I'm not a big fan of men-only clubs, and not just because I can't join them. Seems kind of weird to me that a bunch of businessmen, for example, would want to have lunch together and not let businesswomen join them. But if that's what they want to do, that's their prerogative.
Or so it should be. But in May, the Supreme Court ruled that states can force private, all-male clubs to accept women as members. The justices didn't come right out and admit that they wouldn't uphold the right of individuals to privately associate. Instead, they simply restricted the definition of "private" association. And the standards they adopted to judge how "private" a private club is are arbitrary and dangerously vague. The ruling paves the way for the government to encroach upon yet another facet of our lives.
The case involved the Duarte, California, Rotary Club, which in 1977 shored up its lagging membership by admitting women. This violated the bylaws of Rotary International, which expelled the chapter. The club took its parent to court—and won.
The Supreme Court ruled that the First Amendment protects our freedom to associate in intimate or private relationships. But "the relationship among Rotary Club members," decreed the justices, "is not the kind of intimate or private relation that warrants constitutional protection." The club's activities are thus sufficiently "public" to be subject to state antidiscrimination laws. However, the justices didn't explain their twisted interpretation of "private." They simply said they'll judge each organization on a case-by-case basis, depending on "size, purpose and selectivity."
Consider these criteria:
• Size. The court said the Rotary Clubs have large and fluctuating memberships. So what? So do the Boy Scouts—are they next? What does size have to do with it?
• Purpose. The court said Rotary Clubs are linked to business and therefore covered by antidiscrimination laws. But the clubs are primarily service, not business, organizations. That they provide forums for businessmen to meet doesn't differentiate them from gatherings of fraternity alumni, which are (so far) legal. And if business groups can't choose members on the basis of sex, what about the new all-women business clubs?
• Selectivity. Rotary International argued that its highly selective membership entitles it to greater constitutional protection than that afforded less selective, more "public" groups. The Court disagreed. But if neither selective nor nonselective clubs are "private," how is selectivity a factor?
These criteria don't distinguish private from public. But they do give the government leeway to decide that just about any private club engages in "public" activity and so forfeits the right to govern itself.
Sure enough, three weeks later the Los Angeles City Council voted 12–0 to forbid private clubs from excluding members on the basis of sex, sexual orientation, race, color, religion, ancestry, national origin, or disability. The ordinance applies to clubs with over 400 members that serve regular meals, rent facilities, and charge nonmembers for attending meetings. Such clubs are by the council's definition business clubs—even if business never comes up.
The ordinance does let clubs keep "social" criteria for membership. But what does that mean? That people of a common religion can't get together because they might talk shop, or that minority entrepreneurs can't form support groups, but that clubs can exclude nerds?
Some people seem to think we should congregate only in nice little units that proportionally represent our society on every conceivable demographic basis. But that's obviously not what people want to do. And to make us do it is to take away the freedom that has allowed Americans to work and play together in relative peace, forming our own groups as we see fit. Besides, to paraphrase Groucho Marx, I wouldn't want to join a club that was forced to have me as a member.
This article originally appeared in print under the headline "Getting Clubbed".