High Court Rules Cities May Ban Bias by Clubs : Justices Uphold New York Law Forcing Large, Private Groups to Accept Women, Minorities

By DAVID G. SAVAGE

June 21, 1988 12 AM PT

Times Staff Writer

WASHINGTON — The Supreme Court ruled Monday that cities may force large, exclusive private clubs to open their doors to women and racial minorities, rejecting the notion that the Constitution gives elite clubs an absolute right to exclude whomever they choose.

The unanimous decision upholds an anti-discrimination law in New York City, and by implication, nearly identical ordinances in Los Angeles, Chicago, San Francisco and Washington, and clears the way for local measures elsewhere aimed at integrating private clubs.

Like Business Establishments

The justices said clubs with large membership rosters that serve meals regularly and that rent their facilities to outsiders are more like business establishments than intimate social groups. Therefore, these clubs have no right to escape anti-discrimination regulations that apply to businesses, the court said.

“It may well be that a considerable amount of private or intimate association occurs in such a (club) setting, as is also true in many restaurants and other places of accommodation,” Justice Byron R. White wrote for the court. “But that fact alone does not afford the entity as a whole any constitutional immunity to practice discrimination.”

Women’s Groups Laud Ruling

Women’s groups in particular applauded the ruling as an important victory in the fight to gain equality in the business world.

“These clubs have had enormous symbolic significance for women because they have stood as a last barrier against women joining upper ranks of the commercial life of a city,” said Marsha Levick, legal director for the National Organization for Women Legal Defense Fund in New York.

Private club officials said the decision undercuts the implied constitutional right of freedom of association.

An individual club could still defend its exclusivity on individual grounds, said Milton E. Meyer, past president of the National Club Assn., but, he said: “It would take a pretty brave club and a strong treasury to want to fight this further. . . . “

The decision (New York State Club Assn. vs. City of New York, 86-1836) is a clear defeat for male-only clubs such as the New York Athletic Club in Manhattan, the California Club and the Jonathan Club in Los Angeles and the Olympic Club in San Francisco, which have resisted city efforts to open their doors to women. The Cosmos Club in Washington, whose members in the past have included Justices Harry A. Blackmun and Antonin Scalia, beat the court ruling by two days, having voted Saturday to open its membership to women.

Third Loss in Five Years

Monday’s ruling marked the third time in five years that private organizations have lost in high court challenges to civil rights measures.

In 1984, the justices said the Jaycees were not a truely private organization and therefore could not exclude women as members, and last year the court applied the same principle to the more exclusive Rotary Clubs. In both opinions, the justices said that some private clubs may be so small and intimate that they are off limits to government regulation, but that larger clubs where business is transacted are not similarly immune.

Monday’s ruling substantially expands the impact of that finding.

“The big downtown clubs are where the power is and where connections are made,” said Los Angeles Deputy City Atty. Pamela A. Albers, who defended the city’s law in a friend-of-the-court brief.

The case stems from a 1984 New York City public accommodations law, which said that clubs with more than 400 members, regular meal service and a policy of accepting money from businesses f1869750372longer be considered “distinctly private.”

Wide Bias Prohibitions

Unless a club could convince a city hearing board that its activities are intimate and private, the city would forbid it to discriminate in membership on the basis of race, sex, religion, national origin, handicap or sexual preference. Three years later, the Los Angeles City Council passed an ordinance with the same criteria.

The law was challenged by the New York State Club Assn., which represents 125 clubs, on the grounds that it breached its members’ constitutional rights to “freedom of association and privacy.” The Constitution itself does not specifically mention freedom of association or a right to privacy but both rights have been inferred to exist as part of the First Amendment’s guarantee of “freedom of speech.”

During the oral argument before the high court in February, the justices were skeptical that all these clubs were so intimate and personal that they had a right to exclude others based on race and sex. Scalia noted, for example, that the New York Athletic Club has more than 10,000 members, which hardly makes it a gathering of close personal friends.

‘Compelling Interest’ Noted

The court also noted Monday that cities and states have a “compelling interest” in eradicating discrimination.

White’s opinion left the private clubs one ray of hope. An individual club may continue to argue that its particular purpose is so distinctly private that admitting an outsider would violate members’ rights. During the court argument, Justice John Paul Stevens suggested one such example: a club set up to promote rights for men may resist opening its doors to a feminist.

It “is conceivable that an association (or club) might be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion,” White wrote. These challenges should be handled on a “case-by-case basis,” he said.

John M. Shiner, an attorney for the Jonathan Club in Los Angeles, took comfort from that line. “This means that each club is free to challenge the constitutionality of the ordinance. We believe that clubs which do not discriminate should be free to manage their own internal affairs,” he said.

Wants Area Reserved for Men

The Jonathan Club, which has more than 3,000 members, has agreed to admit some women but it wants to continue to reserve a bar and grill area for men only. Shiner has filed a federal court suit asserting that the city’s policy violates the rights of club members, and city officials have filed a suit in state court trying to force the club to allow women members to use all of the club’s facilities.

Albers, the Los Angeles deputy city attorney, said the high court ruling is a resounding defeat for the argument put forth by the club. “I think it’s about time the Jonathan Club faces the fact that the Constitution does not protect this type of discrimination,” Albers said.

Mayor Tom Bradley, who last year signed the Los Angeles anti-discrimination law, declared:

“It’s clear to us this is a major new step in the direction of equality of opportunity for all people, regardless of sex or race or creed or color. I hope that the action by the Supreme Court will prompt any private club in this community which continues a pattern of discrimination to remove those patterns absolutely, totally.”

‘Indeed Open to Women’

Councilwoman Joy Picus, who sponsored the Los Angeles ordinance, said the court’s ruling shows “that the doors of these palaces of power are indeed open to women.”

And Controller Rick Tuttle, a prime mover in efforts to get the ordinance before the City Council, issued an open challenge to the various private clubs to “stop treating women as second-class citizens.”

The members of the Olympic Club in San Francisco, whose golf course was the site of the U.S. Open last year, have resisted that city’s demands that they give full membership to women. George Riley, a San Francisco city attorney, said the high court ruling should cement the case against the club. A former Olympic Club member, Justice Anthony M. Kennedy, joined in support of White’s opinion.

However, Riley said the situation for the equally famous Bohemian Club is less clear. Its members say they have not accepted any money from outside businesses, so it is not certain whether the anti-discrimination law will be applied to the club, he said.