Supreme Court decision
By: William J. Brennan and Sandra Day O'Connor
Date: July 3, 1984
Source: Brennan, William J. and Sandra Day O'Connor. Roberts v. United States Jaycees, 468 U.S. 609. Available online at http://laws.findlaw.com/us/468/609.html; website home page: http://laws.findlaw.com (accessed April 19, 2003).
About the Authors: William Brennan (1906–1997) attended law school at Harvard. In 1952, he was appointed to New Jersey's highest court. He joined the U.S. Supreme Court in 1957 and served until 1990.
Sandra Day O'Connor (1930–) attended Stanford Law School, graduating third in her class. Because of gender bias, though, no firm would hire her, so she worked as a deputy county attorney. In 1981, she was the first woman appointed to the U.S. Supreme Court.
Two issues that often pull in contradictory directions are gender discrimination and freedom of association. Only in the twentieth century was gender discrimination attacked. In 1868, Congress passed the Fourteenth Amendment, which reaffirmed the right to equal protection under the law, but the amendment did not extend to gender discrimination. Women lost their fight to extend the Fifteenth Amendment, which gave African Americans the right to vote, to women. Finally, in 1920, women obtained the right to vote. In 1964, Congress banned sexual discrimination in employment in the Civil Rights Act.
Freedom of association is not specifically mentioned in the First Amendment, but such a freedom is implied in freedom of speech or freedom to "assemble and petition the Government for a redress of grievances," both specifically mentioned in the First Amendment. In 1958, the U.S. Supreme Court held that freedom of association was guaranteed by the Fourteenth Amendment. In 1981, the Court held that the Democratic Party of Wisconsin could not be forced to seat a certain delegation, reaffirming the right of freedom of association.
Many groups, however, have excluded certain people from their membership. Country clubs, for example, excluded minorities and women, and some civic groups did not admit women as well. One such group was the Jaycees, formed in the 1920s to train young men for leadership, both in the community and in business. The group limited regular membership to men ages eighteen to thirty-five; women and men over thirty-five were admitted only as associate members who could not vote or hold office.
After Minnesota passed a law forbidding discrimination in public accommodation, several Minnesota Jaycee chapters began to admit women as full members,and the national organization moved to revoke their charters. The Minnesota Department of Human Rights ordered the Jaycees to stop discriminating. That case, Roberts v. U.S. Jaycees, made its way to the Supreme Court in 1984.
A lower court had ruled that the Jaycees did not have to admit women because they were protected by freedom of association. The Supreme Court unanimously reversed the lower court's ruling. The Court held that freedom of association applied only to activities that dealt with the raising and creating of a family, such as marriage and childbirth. While the Court noted that people had the right to gather together for expressive purposes, it held that this right was not absolute. Further, the court held that the order to admit women as full members did not infringe on free speech to any great extent, and the Court balanced the right of free speech with the state's "legitimate interests." The Jaycees were ordered to admit women.
Since Roberts, the Supreme Court has generally upheld state requirements that force organizations to admit people regardless of sex or creed. Rotary Clubs in California and private organizations in New York have both been forced to admit people of any sex or race, and these orders have been upheld in the Supreme Court.
Primary Source: Roberts v. U.S. Jaycees [excerpt]
SYNOPSIS: Justice Brennan, who wrote the majority opinion, agrees that freedom of association exists but holds that it is fundamental only in certain areas. He then details why the Jaycees are not fully protected by freedom of association, which means that Minnesota can order them to admit women. In a concurrence, Justice O'Connor holds that the Jaycees can be ordered to admit women, but the group's commercial nature rather than its message determines how much they are protected by the First Amendment.
Justice Brennan delivered the opinion of the Court.…
The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State …Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State.… Moreover, the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty.…
The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family—marriage. . . ; childbirth. . . ; the raising and education of children, …and cohabitation with one's relatives.… Family relationships, by their na ture, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.… Conversely, an associa tion lacking these qualities—such as a large business enterprise—seems remote from the concerns giving rise to this constitutional protection. Accordingly, the Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's fellow employees.…
Between these poles, of course, lies a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State. Determining the limits of state authority over an individual's freedom to enter into a particular association therefore unavoidably entails a careful assessment of where that relationship's objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments.… We need not mark the potentially significant points on this terrain with any precision. We note only that factors that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent. In this case, however, several features of the Jaycees clearly place the organization outside of the category of relationships worthy of this kind of constitutional protection.
The undisputed facts reveal that the local chapters of the Jaycees are large and basically unselective groups.… Apart from age and sex, neither the national organization nor the local chapters employ any criteria for judging applicants for membership, and new members are routinely recruited and admitted with no inquiry into their backgrounds.…
In short, the local chapters of the Jaycees are neither small nor selective.…
An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.… According protection to col lective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority.… Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.…
The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.… We are persuaded that Minnesota's com pelling interest in eradicating discrimination against its female citizens justifies the impact that application of the statute to the Jaycees may have on the male members' associational freedoms.
On its face, the Minnesota Act does not aim at the suppression of speech, does not distinguish between prohibited and permitted activity on the basis of viewpoint, and does not license enforcement authorities to administer the statute on the basis of such constitutionally impressible criteria.…
In applying the Act to the Jaycees, the State has advanced those interests through the least restrictive means of achieving its ends. Indeed, the Jaycees has failed to demonstrate that the Act imposes any serious burdens on the male members' freedom of expressive association.… To be sure, as the Court of Appeals noted, a "not insubstantial part" of the Jaycees' activities constitutes protected expression on political, economic, cultural, and social affairs.… There is, however, no basis in the record for concluding that admission of women as full voting members will impede the organization's ability to engage in these protected activities or to disseminate its preferred views. The Act requires no change in the Jaycees' creed of promoting the interests of young men, and it imposes no restrictions on the organization's ability to exclude individuals with ideologies or philosophies different from those of its existing members.…
In any event, even if enforcement of the Act causes some incidental abridgment of the Jaycees' protected speech, that effect is no greater than is necessary to accomplish the State's legitimate purposes. As we have explained, acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent—wholly apart from the point of view such conduct may transmit. Accordingly, like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact, such practices are entitled to no constitutional protection.… In prohibiting such practices, the Minnesota Act therefore "responds precisely to the substantive problem which legitimately concerns" the State and abridges no more speech or associational freedom than is necessary to accomplish that purpose.…
We turn finally to appellee's contentions that the Minnesota Act, as interpreted by the State's highest court, is unconstitutionally vague and over-broad..…
We have little trouble concluding that these concerns are not seriously implicated by the Minnesota Act, either on its face or as construed in this case.… The state court's articulated willingness to adopt limiting constructions that would exclude private groups from the statute's reach, together with the commonly used and sufficiently precise standards it employed to determine that the Jaycees is not such a group, establish that the Act, as currently construed, does not create an unacceptable risk of application to a substantial amount of protected conduct.…
Justice O'Connor, concurring in part and concurring in the judgment.…
I agree with the Court that application of the Minnesota law to the Jaycees does not contravene the First Amendment, but I reach that conclusion for reasons distinct from those offered by the Court. I believe the Court has adopted a test that unadvisedly casts doubt on the power of States to pursue the profoundly important goal of ensuring nondiscriminatory access to commercial opportunities in our society. At the same time, the Court has adopted an approach to the general problem presented by this case that accords insufficient protection to expressive associations and places inappropriate burdens on groups claiming the protection of the First Amendment.…
Whether an association is or is not constitutionally protected in the selection of its membership should not depend on what the association says or why its members say it. The Court's readiness to inquire into the connection between membership and message reveals a more fundamental flaw in its analysis.… The Court entirely neglects to estab lish at the threshold that the Jaycees is an association whose activities or purposes should engage the strong protections that the First Amendment extends to expressive associations.
On the one hand, an association engaged exclusively in protected expression enjoys First Amendment protection of both the content of its message and the choice of its members.… A ban on spe cific group voices on public affairs violates the most basic guarantee of the First Amendment—that citizens, not the government, control the content of public discussion.
On the other hand, there is only minimal constitutional protection of the freedom of commercial association.…
Many associations cannot readily be described as purely expressive or purely commercial.… Clearly the standard must accept the reality that even the most expressive of associations is likely to touch, in some way or other, matters of commerce. The standard must nevertheless give substance to the ideal of complete protection for purely expressive association, even while it readily permits state regulation of commercial affairs.
In my view, an association should be characterized as commercial, and therefore subject to rationally related state regulation of its membership and other associational activities, when, and only when, the association's activities are not predominantly of the type protected by the First Amendment.… The purposes of an association, and the purposes of its members in adhering to it, are doubtless relevant in determining whether the association is primarily engaged in protected expression.… Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement.
The considerations that may enter into the determination of when a particular association of persons is predominantly engaged in expression are therefore fluid and somewhat uncertain. But the Court has recognized the need to draw similar lines in the past.…
In summary, this Court's case law recognizes radically different constitutional protections for expressive and nonexpressive associations. The First Amendment is offended by direct state control of the membership of a private organization engaged exclusively in protected expressive activity, but no First Amendment interest stands in the way of a State's rational regulation of economic transactions by or within a commercial association. The proper approach to analysis of First Amendment claims of associational freedom is, therefore, to distinguish nonexpressive from expressive associations and to recognize that the former lack the full constitutional protections possessed by the latter.
Minnesota's attempt to regulate the membership of the Jaycees chapters operating in that State presents a relatively easy case for application of the expressive-commercial dichotomy. Both the Minnesota Supreme Court and the United States District Court, which expressly adopted the state court's findings, made findings of fact concerning the commercial nature of the Jaycees' activities. The Court of Appeals, which disagreed with the District Court.…
There is no reason to question the accuracy of this characterization.
Notwithstanding its protected expressive activities, the Jaycees—otherwise known as the Junior Chamber of Commerce—is, first and foremost, an organization that, at both the national and local levels, promotes and practices the art of solicitation and management. The organization claims that the training it offers its members gives them an advantage in business, and business firms do indeed sometimes pay the dues of individual memberships for their employees. Jaycees members hone their solicitation and management skills, under the direction and supervision of the organization, primarily through their active recruitment of new members.". . .
Recruitment and selling are commercial activities, even when conducted for training rather than for profit. The "not insubstantial" volume of protected Jaycees activity found by the Court of Appeals is simply not enough to preclude state regulation of the Jaycees' commercial activities. The State of Minnesota has a legitimate interest in ensuring nondiscriminatory access to the commercial opportunity presented by membership in the Jaycees. The members of the Jaycees may not claim constitutional immunity from Minnesota's antidiscrimination law by seeking to exercise their First Amendment rights through this commercial organization.
For these reasons, I agree with the Court that the Jaycees' First Amendment challenge to the application of Minnesota's public accommodations law is meritless.
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