Also, many state and local governments have attempted to deal with the
problem.  Several years ago the S.Ct. decided a 1st Amendment freedom of
association challenge to a New York City Ordinance forbidding sex
discrimination by private clubs.  The ordinance was very carefully crafted
by NYC to apply only to those clubs have the characteristics of public
accommodations (at least 400 members, serving meals, allowing guests of
members).  The Supreme Court applied strict scrutiny, finding that
preventing sex discrimination was a "compelling" governnment interest
(incidentally, this is where a lot of the deal making was/is done in NYC,
thus cutting women out of economic opportunities, among other things), and
that the city ordinance was narrowly tailored (applying only to clubs with
the fundamental characteristics of public accommodations) to limit freedom
of association to no greater extent that was necessary to serve the
compelling government interest.

John Allison

At 09:42 PM 11/25/98 -0500, you wrote:
>Okay:  First of all, the kind of "private club" exemption you're thinking of
>comes from Title II, not Title VII, of the Civil Rights Act -- Title II,
>you'll remember, concerns places of public accomodation rather than
>employment, and involves discrimination in providing goods, services,
>benefits, privileges, etc.
>
>Now, Title II as originally written contains *no* sex discrimination
>provision at all; it forbids discrimination based on race, color, religion
>and national origin alone.  Thus, places of public accomodation were
>permitted to discriminate based on sex.  (Note, though, that the common law
>duties of an innkeeper generally required innkeepers to accept as guests all
>those who properly applied for that relationship when the inn was capable of
>doing so.  Such a rule did *not* apply to restaurants, however, which, as
>moviegoers from "Giant" to "Five Easy Pieces" remember, traditionally
>"reserved the right to refuse service to anyone.")
>
>Even the race/religion/national origin provisions of Title II, however, were
>explicitly *not* to be applied to private clubs.  This is in the text of the
>statute itself.  The Supreme Court and other courts, in interpreting what a
>"private club" is, has focussed primarily on whether the organization is
>truly private, that is, whether it has some consistent set of membership
>standards (*other* *than* race, religion or national origin).  The Boy
>Scouts were held to be private because they maintained control over their
>membership by requiring scouts to agree to a set of principles, and by
>refusing membership to any who would not.  A particular country club, on the
>other hand, was held *not* to be a private club because it seemed to
>exercise little control over its membership except to keep blacks out.  This
>is a highly oversimplified version of the argument, but there are several
>good appellate cases on the subject.  For a decent short treatment of the
>subject, see John E. H. Sherry's casebook, "The Laws of Innkeepers".
>
>Yours hotels across America,
>
>Ken Schneyer
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