hold that the Kiwanis is “private,”

and that in fact the record does not contain enough informa-

A-39

tion about the Kiwanis to determine what its status is, or

how it compares with the Jaycees. We do not so read the

Supreme Court’s opinion. The relevant passage, 305 N.W.2d

at 771, seems clearly to say that the Kiwanis Club is “pri-

vate” and therefore not subject to the law. The record is

hardly full as to the Kiwanis Club and its activities, but the

information it does contain seems rather to emphasize the

similarities between the Kiwanis and the Jaycees, than the

differences, The Kiwanis Club has about 300,000 members

nationwide, in about 7,750 local chapters. 1 Gale, En-

cyclopedia of Private Associations, supra, at 783 (16th ed.

1981). It has as broad a range of activities as the Jaycees

and competes for “the same class of members,” except that

the Kiwanis has no upper age limit. Tr. 72.'' Its member-

ship requirements read as follows:

Section 4. Active Membership.

a. The active membership of this club shall con-

sist of men of good character and community standing

residing or having other community interests within

the area of this club.

b. The active membership of this club shall be com-

posed of a cross section of those who are engaged in

recognized lines of business, vocation, agriculture, insti-

tutional or professional life; or who having been so en-

gaged, shall have retired. The number of members in

any one given classification shall not exceed twenty

percent (20%) of the total active membership.

e. No man shall be eligible to membership in this

club who holds membership (other than honorary) in

1! The reference is to the transcript of the trial before the District

Court on August 3, 1981.

A-40

any other Kiwanis club or service club of like char-

acter.

d. An active member shall pay a membership fee

and annual membership dues, and shall be entitled to

all the privileges of this club.

At the oral argument the state suggested that member-

ship in the Kiwanis Club is less broadly available than mem-

bership in the Jaycees. The language quoted from the By-

Laws of the Kiwanis Club fails to demonstrate this claim

to our satisfaction. The group of men from which Kiwanians

are drawn may be just as numerous as the group from which

Jaycees are drawn in practice, especially since there is no

upper age limit in the Kiwanis Club. Perhaps Kiwanians

do not recruit so aggressively as the Jaycees. We cannot be

sure on this record. But the key point is that the Supreme

Court’s opinion does not identify the facts that served to dis-

tinguish the Kiwanis from the Jaycees in its mind, and

therefore fails to supply any criterion for distinguishing

“private” from “public” groups for purposes of the statute in

question. The law, as construed by the Minnesota Supreme

Court, simply provides no ascertainable standard for inclu-

sion or exclusion, Coates v. City of Cincinnati, 402 U.S. 611,

614 (1971), and is therefore void for vagueness. This con-

clusion is reinforced by the settled rule that the void-for-

vagueness doctrine “demands a greater degree of specific-

ity” in First Amendment cases than in other contexts.

Smith v. Goguen, 415 U.S. 566, 578 (1974). It is true that

the Jaycees knows now that it is subject to the statute, be-

cause the highest state court has told it so. But it did not

know it when the conduct now said to be illegal began, and

it does not know now what it is that makes it “public,” as

contrasted with the “private” Kiwanis Club. A statute could

A-4l

perhaps be drafted that would adequately distinguish

those categories, but this statute, as interpreted, does not.“

IV.

We conclude that the Minnesota public-accommodations

law, in the context of the membership practices of non-

governmental organizations, is invalid on two alternative

and independent grounds: (1) it directly interferes with

the Jaycees’ First Amendment right of association with-

out sufficient justification; and (2) it is void for vagueness

because it supplies no ascertainable standard for the inclu-

sion of some groups as “public” and the exclusion of others

as “private.” Our holding is a narrow one, The law will con-

tinue to apply with full vigor to all business and commercial

activity in the usual sense of those words—to businesses,

for example, that sell goods and services to the public. It

will also apply to those non-membership activities of the

Jaycees and other groups that affect the public at large, in-

cluding the sale of goods, the dispensing of charitable dona-

tions, the organization of sporting events, and the like. It

is only the law’s interference with an organization’s choice

of its own members that we hold invalid under the First

and Fourteenth Amendments.

The judgment of the District Court is reversed, and the

cause is remanded to that Court with directions to fashion

injunctive relief in favor of the plaintiff consistent with

this opinion.

It is so ordered.

LAY, Chief Judge, dissenting.

I respectfully dissent.

12 In view of our holding that the law is fatally vague, we do not

reach plaintiff's claim of overbreadth.

** 0 N Ne

te 7 ene NLS

A-42

The attempt of the Jaycees to exclude women from their

full membership seeks protection under what I consider to

be an outdated rationale of our jurisprudence, one which

relegated women to a status inferior to that of men.'

I. Right of Association,

The majority decision is that the Jaycees’ right of associa-

tion cannot be made subordinate to the State of Minnesota’s

application of its civil rights act. This view I find to be total-

ly untenable. The court acknowledges that it is within the

state’s prerogative to make the factual determination as to

what may constitute a place of public accommodation.“

In all due respect, it seems patently clear, however, that the

majority decision rests upon an implied disagreement with

the finding of the Minnesota Supreme Court that the

1 See, ¢.g., Hoyt v. Florida, 368 U.S. 57, 61462 (1961) (Florida statute

relieving women but not men from jury service not unconstitu-

tional); Goesaert v. Cleary, 335 U.S. 464, 466 (1948) (Michigan stat-

ute forbidding females to act as bartenders unless the wife or

daughter of male owner not violative of equal protection); Muller

v. Oregon, 208 U.S. 412, 421-22 (1908) (state statute limiting fe-

males’ workday to 10 hours a day not unconstitutional); Cronin v.

Adams, 192 U.S. 108, 114-15 (1904) (state may condition issuance of

liquor license by prohibiting women from entering place where

liquor is sold); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178

(1874) (fourteenth amendment does not confer right to vote on

women); Bradwell v. State, 83 U.S. (16 Wall.) 130, 138-39 (1872)

(federal constitution does not prohibit state from excluding

women from the practice of law).

2 As Judge Arnold says, supra, at 12:

We of course take as a given that the Jaycees is a “place of

public accommodation” within the meaning of the Minnesota

statute. The Supreme Court of Minnesota has answered that

question, and it has the last word. Its “construction fixes the

meaning of the statute [and] ... puts .. words in the statute

as definitely as if it had been so amended by the legislature.”

Winters v. New York, 333 U.S. 507, 514 (1948).

A-43

Jaycees is a statutory “place of public accommodation.”*

The majority's analysis is otherwise without much force.

It is true that “mere labels” cannot be used as subterfuge

to undermine the proper exercise of constitutional rights.

However, there should be little question that a state, as well

as the federal government, may provide reasonable restric-

tions on the exercise of constitutional rights in a “place of

public accommodation.” See, e.g., 42 U.S.C. §2000a (1976).

“Even a ‘ “significant interference” with protected rights

of ... association’ may be sustained if the State demon-

strates a sufficiently important interest and employs means

closely drawn to avoid unnecessary abridgment of associa-

tional freedoms.” Buckley v. Valeo, 424 U.S. 1, 25 (1976).

The validity of substantial burdens on the right to associate

is upheld when “they are necessary to further compelling

state interests” and are “reasonably taken in pursuit of vital

state objectives that cannot be served equally well in sig-

nificantly less burdensome ways.” American Party v. White,

415 U.S. 767, 780-81 (1974).

The majority rests its decision on a balancing approach

in which the state allegedly has failed to show that its inter-

ference with the Jaycees’ right to associate is justified. I

have great difficulty with the court’s reasoning for several

reasons.

First and foremost, the majority’s conception of the

Jaycees is based upon factual error. The majority asserts,

This is made clear, for example, when the majority says: “The

Jaycees may not be ‘private’ or ‘social’ in quite the sense that the

Runyon Court used those terms [‘private social organization’], but

it comes closer to those categories than a school that holds itself

out as willing to sell its services to any member of the public.”

Supra, at 30.

A-44

supra, at 21-22, that a prohibition of the Jaycees’ sexually

discriminatory membership practices

goes to the heart of the kind of association that plain-

tiff has had and desires to continue, an association for

the advancement of the interests of young men.

It is natural to expect that an association containing

both men and women will not be so single-minded about

advancing men’s interests as an association of men

only. . An organization of young people, as opposed

to young men . . will be substantially different from

the Jaycees as it now exists.

Overlooked in recitation, however, is the fact that the

Jaycees is not now an association containing only men. It

freely admits women, but relegates them to inferior posi-

tions within the organization. Women who buy memberships

participate in programs with the male members, but unlike

men, they are not allowed to vote, hold office, or receive

awards. United States Jaycees v. McClure, 305 N.W.2d 764,

765 (Minn. 1981).

Moreover, the interests the Jaycees advance are not solely

“young men’s interests.” A glance at the social, civic, and

ideological activities of the Jaycees discussed in the ma-

jority opinion, supra, at 18-20, immediately discloses inter-

ests equally applicable to any state citizen, not just young

men. The Jaycees operate on the arbitrary sentiment that

men have a natural monopoly on such advocacies; this only

serves to perpetuate the chauvinistic myth that women are

incapable of dealing with such matters.

The majority proclaims that its holding “turns more on the

presence of traditional First Amendment activity such as

speech and advocacy of public causes, than on notions of

privacy or intimacy.” Supra, at 29. On this basis, the right

A-45

of association pertaining to this “place of public accommoda-

tion” is elevated to override concededly compelling state

interests.“ Such bootstrapping lacks all potency, however,

when the restriction the state seeks to apply does not create

any threat to the exercise of the Jaycees’ speech and ad“

vocacy of public causes. The activities the Jaycees engage in

have no relationship to its internal membership practices;

an association of men with privileges superior to women

does not enhance the effectiveness of the type of advocacy the

group has undertaken. See NAACP v. Alabama, 357 U.S.

449, 460 (1958). Thus, application of the statute to the

Jaycees would noi curtail or intimidate any advocacy the

association has pursued. See Runyon v. McCrary, 427 US.

160, 176 (1976); Buckley v. Valeo, 424 U.S. at 28-29;

Luoido v. Cravath, Swaine & Moore, 425 F. Supp. 128, 129

(S. D. N. V. 1977).

The majority does admit that “[mJen are no more like-

ly than women” to favor certain political issues, but then

proceeds to apparently ground its holding on a potential

“change in the Jaycees’ philosophical cast” since [young

women may take a dim view of affirming the ‘brotherhood

of man’” or other such expressions contained in the Jaycees’

creed. Supra, at 22. Such a prediction, however, is unsup-

ported by any factual basis. Many men as well as women

believe women should be treated equally in accordance with

The majority also contends that it is unclear whether the Jaycees

can avoid the effect of the Department of Human Rights’ cease-

and-desist order simply by withdrawing from the state. Supra, at

24, I agree with the district court, however, 534 F. Supp. at 772,

that the order must be construed according to its intent which

was to require the Jaycees to do business in Minnesota in com-

pliance with Minnesota law, if at all.

A-46

men.“ On the other hand, many women oppose certain ad-

vances in women’s rights.* The speculative supposition that

the Jaycees’ creed “may” change if women are granted equal

privileges is a manifestly inadequate basis upon which to

deprive the state from enforcing its overpowering interest

within this sphere of public accommodations. See Buckley

v. Valeo, 424 U.S. at 20-23, 25-29; American Party v. White,

415 U.S. at 790 (state regulation valid; “absolutely no

factual basis“ presented in support of claim of undue bur-

den on first amendment rights regulation); Konigsberg v.

State Bar, 366 U.S. 36, 51-53 (1961); American Com-

munications Asen. v. Douds, 889 U.S. 382, 396, 402-04, 406

(1950); Railway Mail Association v. Corsi, 826 U.S, 88, 93-

94 (1945).

Furthermore, there is no claim or evidence, beyond the

disputed membership practices, that any belief expressed in

the Jaycees’ creed is carried over into affirmative doctrinal

advocacy that would be restrained by application of the

state statute. The belief and the advocacy of the “brother-

hood of man” and other male-oriented credos, even if in-

tended to connote believed deficiencies of the female gender,

would, if threatened, receive robust protection under the

first amendment. However, the conduct or practice of dis-

criminatory treatment in a “place of public accommodation”

on the basis of illegal criteria cannot be safeguarded under

an asserted constitutional right of association that has, at

best, a hypothesized nexus to any deterrence of other pro-

tected first amendment rights. See Runyon v. McCrary, 427

5 For example, many Jaycees’ chapters, including the Minneapolis

and St. Paul chapters, presumably with large male constituencies,

have flouted the national organization’s practices which are sex-

ually discriminatory.

* This posture is illustrated by the nation’s struggles with the Equal

Rights Amendment to the United States Constitution.

3

1

: 1

ae

A-47

U.S. at 176; Railway Mail Association v. Corsi, 8326 U.S. at

98-94; cf. Norwood v. Harrison, 418 U.S. 455, 470 n.10

(1978) (Court noted federal law barring discrimination

in public accommodations, 42 U.S.C. § 2000a (1976)).

There should be little doubt that a sovereign has a com-

pelling interest in eradicating second-class citizenship in

places of public accommodation. The State of Minnesota

has decreed that it is an unfair discriminatory practice

„tjo deny any person the full and equal enjoyment of the

goods, services, facilities, privileges, advantages, and accom-

modations of a place of public accommodation because of

. . sex.” Minn. Stat. § 368.08(8) (Supp. 1982). The ma-

jority’s constitutional argument would make sense if the

Jaycees were a private membership organization possessing

private associational characteristics. However, it has al-

ready been determined otherw.se; the Jaycees is a “busi-

ness ... facility . . . whose goods, . privileges [and]

advantages ... are... sold, or otherwise made available

to the public.” 305 N.W.2d at 766-74; see Minn. Stat.

§ 363.01(18) (Supp. 1982) (statutory definition of “place

of public accommodation”). The legislative history and the

evidence in the record clearly supports the legal and factual

findings reached by the Minnesota court as to the Jaycees.’

™The Supreme Court of Minnesota resolved that the Jaycees is a

business because its members are treated as customers; the prod-

uct sold is membership in a leadership-training organization. 305

N. W. ad at 768-69. The court found that the Jaycees is a public, not

private, business because the organization is unselective in those

to whom it sells memberships, rewards vigorous recruitment, and

strives for unlimited growth. Id. at 769-71. The court furthermore

decided that both the fixed site of the Jaycees’ state headquarters

and the mobile sites, including door-to-door solicitation of new

members, constitutes public business facilities where an un-

screened, unselected, and unlimited number of persons are invited.

Id. at 771-74.

A-48

In any event, the court’s determination of facts and state

law are binding upon us in our task to determine the con-

stitutionality of applying this state law to the Jaycees. See

NAACP v. Button, 871 U.S. 415, 431-32 (1963); Rail-

road Commission v. Pullman Co., 312 U.S. 496, 499-500

(1941).

II. Vagueness,

The majority concludes that the Minnesota Supreme Court

has provided no discernible standard for distinguishing pub-

lic” from “private” organizations. This conclusion does not rest

on the stipulated definition by the Minnesota Supreme Court of

a “public” membership organization, which the majority con-

cedes “probably is not vague,” supra, at 33-34, but on the unex-

plained comment in the state court opinion, 305 N. W. ad at 771,

that the Jaycees could not “be viewed analogously to private

organizations such as the Kiwanis International Organization.”

The state determination that the Kiwanis is a “private” as-

sociation is readily explainable, however, on the basis of the

Kiwanis’ membership requirements reported in the record and

quoted in the majority opinion here. See supra, at 35. The

Minnesota court denotes as one criterion for the public-private

distinction the use of standards in selecting new members and

a formal procedure by which membership is restricted. The

membership of the Kiwanis group is limited so that the num-

ber of members in any one given occupational classification

cannot exceed 20% of the total active membership. Such a

restriction circumscribes membership boundaries and would

serve in itself to make the Kiwanis “private,” unlike the

Jaycees which has no limiting requirements except for age and

sex.

The failure of the Minnesota court to identify specifically

this difference between the Kiwanis and the Jaycees which is

A-49

apparent in the record cannot justify invalidating the state

statute as applied to membership organizations. A developed

body of federal and state case law exists which analyzes vari-

ous characteristics as public or private within the context of

public accommodations statutes; the Minnesota court adopted

these accepted standards from other courts for the criteria it

employed to determine that the Jaycees’ memberships are, in

statutory terms, “made available to the public.” See 305 N.W.

2d at 770. Long usage as well as common understanding pro-

vides well-defined contours to the public-private distinction the

Minnesota court utilized. See Grayned v. City of Rockford, 408

U.S. 104, 110-12 (1972); Law Students Civil Rights Research

Council, Inc. v. Wadmond, 401 U.S. 154, 159 (1971); ef.

NAACP v. Button, 371 U.S. at 434 (state statute as construed

by state court is invalid; statutory definition appeared to de-

part from common-law concept and state court did not clarify).

If a statute can be made constitutionally definite by a rea-

sonable construction, we have a duty to give the statute that

construction, United States v. Harriss, 347 U.S. 612, 618

(1954); this same requirement should be equally applicable to

the words of a state supreme court construing a state statute.

See Winters v. New York, 838 U.S. 507, 514 (1948). Con-

demned to the use of words, we can never expect mathematical

certainty from our language.” Grayned v. City of Rockford, 408

U.S. at 110. See Broadrick v. Oklahoma, 418 U.S. 601, 608

(1978).

As in United States Civil Service Comm’n v. National Ass’n of

Letter Carriers, 413 U.S. 548, 580 (1973), it is significant that the

state legislature has mandated the creation of advisory commit-

tees to disseminate technical assistance to interested persons, See

Minn. Stat § 363.05(17), (20), (21) (Supp, 1982). To remove doubts

as to the meaning of the law insofar as the state commission is

concerned, advice can be sought on the validity of proposed

courses of conduct.

A-50

Moreover, even if the outermost boundaries of the public-

private distinction is assumed to be imprecise, under accepted

principles of constitutional adjudication, the Jaycees, who

clearly fit within the definition of a “place of public accom-

modation,” has no standing to challenge the vagueness of this

statute as construed and applied to hypothetical organizations

not before us. See Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 495 (1982); Parker v.

Levy, 417 U.S. 733, 756 (1974).

III. Overbreadth.

The majority does not reach the overbreadth issue, but

nevertheless insinuates invalidity on this basis of the state

statute as construed. As an example that some protected ac-

tivities may be prohibited, the majority alludes to the right of

a single-issue political party, devoted to the passage or defeat

of the Equal Rights Amendment, to limit its membership to

one gender. Supra, at 34. I fail to see how such an illustration is

applicable to a statute aimed at “place[s] of public accom-

modation.” Although a political party of this sort may be de-

termined to be “public” under the selectivity and size criteria

employed by the Minnesota court, such an association would not

fit other requirements of a “place of public accommodation.”

The hypothetical political party would not be a business offer-

ing or selling goods, services, privileges, or advantages, nor

could its characteristics possibly be harmonized with other

categories within the Minnesota public accommodations law.

Because a statute declared to be overbroad cannot be en-

forced until narrowed, application of the doctrine is “strong

medicine” and is to be used “sparingly and only as a last

resort.” Broadrick v. Oklahoma, 418 U.S. at 618. “[P]articu-

larly where conduct and not merely speech is involved, . the

overbreadth of a statute must not only be real, but substantial

A-51 ‘

as well, judged in relation to the statute’s plainly legitimate

sweep.” Id. at 615. The potential effect of this statute on pro-

tected associational choices is mere speculation. See id.; Ohra-

lik v. Ohio State Bar Association, 486 U.S. 447, 462 n.20

(1978). In such a situation, “whatever overbreadth may exist

should be cured through case-by-case analysis of the fact

situations to which its sanctions, assertedly, may not be ap-

plied.” Broadrick v. Oklahoma, 418 U.S. at 615-16.

In conclusion, I find the state statute as construed can be

constitutionally applied to the discriminatory membership

practices of the United States Jaycees, and is neither vague

nor overbroad. I would affirm the decison of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

i»

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

Civil No. 479-530

THE UNITED STATES JAYCEES, a non-profit

Missouri corporation, on behalf of

its qualified members,

Plaintiff,

vs.

MARILYN E. McCLURE, Commissioner,

Minnesota Department of Human Rights,

WARREN SPANNAUS, Attorney

General of the State of Minnesota,

and GEORGE A. BECK, Hearing Examiner

of the State of Minnesota,

Defendants.

MEMORANDUM OPINION

AND ORDER FOR JUDGMENT

CLAY R. MOORE, Esq., Mackall, Crounse & Moore, and

CARL D. HALL, JR., Esq., Oral Roberts University Law

School, appeared on behalf of plaintiff.

RICHARD L. VARCO, JR., Esq., Special Assistant General

for the State of Minnesota, appeared on behalf of defen-

dants.

Plaintiff United States Jaycees (the Jaycees) brought this

action against defendants Marilyn E. McClure, Commis-

sioner of the Minnesota Department of Human Rights (the

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Department), Warren Spannaus, Attorney General for the

State of Minnesota, and George A. Beck, Hearing Examiner

for the State of Minnesota, pursuant to 42 U.S.C. § 1983,

seeking a judgment declaring Minn. Stat. §§ 363.01 (18),

and 3863.03 (8), (6), and (7) unconstitutional and enjoining

enforcement thereof, as well as “such costs, attorneys fees

and damages as may be proven and allowable.” Jurisdic-

tion is alleged under 28 U.S.C. §§ 1331, 1332, and 1343.

Trial was had on August 3, 1981; counsel were given leave

to file post trial briefs, and final arguments were heard on

January 27, 1982, when the matter was taken under advise-

ment. Based upon the evidence adduced at trial, and all the

files, records, and proceedings herein, the court now makes

the following findings of fact and conclusions of law in

memorandum form.

Procedural Background

This case arose from complaints brought by individual

members of the Jaycees. On December 14, 1978, four mem-

bers of the St. Paul chapter of the Jaycees, including its

president, filed a charge of discrimination with the Depart-

ment, based on the Jaycees’ policy of forbidding women the

same membership status in the Jaycees as men. On December

19, 1978, four members of the Minneapolis chapter of the

Jaycees, including its president, filed a similar charge. The

Department investigated and found probable cause to believe

the Jaycees had violated Minn. Stat. §§ 863.08 (8), (6), and

(7)* and served notice of the finding and an order for a

4 § 363.03(3) provides in relevant part:

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 pub-

lic accommodation because of. sex...

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hearing. The Department’s attempts to conciliate the matter

failed.

The Jaycees filed an action in this court on February 27,

1979, seeking the same relief it now requests but asking the

court to abstain from a determination of the merits of the

constitutional claims until the conclusion of administrative

nroceedings before the Department. The district court“ dis-

. gsed the action without prejudice to renewing the action

if the Jaycees received an adverse determination in the state

administrative proceeding.

After a hearing, the State Hearing Examiner,’ issued

findings and conclusions which stated that the Jaycees is a

place of public accommodation as defined by Minn. Stat.

§ 368.01(18),* and that by subjecting its Minneapolis and

St. Paul chapters to sanctions and warning them of an in-

tended vote on revocation of their charters because of their

admission of women as individual or regular members, it

committed an unfair discriminatory practice in violation of

Minn. Stat. § 863.03 (8). The hearing examiner, pursuant to

§ 363.03(6) forbids intentionally aiding, abetting, or coercing an-

other to engage in any of the practices forbidden by the Human

Rights Act.

363.08 (7) forbids reprisals for opposing or filing a charge con-

cerning any practices forbidden by the Act.

2 The Honorable Miles W. Lord presiding.

* Defendant George A. Beck.

4 § 363.01(18) provides:

“Place of public accommodation” means a business, accommo-

dation, refreshment, entertainment, recreation, or transporta-

tion 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.

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Minn. Stat. § 363.071(2),° issued a cease and desist order en-

joining the Jaycees from 1) revoking the charter of, deny-

ing the privilege or right of membership to, or otherwise dis-

criminating against any local chapter or state organization

of the Jaycees within Minnesota for extending to women all

the rights and privileges of individual or regular member-

ship, or 2) discriminating on the basis of sex against any

member or applicant for membership in a Jaycees local

chapter within Minnesota with respect to the terms, condi-

tions, or privileges of membership in the local chapter, state

organization, or the Jaycees.

The Jaycees then filed the present action. At the request

of the parties this court certified the following question to the

Minnesota Supreme Court pursuant to Minn. Stat. § 408.061

(8):

Ils The United States Jaycees a place of public accom-

modation” within the meaning of Minn. Stat. § 363.01

Subdivision 187

By stipulation, the parties agreed that the evidentiary

facts relevant to the certified question were those contained

in the findings of fact of the hearing examiner and the

transcript and exhibits in the record of the state administra-

tive proceeding. The supreme court answered the question

in the affirmative. United States Jaycees v. McClure, 305

N.W. 2d 764, 765 (Minn. 1981).

363.071 (2) provides in relevant part that

if the hearing examiner finds that the respondent has engaged

in an unfair discriminatory practice, the hearing examiner

shall issue an order directing the respondent to cease and de-

sist from the unfair discriminatory practice found to exist and

to take such affirmative action as in the judgment of the exam-

mer will effectuate the purposes of this chapter

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The Minnesota Supreme Court reviewed the legislative

history of Minn. Stat. §§ 363.01 and 363.03, as well as the

characteristics and practices of the Jaycees. The court con-

cluded that the Jaycees is a place of public accommodation”

as defined by the legislature in § 363.01 (18) because: 1)

the Jaycees is a “business” in that it sells goods and extends

privileges in exchange for annual membership dues; 2) it is

a “public” business in that it solicits and recruits dues pay-

ing members but is unselective in admitting them, and 8) it

is a public business “facility” in that it continuously re-

cruits and sells memberships at sites within the State of

Minnesota. Id. at 768.

Issues presented

The Jaycees contends that the actions of the State of Min-

nesota and the Minnesota Supreme Court deprive it and its

members of the right of freedom of association guaranteed

by the First and Fourteenth Amendments of the United

States Constitution and that the Minnesota statutes, as ap-

plied, are unconstitutionally vague and overbroad.“

Facts

The factual record before this court is essentially the

same as that before the Minnesota Supreme Court although

additional evidence was introduced here. The record con-

sists of the hearing examiner’s findings and conclusions, the

transcript and record of the state proceedings, the testimony

of Arthur W. Boutiette, Executive Vice President of the

Jaycees and the organization’s historian, exhibits offered

during his direct examination, and certain additional ex-

hibits. Having carefully reviewed the reocrd, the court

*In its complaint the Jaycees also alleged a violation of the Equal

Protection Clause, but it has chosen not to pursue that claim.

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adopts the factual statements of the Minnesota Supreme

Court as uugmented by its own findings.

The Jaycees is a non-profit corporation, exempt from

federal income taxes. It has received no federal funds since

1977 and has never received state funds. There are 51 state

organizations affiliated with the Jaycees and approximately

8,800 local Jaycee chapters. Membership in a local chapter

automatically enrolls the member in the state and national

chapter.

The Jaycees considers itself to be a young men’s leader-

ship training organization, serving the goals of individual de-

velopment, community development, and development of

management ability.’ It claims that the training it offers

gives members an advantage in business and civic ad-

vancement, and businesses are in fact sometimes requested

to pay the dues for individual members. The Jaycees provides

its local chapters with programs and materials relative to

its stated goals. These include, for example, a personal dy-

namics program, a public speaking program, Junior Athletic

Championships, leadership dynamics materials, and the

like. In addition, the Jaycees from time to time issues

various policy statements on political and social issues after

taking votes of its members either by national referendum

or through votes of delegates at national conventions.

One of the major activities of the Jaycees is the sale of

memberships in the organization. It encourages continuous

The Jaycees bylaws state that it is organized to

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recruitment of members with the expressed goal of increas-

ing membership and offers no selection criteria for mem-

bers, save age and sex. It was primarily on the basis of the

manner of the Jaycees sale of memberships that the Minne-

sota Supreme Court concluded it was a public accommoda-

tion as defined in Minn. Stat. § 368.01(18). The Jaycees it-

self refers to its members as customers and membership

as a product it is selling. More than 80 percent of the na-

tional officers’ time is dedicated to recruitment, and more

than half of the available achievement awards are in part

conditioned on achievement in recruitment. The Jaycees dis-

courages selective recruitment of members, preferring a

high quantity of new recruits. The Executive Director for

the affiliated organization of Minnesota has stated that he had

no knowledge of a rejection of any application for member-

ship.

The Jaycees has a policy which admits women to mem-

bership but does not afford them the same privileges

enjoyed by male members. Men, ages 18 to 35, may become

individual members, whereas women may be offered only

associate memberships. Annual membership dues are only

slightly less for associate membership. Associate members

are not allowed to stand or be nominated for office, vote in

the election of officers, vote in matters of decision in the

local, state, or national organizations, or receive achieve-

ment awards. They are allowed, however, to participate in and

contribute to the success of the programs upon which such

awards are based. Men can continue to receive awards after

age 35, even though they may then purchase only associate

memberships.

The Minneapolis and St. Paul chapters of the Jaycees

have disagreed with this policy. In 1974 and 1976 they be-

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gan to allow women to purchase individual memberships

and accorded them the same privileges as male members.

On the national level, the Jaycees voted down an amend-

ment to its bylaws that would allow women to buy individual

memberships, but set up a “pilot membership program”

which allowed local chapters in five states to offer indi-

vidual memberships to women. In June of 1978, the Jaycees

ordered the pilot membership program terminated and

again rejected a change in policy to allow women the same

membership status as men. Then in 1981, Jaycees members

voted in a national referendum not to change the member-

ship status of women, 67 percent voting against the change

and 83 percent for.

From 1975 to June of 1978, the Minneapolis chapter

was subjected to sanctions for violation of the Jaycees by-

laws restricting individual memberships to men. The sanc-

tions included exclusion of the chapter members’ votes

when computing votes at the national level, disallowing the

chapter members from running for state or national office,

and declaring the chapter ineligible to host national events.

On December 15, 1978, the Jaycees advised the Minne-

apolis and St. Paul chapters it planned to vote on whether

to revoke their charters because they had violated the by-

laws by continuing to afford women equal privileges with

men. This occurred on the day after members of the St. Paul

chapter filed their complaints with the Department.

Discussion

The parties recognize that the Minnesota Supreme Court’s

interpretation of Minn. Stat. § 363.01(18) represents an au-

thoritative construction of that section and is binding on

this court. N.A.A.C.P. v. Button, 371 U.S. 416, 482 (1968).

The only question before this court therefore is whether

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the application of the statute to the Jaycees violates its

constitutional rights.

1. Freedom of association

The Jaycees claims that the application of the Minnesota

Human Rights Act to it deprives it of the right to “associate

for the purpose of advancing only the interests of young

men.” This deprivation is alleged to have taken place absent

any compelling state interest.

The only First Amendment interest articulated by the

Jaycees is freedom of association. It is questionable whether

association not directed at the exercise of other First

Amendment rights enjoys constitutional protection. See L.

Tribe, American Constitutional Law, at 702 (1976). Su-

preme Court cases upholding a right of freedom of as-

sociation have involved association in connection with other

protected First Amendment activities. See, e.g., Widmar v.

Vincent, 102 S.Ct. 269, 276 (1981); Abood v. Detroit Board

of Education, 481 U.S. 209, 235 (1977); N. A. A. C. P. v.

Alabama, 357 U.S. 449, 462 (1958). Certain language in

decisions of this circuit, however, suggests that freedom of

association itself may be a “basic constitutional freedom.”

Norbeck v. Davenport Community School District, 545 F. ad

68, 67 (8th Cir. 1976). See Greminger v. Seaborne, 584 F.2d

275, 278 (8th Cir. 1978); American Federation of State,

County and Municipal Employees v. Woodward, 406 F.2d

187, 189 (8th Cir. 1969) (“The First Amendment protects

the right of one citizen to associate with other citizens for

any lawful purpose free from government interference.”).

The Fifth Circuit has held the right of social association it-

self to be constitutionally protected. See Aladdin’s Castle,

Ino. v. City of Mesquite, 680 F.2d 1029, 1041-1042 (5th

Cir. 1980), rev’d on other grounds, 50 U.S.L.W. 4210 (1982).

A-61

The court need not, however, reach the issue of whether

association is itself protected by the First and Fourteenth

Amendments. Application of other constitutional principles

shows that if there is such a right, it has not been unconsti-

tutionally denied to the Jaycees.

The Jaycees is not afforded affirmative constitutional

protection for its practice of distinguishing the rights and

privileges of men and women members. “Invidious private

discrimination may be characterized as a form of exercising

freedom of association. . . but it has never been accorded af-

firmative constitutional protections.” Norwood v. Harri-

son, 418 U.S. 455, 470 (1973). While the Jaycees has a right

to believe that its organization should only advance the inter-

ests of men, its practice of excluding women from equal bene-

fits does not enjoy protection under the cirucmstances

presented. See Runyon v. McCrary, 427 U.S. 160, 176 (1976).

Even assuming the Jaycees’ membership policy constituted

an exercise of a protected right to associational freedom, the

state has shown a sufficiently compelling interest to over-

come such a right. The right to associate is not absolute;

even a significant interference with the right of association

may be sustained if the state demonstrates a sufficiently

important interest and avoids unnecessary abridgment of

First Amendment rights. Buckley v. Valeo, 424 U.S. 1, 25

(1976).

Minnesota has demonstrated its commitment to prohibiting

discrimination in access to public accommodations on the basis

of sex. Its legislature has clearly stated that “it is the public

policy of this state to secure for persons in this state, free-

dom from discrimination . . . in public accommodation be-

cause of ... sex...” Minn. Stat. § 368.12. The vehicle

it has chosen to accomplish this purpose is the Minnesota

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Human Rights Act, including the provisions at issue in this

case.

The legislative history of the act shows the legislative in-

tent and policy behind its prohibitions, That history was

set forth in the Minnesota Supreme Court’s opinion answer-

ing this court’s certified question and was the foundation for

its analysis. Minnesota has had a law barring racial dis-

crimination in accommodations since 1885, and its coverage

has been expanded from time to time since then. Discrimina-

tion in public accommodations on the basis of religion and na-

tional origin was prohibited in 1943, and on the basis of sex in

1978. The definition of public accommodations has been en-

larged and simplified, and ultimately in 1967 came to be focused

on a business facility of any kind and “conduct in which dis-

crimination would be prohibited” (United States Jaycees v.

McClure, 305 N. W. ad at 768) rather than on a particular site.“

The legislature itself declared that the statute should be con-

strued liberally to accomplish its purpose (Minn. Stat. § 363.11)

which is to protect the citizens of Minnesota from discrimina-

tion (§ 868.12). On this background the court concluded that the

legislature had shown “its own special and unusually broad

definition of the term ‘public accommodation.’” 305 N.W.2d

at 766.

Minnesota’s interest in preventing discrimination in pub-

lic accommodations on the basis of sex is compelling. Sex

discrimination has been prohibited in some cases by the

courts, see ¢.g., Frontiero v. Richardson, 411 U.S. 677, 688

* Minnesota’s statutory definition of public accommodation is sig-

nificantly different than that of the District of Columbia, making

United States Jaycees v. Bloomfield, Case No. 79-1141 (D.C. Aug.

31, 1981), of little or no value in deciding the issues before this

court.

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(1973), and by the United States Congress, see e.g., 42

U.S.C. § 2000e-2 (forbidding discrimination in employment

on the basis of sex). Such statutory provisions do not run

afoul of the First Amendment. See Norwood v. Harrison,

418 U.S. 455, 470 (1973). Similarly, Minnesota’s decision to

forbid sex discrimination in public accommodations by use

of a carefully drawn statute does not violate the First Amend-

ment. The statute’s focus on commercial activity, which oc-

cupies “a subordinate position on the scale of First Amend-

ment values .” (Ohralik v. Ohio State Bar Association,

486 U.S. 447, 456 (1978)), further supports this conclu-

sion.

It is the policy of the State of Minnesota set by its elected

representatives in its civil rights statute to prohibit sex dis-

crimination to the same extent as racial discrimination.

The Minnesota Supreme Court commented that if the Jaycees

were discriminating on the basis of race, it would have no

difficulty in holding that such action was barred by the

statute, and the fact that the discrimination is on the basis

of sex should not lead to a different result. 305 N.W.2d at

774. Protection of citizens from discrimination on the basis

of sex is a legitimate interest of the State of Minnesota

which it has chosen to value highly. Its statutory scheme

does no more than require that those organizations which

are by their nature public accommodations and which choose

to do business in Minnesota offer such accommodations on a

nondiscriminatory basis. |

Contrary to the Jaycees’ contention that its purpose would

be destroyed by allowing women full membership, the hear-

ing examiner’s order does not require the Jaycees to aban-

don its purpose of providing leadership training, self im-

provement, and community involvement to young men.

r

PW | Rt ee

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There is no reason to believe that opportunities for young

men would be restricted or that male members would not

be able to take full advantage of activities and programs

offered by the Jaycees if women become full members. C7.

Lucido v. Cravath, Swaine, & Moore, 425 F.Supp. 123, 129

(S.D.N.Y. 1977) (Application of Title VII to law firm’s

partnership promotion practices held not to interfere with

First Amendment rights.).

The Jaycees argues that Minnesota and its Supreme

Court are in conflict with the holding of the Eighth Circuit

Court of Appeals in Junior Chamber of Commerce of

Kansas City v. Missouri Chamber of Commerce, 508 F.2d

1081 (8th Cir. 1975). That case is not controlling here, how-

ever. It held that the Jaycees’ receipt of government funds

did not convert its private action into state action, there-

by triggering the due process guarantees of the Fifth

Amendment. Id. at 1083-1084. The doctrine of state action

is not at issue | The Minnesota court found that because

of its special ; cs the Jaycees is a public accom-

modation within the meaning of the Minnesota civil rights

statute. The absence of state action does not preclude an

entity’s being a public accommodation. There is no doubt

that an organization may be regulated by government even

if it receives no governmental funding, and such an organi-

zation can also be a public accommodation for constitu-

tional purposes if it offers services and facilities to the

public. See e. ., Heart of Atlanta Motel, Inc. v. United

States, 879 U.S. 241 (1964).

The Jaycees also argues that the hearing examiner’s cease

and desist order prohibiting revocation of the charter of

any local or state organization which extends equal mem-

bership privileges to women erodes its right to freedom

|

A 2 =

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of association because it requires it to continue to offer

services in Minnesota despite what it perceives to be an ad-

verse legal climate. This argument misconstrues the nature of

the hearing examiner’s order. The purpose of the order was

to require the Jaycees to do business in Minnesota in com-

pliance with Minnesota law, if at all. It was obviously not the

intent of the hearing examiner to require the Jaycees to

continue to sell memberships in Minnesota in perpetuity,

but instead to keep it from retaliating against local chapters

which choose to obey Minnesota’s proscription against sex

discrimination in public accommodations.

2. Vagueness and Overbreadth

The Jaycees contends that Minn. Stat. §§ 863.03 (3) and

363.01(18) as construed by the Minnesota Supreme Court

are unconstitutionally vague and overbroad.

An enactment is void for vagueness if its prohibitions

are not clearly defined, or if it does not give a person of

ordinary intelligence reason to know what is prohibited.

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The

exact application of this due process principle may vary de-

pending on whether the enactment is criminal, penal regula-

tion of business, of civil. Compare Papchristou v. City of

Jacksonville, 405 U.S. 156, 162 (1972) with United States

v. National Dairy Products Corp., 372 U.S. 29, 32-83 (1963)

and Horn v. Burns and Roe, 536 F.2d 251, 256 (8th Cir.

1976).

Even if the strict standard normally applied in criminal

cases is used, the portions of the statute to which the Jaycees

objects are not unconstitutionally vague. The term “place of

public accommodation” when construed with normal aids to

statutory construction can be understood by those of common

understanding to apply to the Jaycees. See generally Rose

ore ea ns See Sa Pe

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v. Locke, 423 U.S. 48, 50 (1975). Both the Minnesota Legis-

lature and the Minnesota Supreme Court have noted that

the provisions of the Minnesota Human Rights Act are to be

construed liberally to effect its purposes. Minn. Stat. §

868.11; State v. Bergeron, 290 Minn. 351, 357, 187 N. W.

2d 680, 683-684 (1971). The findings of the Minnesota

Supreme Court clearly illustrate the applicability of the

statute to the Jaycees, based on facts concerning its recruit-

ment policy and sales of memberships, all of which were

well known to the Jaycees. See United States Jaycees v.

McClure, 305 N.W.2d at 768-774.

The Jaycees attempt to attack the statute as applied for

vagueness on the ground that other organizations will be un-

able to ascertain whether or not they fall within the defini-

tion of “place of public accommodation” must be rejected

The Jaycees has no standing to challenge the alleged vague-

ness of the statute on the basis of its hypothetical applica-

tion to other groups. Young v. American Mini Theatres, Inc.,

427 U.S. 50, 58-59 (1976); Parker v. Levy, 417 U.S. 788,

756 (1978); L. Tribe, American Constitutional Law, at

720 (1976). Moreover, the Minnesota court in its lengthy

discussion of the Jaycees and the statute made it amply clear

that the statute only applies to a public business facility.

A person of ordinary intelligence can understand what is

prohibited by the statute as construed.

A statute which is sufficiently clear to survive an attack

on the grounds of vagueness may still be invalid on the basis

of overbreadth. The crucial question is whether the provi-

sion “sweeps within its prohibitions what may not be x

punished under the First and Fourteenth Amendments.” ä

Grayned v. City of Rockford, 408 U.S. at 115; accord

NAACP. v. Button, 371 U.S. 415 488 (1968). An over-

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breadth challenge does not have the same standing re-

quirement as vagueness; a litigant may raise overbreadth

concerns on behalf of others not before the court on the

grounds that the challenged statute may cause them “to

refrain from constitutionally protected speech or expres-

sion.” Bréudrick v. Oklahoma, 418 U.S. 601, 612 (1978).

However, overbreadth applies weakly, if at all, in the ordi-

nary commercial context. Ohralik v. Ohio State Bar Associa-

tion, 436 U.S. 447, 462 n.20 (1978); Bates v. State Bar of

Arizona, 433 U.S. 350, 380 (1977). A limiting construction

of a statute may narrow it so as to remove any threat to

constitutionally protected activity. Young v. American Mini

Theatres, Inc., 427 U.S. at 60; Broadrick v. Oklahoma, 418

U.S. at 613.

The statutory provisions at issue are not overbroad, par-

ticularly in light of the limiting construction by the Minne-

sota Supreme Court under which the statute is only ap-

plicable to public business facilities which practice sex dis-

crimination. The court explicitly noted that its decision

would not affect private associations and memberships, in-

cluding those which have more selective membership criteria

than the Jaycees. United States Jaycees v. McClure, 305

N.W. 2d at 771.

The Jaycees argues at length that the Minnesota court’s

interpretation of the statute makes it applicable to a number

of organizations including the Boy Scouts, the Kiwanis, the

Sweet Adelines, and the like. There is insufficient evidence

in the record pertaining to the activities of these groups to

allow any determination whether the statute would apply to

them and whether the groups engage in protected First

Amendment activity. The record as to the Jaycees is, how-

ever, well developed. Speculation by the Jaycees as to the

A-68

future application of the statutes to other organizations does

not provide a sufficient basis to undermine their constitu-

tionality.

It is noteworthy that the Minnesota Human Rights Act

was only applied against the Jaycees after complaints were

brought by some of its own members in Minnesota who be-

lieved their rights were being violated by the Jaycees and

sought the protection afforded by the statute.

The evidence supports the conclusion drawn by the Min-

nesota Supreme Court that the Jaycees is “engaged in the

business of seeking to advance its members and to add to

their ranks by assiduously selling memberships in this state”

(305 N.W.2d at 774) on a non-selective basis.

In sum, Minnesota’s interest in prohibiting public business

facilities from sex discrimination outweighs any protected

right of freedom of association the Jaycees may have, and

the statute as consty ued is neither vague nor overbroad. This

case must be decided on the basis of the specific statute be-

fore the court. Application of that statute against the Jay-

cees does not violate the Constitution. The statute is not un-

constitutional, and judgment shall therefore be entered for

defendants.

ORDER FOR JUDGMENT

Based upon the foregoing,

IT IS HEREBY ORDERED THAT:

1. Judgment herein be entered for defendants and

against plaintiff.

2. The parties are to bear their own costs.

Dated: March 25, 1982.

DIANA E. MURPHY

U.S. District Judge

A-69 .

UNITED STATES DISTRICT COURT

Cal. 388

THE UNITED STATES JAYCEES,

Appellants,’

vs.

MARILYN E. McCLURE, WARREN SPANNAUS,

and GEORGE A. BECK,

Respondents.

Otis, J. Dissenting, Sheran, C.J., Peterson, J., Todd, J.

Endorsed

Filed May 8, 1981

John McCarthy, Clerk

Minnesota Supreme Court

SYLLABUS

Certified question from the United States District Court

for the District of Minnesota: “Is the United States Jaycees

‘a place of public accommodation’ within the meaning of

Minn. Stat. § 363.01, Subdivision 18?” Answer, affirmative.

Heard, considered, and decided by the court en banc.

OPINION

OTIS, Justice.

The United States District Court for the District of Min-

nesota has certified the following question to this court, in

conformity with Minn. Stat. § 480.061(3) (1980): “Is the

United States Jaycees ‘a place of public accommodation’

within the meaning of Minn. Stat. § 363.01 Subdivision 18?”

We answer in the affirmative.

The case and question arise from a dispute between a na-

tional organization and two of its local affiliates. Their

dispute concerns an admittedly unequal granting of the

Bettini

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privileges of membership. The national organization has

settled on a policy that admits women to membership, but

with the proviso that women shall not be accorded privileges

that are full and equal to those accorded to men. The policy

is effected by a distinction in the kinds of membership of-

fered. Individual membership is offered to men, ages 18 to

35, in exchange for annual membership dues. Associate indi-

vidual membership [hereafter “associate membership”] is

offered to a business concern, association, group or indi-

vidual not qualified by the by-laws to be an individual mem-

ber. The annual dues charge is a few dollars less than the

charge for an individual membership. Women, by definition,

may be offered only associate membership.

The difference in the dues charged for those memberships is

small; the difference in the privileges accorded is consider-

able. Associate members are not allowed to stand or be nomi-

nated for office; they are not allowed to vote in such elec-

tions, nor vote on any other matters of decision in the local,

state, or national organizations; and, though women are

allowed to participate in many of the programs of the organi-

zation and contribute their time and effort toward making

those programs successful, women are not allowed to be the

recipients of any of the numerous achievement awards given

by the local, state and national organizations. The awards

and the prestige are restricted to men. Men continue to re-

ceive awards even when, after age 35, they can only pur-

chase the otherwise same associate membership as women.

This membership policy has not met with the approval of

the organization’s Minneapolis and St. Paul chapters. In

1974, the Minneapolis chapter began to allow women to pur-

chase individual memberships, and accorded them privileges

that were full and equal to those accorded to men. In 1976,

—

A-71

the St. Paul chapter made the same changes. The national

organization, however, voted down an amendment to its

by-laws that would have allowed individual memberships to be

sold to women. The organization decided, instead, to set up a

“pilot membership program“. Local chapters in five states

could let women purchase individual memberships. Only

three of the affiliated state organizations voted to let their

local chapters try the pilot program. The affiliated state

organization in Minnesota voted not to try it. In June 1978,

the president of the national organization ordered the pilot

programs terminated. The national organization repeated its

rejection of the proposed change in its policy of letting

women purchase only an associate membership, costing a

few dollars less but worth much less than the individual

memberships that men could buy.

By letter, the national organization advised the Minne-

apolis and St. Paul chapters of its imminent plans to vote on

whether to revoke their respective charters because those

Minnesota chapters had violated the organization’s by-laws

by continuing to let women purchase individual member-

ships. On the previous day, December 14, 1978, the Minne-

apolis and St. Paul chapters brought before the Minnesota

Department of Human Rights a charge of sexual discrimina-

tion against the national organization. They alleged viola-

tions of Minn. Stat. § 863.08 (8), (6) (1980). The commis-

sioner of the department investigated and found probable

cause that there was a violation. The department attempted

without success to conciliate the matter.

On October 9, 1979, a State Hearing Examiner found the

national organization in violation of Minn. Stat. § 363.08 (8)

(1980), the pertinent part of which reads:

A-72

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 accommoda-

tion because of race, color, creed, religion, disability,

national origin or sex.

The Examiner held that the national organization discrimi-

nated unfairly on the basis of sex by refusing to let women

purchase individual memberships. He enjoined the national

organization from such discrimination in any of its chapter

affiliates within Minnesota, and from taking sanctions

against any of them for selling individual memberships to

women.

The national organization responded with a petition for

review of the Examiner’s order to the Ramsey County Dis-

trict Court, and commenced an action, in the United States

District Court for the State of Minnesota, for the purpose of

reserving determination of federal constitutional claims

arising from the application of Minn. Stat. § 363.08 (3)

(1980). The federal district court, in an attempt to expedite

a decision of the pivotal issue, certified to this court the

question of whether this national organization is a “ ‘place

of public accommodation’ within the meaning of Minn.

Stat. § 868.01, Subdivision 187”

Legislative guidance

In Minn. Stat. § 368.01(18) (1980) the legislature ex-

pressed its own special and unusually broad definition of the

term “place of public accommodation”: “a business, accom-

modation, refreshment, entertainment, recreation, or trans-

portation facility of any kind, whether licensed or not,

whose goods, services, facilities, privileges, advantages, or

accommodations are extended, offered, sold, or otherwise

A-78

made available to the public.” The legislature defines a term

only because it intends in some measure to depart from the

ordinary sense of that term. Thus, there is a presumption

that we are not to substitute the literal, ordinary meaning

of “place of public accommodation” for the definition the

legislature has provided.

The legislature has, moreover, cautioned us against nar-

rowly construing any of the provisions of Minn. Stat.

§ 363.03 (1980). It has broadened the term “place of public

accommodation” to mean “a business * * * facility of any

kind * * * whose goods * * * [and] privileges * * * are

sold, or otherwise made available to the public“. Minn. Stat.

§ 363.01(18) (1980). It has also expressly required a broad

construction of all provisions of the statute by order of Minn.

Stat. § 363.11 (1980) which reads, in pertinent part: “The

provisions of this chapter shall be construed liberally for the

accomplishment of the purposes thereof.” Minn. Stat. § 863.12

(1980) states those purposes to be “to secure for persons in

this state, freedom from discrimination * * *.” To under-

stand accurately what those purposes here require in a con-

struction of Minn. Stat. § 363.01(18) (1980), we must review

the history of that provision and of Minn. Stat. § 863.03 (3)

(1980) whose key term it defines.

Legislative history

In 1885, ten years before the United States Supreme Court

put its imprimatur on the “separate but equal” fiction justi-

fying the Jim Crow laws, the legislature of the State of Min-

nesota chose a different course, that of “full and equal”

privileges, as it enacted this statute:

That all persons within the jurisdiction of the state of

Minnesota shall be entitled to the full and equal enjoy-

ment of the accommodations, advantages, facilities and

A-74

privileges of inns, public conveyances on land or water,

theatres and places of public amusements, restaurants

and barber shops, subject only to te conditions and

limitations established by law and applicable alike to

all citizens of every race and color, regardless of any.

previous condition of servitude. '

In 1897, the legislature broadened the scope of the statute by

increasing the number and kind of enumerated sites on

which a person would be held to have violated the statute if

that person excluded

any other person within the jurisdiction of the state of

Minnesota, on account of race, color or previous condi-

tion of servitude, from the full and equal enjoyment of

any accommodation, advantage, facility or privilege,

furnished by innkeepers, hotel keepers, managers or

lessees, common carriers or by owners, managers or

lessees of theaters or other places of amusement, or

public conveyance on land or water, restaurants, bar-

bershops, eating houses, or other places of public resort,

refrezhments, accommodation or entertainment, or

Denies, or aids or incites another to deny any other

person because of race, creed or color, or previous condi-

tion of servitude, the full and equal enjoyment of any of

the accommodations, advantages, facilities and privi-

leges of any hotel, inn, tavern, restaurant, eating house,

soda water fountain, ice cream parlor, public convey-

ance on land or water, theater, barbershop or other

place of public refreshment, amusement, instruction, ac-

commodation or entertainment, .

Act of March 7, 1885, ch. 224, § 1, 1885 Minn. Laws 295, 296.

ae ee ee (emphasis

A-75

We note that the legislature intended the statute to be ap-

plied to both fixed sites (e.g., hotels and restaurants) and

mobile sites (e.g., public conveyances). Such sites were not

to be limited to those enumerated, but were to include “other

places of public * * * refreshment * .“

This court held, in 1898, that the anti-discrimination statute

had not been violated when a saloon keeper refused to sell a

glass of beer to a former slave, solely because of that cus-

tomer’s race and color. Rhone v. Loomis, 74 Minn. 200, 77

N. W. 31 (1898). Within a year the legislature overruled

that narrow construction with an amendment that added

“saloons” to the enumerated list of fixed and mobile sites.“

In 1905, the legislature simplified the statute, deleting

enumerated kinds of managers (e.g., hotel keepers), retain-

ing most of the enumerated kinds of fixed and mobile sites

and the broadly inclusive provision as to “other places of re-

freshment, entertainment, or accommodation.” Minn. Rev.

Laws (1905) ch. 55, § 2812.“ In 1943 the legislature again

extended the scope of the statute, amending it to prohibit

discrimination based on “national origin or religion.“ “

In 1965, the legislature split the anti-discrimination in

public accommodations statute, leaving in one statute the

description of what constituted prohibited discrimination,

Minn. Stat. § 327.09, subd. 1 (1965), and shifting the actual

8 Act of March 6, 1899, ch. 41, § 1, 1899 Minn. Laws 38, 38-39.

Minn. Rev. Laws ch. 55 (1905) provided in pertinent part that:

“No person shall be excluded, on account of race or color, from

full and equal enjoyment of any accommodation, advantage, or

privilege furnished by public conveyances, theaters, or other pub-

lic places of amusement, or by hotels, barber shops, saloons,

restaurants, or other places of refreshment, entertainment, or

accommodation.”

Act of April 23, 1943, ch. 579, f 7321, 1943 Minn. Laws 831, 832.

A-76

prohibition to subdivision 3 of a new, unfair discriminatory

practices statute, Minn. Stat. § 368.08 (1965).* Thus, Minn.

Stat. § 868.08(8) (1965) read: “Public accommodation:

(1) It is unfair discriminatory practice for any person to

engage in an act forbidden by Minnesota Statutes 1961, Sec-

tion 827.09.” In 1967, the legislature revised subdivision 3;

instead of prohibiting acts forbidden by Minn. Stat. § 327.09

(1967), it now had its own description of unfair discrimina-

tion that it prohibited within a scope far broader than that

of the other statute, still in force, to which it had originally

been attached and to which it had subsequentiy referred.’

The broadening of that scope is best seen by a comparison

of the two statutes. The older retained statute, Minn. Stat.

§ 327.09 (1967) reads:

No person shall be excluded, on account of race, color,

national origin, or religion from full and equal enjoy-

ment of any accommodation, advantage, or privilege

furnished by public conveyances, theaters, or other pub-

lic places of amusement, or by hotels, barber shops,

saloons, restaurants, or other places of refreshments,

entertainment, or accommodations.

The newer statute, Minn. Stat. § 368.03 (3) (1967), reads:

Public accommodations. It is an unfair discrimina-

tory practice:

To deny an individual or group of individuals the

full and equal enjoyment of the goods, services, facili-

ties, privileges, advantages, and accommodations of a

place of public accommodation because of race, color,

creed, religion, or national origin.

* Act of May 21, 1965, ch. 585, 1965 Minn. Laws 854; Act of May £1,

1965, ch. 586, 1965 Minn. Laws 854.

Act of May 25, 1967, ch. 897, § 14, 1967 Minn. Laws 1932, 1938.

ry

A-77

Both statutes prohibit the discriminatory denial of the

full and equal enjoyment of advantages and privileges of

certain kinds of sites. The older statute enumerated some of

those kinds of sites, fixed and mobile. The new statute ex-

panded that scope; it added to the prohibitions the discrimi-

natory denial of the full and equal enjoyment of goods, ser-

vices, and facilities; it encompassed more than the previous

kinds of sites, for the legislature used not an enumerated

list, but one broadly inclusive term“ place of public accom-

modation”—and the legislature defined that term to mean:

“a business * * * facility of any kind * * * whose goods

* * * [and] privileges are extended, offered, sold,

or otherwise made available to the public.” Minn. Stat.

§ 363.01 (18) (1967).

Thus, while the older statute contemplated only certain

fixed and mobile sites, the new statute encompasses a “busi-

ness facility of any kind,” whether fixed or mobile. While

the older statute concentrated on the kinds of sites where dis-

crimination would be prohibited, the new statute focuses

on conduct in which discrimination would be prohibited and

thus speaks not of a business facility where goods and privi-

leges are offered, but rather, of “a business * * * facility

of any kind * * * whose goods * * * [and] privileges are

* * * offered, sold, or otherwise made available to the pub-

lic.” Minn. Stat. § 363.01 (18) (1967) (emphasis added).

The question for decision is whether that statutory defini-

tion encompasses the national organization now before this

court. We turn to examine that organization.

Characteristics and practices of the national organization

Our examination of the national organization (and its

local affiliates) proceeds along three lines set out in Minn.

A-78

Stat. § 863.01 (18) (1980): (1) is the national organization a

business in that it sells goods and extends privileges in ex-

change for annual membership dues?; (2) is the national

organization a public business in that it solicits and recruits

dues paying members but is unselective in admitting them?;

and (3) is the national organization a public business

facility in that it continuously recruits and sells member-

ships at sites within the State of Minnesota? The record

before us clearly reveals that the answers to those questions

are affirmative.

We address first whether the national organization is a

business. The national organization urges this court to draw

a distinction between an organization’s internal activities

(e.g., membership dues) and its external activities (e.g.,

inviting the public to participate in the organization and

the activities it conducts). With this distinction the national

organization contends that membership in it is equivalent

to ownership of the organization; it then concludes that

ownership, or a share of ownership of an organization, is

beyond the scope of Minn. Stat. § 363.01(18) (1980), for

that subdivision concerns only the goods and privileges of-

fered or sold to the public by a business, and does not con-

cern its ownership.

To be substantiated, the analogy would have to be borne

out, in the record, by the way the national organization re-

gards its current and prospective members, i.e. as its pres-

ent and potential owners, rather than as its customers. The

record before us reveals a national organization that regards

its members more as customers than as owners. The na-

tional organization’s Officers’ & Directors’ Guide 1978-79

refers to members as the officers’ “customers.” (Exhibit 6,

A-79

p. 27). The national organization’s Recruitment Manual has

this preface to its recommended sales approach to prospec-

tive members: “JAYCEES, THE PRODUCT you are sell-

ing, is outstanding from any angle. Jaycees is the ‘best

value’ you can get.” (Exhibit 24, p. 5) (emphasis in origi-

nal). The Recruitment Manual cautions that “[o]nce a young

man becomes a member, the responsibility to deliver the goods

you sold him begins.” (Exhibit 24, p. 1). The national

organization’s Regional Director’s Handbook 1977-78 dis-

cusses “How to Sell Jaycees“ and reminds the directors to

“Know your product.” (Exhibit 44, p. 21).

The product being sold is membership in an organization

whose aim is the advancement of its members. Thus, the

national organization’s Chapter President’s Management

Handbook 1977-78 reminds the presidents of their responsi-

bility to ensure that those holding individual memberships

“will indeed have a slight edge in life over the non-Jaycee

* „„.“ (Exhibit 2, p. 86). This “edge” that members ob-

tain takes several forms. The president of the national

organization, in letters published in Future (the official

publication of the organization), maintains that it is “the

greatest young men’s leadership-training organization

„„ *” Future, Jan.-Feb. 1979, at 4 (Exhibit 55); Future,

March-April 1979, at 5 (Exhibit 54). The organization asks

business firms to pay the dues of individual memberships for

a number of their employees; the fact that firms often do so

suggests that those employees are viewed by their firms as

receiving an edge, and that may help them when they are

considered for promotion. Those holding individual mem-

berships and who become officers in the organization there-

by receive enhanced leadership experience and enjoy the en-

hanced privileges and advantages of making contacts with

A-80

others, often business contacts. In this regard we note that

the national organization has successfully sued under the

trade-mark laws to have one of its disaffiliated chapters en-

joined from infringing on its name and from engaging in

unfair competition with the national organization, United

State Jaycees v. San Francisco Junior Chamber of Com-

merce, 518 F.2d 1226 (9th Cir. 1975); the cdncurring opin-

ion of Judge Ely observed that “it seems clear that the term

‘Junior Chamber of Commerce’ does refer to the specific

source of a ‘product’ (the National/Jaycees) * * *.” Id.

By virtue of its sale of individual memberships (with the

accompanying goods and privileges) the national organiza-

tion is a business.

Is the national organization a public business? The na-

tional organization contends that it is a private organiza-

tion; its brief cites three decisions by Circuit Courts of Ap-

peal and claims that these upheld the non-public character

of the national organization. See New York City Jaycees,

Inc. v. United States Jaycees, Inc., 512 F.2d 856 (2d Cir.

1975); Junior Chamber of Commerce v. Missouri State

Junior Chamber of Commerce, 508 F.2d 1081 (8th Cir.

1975); Junior Chamber of Commerce of Rochester, Inc. v.

United States Jaycees, 495 F.2d 888 (10th Cir.) cert. denied,

419 U.S. 1026 (1974). Those decisions, however, are inap-

posite. In each of them the issue was whether the national

organization’s receipt of federal funds and its status as a tax

exempt organization constituted state action sufficient to

subject it to scrutiny under a federal constitutional stand-

ard. All three circuit courts answered that question in the

negative. To hold, however, that by such activities the na-

tional organization is not an entity of state action is far

from holding that it is a private organization, and, in fact,

A-81

gives no insight to the construction of the statute in con-

troversy.

The national organization conte... that the most relevant

reported case is the Oregon Supreme Court's decision that

Cub Scouts were not within the definition of a “place of

public accommodation,” and, therefore, could exclude girls

from membership. Schwenk v. Boy Scouts of America, 275

Or. 327, 551 P.2d 465 (1976). Because of its reasoning, the

decision is irrelevant to the present controversy. The Oregon

Supreme Court conceded that the Boy Scouts of America

moy not be a “distinctly private“ club so as to come within

the Oregon statute’s exemption of private clubs, 275 Or. at

835, 551 P.2d at 469.“ The court relied almost entirely on

the statute’s legislative history that showed that there was

some doubt as to whether the Y.M.C.A. and the Y.W.C.A.

were “places of public accommodation.” The court reasoned,

then, that by analogy the Oregon Public Accommodation

Act was not intended “to include the Boy Scouts of America,

at least to the extent of requiring it to accept applications

by girls for membership.” 275 Or. at 336, 551 P.2d at 469.

The statute in controversy here has quite different legis-

lative history. Therefore, the Supreme Court of Oregon’s

The pertinent statute reads:

(1) A place of public accommodation, subject to the exclusion in

subsection (2) of this section, means any place or service offering

to the public accommodations, advantages, facilities, or privileges

whether in the nature of goods, services, lodgings, amusements or

otherwise.

(2) However, a place of public accommodation does not include

any institution, bona fide club or place of accommodation which is

in its nature distinctly private.

Or. Rev. Stat. § 30.675 (1979).

A-82

decision in Schwenk provides neither analogy for nor in-

sight into the question before this court.“

There are, however, cases that provide criteria for decid-

ing, in the context of a public accommodation statute,

whether a group is private or public. See Nesmith v. Young

Men's Christian Association, 397 F.2d 96 (4th Cir. 1968);

Cornelius v. Benevolent Protective Order of Elks, 382 F.

Supp. 1182 (D. Conn. 1974); Wright v. Cork Club, 315 F.

Supp. 1148 (S.D. Tex. 1970). Two criteria tend to be used:

(1) the selectiveness of the group in the admission of mem-

bers, i.e., standards and a formal procedure by which mem-

bership is restricted; and (2) the existence of limits on the

size of the membership. See Nesmith, 897 F.2d at 102;

Cornelius, 382 F. Supp. at 1208; Wright, 315 F. Supp. at

1158.

The national organization would have us disregard these

clear standards, or to observe, instead, that Minn. Stat.

§ 368.01(18) (1980) makes no mention of size as a criterion.

Thus, it argues to apply such a test would leave officers of

*Cf. Graham v. Kold Kist Beverage Ice, Inc., 43 Or. App. 1037, 607

P.2d 759 (Or. 1979) (construing Or. Rev. Stat. f 30.675 (1979)), de-

cided since Schwenk, and holding that “a corporation engaged in

the wholesale business of selling commercial equipment at whole-

sale for use in retail stores * * *” is not engaged in the sale of

goods “to the public” and is, therefore, not a “public accommoda-

tion.” Id. at ——, 607 P.2d at 762. The wholesaler had agreed to sell

its ice machines to plaintiff Graham and then refused when it dis-

covered that he was black. The decision relies on Schwenk. If

Graham is not reversed by the Oregon Supreme Court, then there

is yet another reason for this court to find Schwenk an inapposite

analogy; under Minn. Stat. f 363.01(18) (1980) one could not argue

that a wholesaler was not a “public accommodation,” for it un-

doubtedly would be a business“ — and would be guilty of violating

the statute if it so engaged in racial discrimination. Schwenk is,

therefore, of dubious value in deciding the present case.

A-83

small organizations wondering whether their group has be-

come too big to avoid the criminal penalties of the statute.

The national organization’s contention lacks merit. A public

organization can avoid criminal penalties by simply not en-

gaging in prohibited, unfair discrimination. Private associa-

tions and organizations—those, for example, that are selec-

tive in membership—are unaffected by Minn. Stat. § 363.01

(18) (1980). Any suggestion that, our decision today will

affect such groups is unfounded.

We, therefore, reject the national organization’s sugges-

tion that it be viewed analogously to private organizations

such as the Kiwanis International Organization. Instead, we

look at what this national organization is by itself. The

record before us reveals a national organization that strives

for growth, especially in “individual memberships”; it is un-

selective in those to whom it sells its memberships; selective-

ness occurs only in the privileges and benefits it accords to

those holding one kind of membership rather than another.

Counsel for the national organization contended, in oral

argument, that a process of “natural selection” operates to

make its membership selective. We find that process unex-

plained, unsupported, and unpersuasive. We find, in fact,

that the national organization encourages continuous re-

cruitment and discourages the use of any selection criteria.

More than 80% of the national officers’ time is devoted to

spurring on the sale of memberships. The Regional Direc-

tors Handbook 1977-78 advises: Don't set membership goals

for chapters. Let them set their own (as long as they plan an

increase in membership).” (Exhibit 44, p. 14) (emphasis in

original). The national organization's Committee Chair-

man’s Workbook, in its instructions on how a chairman

should present a project for his board’s approval, proclaims

A-84

that “Jaycees are in the People business—not the project

business” (Exhibit 48, p. 2) (emphasis in original) and ad-

vises the chairman to emphasize and link “Publicity Value

and Recruitment Value. If your project will get the chapter’s

name in the paper and will possibly result in a few new mem-

bers for the chapter, de sure that these facts ‘headline’ your

presentation. It’s sure to ‘perk up their interest’ in your

project.” (Exhibit 48, p. 5). More than half of the organiza-

tion’s individual and group achievement awards are condi-

tioned, in part, upon recruitment achievement. (Exhibit

76). The organization encourages record breaking per-

formance in selling memberships, e.g., most in a year by

one person (348), most in a month (184), most in a life-

time (1,586). (Exhibit 70, p. 20). This continuous concern

for growth undercuts the national organization’s claim to

be a private organization.

Most important, though, is the absence of selection

criteria. This is evinced by the national organization’s Of-

ficer & Directors’ Guide 1977-78 which advises that the

emphasis in recruitment be on quantity rather than quality:

“What is your obligation as Jaycees? Is it to only recruit a

chosen few who * * * are deemed to be quality members?

* * * How you sign up a member is not nearly as important

as what you do with that member once he has been inducted.”

(Exhibit 52, p. 21). According to Lowell Larson, the Execu-

tive Director for the affiliated organization of Minnesota,

the national organization does not publish anything with

respect to criteria that local chapters should use to select

their members; there is, instead, an emphasis on soliciting

memberships from “as many people and as diverse as pos-

sible.” (Hearing Transcript, p. 112). Mr. Larson further

testified that, to his knowledge, there has never been a rejec-

A-85

tion of any application for membership. (Hearing Tran-

script, p. 185). By virtue of its unselective, vigorous sale of

memberships, the nationa! organization is a public business.

We pass to the last and seemingly most difficult question:

Is this national organization a public business facility? The

national organization contends that only if it were to “estab-

lish a business at a physical location within the State of

Minnesota, and invite the patronage of the general public

* * *” would that “place” or “facility” constitute a place

of public accommodation under Minn. Stat. § 363.01 (18)

(1980). Brief for Appellant at 17. That argument sub-

stitutes a literal, ordinary definition of “place of public ac-

commodation” for the one enacted by the legislature. The

history of the anti-discrimination statutes shows that the

scope of the older statute, still in force, Minn. Stat. § 327.09

(1980), concentrated on locations and encompassed both

fixed and mobile sites. The newer statute, in controversy

here, Minn. Stat. § 363.01(18) (1980), focuses on the con-

duct of a “business facility of any kind.” We are not per-

suaded by analogies to hotels, restaurants, and “hot tamale

stand [s]“. Brief for Appellant at 17.

Food and lodging do not exhaust the category of a “busi-

ness * * * facility of any kind * * * whose goods, * * *

privileges, [and] advantages are * * * sold or otherwise

made available to the public.” Minn. Stat. § 363.01 (18)

(1980) (emphases added). Leadership skills are “goods,”

business contacts and employment promotions are “privi-

leges” atid “advantages,” and each site in the State of Min-

nesota where the sale of those “goods” is solicited, pro-

moted, and consummated is unquestionably a “business

facility.”

i

A-86

If we were to look for a fixed site of the national organi-

zation’s “business facility” we would find it in the affiliated

state organization’s headquaters in Chaska, Minnesota,

where the state organization’s officers devote much of their

time to promoting the solicitation and sale of memberships

by the local chapters.

If we were to look for mobile sites of the national organiza-

tion’s “business facilities” we would find them in the some-

times door-to-door, company-to-company solicitation of

members for the organization, and we would find them in

the oft-shifted sites at which the affiliated local chapters

hold meetings during part of which a sales approach is

usually made to prospective members invited to the meeting

for that purpose. See Future, March-April 1979, at 24

(Many chapters use refreshments as a means to get [mem-

bership] prospects to the meeting, * * * if that is the only

way—use it.” quoting New Recruitment Manual (Exhibit

54)). A variety of enterprises that serve the public do not

extend their goods and privileges from the same physical

location (e.g. electricians, locksmiths, learning-at-home

courses), and often they do not own or lease the sites at

which they offer their goods and privileges. Cf. First

National Bank v. Dickinson, 396 U.S. 122, 187 (1969), (hold-

ing that an armoured car picking up merchants’ cash boxes

and checks is a branch bank, a place of business, under § 7

of the McFadden Act.)

An instructive analogy can be found in a decision by the

New Jersey Appellate Division that held Little League to be

a “place of public accommodation.” 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, 388 A.2d 198

(1974). Unlike the new statute in the instant case, the New

A-87

Jersey statute does not provide a brief definition of place

of public accommodation”; instead, it enumerates 65 varie-

ties of such places.“ Little League was not one of the enu-

10 The pertinent statute reads:

‘A place of public accommodation’ shall include, but not be

limited to: any tavern, roadhouse, hotel, motel, trailer camp,

summer camp, day camp, or resort camp, whether for enter-

tainment of transient guests or accommodations of those seek-

ing health, recreation or rest; any producer, manufacturer,

wholesaler, disty utor, retail shop, store, establishment, or con-

cession dealing with goods or services of any kind; any restau-

rant, eating house, or place where food is sold for consumption

on the premises; any place maintained for the sale of ice

cream, ice and fruit preparations or their derivatives, soda

water or confections, or where any beverages of any kind are

retailed for consumption on the premises; any garage, any

public conveyance operated on land or water, or in the air, any

stations and terminals thereof, any bathhouse, boardwalk, or

seashore accommodation; any auditorium, meeting place, or

hall; any theatre, motion-picture house, music hall, roof garden,

skating rink, swimming pool, amusement and recreation park,

fair, bowling alley, gymnasium, shooting gallery, billiard and

pool parlor, or other place of amusement; any comfort station;

any dispensary, clinic or hospital; any public library; any

kindergarten, primary and secondary school, trade or business

school, high school, academy, college and university, or any

educational institution under the supervision of the State

Board of Education, or the Com:nissioner of Education of the

State of New Jersey. Nothing herein contained shall be con-

strued to include or to apply to any institution, bona fide club,

or place of accommodation, which is in its nature distinctly

private; nor shall anything herein contained apply to any edu-

cational facility operated or maintained by a bona fide reli-

gious or sectarian institution, and the right of a natural parent

or one in loco parentis to direct the education and upbringing

of a child under his control is hereby affirmed; nor shall any-

thing herein contained be construed to bar any private second-

ary or post-secondary school from using in good faith criteria

other than race, creed, color, national origin or ancestry, in the

admission of students.

N. J. Stat. Ann. § 10:5-5(1) West Sup. 1980).

A-88

merated varieties. The New Jersey court considered a broad

construction of “lace” to be appropriate because “the stat-

utory noun ‘place’ (of public accommodation) is a term of

convenience, not of limitation.” 127 N.J. Super. at 531, 318

A.2d at 37. The court then observed that the “place,” in the

case of Little League, is the ball field. Presumably the court

was not unaware of the fact that Little League often does not

own the real estate on which its ball fields are located, for as

the court noted:

[Wie discern nothing in the statute or its underlying

purposes to persuade us that what would otherwise be a

place of public accommodation is any less so because its

management and sponsorship is by a nonprofit or mem-

bership organization rather than a commercial enter-

prise, or because it does not have exclusive use of pos-

session of the site of its operations.

Id. at 581-32, 818 A.2d at 38.

The national organization before this court attempts to

distinguish the Little Le

This text is long and has been trimmed here. Open the source document for the complete record.