High Court Rules that Rotary Clubs Must Admit Women Part 1

Argued March 30, 1987.

Decided May 4, 1987.

          Rotary International is a nonprofit corporation composed of local Rotary Clubs. Its purposes are to provide humanitarian service, to encourage high ethical standards in all vocations, and to help build world peace and good will. Individuals are admitted to local club membership according to a "classification system" based on business, professional, and institutional activity in the community. Although women are permitted to attend meetings, give speeches, receive awards, and form auxiliary organizations, the Rotary constitution excludes women from membership. Because it had admitted women to active membership, the Duarte, California, Rotary Club's membership in the international organization was terminated. That club and two of its women members filed a suit alleging that the termination violated California's Unruh Act (Act), which entitles all persons, regardless of sex, to full and equal accommodations, advantages, facilities, privileges, and services in all business establishments in the State. The state trial court entered judgment for Rotary International, concluding that neither it nor the Duarte Club is a "business establishment" within the meaning of the Act. However, the State Court of Appeal reversed on this point, and rejected the contention that Rotary's policy of excluding women is protected by the First Amendment. Accordingly, the court ordered the Duarte Club's reinstatement, and enjoined the enforcement of the gender requirements against it.

          Held:

          1. The Unruh Act does not violate the First Amendment by requiring California Rotary Clubs to admit women. P. 544-549.

          (a) Application of the Act to local Rotary Clubs does not interfere unduly with club members' freedom of private association. In determining whether a particular association is sufficiently intimate or private to warrant constitutional protection, consideration must be given to factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship. Here, the relationship among Rotary Club members does not warrant protection, in light of the potentially large size of local clubs, the high turnover rate among club members, the inclusive nature of each club's membership, the public purposes behind clubs' service activities, and the fact that the clubs encourage the

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participation of strangers in, and welcome media coverage of, many of their central activities. Pp. 544-547.

          (b) Application of the Act to California Rotary Clubs does not violate the First Amendment right of expressive association. Although clubs engage in a variety of commendable service activities that are protected by the First Amendment, the evidence fails to demonstrate that admitting women will affect in any significant way the existing members' ability to carry out those activities. Moreover, the Act does not require clubs to abandon or alter their classification and admission systems, but, in fact, will permit them to have an even more representative membership with a broadened capacity for service. Even if the Act does work some slight infringement of members' rights, that infringement is justified by the State's compelling interests in eliminating discrimination against women and in assuring them equal access to public accommodations. The latter interest extends to the acquisition of leadership skills and business contacts as well as tangible goods and services. Pp. 549-549.

          2. The contentions that the Act is unconstitutionally vague and overbroad were not properly presented to the state courts, and therefore will not be reviewed by this Court. Pp. 549—550.

          178 Cal.App.3d 1035, 224 Cal.Rptr. 213 (1986), affirmed.

          POWELL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. SCALIA, J., concurred in the judgment. BLACKMUN and O'CONNOR, JJ., took no part in the consideration or decision of the case, post, p. ----.

          William P. Sutter, Chicago, Ill., for appellants.

          Judith Resnik for appellees.

          Marian M. Johnston, San Francisco, Cal., for Intervenor, California, supporting appellees, by special leave of Court.

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           Justice POWELL delivered the opinion of the Court.

          We must decide whether a California statute that requires California Rotary Clubs to admit women members violates the First Amendment.

I

A.

          Rotary International (International) is a nonprofit corporation founded in 1905, with headquarters in Evanston, Illinois. It is "an organization of business and professional men united worldwide who provide humanitarian service, encourage high ethical standards in all vocations, and help build goodwill and peace in the world." Rotary Manual of Procedure 7 (1981) (hereinafter Manual), App. 35. Individual members belong to a local Rotary Club rather than to International. In turn, each local Rotary Club is a member of International. Ibid. In August 1982, shortly before the trial in this case, Inter-

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national comprised 19,788 Rotary Clubs in 157 countries, with a total membership of about 907,750. Brief for Appellants 7.

          Individuals are admitted to membership in a Rotary Club according to a "classification system." The purpose of this system is to ensure "that each Rotary Club includes a representative of every worthy and recognized business, professional, or institutional activity in the community." 2 Rotary Basic Library, Club Service 67-69 (1981), App. 86. Each active member must work in a leadership capacity in his business or profession. The general rule is that "one active member is admitted for each classification, but he, in turn, may propose an additional active member, who must be in the same business or professional classification." ¹ Id., at 7, App. 86. Thus, each classification may be represented by two active members. In addition, "senior active" and "past service" members may represent the same classifications as active members. See Standard Rotary Club Constitution, Art. V, §§ 2-5, Record 97-98. There is no limit to the number of clergymen, journalists, or diplomats who may be admitted to membership. Manual 31, 33, App. 38-39.

          Subject to these requirements, each local Rotary Club is free to adopt its own rules and procedures for admitting new members. Id., at 7, App. 35. International has promulgated Recommended Club By-laws providing that candidates for membership will be considered by both a "classifications committee" and a "membership committee." The classifications committee determines whether the candidate's business or profession is described accurately and fits an "open" classification. The membership committee evaluates the candidate's "character, business and social standing, and general

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eligibility." Brief for Appellants 7-8. If any member objects to the candidate's admission, the final decision is made by the club's board of directors.

          Membership in Rotary Clubs is open only to men. Standard Rotary Club Constitution, Art. V, § 2, Record 97. Herbert A. Pigman, the General Secretary of Rotary International, testified that the exclusion of women results in an "aspect of fellowship . . . that is enjoyed by the present male membership," App. to Juris. Statement G-52, and also allows Rotary to operate effectively in foreign countries with varied cultures and social mores. Although women are not admitted to membership, they are permitted to attend meetings, give speeches, and receive awards. Women relatives of Rotary members may form their own associations, and are authorized to wear the Rotary lapel pin. Young women between 14 and 28 years of age may join Interact or Rotaract, organizations sponsored by Rotary International.

B

          In 1977 the Rotary Club of Duarte, California, admitted Donna Bogart, Mary Lou Elliott, and Rosemary Freitag to active membership. International notified the Duarte Club that admitting women members is contrary to the Rotary constitution. After an internal hearing, International's board of directors revoked the charter of the Duarte Club and terminated its membership in Rotary International. The Duarte Club's appeal to the International Convention was unsuccessful.

          The Duarte Club and two of its women members filed a complaint in the California Superior Court for the County of Los Angeles. The complaint alleged, inter alia, that appellants' actions violated the Unruh Civil Rights Act, Cal.Civ.Code Ann. § 51 (West 1982).² Appellees sought to enjoin

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International from enforcing its restrictions against admitting women members, revoking the Duarte Club's charter, or compelling delivery of the charter to any representative of International. Appellees also sought a declaration that appellants' actions had violated the Unruh Act. After a bench trial, the court concluded that neither Rotary International nor the Duarte Club is a "business establishment" within the meaning of the Unruh Act. The court recognized that "some individual Rotarians derive sufficient business advantage from Rotary to warrant deduction of Rotarian expenses in income tax calculations, or to warrant payment of those expenses by their employers. . . ." App. to Juris. Statement B-3. But it found that "such business benefits are incidental to the principal purposes of the association . . . to promote fellowship . . . and . . . 'service' activities." Ibid. The court also found that Rotary clubs do not provide their members with goods, services, or facilities. On the basis of these findings and conclusions, the court entered judgment for International.

          The California Court of Appeal reversed. 178 Cal.App.3d 1035, 224 Cal.Rptr. 213 (1986). It held that both Rotary International and the Duarte Rotary Club are business establishments subject to the provisions of the Unruh Act. For purposes of the Act, a " 'business' embraces everything about which one can be employed," and an "establishment" includes "not only a fixed location, . . . but also a permanent 'commercial force or organization' or a 'permanent settled position (as in life or business).' " O'Connor v. Village Green Owners Assn., 33 Cal.3d 790, 795, 191 Cal.Rptr. 320, 323, 662 P.2d 427, 430 (1983) (quoting Burks v. Poppy Construction Co., 57 Cal.2d 463, 468-469, 20 Cal.Rptr. 609, 612, 370 P.2d 313, 316 (1962)). The Court of Appeal identified several "businesslike attributes" of Rotary International, including its complex structure, large staff and budget, and ex-

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tensive publishing activities. The court held that the trial court had erred in finding that the business advantages afforded by membership in a local Rotary Club are merely incidental. It stated that testimony by members of the Duarte Club "leaves no doubt that business concerns are a motivating factor in joining local clubs," and that "business benefits [are] enjoyed and capitalized upon by Rotarians and their businesses or employers." 178 Cal.App.3d, at 1057, 224 Cal.Rptr., at 226. The Court of Appeal rejected the trial court's finding that the Duarte Club does not provide goods, services, or facilities to its members. In particular, the court noted that members receive copies of the Rotary magazine and numerous other Rotary publications, are entitled to wear and display the Rotary emblem, and may attend conferences that teach managerial and professional techniques.

          The court also held that membership in Rotary International or the Duarte Club does not give rise to a "continuous, personal, and social" relationship that "take[s] place more or less outside public view." Ibid. (internal quotation marks and citations omitted). The court further concluded that admitting women to the Duarte Club would not seriously interfere with the objectives of Rotary International. Finally, the court rejected appellants' argument that their policy of excluding women is protected by the First Amendment principles set out in Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). It observed that "[n]othing we have said prevents, or can prevent, International from adopting or attempting to enforce membership rules or restrictions outside of this state." Id., 178 Cal.App.3d, at 1066, 224 Cal.Rptr., at 231. The court ordered appellants to reinstate the Duarte Club as a member of Rotary International, and permanently enjoined them from enforcing or attempting to enforce the gender requirement against the Duarte Club.

          The California Supreme Court denied appellants' petition for review. We postponed consideration of our jurisdiction to the hearing on the merits. 479 U.S. 929, 107 S.Ct. 396, 93 L.Ed.2d 350 (1986). We

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conclude that we have appellate jurisdiction,³ and affirm the judgment of the Court of Appeal.

II