DURING THE HEARINGS on the Bork nomination there was much heated discussion about the right to privacy. Is it implicit in the Constitution, and if so, to what kind of activities does it extend? This week, the Supreme Court agreed to hear an appeal in a case that concerns a privacy right having nothing to do with bedrooms or family confidences. An association of private clubs has challenged a New York City ordinance on the grounds that it invades privacy, denies freedom of association and impinges on free speech. The ordinance removes an exemption granted to private clubs in the city's antidiscrimination law, for organizations that have 400 members, serve meals regularly and provide some services, through members, to nonmembers. A similar law has just been passed by the D.C. Council.
The Supreme Court has dealt with the question of private clubs twice in recent years. In both cases, however, the organizations involved -- the Jaycees and the Rotary -- were national, had hundreds of thousands of members and were essentially business related. Now the issue is whether any club -- social, fraternal, ethnic, etc. -- becomes a public accommodation when it reaches a certain size or offers certain services. Given this city's compendious, not to say bizarre, roster of those who cannot be discriminated against, once a club came under the new law, not only would discrimination on grounds of race, religion, gender or handicap be barred but also discrimination on grounds of (to name but a few) "personal appearance," "family responsibilities," "matriculation," "place of origin" and a whole potpourri of similarly vague bases. It would be as absurd as it is intrusive.
Surely any organization that really offers its services to the public -- and by that we mean in which anyone is free to walk off the street to use the facilities -- ought to be subject to existing civil rights laws covering public accommodations. In addition, any private club that chooses to limit membership to persons of similar sex, ethnic background or "family responsibilities" -- whatever that is -- is not entitled to special tax breaks or back-door government subsidies. But in the absence of either of these characteristics, don't individuals have the right to form private associations and to be let alone?
As relentless and perennial hollerers at some of the private clubs around town, we of course have no objection to bringing pressure of the ordinary, nonstatutory kind on certain offending institutions like the Cosmos Club. Far preferable is pressure from within organizations and from other people who may be lending support to the organizations. It can and does happen that such groups eventually yield to arguments of their own membership. Coercion by governments with imperfect and sometimes ridiculous policies is not the way to go.