Justices Will Rule on Laws Ending Bias at Male Clubs

The Supreme Court opened its fall term Monday by agreeing to decide whether cities can end discrimination at large, all-male private clubs--the goal of tough ordinances passed in recent years in New York, Los Angeles and several other major cities.

The justices said they would rule on the constitutionality of New York’s anti-discrimination measure, which states that clubs with more than 400 members and that regularly serve meals may not deny membership based on race, sex, religion or national origin.

The New York law was the model for most of the other municipal ones, including that in Los Angeles, which was approved in May and contains the same criteria.

A group of 125 private clubs has challenged the government intervention, charging that it violates the clubs’ constitutional “right to freedom of association.” However, the high court in recent years has been whittling away at the boundaries of that right, ruling in its spring session, for example, that Rotary International was not a sufficiently private organization to legally bar women.

In a related case Monday, the justices in effect upheld a California state court order requiring an exclusive, all-male organization to offer employment to women (Bohemian Club vs. Fair Employment and Housing Commission, 86-1915). The court refused to hear an appeal of an open-hiring order obtained by the Fair Employment and Housing Commission against the 100-year-old Bohemian Club of San Francisco, whose members include President Reagan and former Presidents Richard M. Nixon and Gerald R. Ford. All of its 90 employees were male.

No Private Right

In recent years, the courts have held that organizations with large memberships, regular banquets with public-interest topics and activities that extended into the business community were not truly private social groups and therefore had no private right to restrict membership by race and sex.

A number of city governments have taken that cue to enact ordinances targeting large men-only clubs and service organizations.

In February, New York’s highest court upheld the city’s ordinance. Though the private club members “have a right to free speech and to association,” wrote Chief Judge Sol Wachtler, “they lack the right to practice invidious discrimination against women. . . .”

A unanimous Supreme Court took much the same view in May when it ruled that Rotary International had no right to insist that its local clubs exclude women. But the opinion by Justice Lewis F. Powell Jr., who has since retired, left open the question of whether private clubs that are much less business- or community-oriented may discriminate.

In their challenge to the New York law, the groups of clubs charged that the 400-member limit in the New York law is unfair and arbitrary and does not bear upon whether an organization’s nature or activities are public or private.

Complicating the issue is that the right to freedom of association is not spelled out in the Constitution. Like the right to privacy that has been a key focus of the confirmation hearings of Supreme Court nominee Robert H. Bork, the right has been assumed by courts to exist, as an implied provision of the First Amendment.

The court will hear the case (New York State Club Assn. vs. City of New York, 86-1836) later this year and a ruling can be expected by June.

On its opening day, the eight justices handed down orders in nearly 1,200 cases and heard arguments in a bid by the Reagan Administration, which wants the power to keep out foreign political activists.

In recent years, the Administration has relied on a Cold War-era statute to deny visitor visas to a host of foreign politicians and activists with leftist ties who had been invited to speak at colleges or at rallies in the United States. But last year, the federal appeals court in the District of Columbia ruled 2 to 1 that the government had exceeded its authority.

The 1952 law said aliens could be denied admission if they were here to “engage in activities” that would harm the nation. The court said the law was being applied improperly to public speakers who posed no threat. In dissent, Bork, a member of the appeals court, said the government should be permitted to exclude such activists because their mere presence here could harm the nation’s interests. A ruling on the case (Reagan vs. Abourezk, 86-656) is pending.

In other orders, the court:

--Upheld the right of reclusive author J. D. Salinger to stop publication of a biography of him that quoted liberally from his unpublished letters. British literary critic Ian Hamilton quoted from 44 of Salinger’s letters that were on file in university libraries. Salinger, the author of “Catcher in the Rye,” charged violation of copyright and won an appeals court order halting publication by Hamilton and Random House. Without comment, the court let the ruling stand (Random House vs. Salinger, 87-188).

--Agreed to decide whether a judge can order a newspaper to halt publication of a story that could embarrass the government and harm the reputation of an alleged mobster. The Supreme Court has allowed prior restraint orders only in grave emergencies such as war, but a judge in Rhode Island told the Providence Journal not to publish secret reports about FBI wiretapping of an alleged mobster. The paper published the story in defiance of the order (U.S. vs. Providence Journal, 87-65).

--Refused to intervene further in the long-running court battle between the Los Angeles Raiders and the National Football League. In a dispute that grew out of the Raiders’ move from Oakland to Los Angeles, a federal court ruled that the Raiders were due damages from the NFL, which sought to block the move. But the U.S. 9th Circuit Court of Appeals ruled last year that a trial court should reduce the damages. The Raiders and the NFL appealed the order, but the high court ignored both (NFL vs. Raiders, 86-1972 and Raiders vs. NFL, 86-1968) .

California Club faction seeks to circumvent law. Part II, Page 3.