# Amicus Curiae Brief — Board of Directors of Rotary International v. Rotary Club of Duarte > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0821%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1986 - **Citation:** 479 U.S. 929 ## Text 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0821%3A15. Public record. Not legal advice.