Amicus Curiae Brief — Board of Directors of Rotary International v. Rotary Club of Duarte

No. 86-421

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

BOARD OF DIRECTORS OF ROTARY INTERNATIONAL, et al.,

Appellants,

V.

RoTaRY CLUB OF DUARTE, et al.,

Appellees.

Appeal from the Court of Appeal of the State of

California, Second Appellate District

BRIEF OF THE AMICUS CURIAE IN SUPPORT OF

APPELLANTS BY THE CONFERENCE OF PRIVATE

ORGANIZATIONS

THOMAS P. ONDECK

Counsel of Record

BAKER & MCKENZIE

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 298-8290

Attorney for Amicus Curiae

The Conference of Private

Organizations

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

Page

TABLE OF AUTHORrIE8S8sSs ii

INTEREST OF AM cus

SUMMARY OF ARGUMENT 2

ARGUMENTS:

I. CALIFORNIA MAY NOT INTERFERE

WITH THE MEMBERSHIP DECISIONS

OF ROTARY CLUBS BECAUSE THE

CONSTITUTION PROTECTS ROTARY

MEMBERS’ CHOICES OF THEIR INTI-

MATE ASSOCIATES . 4

II. BY FORCING ROTARY CLUBS TO ADMIT

WOMEN, CALIFORNIA HAS UNCONSTI-

TUTIONALLY COMPELLED ROTARY

MEMBERS TO BE ASSOCIATED WITH A

VIEWPOINT TO WHICH THEY OBJECT

AND TO CHOOSE BETWEEN THEIR

FREEDOM OF INTIMATE ASSOCIATION

AND THEIR FREEDOM OF SPEECH ...... 12

GEIS cxcstccsccssverecssscscssssseccnseseczssesscessescssees 17

CASES: Page

Carey v. P ion Services International, 431 U.S.

1 ,,,ß,ß% ĩ• 11

. Board of Education v. LaFleur, 414 U.S.

0... ] 11

FCC v. League of Women Voters, 468 U.S. 364

0 — 2, 16

Gilmore v. City of Montgomery, 417 U.S. 556

. ö 9,10,11

Griswold v. Connecticut, 381 U.S. 479 (1965) ..... 10

Kiwanis International v. Ridgewood my 1

1 oS 2

1986), rev'g 627 F. Supp. 21 ON.

— —— 16

Loving v. Virginia, 388 U.S. 1 (19877777 10

Meyer v. Nebraska, 262 U.S. 390 (1923 10

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

20 ͤM 13

Moore v. City of East Cleveland, 431 U.S. 494

6 ů 10

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

— — 9

NAACP v. Alabama, 357 U.S. 449 (1959) 11

Olmstead v. United States, 277 U.S. 438 (1928) 11.18

Pacific Gas and Electric Co. v. Public Utilities Com-

mission, 54 U.S.L.W. 4149 (1980) 13,14

Perry v. Sinderman, 408 U.S. 593 (197 16

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 10

Quilloin v. Walcott, 434 U.S. 246 (1978) ............ 11

Regan v. Taration With Representation, 461 U.S.

SGD GREED —— 16

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

— . 3.5.7.8. 10,11

Table of Authorities Continued

Page

ae gy + 10 v. Board of Directors of Ro-

178 Cal. App. 3d 1035, 224 Cal.

Roe. 213 ZIG (49600 —————.———. . 6

Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

535 (194) . ..... ...... ... 10

Smith v. nization of Foster Families, 431 U.S.

816 (1977) . . . . . ..... ...... . 11

Speiser v. Randall, 357 U.S. 513 is 16

Stanley v. Georgia, 394 U.S. 557 (1969) ..... 11

Stanley v. Illinois, 405 U.S. 645 (1972) ..... 11

United States v. O’Brien, 391 U.S. 367 (1968) 16

West Virginia State Board of Education v. Bar-

nette, 319 U.S. 624 (1943) .... 13.15

Wisconsin v. Yoder, 406 U.S. 205 (1973) 10

Wooley v. Maynard, 430 U.S. 705 (1977) ........... 13,14,16

Zablocki v. Redhail, 434 U.S. 374 (1978) .. 10:

STATUTE:

Unruh Act, Cal. Civil Code §51 (West 1982) ...... 3

MISCELLANEOUS:

1981 Manual of Procedure 7

Pigman deposition, App. G to Jur. Statement 6,7,12

1 Rotary Basic Library, Focus on Rotary 6,7

2 Rotary Basic Library, Club Service.. 7

The Conference of Private Organizations respect-

fully submits this brief as amicus curiae in support

of the appellants, the Board of Directors of Rotary

International, et al.

INTEREST OF AMICUS

The Conference of Private Organizations (‘““CON-

POR’’) is a coalition of national, private membership

organizations. CONPOR was formed in order to de-

fend and protect the fundamental rights of its mem-

bers, and citizens generally, to associate freely and

privately upon such terms as they shall solely deter-

mine. CONPOR promotes this right by participating

in judicial cases, providing information to legislative

and administrative officials, and conducting educa-

tional activities.

The following organizations are members of CONPOR: the

Benevolent and Protective Order of Elks, a benevolent, ritu-

alistic, and fraternal society that charters approximately 2,250

lodges, which have approximately 1,650,000 members; the Loyal

Order of Moose, a benevolent, ritualistic, and fraternal society

that charters approximately 2,250 lodges, which have approxi-

mately 1,300,000 members; the Great Council of U.S. Improved

Order of Red Men, a benevolent, ritualistic, and fraternal society

that charters approximately 940 local lodges, which have ap-

proximately 53,616 members; Kiwanis International, a social and

service organization that charters approximately 8,200 local Ki-

wanis clubs with approximately 313,000 individual members; the

National Club Association, whose membership consists of over

1,000 private social clubs which have 1,000,000 individual mem-

bers; the National Association of American Business Clubs, whose

membership consists of 136 private clubs, which have over 6,600

individual members; and the United States Power Squadrons,

whose membership consists of 450 local groups, which have over

50,000 members.

CONPOR’s interest in this case arises from the

diversity of membership requirements, limitations, and

restrictions of the organizations which it represents.

Some of these organizations limit their membership

primarily on the basis of broad, objective classifica-

tions such as gender, age, religious belief, or literacy.

Others rely primarily on subjective membership qual-

ifications such as congeniality, avocation, social sta-

tus, or economic status. Most employ both types of

restrictions to one degree or another. CONPOR be-

lieves that the constitutional right of association pro-

tects the right of its membership associations to be

selective in their core membership functions—voting,

holding office, and making policy—on the basis of

either broad, objective classifications such as gender,

or on the basis of subjective factors such as conge-

niality, social status, or the like. Each of these mem-

bership policies represents a choice that is within the

discretion of the group’s members and may not be

subject to government control.

All of the associations CONPOR represents con-

tribute to the unique pluralism and diversity of our

country. Because the decision of the Court of Appeal

in the instant case threatens the constitutional rights

of these private organizations, CONPOR believes this

Court should reverse that decision.

SUMMARY OF ARGUMENT

This case does not call upon the Court to decide

whether Rotary clubs should reconsider their current

membership policy and decide to admit women. Nor

does it call upon the Court to decide whether Rotary

International, an organization whose members are lo-

cal Rotary clubs, qualifies for constitutional protec-

3

tion. The question in this case is whether the State

of California may interfere with the membership de-

cision of men who join together in selective, small,

congenial groups to render service in fellowship with

one another.

In light of the factors the Court discussed in Rob-

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

the answer to that question must be no. The Jaycees

does not follow a truly selective membership admis-

sion policy, admitting virtually all male applicants be-

tween the ages of 18 and 36. It actively recruits new

members on the local, regional, and national levels.

It is a large organization that is controlled at the

national level. In addition, the Jaycees admit non-

members to many of the functions central to the de-

cision of its members to join the organization. Given

these characteristics, it is obvious that the Jaycees

falls well outside the boundaries of the constitutional

protection of intimate association.

Rotary clubs, on the other hand, are selective, small,

and governed by local members. Rotary meetings are

private, and the only way to be admitted to the mem-

bership of a club is by invitation after a careful

screening process. Rotary clubs exist so their mem-

bers can render community service in fellowship with

one another. There is an explicit policy against using

membership for commercial advantage. These char-

acteristics of Rotary clubs indicate that their members

have a constitutionally protected freedom of intimate

association.

In its attem to extend to Rotary clubs the Unruh

Act’s? prohibition of discrimination in business estab-

The Unruh Act, Cal. Civil Code §51 (West 1982), says:

4

lishments, the Court of Appeal of the State of Cali-

fornia has violated this constitutional right. In

addition, the Court of Appeal has forced many mem-

bers of Rotary clubs to be associated with a viewpoint

to which they object—a violation of the First Amend-

ment. It has also forced these Rotary members to

choose between their right of free speech and their

right of intimate association. If our constitutional

rights mean anything, then the State may not force

such a choice on its citizens. Because of these vio-

lations of Rotary members’ constitutional rights, the

Court should reverse the decision of the Court of

Appeal of the State of California.

ARGUMENT

I. CALIFORNIA MAY NOT INTERFERE WITH THE

MEMBERSHIP DECISIONS OF ROTARY CLUBS

BECAUSE THE CONSTITUTION PROTECTS RO-

TARY MEMBERS’ CHOICES OF THEIR INTIMATE

ASSOCIATES.

The Constitution protects local Rotary clubs from

undue intrusion by the State, because those clubs are

congenial, small and selective in their membership

decisions. Like the members of many other private

organizations, Rotary members join with other people

of their choosing for fellowship and to serve society.

Rotary clubs restrict their membership to men, in

part because the fellowship that develops among a

“All persons within the jurisdictien of this state are free

services in all business establishments of every kind what-

soever.””

5

group of men who meet regularly enables them to

serve the community more effectively. Pigman dep-

osition, App. to Jur. Statement G44. Relationships

such as these safeguard the individual freedom that

is central to our constitutional scheme.” Roberts v.

United States Jaycees, 468 U.S. 609, 618 (1984). Ac-

cordingly, the Court should protect the right of Ro-

tary members to choose the people with whom they

enter into such relationships as a fundamental ele-

ment of personal liberty.” 468 U.S. at 618.

In Roberts, the Court iisted factors to determine

how much the Constitution protects the membership

decisions of private groups. These factors include

“size, purpose, policies, selectivity, [and] congenial-

ity,” with no single factor being determinative. 468

U.S. at 620. The Court did not have to mark the

order to conclude that the Jaycees’ membership de-

cisions are not protected. Whatever these boundaries

are, it is clear that the Jaycees have been held to

fall outside them. 468 U.S. at 620. Rotary clubs, how-

ever, as well as many other private organizations, fall

within these boundaries.“

In contrast to the California Court of Appeal, which

focused its analysis in this case on Rotary Interna-

tional, this Court in Roberts focused on the local Jay-

cees chapters involved in the case. Those local

Rotary club. These clubs, not

bers, are members of Rotary International. In 1982,

the average membership of a local club was

See Rotary Club of Duarte v.

forty-six.

Board of Directors of

1035, 224 Cal. Rptr.

Rotary Int l. 178 Cal. App. 3d

213, 216 —

nt

Saas

Nal

3 F 1

1

Kii

7

osition, App. to Jur. Statement G25; 1981 Manual of

Procedure, 135, 155-56.

In order for someone to become a member of a

Rotary club, the club’s membership committee or an

active, senior active, or past active member must sub-

mit his name to the club’s board of directors. The

board forwards the nomination to the club’s classifi-

cation and membership committees. The former de-

termines that the club has an open classification that

accurately describes the nominee's business or profes-

sion. The membership committee evaluates the nom-

inee’s character, business and social standing, and

general eligibility. To avoid embarrassment, the nom-

inee’s name is kept confidential during these prelim-

inary evaluations, and the nominee is not informed

of the investigations. If both committees return fa-

vorable reports and the board approves them, all the

members of the club receive notice of the nominee's

name and business. If no one objects within ten days,

the nominee becomes a member. If there is an ob-

jection, the board of directors may vote to admit the

nominee to membership. 2 Rotary Basic Library, Club

Service 15.

One factor that influenced the Court’s decision in

Roberts was the control the Jaycees national head-

quarters exercised over local Jaycees chapters. See

Roberts, 468 U.S. at 613-14. Rotary International does

not exercise such control over <j Rotary clubs. Each

local club is run by its board of directors, which the

members elect. 1 Rotary Basic Library, Focus on Ro-

tary on 70.

Another important factor in the Roberts decision

was the conclusion of the Minnesota Supreme Court,

which this Court accepted, that the Jaycees organi-

zation was a business that sold goods and extended

privileges in exchange for annual membership dues.

Roberts, 468 U.S. at 616. The same cannot be said

of Rotary clubs.

Those who are in favor of government forcing pri-

vate clubs to admit women make much of the claim

that membership in an organization like Rotary be-

stows business benefits so indispensible to careers that

membership must be made available to all. See e. g.,

Rotary, 224 Cal. Rptr. at 224-25. This allegation, how-

ever, is not supported by either facts or logic. It rests

either on the perception that members of private or-

stitutional rights. It is a fact, not mere conjecture,

that Rotary clubs do not exist to bestow commercial

When the Court applies the Roberts factors to Ro-

tary clubs, it must conclude that the Constitution pro-

tects Rotary members’ choices of intimate associates

from interference by the State. In Gilmore v. City of

Montgomery, 417 U.S. 556, 575 (1974), the Court held

that the actions the State may take against groups

with selective memberships is very limited, even if

these groups discriminate on the basis of race. Spe-

cifically, the Court concluded that the State may not

exclude such a group from a public park merely be-

cause it has an all-Negro, all-Oriental, or all- white

membership policy. 417 U.S. at 575. The Court quoted

with approval the dissenting opinion of Justice Wil-

liam O. Douglas joined by Justice Thurgood Marshall

(417 U.S. at 575) in Moose Lodge No. 107 v. Irvis:

My view of the First Amendment and the

related guarantees of the Bill of Rights is

that they create a zone of privacy which pre-

cludes government from interfering with pri-

vate clubs or groups. The associational rights

whie’ our system honors permits all white,

all biack, all brown, and all yellow clubs to

be formed. They also permit all Catholic, all

Jewish, or all agnostic clubs to be estab-

lished. Government may not tell a man or

woman who his or her associates must be.

The individual can be as selective as he de-

sires. So the fact that the Moose Lodge al-

lows only Caucasians to join or come as

guests is constitutionally irrelevant, as is the

decision of the Black Muslims to admit to

their services only members of their race.

407 U.S. 163, 179-80 (1972) (footnote omitted). Justice

Blackmun in Gilmore explained why freedom of as-

sociation should protect groups that restrict their

membership:

Gilmore, 417 U.S. at 575.

The Court should extend to Rotary clubs the pro-

tection it describes in Roberts: The Court has long

recognized that, because the Bill of Rights is designed

to secure individual liberty, it must afford the for-

mation and preservation of certain kinds of highly

personal relationships a substantial measure of sanc-

tuary from unjustified interference by the State. E. g.

Pierce v. Society of Sisters, 268 U.S. 510, 534-35

(1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

Roberts, 468 U.S. at 618. Such relationships qualify

for constitutional protection because they cultivate

shared ideals and beliefs, thus acting as buffers be-

tween the individual and the power of the State. See

e.g., Zablocki v. Redhail, 434 U.S. 374, 383-86 (1978)

(freedom to marry is a fundamental personal liberty);

Moore v. City of East Cleveland, 431 U.S. 494, 503-

04 (1977) (plurality opinion) (right of extended family

to live together is constitutionally protected); Wiscon-

sin v. Yoder, 406 U.S. 205, 232 (1973) (right of Amish

parents to dictate education of their children accord-

ing to their beliefs is constitutionally protected); Gris-

wold v. Connecticut, 381 U.S. 479, 482-85 (1965) (state

interference in procreative choices is unconstitu-

tional); Pierce v. Society of Sisters, 268 U.S. at 535

See also Loving „ Virginia, 388 U.S. 1 (1967); Skinner „.

Oklahoma ex rel. Williamson, 316 U.S. 535,541 (1942).

11

(state may not prohibit parents from educating their

children in private schools). See also Gilmore v. City

of Montgomery, 417 U.S. at 575; NAACP v. Alabama,

357 U.S. 449, 460-62 (1958).

The Court also recognized that it should afford con-

odo yeu Ada Ady Fer Fy

liberty. See, e.g, Quilloin v. Walcott, 434 U.S. 246,

255 (1978); Smith v. Organization of Foster Families,

431 U.S. 816, 844 (1977); Carey v. Population Services

International, 431 U.S. 678, 684-686 (1977), Cleveland

Board of Education v. LaFleur, 414 U.S. 632, 639-

640 (1974); Stanley v. Illinois, 405 U.S. > 651-652

(1972); Stanley v. Georgia, 394 U.S. 557, 564 (1969),

Olmstead v. United States, 277 U.S. 438, 478 (1928)

the constitutional protection, because their

share ideals and seek to form close rela-

BT FORCING ROTARY C

AND THEIR FREEDOM OF SPEECH.

As this lawsuit indicates, most Rotary members do

not want to admit women to their clubs. Proposals

to change the rule that limits membership to men

less, the State of California has forced Rotary clubs

within its boundaries to admit women as members.

In doing so, it has violated the Constitution by re-

13

Tze right of freedom of thought protected by the

First Amendment against state action includes both

the right to speak freely and the right to refrain from

speaking at all. Wooley v. Maynard, 430 U.S. 705,

714 (1977) (Burger, C.J.). See also Pacific Gas and

Electric Co. v. Public Utilities Comm 'n, 54 U.S. L. W.

4149 (1986) (unconstitutional for a state to require a

utility to distribute in its billing envelopes literature

with which it disagrees); Miami Herald Publishing Co.

v. Tornillo, 418 U.S. 241 (1974) (statute that required

newspapers to publish replies of candidates whom they

had criticized held unconstitutional); West Virginia

State Bd. of Education v. Barnette, 319 U.S. 624, 633-

34, 642 (1943) (compulsory flag salute held unconsti-

tutional). In Wooley, the Court held that New Hamp-

shire could not prosecute Jehovah’s Witnesses for

covering the state motto, Live Free or Die,” on their

automobile license plates. The Jehovah’s Witnesses

objected to the slogan on political, religious, and moral

grounds. The Court held that government could not

force the Jehovah’s Witnesses to be the instrument

for a message they found unacceptable. “In doing so,

the State ‘invades the sphere of intellect and spirit

which it is the purpose of the First Amendment to

our Constitution to reserve from all official control.

Wooley, 430 U.S. at 715 (quoting Barnette, 319 U.S.

at 624).

The decision of the California Court of Appeal puts

many Rotary members in the same position as the

Jehovah’s Witnesses in Wooley. Until recently, these

Rotary members belonged to a group of men. They

invested time, money, and energy over the years to

develop the reputation the Rotary name and identi-

fying insignia convey to the public. The Rotary mem-

14

bership criteria are part of that reputation, including

the gender restriction. Now, however, when Rotary

members attend their local club meetings, wear a Ro-

tary shirt, or do anything else connected with Rotary,

some people may believe they favor admitting women

to Rotary clubs. Many Rotary members do not agree

with that position and do not want to be associated

with it.

Most people who saw New Hampshire’s motto on

the Jehovah’s Witnesses’ license plates probably would

not have assumed the Jehovah’s Witnesses advocated

or even accepted the philosophy of the motto. Never-

theless, the Court in Wooley found it sufficient that

some person might connect them with the message

they found unacceptable. See 429 U.S. at 715. Simi-

larly, most people probably would not assume that a

Rotary member advocates admitting women simply

because he wears the same Rotary symbol that mem-

bers of the Rotary Club of Duarte wear. All that

Wooley requires, however, is that some person might

make that assumption.

Rotary members might be able to reduce the risk

of association with the objectionable viewpoint by pub-

lishing a disclaimer, but that is also inadequate under

Wooley. The Court implicitly rejected the argument

that the Jehovah’s Witnesses could put a disclaimer

next to the license plate. See 430 U.S. 714-15. Li-

kewise, in Pacific Gas and Electric Co., the Court

rejected the argument that the utility would receive

adequate First Amendment protection if authors of

opposing viewpoints had to indicate that their mes-

Sages were not those of the utility, and if the utility

had the opportunity to respond to the messages. See

54 U.S.L.W. 4151, 4154. Government may not force

15

upon someone the appearance of believing something

he does not in fact believe:

The right of freedom of thought and of

religion as guaranteed by the Constitution

against State action includes both the right

to speak freely and the right to refrain from

speaking at all, except insofar as essential

operations of government may require it for

the preservation of an orderly society—as in

the case of compulsion to give evidence in

court.

Barnette, 319 U.S. at 645 (Murphy, J., concurring).

Rotary International cannot object if the men that

comprise a Rotary club decide to admit a woman to

their membership, so long as they do not continue to

be a Rotary club or use Rotary symbols. In that case,

there is no danger that someone will think other Ro-

tary members favor altering the Rotary membership

requirements. The Rotary Club of Duarte, however,

wants both to admit women and to continue as a

Rotary club. Rotary International responds on behalf

of the many Rotary members who object to admitting

women and to being associated with the position that

women should be members of Rotary clubs. Rotary

International does not ask the club in Duarte to dis-

band. It only asks it not to call itself a Rotary club.

The Court of Appeal decided in favor of the Duarte

club, thereby violating the First Amendment rights

of other Rotary members.

California may encroach on Rotary members’ free

speech rights if it demonstrates a compelling coun-

tervailing state interest and if that interest cannot

be achieved by means less restrictive of First Amend-

16

ment rights. E. g., Wooley, 430 U.S. at 715-16; United

States v. O’Brien, 391 U.S. 367, 376-77 (1968). Cal-

ifornia has a legitimate interest in ensuring that all

of its citizens have equal access to business estab-

lishments. The legitimacy of its interest ends, how-

ever, when it tries to give all of its citizens equal

access to private elubs.“ The benefit to the public from

such an encroachment is minimal, and it pales in com-

parison to the restriction on First Amendment rights

that such an encroachment effects.

The Court of Appeal’s decision not only forces Ro-

tary members to be associated with a viewpoint to

which they object; it also forces these members to

choose between their freedom of intimate association

and their freedom of speech. These members must

either leave their local club, of which they may have

been a members for years, or they must risk being

associated with a position to which they object. A

state’s interest in eliminating discrimination cannot

be so strong as to force people to make such a choice.

If the government may not require a person to give

up a constitutionally protected right to receive a ben-

efit, FCC v. League of Women Voters, 468 U.S. 364;

Regan v. Taxation with Representation, 461 U.S. 540,

545 (1982); Perry v. Sinderman, 408 U.S. 593 (1972);

Speiser v. Randall, 357 U.S. 513 (1958), it may not

The Court of Appeals for the Third Circuit recently held that

a New Jersey law prohibiting discrimination in places of public

accommodation does not extend to Kiwanis Clubs because the

Kiwanis do not invite an unrestricted and unselected public to

join as members.” Kiwanis Int l v. Ridgewood Kiwanis Club,

Nos. 85-4306 and 85-4483, slip op. at 15 (3d Cir. 3 Dec. 1986)

(Garth, J.), rev'g 627 F. Supp. 1381 (D.N.J. 1986).

17

require a person to give up one constitutional right

to exercise another.

Because the decision of the Court of Appeal in the

instant cases forces Rotary members to be associated

with a viewpoint to which they object, and because

it forces them to choose between their freedom of

intimate association and their freedom of speech, this

Court should reverse that decision.

CONCLUSION

According to the factors this Court announced in

Roberts, Rotary clubs have a constitutionally pro-

tected freedom of intimate association because they

are small in size, selective in membership, closed to

the public in large part, and seek to foster fellowship

among their members. In the name of providing

women equal access to business establishments, the

Court of Appeal of the State of California violated

this constitutional right. It also violated the First

Amendment right of Rotary members not to be as-

sociated with a viewpoint to which they object, and

it forced these members to choose between their con-

stitutionally protected rights of free speech and free

association. It is appropriate for California co ensure

that all of its citizens have equal access to business

establishments, and the members of the Rotary Club

of Duarte and of the Court of Appeal no doubt mean

well when they seek to extend that principal to pri-

vate clubs. What they fail to realize, however, is that

one of the purposes of our Constitution is to protect

people with unpopular views from coercion by the

majority, even if the majority means well. As Justice

Brandeis said of the drafters of our Constitution,

“They conferred, as against the government, the right

THOMAS P. ONDECK

Counsel of Record

BAKER & MCKENZIE

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 298-8290

Attorney for Amicus Curiae

Conference of Private Organizations