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. Pp.
481 U. S.
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
Page 481 U. S. 538
participation of strangers in, and welcome media coverage of,
many of their central activities. Pp.
481 U. S.
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.
481 U. S.
548-549.
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.
481 U. S.
549-550.
178 Cal. App.
3d 1035,
224 Cal. Rptr.
213, 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.
Page 481 U. S. 539
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, International
Page 481 U. S. 540
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." [
Footnote 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
Page 481 U. S. 541
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). [
Footnote 2] Appellees
sought to enjoin
Page 481 U. S. 542
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,
662 P.2d 427,
430 (1983) (quoting
Burks v. Poppy Construction
Co., 57 Cal. 2d
463, 468-469, 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 extensive
Page 481 U. S. 543
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
(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. 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 (1986). We
Page 481 U. S. 544
conclude that we have appellate jurisdiction, [
Footnote 3] and affirm the judgment of the
Court of Appeal.
II
In
Roberts v. United States Jaycees, supra, we upheld
against First Amendment challenge a Minnesota statute that required
the Jaycees to admit women as full voting members.
Roberts
provides the framework for analyzing appellants' constitutional
claims. As we observed in
Roberts, our cases have afforded
constitutional protection to freedom of association in two distinct
senses. First, the Court has held that the Constitution protects
against unjustified government interference with an individual's
choice to enter into and maintain certain intimate or private
relationships. Second, the Court has upheld the freedom of
individuals to associate for the purpose of engaging in protected
speech or religious activities. In many cases, government
interference with one form of protected association will also
burden the other form of association. In
Roberts, we
determined the nature and degree of constitutional protection by
considering separately the effect of the challenged state action on
individuals' freedom
Page 481 U. S. 545
of private association and their freedom of expressive
association. We follow the same course in this case. [
Footnote 4]
A
The Court has recognized that the freedom to enter into and
carry on certain intimate or private relationships is a fundamental
element of liberty protected by the Bill of Rights. Such
relationships may take various forms, including the most intimate.
See Moore v. East Cleveland, 431 U.
S. 494,
431 U. S.
503-504 (1977) (plurality opinion). We have not
attempted to mark the precise boundaries of this type of
constitutional protection. The intimate relationships to which we
have accorded constitutional protection include marriage,
Zablocki v. Redhail, 434 U. S. 374,
434 U. S.
383-386 (1978); the begetting and bearing of children,
Carey v. Population Services International, 431 U.
S. 678,
431 U. S.
684-686 (1977); child rearing and education,
Pierce
v. Society of Sisters, 268 U. S. 510,
268 U. S.
534-535 (1925); and cohabitation with relatives,
Moore v. East Cleveland, supra, at
431 U. S.
503-504. Of course, we have not held that constitutional
protection is restricted to relationships among family members. We
have emphasized that the First Amendment protects those
relationships, including family relationships, that presuppose
"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."
Roberts v. United States Jaycees, supra, at
468 U. S.
619-620. But in
Roberts we observed that
"[d]etermining the limits of state authority over an
individual's freedom to enter into a particular association . . .
unavoidably entails a careful
Page 481 U. S. 546
assessment of where that relationship's objective
characteristics locate it on a spectrum from the most intimate to
the most attenuated of personal attachments."
468 U.S. at
468 U. S. 620
(citing
Runyon v. McCrary, 427 U.
S. 160,
427 U. S.
187-189 (1976) (POWELL, J., concurring)). In determining
whether a particular association is sufficiently personal or
private to warrant constitutional protection, we consider factors
such as size, purpose, selectivity, and whether others are excluded
from critical aspects of the relationship. 468 U.S. at
468 U. S.
620.
The evidence in this case indicates that the relationship among
Rotary Club members is not the kind of intimate or private relation
that warrants constitutional protection. The size of local Rotary
Clubs ranges from fewer than 20 to more than 900. App. to
Juris.Statement G-15 (deposition of Herbert A. Pigman, General
Secretary of Rotary International). There is no upper limit on the
membership of any local Rotary Club. About 10 percent of the
membership of a typical club moves away or drops out during a
typical year. 2 Rotary Basic Library, Club Service 9-11 (1981),
App. 88. The clubs therefore are instructed to "keep a flow of
prospects coming" to make up for the attrition, and gradually to
enlarge the membership.
Ibid. The purpose of Rotary
"is to produce an inclusive, not exclusive, membership, making
possible the recognition of all useful local occupations, and
enabling the club to be a true cross-section of the business and
professional life of the community."
1 Rotary Basic Library, Focus on Rotary 60-61 (1981), App. 84.
The membership undertakes a variety of service projects designed to
aid the community, to raise the standards of the members'
businesses and professions, and to improve international relations.
[
Footnote 5] Such an
inclusive
Page 481 U. S. 547
"fellowship for service based on diversity of interest,"
ibid., however beneficial to the members and to those they
serve, does not suggest the kind of private or personal
relationship to which we have accorded protection under the First
Amendment. To be sure, membership in Rotary Clubs is not open to
the general public. But each club is instructed to include in its
membership "all fully qualified prospective members located within
its territory," to avoid "arbitrary limits on the number of members
in the club," and to "establish and maintain a membership growth
pattern." Manual 139, App. 61-62.
Many of the Rotary Clubs' central activities are carried on in
the presence of strangers. Rotary Clubs are required to admit any
member of any other Rotary Club to their meetings. Members are
encouraged to invite business associates and competitors to
meetings. At some Rotary Clubs, the visitors number "in the tens
and twenties each week." App. to Juris.Statement G-24 (deposition
of Herbert A. Pigman, General Secretary of Rotary International).
Joint meetings with the members of other organizations, and other
joint activities, are permitted. The clubs are encouraged to seek
coverage of their meetings and activities in local newspapers. In
sum, Rotary Clubs, rather than carrying on their activities in an
atmosphere of privacy, seek to keep their "windows and doors open
to the whole world," 1 Rotary Basic Library, Focus on Rotary 60-61
(1981), App. 85. We therefore conclude that application of the
Unruh Act to local Rotary Clubs does not interfere unduly with the
members' freedom of private association. [
Footnote 6]
Page 481 U. S. 548
B
The Court also has recognized that the right to engage in
activities protected by the First Amendment implies
"a corresponding right to associate with others in pursuit of a
wide variety of political, social, economic, educational,
religious, and cultural ends."
Roberts v. United States Jaycees, 468 U.S. at
468 U. S. 622.
See NAACP v. Claiborne Hardware Co., 458 U.
S. 886,
458 U. S.
907-909, 932-933 (1982). For this reason,
"[i]mpediments to the exercise of one's right to choose one's
associates can violate the right of association protected by the
First Amendment. . . ."
Hishon v. King & Spalding, 467 U. S.
69,
467 U. S. 80, n.
4 (1984) (POWELL, J., concurring) (citing
NAACP v. Button,
371 U. S. 415
(1963);
NAACP v. Alabama ex rel. Patterson, 357 U.
S. 449 (1958)). In this case, however, the evidence
fails to demonstrate that admitting women to Rotary Clubs will
affect in any significant way the existing members' ability to
carry out their various purposes.
As a matter of policy, Rotary Clubs do not take positions on
"public questions," including political or international issues.
Manual 115, App. 58-59. To be sure, Rotary Clubs engage in a
variety of commendable service activities that are protected by the
First Amendment. But the Unruh Act does not require the clubs to
abandon or alter any of these activities. It does not require them
to abandon their basic goals of humanitarian service, high ethical
standards in all vocations, good will, and peace. Nor does it
require them to abandon their classification system or admit
members who do not reflect a cross-section of the community.
Indeed, by
Page 481 U. S. 549
opening membership to leading business and professional women in
the community, Rotary Clubs are likely to obtain a more
representative cross-section of community leaders with a broadened
capacity for service. [
Footnote
7]
Even if the Unruh Act does work some slight infringement on
Rotary members' right of expressive association, that infringement
is justified because it serves the State's compelling interest in
eliminating discrimination against women.
See Buckley v.
Valeo, 424 U. S. 1,
424 U. S. 25
(1976) (per curiam) (right of association may be limited by state
regulations necessary to serve a compelling interest unrelated to
the suppression of ideas). On its face, the Unruh Act, like the
Minnesota public accommodations law we considered in
Roberts, makes no distinctions on the basis of the
organization's viewpoint. Moreover, public accommodations laws
"plainly serv[e] compelling state interests of the highest order."
468 U.S. at
468 U. S. 624.
In
Roberts, we recognized that the State's compelling
interest in assuring equal access to women extends to the
acquisition of leadership skills and business contacts, as well as
tangible goods and services.
Id. at
468 U. S. 626.
The Unruh Act plainly serves this interest. We therefore hold that
application of the Unruh Act to California Rotary Clubs does not
violate the right of expressive association afforded by the First
Amendment. [
Footnote 8]
III
Finally, appellants contend that the Unruh Act is
unconstitutionally vague and overbroad. We conclude that these
contentions were not properly presented to the state courts.
Page 481 U. S. 550
It is well settled that this Court will not review a final
judgment of a state court unless "the record as a whole shows
either expressly or by clear implication that the federal claim was
adequately presented in the state system."
Webb v. Webb,
451 U. S. 493,
451 U. S.
496-497 (1981). Appellants did not present the issues
squarely to the state courts until they filed their petition for
rehearing with the Court of Appeal. The court denied the petition
without opinion. When
""
the highest state court has failed to pass upon a federal
question, it will be assumed that the omission was due to want of
proper presentation in the state courts, unless the aggrieved party
in this Court can affirmatively show the contrary.'""
Exxon Corp. v. Eagerton, 462 U.
S. 176,
462 U. S. 181,
n. 3 (1983) (quoting
Fuller v. Oregon, 417 U. S.
40,
417 U. S. 50, n.
11 (1974) (in turn quoting
Street v. New York,
394 U. S. 576,
394 U. S. 582
(1969))). Appellants have made no such showing in this case.
[
Footnote 9]
IV
The judgment of the Court of Appeal of California is
affirmed.
It is so ordered.
JUSTICE SCALIA concurs in the judgment.
JUSTICE BLACKMUN and JUSTICE O'CONNOR took no part in the
consideration or decision of this case.
[
Footnote 1]
Rotary Clubs may establish separate classifications for
subcategories of a business or profession as long as the
classification "describe[s] the member's principal and recognized
professional activity. . . ." 2 Rotary Basic Library, Club Service
8 (1981), App. 87. For example, a single Rotary Club may admit
categories and subcategories of lawyers:
e.g., trial,
corporate, tax, labor, and so on.
Ibid.
[
Footnote 2]
The Unruh Civil Rights Act provides, in part:
"All persons within the jurisdiction of this state are free and
equal, and no matter what their sex, race, color, religion,
ancestry, or national origin are entitled to the full and equal
accommodations, advantages, facilities, privileges, or services in
all business establishments of every kind whatsoever."
Cal.Civ.Code Ann. § 51 (West 1982).
[
Footnote 3]
We have appellate jurisdiction to review a final judgment
entered by the highest court of a State in which decision could be
had
"where is drawn in question the validity of a statute of any
state on the ground of its being repugnant to the Constitution,
treaties or laws of the United States, and the decision is in favor
of its validity."
28 U.S.C. § 1257(2). Appellants squarely challenged the
constitutionality of the Unruh Act, as applied, and the Court of
Appeal sustained the validity of the statute as applied.
"We have held consistently that a state statute is sustained
within the meaning of § 1267(2) when a state court holds it
applicable to a particular set of facts as against the contention
that such application is invalid on federal grounds."
Japan Line, Ltd. v. County of Los Angeles, 441 U.
S. 434,
441 U. S. 441
(1979) (citing
Cohen v. California, 403 U. S.
15,
403 U. S. 17-18
(1971);
Warren Trading Post v. Arizona Tax Comm'n,
380 U. S. 685,
380 U. S. 686,
and n. 1 (1965);
Bantam Books, Inc. v. Sullivan,
372 U. S. 58,
372 U. S. 61, n.
3 (1963);
Dahnke-Walker Milling Co. v. Bondurant,
257 U. S. 282,
357 U. S.
288-290 (1921)).
[
Footnote 4]
International, an association of thousands of local Rotary
Clubs, can claim no constitutionally protected right of private
association. Moreover, its expressive activities are quite limited.
See infra at
481 U. S.
548-549. Because the Court of Appeal held that the
Duarte Rotary Club also is a business establishment subject to the
provisions of the Unruh Act, we proceed to consider whether
application of the Unruh Act violates the rights of members of
local Rotary Clubs.
[
Footnote 5]
We of course recognize that Rotary Clubs, like similar
organizations, perform useful and important community services.
Rotary Clubs in the vicinity of the Duarte Club have provided meals
and transportation to the elderly, vocational guidance for high
school students, a swimming program for handicapped children, and
international exchange programs, among many other service
activities. Record 217H-217J.
[
Footnote 6]
Appellants assert that we "approved" a distinction between the
Jaycees and the Kiwanis Club in
Roberts v. United States
Jaycees, 468 U. S. 609,
468 U. S. 630
(1984). Brief for Appellants 21. Appellants misconstrue
Roberts. In that case, we observed that the Minnesota
court had suggested Kiwanis Clubs were outside the scope of the
State's public accommodations law. We concluded that this refuted
the Jaycees' arguments that the Minnesota statute was vague and
overbroad. We did not consider whether the relationship among
members of the Kiwanis Club was sufficiently intimate or private to
warrant constitutional protection. Similarly, we have no occasion
in this case to consider the extent to which the First Amendment
protects the right of individuals to associate in the many clubs
and other entities with selective membership that are found
throughout the country. Whether the "zone of privacy" established
by the First Amendment extends to a particular club or entity
requires a careful inquiry into the objective characteristics of
the particular relationships at issue.
Roberts v. United States
Jaycees, supra, at
468 U. S. 620.
Cf. Moose Lodge No. 107 v. Irvis, 407 U.
S. 163,
407 U. S.
179-180 (1972) (Douglas, J., dissenting).
[
Footnote 7]
In 1980, women were reported to make up 40.6 percent of the
managerial and professional labor force in the United States. U.S.
Department of Commerce, Statistical Abstract of the United States
400 (1986).
[
Footnote 8]
Appellants assert that admission of women will impair Rotary's
effectiveness as an international organization. This argument is
undercut by the fact that the legal effect of the judgment of the
California Court of Appeal is limited to the State of California.
See supra, at
481 U. S. 543.
Appellants' argument also is undermined by the fact that women
already attend the Rotary Clubs' meetings and participate in many
of their activities.
[
Footnote 9]
Appellants point to a passage in the brief they filed in the
California Court of Appeal that quotes this Court's opinion in
NAACP v. Button, 371 U. S. 415,
371 U. S. 435
(1963): "
I
t is enough [for unconstitutionality] that a vague and broad
statute lends itself to selective enforcement against unpopular
causes.'" Brief for Respondents in B001663 (Cal.Ct.App.), p. 26
(brackets in original) (quoted in Brief for Appellants 37.) The
quotation occurs in the course of an argument that the Unruh Act
should be applied only to memberships in entities that are a
vehicle for the public sale of goods, services, or commercial
advantages. This casual reference to a federal case, in the midst
of an unrelated argument, is insufficient to inform a state court
that it has been presented with a claim subject to our appellate
jurisdiction under 28 U.S.C. § 1257(2).