Public accommodations under the Civil Rights Act of 1964: why freedom of association counts as a human right.

Author:Epstein, Richard A.
Position:IV. From Public Accommodations to Human Rights through An Unhappy Conclusion, with footnotes, p. 1266-1291 - The Civil Rights Act at Fifty

    1. Jaycees and Boy Scouts

      The first of the new wave of cases was the 1984 decision in Roberts v. United States Jaycees, which involved a decision by the Commissioner of the Minnesota Department of Human Rights to strike down the Jaycees' decision to limit itself to male members only. (67) The moniker "human rights" shows how far the law has moved from the original concern of the nondiscrimination rule for common carriers developed at common law. Under the new definition, human rights do not include rights of property and free association, but impose an obligation not to discriminate against outsiders in certain businesses or accommodations (68)--including retail stores, (69) which are not explicitly covered by Title II. (70) In his Essay, Bagenstos claims, "As Joseph Singer has shown extensively, the common law doctrine before the Civil War in many jurisdictions at least plausibly prohibited any discrimination by any business holding itself out as serving the public." (71) Bagenstos, however, provides no citation to a particular passage that supports that conclusion, which Singer tentatively defends on a mix of normative and historical grounds that in the end are not sufficient to displace the common view to the contrary. (72) It is also unclear what it means under this common formulation for any business to "hold[] itself out as serving the public." The standard rule on common carriers prohibited them from making any contrary public reference. But as to ordinary retail shops, if they posted a sign regarding whom they refused to serve, that action itself might well have removed them from the class of public accommodations.

      But the legal relevance of this diversion is uncertain. Even though it is crystal clear that the Minnesota Human Rights Act covers retail establishments, the fit between the Jaycees and the statute still looks less than ideal, given the objectives of the Jaycees to "foster the growth and development of young men's civic organization in the United States." (73) The Jaycees also entertained a variety of similar objectives, which surely qualify it for treatment as a tax-exempt organization under [section] 501(c)(4) of the Internal Revenue Code, which applies to "[c]ivic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare." (74)

      Notwithstanding the Jaycees' extensive social program, the Commissioner took the position that the Jaycees was covered by the Minnesota Human Rights Act. (75) The Jaycees then mounted its constitutional challenge against the Act in federal court, which in turn certified the question to the Minnesota Supreme Court. The state supreme court held that the Jaycees was covered by the statute because the Jaycees organization

      (a) is a "business" in that it sells goods and extends privileges in exchange for annual membership dues; (b) is a "public" business in that it solicits and recruits dues-paying members based on unselective criteria; and (c) is a public business "facility" in that it conducts its activities at fixed and mobile sites within the State of Minnesota. (76) The manifest differences between organizations like the Jaycees, with their substantive programs, and the standard movie theater is too evident to require any serious discussion, for these organizations are not just open to the public upon payment of a fee. When the case reached the U.S. Supreme Court, Justice Brennan was alert to the serious issues raised, but he nonetheless overruled the Eighth Circuit, which had struck down the statute, (77) by holding that the Jaycees fell on the public accommodations side of the line. In Justice Brennan's view, the only escape from that classification involved intimate associations on the ground that only family relations give rise to "deep attachments and commitments" that require a "high degree of selectivity" and "seclusion" and thus merit legal protection. (78) He concluded:

      As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association lacking these qualities--such as a large business enterprise--seems remote from the concerns giving rise to this constitutional protection. (79) Yet why? No one quarrels with the view that intimate personal associations should not be subject to any antidiscrimination norm. Could it really be a criminal offense to deliberately refuse to marry a person because of his or her religion or national origin? But nothing that Justice Brennan wrote addressed either of two key questions about the extension of that principle beyond these core cases. Thus he did not explain why this law should go beyond the standard definition of public accommodations to ordinary businesses that operate in competitive environments. Nor did he explain why the law, if it does go beyond those businesses, should extend to organizations like the Jaycees. In dealing with both questions, the relationship of employer to employee, and of employees to each other, is worlds apart from the standard firm-to-customer relationship. It is for just this reason that the provisions regulating discrimination in employment are, to say the least, far more difficult to apply than those set out in Title II.

      As a working generalization with many exceptions, civic leagues like the Jaycees have to govern relationships of large numbers of individuals with wide variations in tastes and sentiments. Any decision to let the state force an association of one person or group on an organization necessarily has serious negative consequences for the persons within the organization who lose some control over their organization when subjected to this state imposition. The range of sentiments and tastes is vastly expanded by the change in membership, which makes it harder to reach consensus on matters of common concern. The original members, who may have given years of service to their organization, are thus left with the choice between running an operation in ways that compromise their principles, leaving the organization, or shutting it down altogether.

      Yet the need to permit one group to break down the doors of another institution cannot be justified on the ground that they have no place else to go. There are no transactional barriers to letting the new members in, and just that change in membership policy would happen if in fact the change in composition were a win-win situation for the outside applicants and the current members. The fact that this transformation does not happen across the board is evidence that the Minnesota Human Rights Act imposes win-lose types of deals, which are always harder to maintain given that one side is always intent on altering the deal in order to improve its terms of trade. The results are not unique to these so-called public accommodations, but also extend to any organization where the mandate is imposed on the one side for the benefit of the other. This happens, for example, when employers have to deal with unions on a good faith basis, even when the union has (as the exclusive representative of the workers (80)) monopoly power over the firm, including the power to abrogate preexisting contracts with workers. (81) A similar result happens under rent-control statutes that require landlords to renew their leases against their will with terms that promise them far less by way of rent than a market rate. Indeed, we should expect nothing less than this kind of antisocial behavior. The party subject to the imposition is right to protest the use of force directed its way, so that it will use every means within the law (and, regrettably, some beyond it) to rid itself of a losing contract, either by breaking off the relationship or changing its terms of trade. It is for this reason that ordinary contracts at will, which are terminable at any time by either side, routinely have great durability. A set of constant incremental adjustments allows both sides to share in the gains, which reduces the desire of either side to defect from the agreement. (82) Of course these contracts often do dissolve as one party finds that it no longer wants to deal with the other. But these are clean breaks that are not marked by prolonged struggle involving strikes, lockouts, and other refusals to deal, which are routine in labor law cases. (83) Quite simply, external force by the state is always necessary to keep win-lose arrangements from blowing apart, which introduces new levels of social uncertainty and new layers of administrative oversight.

      The question is whether there is reason to incur these long-term destabilization costs. Letting one organization exclude potential members does not prevent outsiders from joining or forming countless organizations that do not use sex or race or any similar criterion for admission. Indeed, it was surely the case that many members of the Jaycees in 1984 were also members of organizations that admitted women as full and equal members. There were in all likelihood many women's organizations that did not admit men on equal terms. It is no credit to the United States to limit by legislation the diversity and types of organizations that can be formed for all sorts of nonbusiness reasons to those groups which meet the approval of the Minnesota Commissioner of Human Rights, who shows scant respect for the rights of individuals to form their own organizations as judged by their own rules and standards.

      Consistent with this view, it would be a deep mistake to require any large all-women association to admit men. Philosophically, it could well be more dangerous to decide that such organizations were entitled to a pass from the general antidiscrimination law because of the legacy of discrimination against women, which is then viewed as creating a historic debt that can...

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