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2019-07-09T11:46:40-04:00)

Why Private Golf Clubs Are Legally Still Able to Discriminate Against Women

Last week, Muirfield (Scotland) announced it would admit women for the first time in its 275-year history. But it did so on its own accord, not by compulsion from the law. So how are private clubs still, in 2019, legally able to discriminate on the basis of sex?

It might strike you as surprising that, in 2019, there are still golf clubs in America that only allow men to become members. Several exclusive clubs, including Burning Tree Club in Bethesda, Md. and Butler National Golf Club in Oak Brook, Ill., continue to deny memberships to women on the basis of their sex.

They do so legally, too.

The denial of memberships to women golfers—irrespective of their athletic ability, golf accomplishments, social status or financial wherewithal to pay a membership fee—resurfaced as a topic this week. As detailed by Sports Illustrated writer Daniel Rapaport, Scotland’s Muirfield announced that, for the first time since its founding in 1744, it will admit women members. A dozen women, along with three men, are expected to join the club this month.

This is a significant if unsurprising development considering recent events involving Muirfield. In 2016, a club vote failed to reach the two-third majority needed to enact a rule change to admit women. Shortly thereafter, the British Open’s organizing entity, the Royal and Ancient (R&A) announced that Muirfield would not host future British Opens so long as it maintained its men-only policy. This was a blow to a club that has hosted the Open 16 times, including as recently as 2013, when Phil Mickelson won.

Unsurprisingly, the loss of the Open had both revenue consequences and reputational implications for the club. This prompted another member vote, and this time Muirfield’s members did indeed vote to invite women to the club. By dropping its policy of gender segregation and by now adding women members, Muirfield, which is owned by the Honourable Company of Edinburgh Golfers, hopes to rejoin the Open rotation. It will be several years before that can occur. Royal Portrush will host the Open next month while Royal St. George’s, St. Andrews and Royal Liverpool will do so, respectively, from 2020 to 2022.

Muirfield’s decision is reminiscent of Augusta National Golf Club’s move to allow women members in 2012. The decision by the invitation-only club in Georgia followed years of controversy and criticism over its only-male membership policy—a policy that sparked a high-profile movement led by women’s rights activist Martha Burk and contributed to lost sponsorship opportunities. Augusta’s policy even denied memberships to U.S. Supreme Court Justices who happen to have been women until the landmark switch seven years ago, when former U.S. Secretary of State Condoleezza Rice became one of the first two women to join Augusta. In April, the club hosted the first inaugural Augusta National Women’s Amateur.

Other clubs haven’t changed. Burning Tree, for instance, reportedly has no women’s locker rooms or bathrooms. New York’s Garden City Golf Club (not to be confused with the Garden City Country Club) features a male-only membership and, as Newsday’s Jim Baumbach explored in an article last year, is so private that it doesn’t even have a website.

The exclusivity of private golf courses’ membership is crucial to understanding their capacity to exclude women in the face of civil rights laws

How is undisguised and unvarnished discrimination against women still lawful as our country nears the third decade of the 21st century?

As a starting point, the fact that clubs are private businesses does not, on its own, authorize them to discriminate.

The federal Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion and national origin. In the context of employment, Title VII of the Act also prohibits discrimination on the basis of sex.

Further, the Act does not exclusively regulate public entities. It also governs private businesses and, when those businesses are places of “public accommodation,” how those private businesses serve customers. A business is considered a place of public accommodation when it is generally open to the public. Examples include sports arenas, movie theaters, restaurants, day care facilities, gyms, gas stations and banks. Other federal laws, including Title IX in 1972, prohibit discrimination on the basis of sex in education and related fields.

These federal laws do not, however, regulate private membership clubs with respect to their membership policies. A private membership club, as it is sometimes called, is one that is explicitly not open to the public. This type of club also determines—and is expected to provide clear notice of—specific criteria for membership. Such criteria must be ostensibly relevant to the club’s purpose.

Private membership clubs come in all shapes and sizes, including social clubs, fraternal clubs, country clubs and, of course, golf clubs. Many private clubs require that a prospective member be recommended by an existing member, exhibit certain professional qualities, partake in relevant club experiences and receive a favorable vote from the club’s membership committee. For many private clubs, prospective members must also be prepared to pay a fee to gain membership.

Private clubs have been valued over the years. Many have helped men and women build friendships and cultivate lasting personal and professional relationships. An organization being a “private club” should not automatically invite suspicion or scorn. Many private clubs forge meaningful bonds between well-intentioned people.

Some private clubs, however, have attracted serious controversy with respect to overtly discriminating membership policies. To that end, some denied memberships on the basis of ethnicity or religion, including rejection of applicants because they are Catholic, Jewish or Muslim.

The same is true of race. Despite the Civil Rights Act of 1964, along with other federal laws that explicitly prohibit discrimination on the basis of race, prominent golf courses have denied entry to African-Americans. The aforementioned Augusta National, for example, waited until 1975 to drop a policy that prohibited African Americans from activities other than working as caddies or in the club’s kitchen. Augusta National only admitted its first African-American member in 1990—more than a quarter of a century after passage of the Civil Rights Act. Such exclusionary policies were unapologetically racist and degrading.

Decisions by private clubs to allow women, African-Americans, Catholics, Jews and other demographic classifications that had been excluded directly or indirectly through membership rules were decisions made voluntarily rather than under compulsion of law. Those choices have often arisen in the wake of sustained public pressure or having to confront the prospect of diminished revenue. Put differently, a decision to change a discriminatory membership policy doesn’t automatically prove an actual change in attitude.

Take Alabama's Shoal Creek Club in 1990, when its founder and president, Hall Thompson, infamously (and inanely) told media that his club only discriminated against African-Americans whereas it welcomed Jewish people and women. Thompson’s comments were made shortly before his club would host the 1990 PGA Championship. In response to Thompson preposterously and offensively depicting the exclusion of African-Americans on the basis of race as a virtue for the club, sponsors threatened to pull their deals with Shoal Creek. Meanwhile, civil rights groups threatened protests. Soon thereafter, Shoal Creek Club changed its membership policy to allow African-Americans.

Why it’s nonetheless legal for private golf courses to discriminate on the basis of sex or race

The legality of membership discrimination by private clubs is found in several places.

First, the Civil Rights Act of 1964 contains an exemption for private clubs in their membership activities. Specifically, the Act “shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment…” This language means that private clubs can’t discriminate against customers but can discriminate against prospective members.

Second, the First Amendment to the U.S. Constitution protects private clubs. The First Amendment is often cited in the context of free speech, particularly with respect to an individual person’s right to say what he or she would like and not fear government persecution. The First Amendment has also been interpreted by the courts to safeguard the right of private clubs to engage in “expressive association.”

In the context of private associations, “expressive association” (also called “expressive activity”) refers to entities that organize for the purpose of attracting members who share certain viewpoints, interests, values or abilities and who make clear that they are not open to the public. Correspondingly, expressive association protects the right of members to associate and to set applicable terms for membership. Such terms can include procedures and practices that deny others the right to join on account of lacking certain qualities for membership.

The U.S. Supreme Court has repeatedly upheld private associations’ right to expressive association, even in cases when relevant fact-patterns feature explicit discrimination.

Most prominently, in 2000, the U.S. Supreme Court upheld the Boy Scouts of America’s ability to exclude gay men from the rank of assistant scoutmaster. In his Boy Scouts of America v. Dale opinion on behalf of himself and four other justices, U.S. Supreme Court Chief Justice William Rehnquist reasoned that because the Boy Scouts had determined homosexual scoutmasters would interfere with the organization’s expressive association, the Boy Scouts were not required to follow a New Jersey public accommodations law that had prevented such discrimination.

Stated differently, a majority of Supreme Court justices concluded that the government—through New Jersey law—could not defy the internal decision-making of the Boy Scouts of America as a private club. This organization expressed a mission to instill “values” into young people and, controversially, determined that a would-be assistant scoutmaster—James Dale, an Eagle Scout who had met every requirement to become an assistant scoutmaster and was also gay—would be unable to instill such values because of his sexuality.

In a sharply worded dissent, Justice John Paul Stevens argued that the Boy Scouts of America had not rationally connected sexual orientation to any shared goal or expressive activity. He also insisted that a policy openly discriminating against homosexuals was both prejudicial and “caused serious and tangible harm” (in 2015, the Boy Scouts dropped its ban on gay scoutmasters, but did so voluntarily and not under compulsion of law).

Why private golf courses have reasons to stop discriminating

While their membership policies are permissible under federal law, private clubs that discriminate must still be mindful of how their business operations can jeopardize their immunity from legal scrutiny. This is particularly true of clubs that open up some of their facilities to the public.

For instance, some clubs lease rooms for wedding receptions and other functions. The more that clubs morph into “places of public accommodation” in order to attract additional sources of revenue from non-members, the more vulnerable they become to losing their private membership status and the legal protections it carries.

Also, private golf clubs that discriminate can face adverse consequences under anti-discrimination, tax and licensing laws found in state statutes and municipal codes. For example, a number of states condition eligibility for tax deductions and eligibility for liquor licenses on (among other factors) the absence of discriminatory membership policies.

In addition, as referenced above, race- and sex-based membership exclusions have caused organizers of major tournaments to bypass discriminating clubs as prospective hosts. These consequences are more business outcomes than legal aftereffects but are nonetheless impactful in terms of revenue and prestige.

Aside from legal and business reasons, basic fairness can motivate clubs’ executives to change membership policies. They likely recognize that denying women membership has more at stake than enhanced access to a golf course. This a point eloquently explained by Northern Kentucky University law professor Jennifer Jolly-Ryan in her 2006 law review article, “Teed Off about Private Club Discrimination on the Taxpayers’ Dime.” As Jolly-Ryan details, such denial can also mean a loss of professional opportunities to network, lobby and pursue business ventures that are known to arise in conversations between golf club members. At some clubs, members include elected officials, powerful business executives and influencers for whom opportunities for one-on-one interaction might otherwise be impossible and that might lead to career advancement. There is a commonsensical argument that clubs should not deny these important and foreseeable benefits on the basis of someone’s sex.

Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University

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