Amicus Curiae Brief — Boy Scouts of America v. Dale

— ‘Coure US. |

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No. 99-699

In the Supreme Coc :

OF THE

United States

OcTOBER TERM, 1999

Boy Scouts OF AMERICA and MONMOUTH

CounciL, Boy Scouts oF AMERICA,

Petitioners,

Vs.

JAMES DALE,

Respondent.

Se

BRIEF OF AMICI CURIAE

CALIFORNIA STATE CLUB ASSOCIATION

AND NATIONAL CLUB ASSOCIATION

IN SUPPORT OF THE POSITION OF PETITIONERS

re ee

WILLIAM I. EpLuND

Counsel of Record

ADRIAN MuRPHY

900 Front Street, Suite 300

San Francisco, California 941 11

Telephone: (415) 956-1900

Facsimile: (415) 956-1152

Counsel for Amicus Curiae

California State Club

Association and National

Club Association

BARTKO, ZANKEL, TARRANT & MILLER

900 Front Street, Suite 300

Francisco, California 9411]

Of Counsel

Bowne of Los Angeles, Inc., Law Printers (213) 627-2200

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE...............

SUMMARY OF ARGUMENT .................

REUFUFTE occ cvenscndasscreccevesesvessece

I. PUBLIC POLICY BARRING

DISCRIMINATION APPLIES ONLY TO

PUBLIC, NOT TO PRIVATE LIFE.......... 3

Il. AFFIRMANCE OF THE DECISION

BELOW WILL HAVE A CHILLING

EFFECT UPON PRIVATE NON-

COMMERCIAL ASSOCIATIONS AND

et CLUBS THROUGHOUT THE UNITED

Seal ero neta: a TR hk NE Nee STATES AND WOULD LEAD TO THE

; ng Bicone are mR yds, aa EVISCERATION OF THE FIRST

PS eae ce ea rt ea et. B AMENDMENT PROTECTIONS FOR ALL

wiya, Ae: VON ade” fous OE a em a SUCH ASSOCIATIONS AND CLUBS...... 8

A_ The Result-Oriented Legislative Definition

And Judicial Construction of “Private” Club

or Association to Mean “Place of Public

Association” or “Business Establishment”

are Constitutionally Flawed And Have a

Chilling Effect Upon The Membership

Selection and Activities of Private Non-

Commercial Associations And Clubs....... 8

B Coerced Companionship And Forced

Fraternization Dilute The Constitutionally

Nurtured Freedom of Association And

Ultimately Will Destroy The Diversity

Among Free People That is Enriched by

Private Associations and Clubs Safe From

Government Regimentation............... 12

CIFOR RAMIIIS vi cccccenecccsesecsdnseceseccss

wo

TABLE OF AUTHORITIES

Cases

Page

Bell v. Maryland, 378 U.S. 226 (1964) ........650005: 4

Board of Dir. of Rotary Int'l v. Rotary Club of Duarte,

— ft Sg, PPT TTTTTT TTT Terre 4

Bohemian Club v. Fair Employment and

Housing Commission, (1986)

SBF Ge BO BEE sc ccccccccesvceseccccccccceees 11

Civil Rights Cases, 109 U.S. 3 (1883) .........650 005 4

Curran v. Mount Diablo Council of the Boy

Scouts, 17 Cal 4th 670 (1998) ...........006: passim

Edward v. South Carolina, 372 U.S. 229 (1963) ....... 16

Evans v. Newton, 382 U.S. 296 (1966) ...... bennedese 4

Gilmore v. City of Montgomery, 417 U.S. 556 (1974) ...4

Hurley v. Irish-American Gay, Lesbian, and

| Bisexual Group of Boston

PT Te TT TTT Tey 6, 14, 16

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)...... 4

Nat. Socialist Party v. Village of Skokie,

Tes ccctendvdrersccdseresececse 15

National Endowment for Arts v. Finley,

Es cw cas cebetneoesececooce 15, 16

New York State Club Ass'n v. City of New York,

Se DO Ms Sin ced ccudibeceneccsesccccccces 8

Olmstead v. United States, 277 U.S. 438 (1928) ....... 7

Pacific-Union Club v. Superior Court (State Franchise

Tax Board), 232 Cal.App.3d 60 (1991)............ 14

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

Psp DUabEb bes cb N Sees SACD ONO ee ROE NEC 3, 5, 6

TABLE OF AUTHORITIES

CASES

Page

United States v. Virginia, 518 U.S. 515 (1996)........ 10

Warfield v. Peninsula Golf & Country Club,

nn oo idee Cie eecdeeneseee scene’ 9

Statutes |

ey ee ED Ot s Oils SU cc cc ccdccccescccccces 10

i oie 6 oi es ck decececndecs 10

Conn. Gen. Stat. § $2-STid(a) ............ccceees 9, 10

Kan. Stat. Ann. §§ 44-1002(h) (West 2000) ....... 9,10

Kan. Stat. Ann. § 36-501 (West 2000) ............ 9,10

Mich. Comp. Laws Ann. §§ 37.2301, 37.2303 ....... 9,10

Nev. Rev. Stat. § 651.050 (West 2000) ............ 9,10

Other Authorities

Associations in a Nutshell, Nov. 30, 1999, American

Society of Association Executives .................. 6

Bay Area Clubs, Organizations & Associations,

A Guide to Getting Involved (April 1, 1999) San

Francisco Chamber of Commerce.................. 6

Beard, C. and M., The Rise of American Civilization

Dt inks esbetdeshbenesubobedeusetesnses 5

Bloustein, Group Privacy: The Right to Huddle (1977)

© Semana amen L.. 5. ZED on nc cccccccccccccccces 7

de Tocqueville, Alexis, Democracy in America

(Tr. Henry Reeve, Rev. Ed. 1900) Vol. 1 ........... 5

Frank and Munro, The Original Understanding of “Equal

Protection of the Law” (1950) 50 Col. L. Rev. 131 ...4

iv

TABLE OF AUTHORITIES

Page

Gutmann, Amy, editor, Freedom of Association

FReeePacccecccocucecssceneecotpansed 5,7, 11, 12, 15

Rosenblum, Nancy L., Membership and Morals:

The Personal Uses of Pluralism in America

GR anceseccecceeacctienneuceseanteeusseccs 5,7

Note, State Power and Discrimination by Private

Clubs: First Amendment Protection for

Non-expressive Associations (1991)

ae CS Gs od bkebescecucecééoeseses 8, 12

The Encyclopedia of Associations (33rd ed.)

Wee sdéecnsdondnhesteseceetuanmsabecunan 6

INTEREST OF AMICI CURIAE'

The California State Club Association (“CSCA”) is -

California non-profit, mutual benefit corporation. Its mem-

bership includes more than 100 private voluntary, non-profit

clubs in California that were formed and are operated for

recreational and private social purposes. Membership in the

clubs is based upon a goal of furthering and preserving

conviviality, congeniality and common interests of the indi-

vidual members. Use of the clubs and their facilities is

typically reserved to club members and their accompanied

guests.

CSCA’s purpose and activities have been and are to

monitor judicial decisions of interest to its members, to

inform its members of those developments through publica-

tions and seminars, and to speak for its members before the

state legislature and the courts. CSCA asserts the right of

voluntary private clubs and their individual members to

enjoy and practice the freedoms of association and assembly

guaranteed by the Constitution.

The National Club Association (“NCA”) is an associa-

tion of over 1,000 private clubs which have approximately

1 million individual members. NCA performs at the na-

tional level essentially the same functions as CSCA per-

forms in California.

Amici do not advocate or endorse discrimination. Amici’s

interest in this case arise from their concern that a decision

holding a bona fide voluntary non-commercial private or-

ganization, such as the Boy Scouts, subject to the New

‘Pursuant to Rule 37, written consent of counsel of record for all of

the parties in this case has been lodged with the Clerk of the Court. No

party or parties’ counsel authored this brief in whole or in part, and no

person or entity other than amici curiae, their members, or their counsel,

have made a monetary contribution to the preparation or submission of

2

Jersey law could have a serious and irreparable prejudicial

impact on private clubs and associations throughout the

United States. It would send a signal to other states’ courts,

legislators, and government officials to follow the lead of the

New Jersey court in construing similar public accommoda-

tion anti-discrimination laws to infringe upon constitutional

provisions protecting freedom of association. Amici urge this

Court to reverse the judgment below and to make clear that

public accommodation anti-discrimination laws may not be

constitutionally applied to private voluntary social clubs and

associations that are piedominantly non-commercial regard-

less of whether those clubs and associations are expressive or

are sending any message.

SUMMARY OF ARGUMENT

Public accommodation anti-discrimination laws cannot be

enacted or construed to apply to private voluntary non-

commercial associations and clubs because they would in-

trude upon the constitutionally protected right of associa-

tion. There are thousands of clubs in the United States,

many of which are members of amici, that are private,

voluntary and no1-commercial with genuinely selective

membership, purely social purposes and policies prohibiting

commercial or business activities. If this Court sustains the

New Jersey Supreme Court decision stretching its “public

accommodation” law to include the Boy Scouts, there are

few private clubs that would not be exposed to claims based

on governmental compelled access laws. Such claims would

have a chilling effect upon First Amendment rights, includ-

ing membership policies, selection of leaders, and typical

club activities. They would result in burdensome, expensive

and oppressive litigation. The near universal impact of these

compelled access laws and claims based on thera will

inevitably change the composition and quality of life in

3

private associations and clubs, and the values they help to

preserve.

Government intrusion mandating membership and leader

selection within private clubs and associations against the

shared views and ideals of members of even non-expressive

associations would alter and transform those associations,

and ultimately undermine and diminish diversity with its

universally accepted value to our pluralistic society. It will

inevitably raise issues of political intrusion into private

associations and present the always lurking danger of the

politically correct dogma invading the cloister of private

friendships, collegial association, and social discourse.

Rather than promoting the goal of greater diversity among

free peoples gathering together, congeniality and individual-

ity will be sacrificed under the banner of bias eradication for

a sterile collection of governmentally approved homogenous

and fungible groups.

ARGUMENT

L.

PUBLIC POLICY BARRING DISCRIMINATION

APPLIES ONLY TO PUBLIC, NOT TO

PRIVATE LIFE.

New Jersey, like California and all other states, has a

deep and continuing interest in “ensuring nondiscriminatory

access to commercial opportunities in our society.” Roberts

v. United States Jaycees, 468 U.S. 609, 632 (1984)

(O’Connor and Kennedy JJ., concurring). That interest

does not extend to private voluntary associations of a non-

commercial nature. Discrimination in public and other com-

mercial places is banned, but in our homes, our clubs and

other private associations, we are free to choose our associ-

ates and companions.

4

The wall between the ban on discrimination in public

arenas and the freedom to choose one’s associates in private

associations was erected early in the first civil rights era, and

has long been recognized by this Court. “In the debates that

culminated in the acceptance of the Fourteenth Amend-

ment, the theme of granting ‘civil,’ as distinguished from

‘social,’ rights constantly recurred.” Bell v. Maryland 378

U.S. 226, 294 (1964) (Goldberg, Warren, C.J., and Doug-

las, JJ. concurring). (Footnote omitted.)

Recognizing its constitutional significance, this Court has

insisted upon the clear distinction between legally protected

equality of civil rights and unregulated personal choice of

social rights. See Civil Rights Cases, 109 U.S. 3, 48, 59

(1883) (Harlan, J., dissenting); Bell v. Maryland, 378 U.S.

226, 294, 313 (1964). Accord, Evans v. Newton, 382 U.S.

296, 298-299 (1966); Moose Lodge No. 107 v. Irvis, 407

U.S. 163, 179-180 (1972) (Douglas, J., dissenting); Gil-

more v. City of Montgomery, 417 U.S. 556, 575 (1974)

(adopting referenced portion of Douglas, J. dissent); Board

of Dir. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S.

537, 547 note 6 (1987). “One central theme emerges from

the talk of ‘social equality’: there are two kinds of relations

of men, those that are controlled by the law and those that

are controlled by purely personal choice. The former in-

volves civil rights, the latter social rights. Bell v. Maryland,

supra, 378 U.S. at 294 note 14 (Goldberg, J., concurring)

(quoting Frank & Munro, The Original Understanding of

“Equal Protection of the Law” (1950) 50 Col. L. Rev. 131,

148-149).

This distinction between civil and social rights is compa-

rable and sets the same limits to anti-discrimination laws

and a state’s interest in enforcing those laws. “[T]he Con-

gress that enacted the Fourteenth Amendment was particu-

larly conscious that the ‘civil’ rights of man should be

distinguished from his ‘social’ rights.” Bell v. Maryland,

5

supra, 378 U.S. at 313. Justice Goldberg’s opinion empha-

sized that “the constitutional right of every person to close

his home or club to any person” are social rights, which like

other “rights pertaining to privacy and private association

are themselves constitutionally protected liberties.” Jd.

The freedom to choose one’s associates, to form private

groups, associations and clubs, and to select leaders for those

groups, serve important values. Because “individuals draw

much of their emotional enrichment from close ties with

others,” freedom of association “safeguards the ability inde-

pendently to define one’s identity that is central to any

concept of liberty.” Roberts v. United States Jaycees, supra,

468 U.S. at 619. The freedom of association is integral to

being a free person. Freedom to choose one’s own compan-

ions, colleagues, associates or friends is what being free

means.

Private associations and clubs are fundamental building

blocks of pluralism and social diversity, a bulwark against

the power of the state. See Roberts v. United States Jaycees,

supra, 468 U.S. at 619 (1984); Alexis de Tocqueville,

Democracy in America, Vol. 1, 196 (Henry Reeve, trans.,

Rev. Ed. 1900); C. & M. Beard, The Rise of American

Civilization Vol. 2, 730-731 (1927) (referring to de Toc-

queville and the “tendency of Americans to unite with their

fellows for various purposes”). In our increasingly frag-

mented, mobile and impersonal world, private groups and

associations provide a critical sense of belonging, a fellow-

ship and a comfortable environment for social interaction

and the pursuit of happiness. Amy Gutmann, Freedom of

Association: An Introductory Essay, in Freedom of Associa-

tion 3-4 (Gutmann, ed., 1998); Nancy L. Rosenblum,

Membership and Morals: The Personal Uses of Pluralism in

6

America 3, 18, 25-26 (1998).? Freedom to select leaders

and members is essential to the continued vitality and

diversity of voluntary private associations and clubs.

There can be no clearer example of an intrusion into

the internal structure or affairs of an association than a

regulation that forces the group to accept members it

does not desire .... Freedom of association therefore

plainly presupposes a freedom not to associate. (Cita-

tion omitted.)

Roberts v. United States Jaycees, supra, 468 U.S. at 623.

Accord, Hurley v. Irish-American Gay, Lesbian and Bisex-

ual Group of Boston, 515 U.S. 557, 581 (1995) (a private

club may exclude anyone “whose manifest views were at

odds with a position taken by the club’s existing members”).

Just as the Boy Scouts provide emotional enrichment,

discipline, fun and identity formation for the young men in

*What was true in de Tocqueville’s time is equally true now. There

are tens of thousands of private associations and clubs in the United

States. The Encyclopedia of Associations (33rd ed.) Volume | identifies

23,000 national associations, including over 600 fraternal, nationality

and ethnic organizations, over 2000 cultural organizations, over 100

social fraternities and sororities, and over 2300 hobby and avocational

groups. The Encyclopedia also reports over 110,000 local, state, and

regional associations. Associations in a Nutshell, Nov. 30,

1999, American Society of Association Executives,

http: / / www.asaenet.org/research/fa. There are over 1000 fraternal, for-

eign interest, nationality and ethnic associations headquartered in Cali-

fornia. NCA membership of over 1000 private clubs represents an

estimated 20% of the total universe of 5000 private clubs. There are well

over 5 million individual members in the private club community alone

and several more millions if nationality, ethnic and cultural organiza-

tions and clubs are included. The San Francisco Chamber of Commerce

lists over 800 groups in Bay Area Clubs, Organizations & Associations, A

Guide to Getting Involved (April 1, 1999), including categories from

Animals and Arts to Women and Youth. The great variety and distinc-

tiveness of clubs and associations necessarily foster diversity and its

accepted values.

ee ae ae an i ee

7

Scouting, social clubs provide conviviality, a sense of be-

longing, a sharing of interests, and pleasure and relaxation

for their members. These benefits flow from voluntary

associations. They do not blossom in forced association with

others one would rather avoid.

People find in association a value itself. The point is

obvious, but it has not received enough judicial atten-

tion or protection .. .. [T]he web of relations housed in

an association can take on a tremendous value, greater

than the goals of the association.

George Kateb, The Value of Association, in Freedom of

Association, 37 (Gutmann, ed. 1998). See also, Bloustein,

Group Privacy: The Right to Huddle (1977) 8 Rutgers-

Camden L. J. 219, 278-279; Nancy L. Rosenblum, Mem-

bership & Morals, supra, 30. “The makers of our Constitu-

tion undertook to secure conditions favorable to the pursuit

of happiness .... [They] sought to protect Americans in

their beliefs, their thoughts, their emotions and their sensa-

tions. They conferred, as against the Government, the right

to be left alone...” Olmstead v. United States, 277 U.S.

438, 478 (1928) (Brandeis, J., dissenting). That right would

be diminished and adulterated by the affirmance of the

decision below.

8

Il.

AFFIRMANCE OF THE DECISION BELOW

WILL HAVE A CHILLING EFFECT UPON PRI-

VATE NON-COMMERCIAL ASSOCIATIONS

AND CLUBS THROUGHOUT THE UNITED

STATES AND WOULD LEAD TO THE EVISCER-

ATION OF THE FIRST AMENDMENT PROTEC-

TIONS FOR ALL SUCH ASSOCIATIONS AND

CLUBS.

A The Result-Oriented Legislative Definition And

Judicial Construction of “Private” Club or As-

sociation to Mean “Place of Public Associa-

tion” or “Business Establishment” are

Constitutionally Flawed And Have a Chilling

Effect Upon The Membership Selection and

Activities of Private Non-Commercial Associa-

tions And Clubs.

In 1988, this Court sustained against facial attack a local

anti-discriminatory law targeting non-private organizations

which were “commercial” and “where business deals are

often made.” New York State Club Ass'n v. City of New

York, 487 U.S. 1, 12 (1988). Since then there has been ever

increasing governmental intrusion into the membership and

activities of bona fide voluntary private associations with

scant or no attention to a fundamental premise of that

decision, namely, the requirement as a matter of constitu-

tional law that they be “sufficiently ‘public’ in nature” to be

regulated. Jd. at 5; see also id. at 12, 18 (referring to the

“critical respect of whether business activity is prevalent”);

Note, State Power and Discrimination by Private Clubs:

First Amendment Protection for Non-expressive Associa-

tions (1991) 104 Harv.L.Rev. 1835.

Thus, for example, Michigan’s Civil Rights Act defines a

“place of public accommodation” to include the facilities of

a — ——<—— eee et

9

each “private club” which is a “country club or golf club,” a

“boating or yachting club,” a “sports or athletic club,” or a

non-religious “dining club.” Such clubs are expressly ex-

cluded from the Act’s private club exemption. Mich. Comp.

Laws Ann. §§ 37.2301 and 37.2303. Connecticut’s equal

access law covers a “golf country club” which is defined as

any association of twenty or more persons which maintains a

golf course of nine holes or more that accepts payments,

“directly or indirectly, from or on behalf of non members.”

Conn. Gen. Stat. §52-571d(a). Nevada’s equal access law

exempts private clubs yet includes any facility “where food

or spirituous or malt liquors are sold”, “any place of “exhibi-

tion or entertainment”, any “service” establishment, any

place of “exercise or recreation”, and any establishment

which serves patrons of such described establishments. Nev.

Rev. Stat. § 651.050 (West 2000). The Kansas anti-dis-

crimination statute expressly incorporates “private clubs”

within food service establishments, which comprise public

accommodations, yet exempts religious, nonprofit fraternal,

or social associations smaller than 100 members. Kan. Stat.

Ann. §§ 44-1002(h) and 36-501 (West 2000). And in

California a private association or club that permits a

member to sponsor a non-member’s bar mitzvah or allows

gratuitous use by non-members of its facilities is exposed to

becoming a “business establishment” making it subject to

the state’s anti-discriminaiion law. Warfield v. Peninsula

Golf & Country Club, 10 Cal 4th 594 (1995); Cal. Civil

Code § 50.’ In his concurring opinion, Justice Mosk empha-

>The California Supreme Court held as a matter of law that any

revenue from a non-member of a private non-profit country club was a

“business transaction” regardless of the character of the “transaction”

(e.g., a member “sponsored” fashion show or wedding reception at-

tended by non-members) or its quality (e.g., the local high school team

using the golf facility) or the relationship of the non-member (e.g., non-

member employees using club facilities when the club was closed) or

whether such “business transactions” provided a net financial benefit.

10

sized the “vast array of voluntary associations, nonprofit

organizations, and charitable groups” potentially subject to

California law and presciently cautioned against “interpreta-

tion” based “on the personal views of individual judges

regarding a preferred composition of a private noncommer-

cial organization.” Jd. at 632. See also, United States v.

Virginia, (1996) 518 U.S. 515, 601 (Scalia, J., dissenting)

(critically referring to Supreme Court dispositions based on

the Court’s ““Members’ personal view of what would make a

‘more perfect Union’” in the admission policy of Virginia

Military Institute).

Violations of such state and local laws may result in

substantial and serious exposure to multiple damages, penal-

ties and fines (e.g., California: three times actual damages

but no less than $1,000 for “each and every offense,”

attorney’s fees, and criminal sanctions, including possible

imprisonment (Cal. Civ. Code § 52, 52.1; Cal. Penal Code

§ 422.9); Michigan: injunction, damages, punitive damages,

costs and attorney’s fees (Mich. Comp. Laws Ann.

§§ 37.2801, 37.2802); Connecticut: actual damages but no

less than $250, statutory civil and attorneys’ fees (Conn.

Gen. Stat. § 52-571(g)); Nevada: injunction, damages,

costs and attorneys’ fees (Nev. Rev. Stat. § 651.050); and

Kansas: damages for pain and suffering (Kans. Stat. Ann.

§ 44-1002). Private associations, and their officers and di-

rectors, are constantly in peril of application of these laws. If

the Boy Scouts — an archetypical voluntary association not

Id. at 599-601, 621-623. The Court ruled that any club becomes a

“business establishment” if such non-member “business transactions”

were “regular and repeated” (which “business transactions” were less in

aggregate than 5% of the Club’s total revenues in this case.) Jd. at 602

note 3. As the dissenting Chief Justice points out, this ruling provides no

“principled basis” to determine when a private club is transformed into a

“business establishment.” Jd. at 640 (Lucas, C.J.). See also, Curran v.

Mount Diablo Council of the Boy Scouts (“Curran”); 17 Cal 4th 670,

721-722, 732-733, 733-734 (1998).

mle ell em men

1]

resembling a Rotary chapter in any meaningful way (Ap-

pendix 482 - 502) — is a “place of public accommodation,”

there are few private clubs that would not be subject to

claims based on government compelled membership re-

quirements.‘ Notwithstanding the New Jersey statutory

command not to construe the law to apply to “distinctly

private” bona fide clubs or places of accommodation, private

non-commercial life will have been constitutionalized for

government regulation if Respondent prevails. Professor

George Kateb makes this exact point:

If a private social club cannot be free of governmental

interference, ... [t]he right of association is left in a

precarious state: if social clubs can be regulated inva-

sively, almost any kind of association can be; and the

regulation can proceed with less reluctance.

George Kateb, The Value of Association, in Freedom of

Association, supra, at 41.

Clubs and associations will be required to vet each pro-

posed club activity to make certain it has no non-member

element. Caution will dictate that the club monitor all

activities and events, ask each member the identity and

position of each guest, and inventory that information for

possible government review. Private clubs and associations,

on pain of compelled membership of statutorily preferred

classes, will become more parochial; charitable, community

and other non-member usage will be discouraged ur prohib-

ited; and the value to pluralism of many private social,

* Neither do the number of troop members nor the attendance of non-

members at certain troop meetings demonstrate a lack of that private,

intimate atmosphere deserving constitutional protection. In Bohemian

Club v. Fair Employment and Housing Commission (1986) 187

Cal. App. 3d 1, appeal dismissed, (1987) 484 U.S. 805 for example, the

court noted that in a 2,000-member men’s club “the consequent rela-

tionship among members is undoubtedly ‘intimate’ in associational

terms” (187 Cal.App.3d at 13).

12

recreational, cultural and ethnic organizations and clubs will

be diminished or lost. “[G]overnment control over mem-

bership policies [of private social clubs] may destroy or

irreversibly alter the character of the organization.” Note,

supra, 104 Harv.L.Rev. at 1839. The pervasive impact of

laws such as those of New Jersey, California, and others like

them, necessarily has a chilling effect on the membership

policies and day-to-day activities of even the most private of

associations and clubs. See Nancy L. Rosenblum, Com-

pelled Association, in Freedom of Association, supra, 87

(“Once the justification for compelled association is loosed

from its tether to public accommodation law and the aim of

‘clearing the channels of commerce,’ there is nothing to stop

the argument to cover every arbitrary and unjustified subor-

dination and exclusion’’).

B Coerced Companionship And Forced Fraternization

Dilute The Constitutionally Nurtured Freedom of

Association And Ultimately Will Destroy The Diver-

sity Among Free People That is Enriched by Private

Associations and Clubs Safe From Government

Regimentation.

Curran, 17 Cal. 4th 670 (1998), the California Supreme

Court decision holding the Boy Scouts not to be a “business

establishment,” is correct and the decision below holding

the Boy Scouts to be a “place of public accommodation” is

erroneous, but the opinions of both courts are fundamentally

flawed. While both opinions engage in complicated “inter-

pretation” and “construction” of the coverage definition

citing and referring to dozens of decisions, even a superficial

analysis shows that each “merely purports to apply the

phrase ‘business establishment’ in [California Civil Code}

section 51 [or “place of public accommodation” in N.J.S.A.

10:5-5] to the peculiar facts presented, and then asserts that

its words are broad enough to reach the entity in question.”

Id. at 722 (Mosk, J., concurring). This result orientation

13

“fail[s] to give guidance for lawful conduct outside of court

or for principled decision making within” the court. Jd.

More importantly, this ad hoc approach diverts from the

fundamental inquiry with its proper focus on the importance

of the constitutional freedoms of private voluntary associa-

tions of a non-commercial nature. In California, as in New

Jersey and other jurisdictions, “[t]his vice [developing

discrimination rules on an ad hoc basis] did not become

pernicious until recently because the results [of earlier

decisions] appeared consistent with the legislative intent to

prohibit discrimination by those engaged in commercial

activity regardless of its form” Curran, supra, 17 Cal. 4th at

733 (Brown, J., concurring). This “pernicious” vice has

brought California and, we submit, New Jersey and some

other states, to the point where there is an absence of

“useful guidance” in determining coverage or “predictabil-

ity” in applying nondiscrimination laws. In joining in the

judgment that the Boy Scouts were not a “business estab-

lishment,” all four concurring Justices in the California

Supreme Court recognized the ambiguity of that term and

its erroneous application to the Boy Scouts. Jd. at 703, et

seq., (Mosk, J.), 722, 728 (Kennard, J.), 730, 732-733

(Werdegar, J.), 733-734 (Brown, J.). “[T]he law is a

mess .. . [and] now desperately in need of critical reexami-

nation.” Jd. at 733. As this Court has properly focused in the

constitutional context on discrimination in public entities

and commercial opportunities and activities, the opinions of

two of the concurring Justices in Curran expressly recog-

nized that “principled” decisionmaking limits the anti-dis-

crimination law to commercial settings — activities

involving the providing of goods and services for a price in

the course of a non-continuous, non-personal and non-social

dealing and not relationships of a gratuitous, continuous,

14

personal and social nature. Jd. at 720 (Mosk, J.), 734

(Brown, J.); see also 731 (Werdegar, J.).°

The goal of some states since the New York State Club

Association decision has not been “ensuring nondiscrimina-

tory access to commercial opportunities in cur society;”

instead — apparently based on a determination to cleanse

all society of improper bias — their purpose appears to be

coerced social relations within all assoviations and clubs as

to certain approved classes. Such coercion is constitutionally

permissible when public places or commercial associations

are involved, but it is essential that this Court not authorize

that coercion of voluntary private non-commercial associa-

tions. See Hurley v. Irish-American Gay, Lesbian and Bisex-

ual Group of Boston, 515 U.S. 557, 579 (1995) (the goal of

ridding society of discrimination against certain classes “is a

decidedly fatal objective”). Regardless of any message,

private non-expressive associations are entitled to constitu-

tional protection. There is “no authority for the premise that

intimate associations are relegated to the basement of First

Amendment protection while expressive ones glide to the

penthouse.” Pacific-Union Club v. Superior Court (State

Franchise Tax Board), 232 Cal.App.3d 60, 77 (1991). If

New Jersey and other states have decided, as they are

entitled to do, not to remain neutral in the regulation and

rationing of economic opportunities to certain preferred

categories in the market place, the First Amendment re-

quires that neutrality in homes, private clubs, and Scout

troops.

> At least two of those Justices would simply jettison the result

oriented construction of past private association decisions and the

majority opinion in the Boy Scouts case because those “decisions have

almost universally failed to formulate a coherent and comprehensive

interpretation of ‘business establishment.’” Jd. at 733 (Brown, J.,

concurring), 722 (Mosk, J., concurring). See also, id. at 732-733

(Werdegar, J., concurring.)

15

Where the goal is diversity among free people, there can

be no question that it is best achieved by autonomous

activity by many persons pursuing their own individual

interests and ideals without inhibiting government direction,

regulation and oversight.

History and our own observations tell us that in a free

society, people associate for the sake of achieving an

indefinitely large range of ends. Association is essential

to their lives. . . . In pursuing their ends, and needing to

associate to do so, people discover numerous sources of

pleasure. ... They discover numerous opportunities for

many diverse kinds of experience. Associations of every

form provide accommodations for experience, much of

it pleasurable.

Kateb, The Value of Association, in Freedom of Associa-

tion, supra, at 37.

A government need not encourage associations whose

viewpoint it does not approve, but it cannot constitutionally

interfere with the viewpoint of individuals or, we submit,

private associations. Cf, National Endowment for the Arts

v. Finley, 524 U.S. 569, 587-588 (1998) and Souter, J.,

dissenting at 603 note 2. Many associations through control

of their membership criteria or their name alone reflect a

viewpoint or an identity which would be changed or de-

stroyed by government access dictates. Hadassah would lose

its identity and purpose if forced to admit Buddhist men; the

Loyal Orange Institution of the United States of America

would suffer a similar fate if compelled to accept a Knight of

Columbus; and the Italian Catholic Federation would be

significantly transformed if it had to accept Eastern Jews.

See Curran, supra, 17 Cal. 4th at 729 (Kennard, J. concur-

ring). For the same reasons, private associations and social

clubs are constitutionally entitled to preserve their own

identity and objectives. A message may be offensive, Nat.

Socialist Party v. Village of Skokie, 432 U.S. 43 (1977), or

16

loud and noisy, Edward v. South Carolina, 372 U.S. 229,

241 (1963), subtle or not (cf National Endowment for Arts

v. Finley, supra, 524 U.S. at 581-585, 590-591, 603-604), or

even the result of silence. Hurley v. Irish-American Gay

Group, supra, 515 U.S. at 574. The decision to include or

exclude a message from a communication, like a decision to

include or exclude an individual from an association —

when no public place or public benefit is present — cannot

constitutionally justify “mandated access.” Jd. at 580-581.

Regardless of the after-the-fact analysis by the New Jersey

Supreme Court about the clarity of the Boy Scouts’ histori-

cally announced message of its membership criteria, (17a-

18a, 36a-39a, 52a-56a), the Scouts cannot be constitution-

ally compelled to accept as members and leaders those

individuals it does not want.

CONCLUSION

For the foregoing reasons, the judgment below must be

reversed and this Court should rule that the New Jersey law

may not be constitutionally applied to non-commercial pri-

vate clubs and associations whether expressive or not.

Respectfully submitted,

WILLIAM I. EDLUND

/ Counsel of Record

ADRIAN J. MURPHY

Counsel for Amicus Curiae

California State Club Association

and National Club Association

BARTKO, ZANKEL, TARRANT & MILLER

900 Front Street, Suite 300

San Francisco, California 94111

Of Counsel