I recently read a National Review article by Maggie Gallagher that referred to the freedom of association as the “forgotten freedom.” The article itself was only loosely connected to the world of private clubs—it examined the action by the government of California to mandate that all campus groups at California universities permit any campus member to serve in the leadership of the group. In the context of the schools covered by the action, it means that a woman’s group could be compelled to include men in leadership positions, a religious group might be forced to have someone of a different faith on its board, etc.
It isn’t a stretch to see this playing out in the world of private clubs. It requires little imagination to contemplate a world where a private women’s club is compelled to add men to its board or a golf club to add a tennis player to its leadership. It sounds ridiculous, but perhaps not farfetched.
The freedom of association provides the foundation for today’s truly private clubs. Its history is intertwined with the freedom of speech provided by the First Amendment in our constitution.
The First Amendment reads as follows, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Even the most casual student of the First Amendment knows that throughout American history, it has made governments and leaders uncomfortable.
The Origins of the Right of Free Association
Before the Bill of Rights protected our freedom to associate, the Founding Fathers were entrenched in the fight for the right for many years.
Growing dissent of Great Britain’s oppressive authority marked the decades leading to the American Revolution. In the 1750s and 60s the phrase, “no taxation without representation,” gained popularity as the British levied taxes on the colonies without consent from colonial legislatures.
In response, the colonies formed various exclusive groups to organize and combat these laws. Perhaps the most popular group was the Sons of Liberty, a secretive band of American landowners who are best known for the Boston Tea Party in 1773. Bostonians also organized the first of the colonies’ many committees of correspondence in 1764. These conspicuous committees served as the means of communication for those who sought to speak out against British rule. During the decade prior to the American Revolution, this network grew throughout the colonies to 8,000 patriots and excluded those loyal to the crown.
These exclusive networks also helped organize the First Continental Congress in 1774. From the Congress came the “Declaration and Resolves,” a document that voiced the colonies’ grievances with Britain’s Intolerable Acts and outlined a colonial bill of rights. The bill of rights included that the colonies, “have a right peaceably to assemble, consider of their grievances, and petition the king.” This marked the first time the colonies collectively declared the right to assemble (associate), a right they had already been utilizing for years without the crown’s consent.
Without the Founding Fathers’ embrace of the right to associate—privately, with those who share similar goals and perspectives—our nation and our industry may not have had the foundation to flourish and grow in the way we celebrate both today.
The Supreme Court & Free Association
Private clubs and private associations are fundamental building blocks of pluralism and social diversity, and “by
cultivating and transmitting shared ideals and beliefs,” they “act as critical buffers between the individual and the power of the State,” says Roberts v. United States Jaycees.
Freedom from government interference has always been viewed as critical to the right of association. The freedom to choose one’s friends, to form private clubs, and to associate with those who are like-minded, serve important values because “individuals draw much of their emotional enrichment from close ties with others,” and freedom of association “safeguards the ability … to define one’s identity that is central to any concept of liberty.”
Throughout much of the country’s history, the freedom to choose one’s associates in private clubs—without government intervention—has been strongly recognized. This fact was reflected in a U.S. Supreme Court decision in which the justices emphasized that “the constitutional right[s] of every person to close his home or club to any person” are social rights and, like the right to associate, are constitutionally protected liberties.
However, as time has passed, courts found this right to freely associate was being used to exclude individuals in ways that were not in accord with our Founding Fathers’ basic tenets. As America has grown and matured, the unequal treatment of individuals was curtailed by government intervention into the social rights of members of private clubs. Thus, the Supreme Court has needed to define the parameters of freedom of association to fit within this greater, and justified, requirement of equality. This forced the Court to focus on creating a balance between the right to choose with whom one would associate and the ability of all to be treated equally.
Over time, the Court has determined that there is a distinction to be made between entities that are made up of individuals of like interests and those entities that are formed for business purposes. The rationale is based on the fact that the government has a valid interest in promoting equality in commercial and business settings, but not in purely social ones.
Thus, facilities open for business and to the public, or “public accommodations,” cannot selectively choose whom they will or will not serve while private clubs can. This prohibition is what protects us all from discrimination at our favorite restaurant. Conversely, organizations—like private clubs—that are not open for business or to the public at large are given broader latitude to do as they see fit.
If a club is truly private, then the Constitution allows it to do something that “public accommodations” may not: choose whom it serves and how it serves them—like having a men’s only grill. Though some state laws prohibit this kind of selectivity, the reality is the Constitution and the Bill of Rights protect clubs’ right to do this—as long as they are truly private.
Conclusion
Private clubs owe their existence to the U.S. Bill of Rights, but not in the way most might think. Commonly referenced and just as often misunderstood, the Bill of Rights does not grant us our most basic freedoms. Instead, the Bill of Rights affirms that every human being has certain natural rights that a just government cannot infringe upon. This is an important and much debated distinction. Our Founding Fathers, who as a group were skeptical of government power, reasoned that rights given by a government could also be taken away by that same government.
Although the stakes may not be as high today as they were during the revolutionary era, our founders understood the value of individual choice and so should we—even when that freedom is expressed in things as small as choosing with whom you play bridge, or who is in your foursome.
There is no doubt that many, many private clubs face practical and financial challenges that can make protection of their private club status seem like an unaffordable luxury. And in some instances, this is surely so. Benjamin Franklin judged harshly those who he felt were too willing to compromise hard won freedoms “those who surrender freedom for security will not have, nor do they deserve, either one.”
The National Club Association renders no such judgment. Instead, NCA does the hard work of educating private clubs about their unique status, and works with government bodies to understand the limits of government participation. We should wholeheartedly support our free society, in which a person has the right to associate with whoever is willing to associate with him—even when a choice is inconvenient or objectionable to some.
Philip R. Kiester is the general manager of The Country Club of Virginia in Richmond, and serves as the chairman of the National Club Association. He can be reached at [email protected] or 804-288-2891.