Public Accommodations under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right

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IV. FROM PUBLIC ACCOMMODATIONS TO HUMAN RIGHTS

A. 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. …