Legal News

A ?Belizean? Conundrum: When ?Private? Clubs Aren?t Truly Private

By Ashby Jones

Any dyed-in-the-wool Libertarians out there looking for something to get riled up about today? We strongly suggest you check out Nathan Koppel’s Law Journal column in Thursday’s WSJ, which, in the wake of the kerfuffle over Judge Sonia Sotomayor’s membership in the Belizean Grove, tackles a broader question: When is a club that considers itself private truly private?

We’ll start the discussion here: Private organizations sometimes presume that they can exclude whomever they want, no questions asked.

Koppel writes that in one sense, they are right. Ironically, the more selective a club is, the more it is considered to be truly private and thus protected against antidiscrimination laws. In other words, a small, all-male group of stamp collectors who meet in a private home aren’t unlawfully discriminating by not accepting women.

But clubs that presume they are private frequently turn out not to be in the eyes of the law in some states.

Take the Mill River Club (pictured), a country club in Oyster Bay, N.Y., that considers itself private. Marc Wenger, the club’s attorney, says Mill River is selective in choosing members, picking them partially on the basis of religion with the stated goal of achieving a balance of Jews and Christians.

Club member Joseph Pezza filed a complaint against the club in 2002, claiming the religious-diversity policy embarrassed him because “it puts unnecessary labels on people,” according to court testimony.

Earlier this year, a New York court ruled that the club wasn’t actually “private,” and that its religious quota system violated state law. The court based its decision on evidence that included the fact that nonmembers took tennis lessons and attended social events at the club. The court also noted that the club has more than 100 members — a factor that is relevant under New York state law in deciding whether a group is a “place of public accommodation.”

“Over the last 20 years, societal pressures have led to a steady narrowing of what qualifies as a private organization, free from antidiscrimination laws,” says Robert Duston, a Washington attorney who specializes in defending discrimination cases.

And what about the Belizean Grove itself? Could it ever be considered a public entity — and thus open to discrimination lawsuits? The New York City organization has 115 members, large enough that it might be considered public under state law. On the other hand, writes Koppel, it doesn’t operate a facility that is open to the public or take money from nonmembers, and it appears relatively selective in choosing members.

Even if the Grove were deemed public, it still might be able to fend off a discrimination claim, say civil-rights lawyers, by asserting its First Amendment rights to associate with like-minded people in order to express a particular viewpoint.

Full post as published by Law Blog - WSJ.com on June 25, 2009 (boomark / email).