A. Introduction

The United States Congress has passed numerous pieces of civil rights legislation since the Civil War. Among these laws are three that involve discrimination as it appears in places like country clubs and golf clubs. Each of these laws was enacted to prohibit public places from discriminating generally on the basis of race, gender, or alienage. Taken together, these laws outlaw discrimination as well as, if not better than, P.A. 70. The first of these statutes, 42 U.S.C. §2000, involves access at places of public accommodation.[22] In addition, 42 U.S.C. §1985 prevents conspiracies to deprive persons of their civil rights. This statute is similar to 42 U.S.C. §1981, which prohibits discrimination regarding contracts. These three statutes all prohibit discrimination and can be used to prevent some types of discrimination by clubs. Their effect on discrimination has been dramatic. All these laws implicate golf clubs and similar types of facilities.

B. 42 U.S.C. §2000

One of the most important civil rights laws enacted in the United States is 42 U.S.C. §2000. This statute provides for equal access at places of public accommodation. It states in part:


An exception has been provided for private clubs under this law.[24] This statute on its face makes racial discrimination at places of public accommodation illegal. Whether or not golf clubs and dining clubs are included under this provision or are excepted as private clubs has been delineated by the courts. Generally, the courts have excepted only clubs that appear to be private due to seven factors.

These factors were outlined in a recent case which has implications for all types of clubs and associations. In Welsh v. Boy Scouts of America[25], the Seventh Circuit had to decide whether or not the Boy Scouts could deny membership to someone who refused to take the Scout Oath, which professes a belief in God.[26] The Seventh Circuit first found that although Title II includes "bowling alleys, golf courses, tennis courts, gymnasiums, swimming pools and parks,"[27] it does not include the Scouts. Unlike the included associations, the Scouts' "purpose is not closely connected to a particular facility."[28] The court noted that some state courts have interpreted similar state statutes broadly, while others have not.[29] Not a single federal court had held that an association that was not closely connected to a physical facility was to be a place of public accommodation.[30]

To determine whether or not the Scouts met the private club exception of Title II,[31] the Seventh Circuit relied on the case of United States v. Lansdowne Swim Club.[32] The decision in that case set forth seven factors in establishing whether or not a facility is a private club:[33] (1) the genuine selectivity of the group; (2) the membership's control over the operations of the establishment; (3) the history of the organization; (4) the use of facilities by non members; (5) the club's purpose; (6) whether the club advertises for members; and, (7) whether the club is non-profit or for profit.[34]

The fact that the Boy Scouts have over 5 million members was not deemed critical by the court. Instead, courts rely on whether or not there is "a plan or purpose of exclusiveness ."[35] Criteria that are contrary to the purposes of Title II, such as race discrimination, or criteria that act as a subterfuge to avoid Title 11, will not protect a club.[36] Since the Scouts do require someone "to nurture belief in God," which is not contrary to the goal of Title II, the Scouts were found to be an exclusive organization. Indeed, the Scout Oath evidences a plan and purpose of selectivity.[37] The criteria of selectivity will probably not be met by many golf or dining clubs, and, insofar as the organizations discriminate on race or gender, their actions will not be protected by §2000. Other factors will also have to be considered to determine whether or not the clubs are excepted from §2000.

The Scouts' history and purpose favored an exemption for them. Since the Oath had been required of members for over eighty years, the historical practice was well entrenched.[38] If any club could show a similar history regarding its policies, it might also survive this test.

Similarly, the court did not see how the Scouts' purpose could be achieved without requiring a belief in God.[39] Clubs that attempt to rely on this case would need to show that their policies could not be achieved without the policies they have enacted.[40]

The court did not elaborate on the three other criteria because it clearly thought that the Boy Scouts fit an exception to Title 11. Golf clubs and athletic clubs, though, will certainly undergo scrutiny on these factors and will have to determine whether or not their policies and position make them likely to fit the exception.

Because Title II does not include discrimination on the basis of gender, associations do not need to fear its application to them insofar as they set policies on a gender basis only. If, however, they set policies on the basis of race, they will be subject to Title II if they are not considered private associations. The courts are much less willing to recognize that an association that discriminates on the basis of race is a private association because of a strong public policy to end racial discrimination.

Since civil remedies are provided for violations of §2000, substantial relief is available for those who have faced discrimination based upon race. Certainly, unless some federal provisions exist for women as well, the states might decide to pass laws to protect women as well as racial minorities from discrimination. However, federal law does protect women from discrimination.

C. 42 U.S.C. §1985

One of the most important federal statutes dealing with discrimination is found at 42 U.S.C.§1985. This section prohibits two or more persons from conspiring to deprive any person of the equal protection of the law.[41] However, it is unclear whether or not state action is necessary for a violation of this statute or whether women are protected by it. The courts have determined that §1985 does apply to the actions of private persons when an independent law exists which protects an individual from others. Thus, for example, if someone commits a tort or violates a contract against a party and does so consciously due to race or gender, §1985 can be used to remedy that violation and increase the penalty. The actions of conspirators to deprive a person of the equal protection of the law constitutes a violation of §1985 only when persons purposefully conspire. In Michigan, women as well as men are protected by this statute. As a consequence, golf clubs could be found to have violated §1985 if they prevent women or racial minorities from joining the club or enjoying the use of the facilities on a discriminatory basis.

The Sixth Circuit clarified the application of §1985 in Volunteer Medical Clinic, Inc. v. Operation Rescue.[42] In that case, Operation Rescue was being sued for blocking an abortion facility. The Sixth Circuit recognized that private actors may be liable for deprivations of constitutional rights.[43] However, since §1985(3) recognizes no substantive rights itself, a plaintiff must allege that he or she has suffered the violation of a right protected by the Constitution or by statute. If the right exists against all actors, no state action is required.[44] If, however, the right is only protected against state interference, such as Fourteenth Amendment rights, then state action is necessary.[45]

The Supreme Court further clarified this issue in Bray v. Alexandria Women's Health Clinic.[46] In that decision, the Court stated that a violation under §1985(3) occurs only when a right is impaired by "a conscious objective of the enterprise."[47] This requirement was made regarding private actors to prevent §1985(3) from becoming "a general federal tort law."[48]

Therefore, to state a cause of action under §1985(3), persons must first show that someone has deprived them of rights protected by state or federal statute or the Constitution. If the violator is either the state or a private actor, the person must also show that an invidious discriminatory purpose lay behind the actions.[49] In addition to these showings, the persons must show that they are part of a protected class. In Bray, the Supreme Court did not decide whether or not §1985(3) extended to women.[50] Race is clearly included in §1985(3).[51] However, for purposes of Michigan courts, the Sixth Circuit's decision in Operation Rescue is determinative. In that case, the court concluded "women constitute a cognizable class under §1985(3)."[52] Therefore women may bring claims under this section in Michigan state and federal courts.

Because this is a fairly recent case, no reported decisions reflect whether or not 1985(3) has been used by women to seek a remedy for violation of private rights or rights protected by the Constitution or state. Nevertheless, women and racial minorities could use §1985(3) to remedy rights similar to those protected by P.A. 70. Any discrimination by clubs, including the prevention of a formation of a contract with a club, could involve a violation of 1985(3).

D. 42 U.S.C. §1981

Probably the most extensive civil rights law is found at chapter 42 U.S.C. §1981. This section prevents persons from allowing parties freely to contract.[53] This statute prevents discrimination on the basis of race or alienage.[54] Under this statute, if a private person is not allowed to contract due to the person's race or alienage, the party may seek compensatory and punitive damages.

The Sixth Circuit elaborated on the rights a party has under this statute in Watson v. Fraternal Order of Eagles.[55] In that case, blacks had been denied the power to buy drinks at an Eagles Club at which they were invited guests.[56] The Sixth Circuit decided that §1981 provides a private party with unique protection.[57] Under this statute an individual must show that the defendant's actions were intentional.[58] A plaintiff who can make such a showing may be entitled to compensatory and punitive damages as well as injunctive and declaratory relief.[59] In Watson, the court held that plaintiffs had shown that they had tried to contract for drinks at the club and had been prevented from doing so by the defendant.[60]

The Eagles Club tried to argue that to allow plaintiff to sue under §1981 violated the club's rights to associational freedom protected by the First Amendment.[61] However, the court rejected such protection for the Eagles by relying on several Supreme Court prece-dents. These cases will be discussed below.

Therefore, those who face discrimination on the basis of race or alienage may sue under §1981. No showing of state action is necessary and only ,clubs that are truly private will be exempt from the reach of §1981. However, §1981 does not provide any protection for women.

E. Conclusion

The federal civil rights laws prevent discrimination on the basis of race and gender by clubs that are not considered private. The extensive protections provided under federal law are duplicated by many states' laws, including Michigan's. Given this extensive web of protection, the modification of Elliot-Larsen by P.A. 70 cannot fairly be said to be a civil rights law.