Court Curbs Clubs’ Ability to Discriminate

SAN FRANCISCO —  In a ruling that could alter the membership practices of various groups, the California Supreme Court said Thursday that a country club may not discriminate against women and minorities just because it is private.

The court’s 6-1 ruling delved into a legal and ethical quagmire that judges have been grappling with for years: When does gender bias violate the law, whether in sports, schools or country clubs that are either all-male or all-female?

Truly private social clubs may still decide their own membership rules, the court ruled, but when a club conducts activities that would qualify it as a business--such as charging non-members to use a golf course or pool--it is subject to a state law that forbids discrimination.

The factors the court cited would appear to apply to most country clubs and possibly even same-sex health clubs. “This presents a potential problem for them, no question about it,” said Paul D. Herbert, who defended an exclusive Bay Area golf, tennis and swim club before the high court.

The court’s decision left unresolved whether such organizations as the Boy Scouts of America can continue to exclude gays and atheists.

The case decided Thursday was brought by Mary Ann Warfield, now a Sacramento property manager, who sued the San Mateo Peninsula Golf & Country Club after it refused to allow her to continue as a full member when she divorced her husband. She had received the membership in her divorce settlement.

An avid golfer, Warfield was a real estate broker at the time and contended that she made many business contacts at the club. Her two teen-age children also used the facilities.

“Financially it was devastating. Personally it was devastating,” said Warfield. “You go through a divorce, and that is tough enough. . . . We weren’t allowed to put a footprint there.”

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At issue in her case was whether the club was a business establishment or a truly private social club. Business establishments are prevented by state law from discriminating on the basis of race, color, religion, ancestry, national origin, sex or disability.

Justice Ronald M. George, writing for the majority, said the San Mateo club was a business because it had regular business transactions with non-members.

George noted that the club allowed non-members to take lessons for a fee, shop at a golf and tennis shop while on club premises and use club facilities for a fee for receptions or other events if sponsored by a member.

“The club . . . appears to have been operating in a capacity that is the functional equivalent of a commercial enterprise,” George said.

In determining whether a club is private, the court looked at the club’s selectivity and size, the control members had over operations and the ability of non-members to use its resources. But it is not necessary to determine whether a club meets this test if it operates like a business establishment, the court said.

“The question is whether there are any clubs that can meet that test,” said Jon W. Davidson, who represented Warfield for the American Civil Liberties Union. “I think it is going to be very difficult for any country club to show that it is truly private.”

The ruling Thursday also has implications for two challenges against the Boy Scouts for excluding agnostics and gays. The ACLU represents plaintiffs in those cases, which are pending before the high court. The justices deferred written arguments on them pending Thursday’s Warfield decision.

Davidson cited “helpful” language that could aid the ACLU’s case against the Boy Scouts, but also acknowledged that the court left itself latitude to decide those challenges differently. Indeed, the court went to great lengths to point out that not all clubs will be encompassed by its ruling.

“The ‘private social club’ rubric encompasses an enormous variety of groups and organizations, ranging from small book clubs or study groups of 10 or fewer persons to international organizations with tens or even hundreds of thousands of members,” George wrote for the majority.

Herbert, the club’s defense attorney, complained that the decision contradicted a national trend by courts allowing private groups greater flexibility in choosing members. The U.S. Supreme Court, for example, recently held that organizers of a St. Patrick’s Day parade in Boston could exclude gay-rights marchers.

“The fact of the matter is that the trend, certainly in other courts, is to recognize rights of privacy and association and respect them,” Herbert said, “because they protect all of us, including the members of women’s clubs.”

Although the San Mateo club is considering an appeal to the U.S. Supreme Court, Herbert said the ruling helps country clubs somewhat by guiding them in how to structure themselves to avoid discrimination suits.

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Chief Justice Malcolm M. Lucas, in a dissent, argued that the state Legislature did not intend to regulate private social clubs whenever they conduct regular business transactions with non-members.

“It would appear that under the majority’s analysis,” Lucas wrote, “a private club such as defendant would not fall within the purview [of the law] if it conducted its transactions with non-members on a ‘break-even’ basis.”

But Ramona Ripston, executive director of the ACLU of Southern California, called the ruling a “great, great victory” for women and minorities. “Anyone who has been discriminated against through the ages will find this a victory.”

Like Herbert, Ripston said the ruling appeared to apply to same-sex health clubs that operate for profit. Such businesses, however, could defend themselves by arguing that the nature of their activities make it important to segregate by gender.

During the 1970s, the state high court forced a boys club to open a recreational center to girls, but the case failed to settle discrimination challenges against country clubs and other selective, nonprofit membership organizations.