ROBERTS v. UNITED STATES JAYCEES

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ORAL ARGUMENT OF RICHARD L. VARCO, JR., ESQ. ON BEHALF OF THE APPELLANTS

Chief Justice Warren E. Burger: We will hear arguments next in Roberts against the United States Jaycees.

Mr. Varco, I think you may proceed whenever you're ready.

Richard L. Varco Jr: Mr. Chief Justice and may it please the Court, at issue today are two conflicting claims.

On one hand, the states, that it can prohibit sex discrimination in certain commercial associations, and on the other, the United States Jaycees, with a constitutionally protected freedom of association, permits it to engage in precisely that conduct.

In order to understand those claims, it's necessary that the facts of this case be made clear, and I'd like to take a few minutes to do just that.

What the Jaycees does, and what it offers, and how it treats its members are essential to an understanding of this case.

What the organization does is offer leadership training and leadership skills and the opportunity to obtain those skills and obtain that training to certain individuals.

It offers this training and these opportunities in three types of programs.

The first type of program is the program in which the Jaycees train an individual to better himself or herself.

Such programs would be learning how to be a better speaker.

A second type of program is a program that they call management skills.

That indicates that the Jaycees train people to run meetings, to run programs.

A third type of program that the Jaycees runs and provides opportunities for leadership training in are programs which merge those first two types of skills, but which work toward the betterment of the community, so that, for example, an individual Jaycee learns these individual skills, learns how to run a program, and then runs a program for the betterment of their community.

These programs are made available through some 7,000 local chapters by a national organization, and they're run on a local basis in local communities.

The unfortunate part, from the State's point point of view, about these programs is that women have admission to the leadership training opportunities that are provided, but they're on a limited basis.

What women cannot do in these organizations is that they cannot vote, they cannot hold office, and they cannot receive any of the awards that the Jaycees give for performance in these programs.

Thus, what happens is the Jaycees can buy part of this program... female Jaycees can buy part of this program, but they can't buy all of it.

Now, the Jaycees have pictured themselves as a private membership organization, and I think it's essential to understand that they really operate the way a business operates.

For example, their national headquarters in Tulsa, Oklahoma have a marketing department, a department that's designed to shape and promote the Jaycee image.

In 1980 this had 40 employees and had a budget of some $2 million.

In addition to that, they have a membership development department that creates these programs that I referred to you about.

In the 1980 Annual Report the Jaycees referred to these programs as some among the most useful that they have in getting career opportunities and new jobs.

Another indication of the business aspect of this community... of this organization... is the way in which the Jaycees recruit.

For example, in 1980 they had a membership of some 295,000 members; 120 to 130,000 of those members had been recruited the previous year.

Unidentified Justice: Well, what does that... how does that bear on any of the issues in this case?

Richard L. Varco Jr: I think, Mr. Chief Justice--

Unidentified Justice: How they get their numbers?

Richard L. Varco Jr: --I think what it shows is that it operates the way a business operates.

Businesses go out and seek customers.

They go out on a continuous basis to look for people to buy their products.

That's precisely what the United States Jaycees does in this case.

They're continually looking for new people to bring into their organization.

Unidentified Justice: Well, that's true of social fraternities, too.

Fraternities are constantly rushing.

They want a new pledge group every year.

Does that make them a business organization?

Richard L. Varco Jr: No, I don't think it does.

I think that in a fraternity, for example, Justice Rehnquist, you have a situation in which there are ties that bind the members which are significantly different than the ties that bind the people in the Jaycees.

Unidentified Justice: Well, there may be those differences, but I think one of them is not a... there is not a difference between their desire for new members at frequent intervals.

Richard L. Varco Jr: Well, I bring that point out to show that that's one of the aspects of their business.

I think some clubs, for example, some private social clubs don't show this rush that fraternities do.

They're very discreet and private, there's no recruiting that goes on, you have to know somebody to belong.

So I think that if we're weighing the Jaycees on the spectrum of where they belong, the fact that they go out and seek these people actively shows that they're more like a business and they work more like a business than they do like a private social club.

Unidentified Justice: Well, an association of this kind has one thing in common with a fraternity that was just mentioned, in that the fraternity has access to these people for about four years of undergraduate work, and perhaps a little longer, and you have an age limit here.

Is that not so?

Richard L. Varco Jr: Yes, that's correct.

Unidentified Justice: And what is that age limit?

Richard L. Varco Jr: The Jaycees' programs are offered to people between the ages of 18 and 35.

Unidentified Justice: Does that violate... does that discriminate against older people?

Richard L. Varco Jr: It certainly does, but in the State of Minnesota that's not illegal.

There is no provision against age discrimination in the state.

It is a form of discrimination; it is a discriminatory judgment that they make.

Unidentified Justice: With that turnover--

Richard L. Varco Jr: Pardon me?

Unidentified Justice: --With that age limit, there's a very substantial turnover in membership, is there not?

Richard L. Varco Jr: I don't know if the record indicates quite what their turnover is, Mr. Chief Justice.

Unidentified Justice: You don't need to know what the record shows.

You just need to look at the numbers.

At age 35 or 36, every year quite a few of them are going out, aren't they?

Richard L. Varco Jr: Yes, that's correct.

Unidentified Justice: Well, then in order to maintain an organization, they've got to have a program at the bottom side to bring new ones in, don't they?

Richard L. Varco Jr: No question about that.

Unidentified Justice: What's remarkable about that?

Richard L. Varco Jr: There's nothing remarkable about it.

But the reason I bring that point up--

Unidentified Justice: Why does that it make it a business?

Richard L. Varco Jr: --Pardon me?

Unidentified Justice: Why does that make it a business?

Richard L. Varco Jr: It's a businesslike aspect to it.

In other words, I'm sure that there are some clubs that we would all agree would be private, that don't engage in this particular type of recruiting, and they lose members quite regularly; I don't know if they replace them on the same basis.

I think we could hypothesize that they don't.

But this club recruits aggressively.

It has a... it refers to its new members as customers.

It solicits them in a way that business is solicited.

It goes out into the marketplace and looks for--

Unidentified Justice: It recruits women, too, doesn't it?

Richard L. Varco Jr: --Pardon me?

Unidentified Justice: It recruits women, too, doesn't it?

Richard L. Varco Jr: The Minneapolis and St. Paul chapters, in contravention of the financial charter, recruited women.

I don't think that the national Jaycees recruits women.

Unidentified Justice: I thought you, in describing the Jaycees at the outset, you said that women can be limited members.

Richard L. Varco Jr: The Jaycees, Justice White, have several categories of members.

The two that are important are, for this case, are individual member which is limited to men between the ages of 18 and 35, and associate members which is a category of membership that women can have.

Unidentified Justice: Don't they recruit for them?

Richard L. Varco Jr: I don't believe that they do.

I don't believe that--

Unidentified Justice: That's strange, isn't it?

They must have to pay, don't they?

Richard L. Varco Jr: --Yes, they have to pay if they come in.

Unidentified Justice: I would think they would be recruiting them all the time.

That's one of their rights.

Richard L. Varco Jr: Again, I hate to fall back on what the record says, but the evidence in our record consisted of what the Minneapolis and St. Paul chapters did, and it consists of a large number of materials about how the national chapter operates.

The Minneapolis and St. Paul chapters recruited aggressively for them because, of course, they treated them equally.

Unidentified Justice: As members.

Richard L. Varco Jr: As individual members.

But there is nothing in there, in the record, that shows how the associate--

Unidentified Justice: Regardless of how sensible--

Richard L. Varco Jr: --That's correct.

Unidentified Justice: --Would you agree that the core issue in this case is not whether this is a good idea to include or exclude women, but whether it is required as a matter of law.

Is that not the issue in this case?

Richard L. Varco Jr: I'd agree with the first half of that formulation.

Unidentified Justice: What about the second half?

Richard L. Varco Jr: Whether it's a good idea or not makes no difference to this Court.

I think that the issue before this Court is whether the Jaycees have a constitutionally protected right to evade what is an otherwise valid state law.

Unidentified Justice: Or whether people who are not members have a statutorily guaranteed right to come in.

Richard L. Varco Jr: Yes.

And in Minnesota they do.

Unidentified Justice: Then why is the good sense of it relevant one way or the other?

Richard L. Varco Jr: I think the good sense of it is particularly relevant.

I agreed with your first part of the question, that the good sense makes no difference here.

It's simply a question of constitutional and statutory--

Unidentified Justice: There's two organizations in the two cities that thought it was a good idea.

Richard L. Varco Jr: --Yes, they did.

Unidentified Justice: But that has nothing to do, has it, with whether... with the legal question that's presented here.

Richard L. Varco Jr: No.

That only served as the Petrie dish upon which this all grew.

It sprung from this particular way in which the Jaycees treated their female members.

The Jaycees' grounds--

Unidentified Justice: Would the statute in your state be applied to prevent a group of blacks from forming an all-black club to advocate causes and interests to black citizens, and compel that group to admit whites?

Richard L. Varco Jr: --I think, Justice O'Connor, it would depend on several things.

There is a statutory analysis that you'd have to make, and I think there's a constitutional analysis that you'd have to make.

Unidentified Justice: If it were found to be as much of a public accommodation as the Jaycees, then do you think that there would be a First Amendment right of that black association that would override any state regulations?

Richard L. Varco Jr: If the admission of whites to this black institution in your hypothetical could be shown to interfere with some constitutionally protected freedom... let's say a constitutionally protected right to hold a belief or to advocate a belief... then the State of Minnesota, I think, would have trouble requiring through its public accommodations law that those people be--

Unidentified Justice: Well, does the First Amendment incorporate a right to advocate causes relating just to young men?

Richard L. Varco Jr: --It probably does, Justice O'Connor, but that freedom is not interfered with in this particular case.

The regulation that the State of Minnesota imposes upon the Jaycees which requires them to admit women would not have the effect of interfering with any position that the Jaycees takes on these issues that purportedly concern young men.

And I can tell you why that's so.

Unidentified Justice: I'm sure you tried to tell Judge Arnold, but he didn't agree with you.

Richard L. Varco Jr: That's correct.

Unidentified Justice: What if there were, in Minneapolis, an Iranian society devoted to the propagation of Iranian interests, and one of their big positions was that Iraq is all bad?

And then the Supreme Court of Minnesota comes along and says, well, these Iraqui people that wanted to belong to the Iranian society are free to join it under our public accommodations law.

You have to let them.

And then the State tries to defend on a constitutional basis, and says, well look, there's no reason in the world why the Iranian society can't keep on advocating just what it always did; that Iraq is all bad.

And their answer, I suppose, would be if you admit enough Iraquis into the Iranian society, they're going to quite substantially change the purpose of the organization.

Isn't that the same foreseeable here?

Richard L. Varco Jr: No, it is not.

It's not foreseeable at all, because the assumption in your hypothetical, probably quite an accurate one, is that the Iraquis would have a different point of view on that war than the Iranians.

I think the difference between the two cases here is that the issues that the Jaycees purportedly calls men's issues are not issues on which sex determines your point of view, much the way... or to the contrary of what happens in the Iran/Iraq situation.

In addition to that, the Jaycees hold up their membership to no politica litmus test the way the Iraq/Iran hypothetical would.

Men can hold these divergent views.

They can hold--

Unidentified Justice: Well, these are factual assertions about the character of this organization.

Are we supposed to take your word for it, or how are these things supposed to be sorted out?

Richard L. Varco Jr: --I think the record shows, Justice White, that--

Unidentified Justice: Well, apparently it didn't, or the Court of Appeals would have believed you.

Richard L. Varco Jr: --Well, the record shows that the admissions practices of the Jaycees don't entail any sort of agreement with a particular issue.

Unidentified Justice: Well, at least the Court of Appeals thought there was something in the notion that the Jaycees were giving a male point of view, and that is was distinguishable enough that the State couldn't force them to take in women.

Richard L. Varco Jr: I think that the Court of Appeals made the erroneous assumption that because--

Unidentified Justice: I know you--

Richard L. Varco Jr: --men uttered something, that that was a man's point of view.

Or, to put it another way, that because men uttered it, men would hold this point of view and women wouldn't.

But there is nothing in the record that shows that.

And quite to the contrary, what the record shows is that the Jaycees don't require any particular political ideology.

A striking fact, I think, is that they don't even require you to pass the test if you come in with respect to the very issue that's here.

Unidentified Justice: --Going back to Justice O'Connor's question, what if the blacks decided that we should have our own Jaycee, because we ought to really promote black business participation in black businesses, and things like that?

So they had an absolute carbon copy, so to speak, of the Jaycees, but they are all limited to black membership.

They did exactly the same things, took great part in community work, trained leadership, et cetera.

Richard L. Varco Jr: If there's absolutely no difference between the organization in your hypothetical and the organization here, then I would say that they could not do that.

Unidentified Justice: Well, the difference is that they're all black.

Richard L. Varco Jr: That would make no difference for purposes of this application of this statute.

Unidentified Justice: You mean under the Minnesota Supreme Court of the matter and your view of the matter?

Richard L. Varco Jr: That's correct.

Unidentified Justice: Under the Court of Appeals' view, they could do that, couldn't they?

Richard L. Varco Jr: That's correct.

But if we accepted the Court of Appeals' view, I guess we wouldn't be here.

We disagree with them both on the law and on the facts.

Unidentified Justice: Is that because you're elevating the type of speech involved to different levels of protection?

The type of advocacy involved?

Is it more important in one case than another?

Are you saying that there can be no First Amendment advocacy right on allegedly concerns of only male citizens?

Richard L. Varco Jr: I'm looking at that question, Justice O'Connor, from two points of view.

First, from a factual point of view.

And I think that the factual point of view is illustrated by Justice Rehnquist's observations.

There would be... there's a factual difference between the Iranian and Iraqui points of view on this particular war.

In this case, what we disagree with is that the entrance of women into the Jaycees will result in any difference of opinion on the particular issues that the Jaycees speaks on.

There simply is no basis for that.

Unidentified Justice: Well, what if the Jaycees had taken a position that the Equal Rights Amendment is bad, and that women getting into the job market is a bad development?

Now, if they had taken those two positions, which I am aware they have not, would that change your answer to any of Justice O'Connor's questions?

Richard L. Varco Jr: I think what it would change would be the nature of the regulation that the state could impose upon them.

It couldn't force them to take into their organization people who disagreed with that particular point of view, because that would then be content regulation.

We'd be regulating the content of their speech or their beliefs.

Unidentified Justice: But you say they still couldn't just flatly ban women, is that right?

Richard L. Varco Jr: That's correct.

It's obvious that there are some women who probably agree with that point of view.

Unidentified Justice: Yes, yes, yes.

Is the government limited to regulating only non-speech activities of an organization?

Richard L. Varco Jr: For purposes of the First Amendment and for purposes of analyzing this case, as the jurisprudence of this Court has progressed this far, the answer is probably yes.

There are two other areas--

Unidentified Justice: Well, does that mean if an organization did have both social non-speech activities that it performed and certain advocacy functions that it performed, that the state could relate just the social non-speech activities within that organization?

Richard L. Varco Jr: --It could certainly do that, yes.

Unidentified Justice: Is that the effect of your state's law?

Richard L. Varco Jr: In this particular case it is, yes, because there is no regulation of content based speech here.

What I was going to suggest is that the First Amendment, while it protects not only content-based speech, it also protects certain, private, intimate gatherings.

I think that as an extension of that, there is probably someplace in the concept of liberty, the notion that the government shouldn't regulate certain types of behavior that aren't, while not intimate, are nonetheless personal.

So, for example, the government shouldn't be telling people who they have to go on picnics with.

On none of those three bases, the content base, the privacy base, or this substantive due process base do the Jaycees fit in, because the relationships that the people have here are simply too impersonal and too commercial to be accorded any of those types of protection.

Unidentified Justice: What about the occasion of voting, for instance, in the organization on what political positions the organization will take?

Is that protected activity?

Richard L. Varco Jr: Not in this particular instance, no, because voting is part of what you do as a Jaycee.

You take positions on issues.

You elect officers.

The election of officers is a reflection of how you're trained and how you're viewed, so I would say that the First Amendment doesn't prohibit the state from regulating the voting in the Jaycees.

Unidentified Justice: And the organization never takes a vote on what positions to espouse for political or advocacy purposes?

Richard L. Varco Jr: It does.

The Jaycees, about once a year, issue what they call external policy statements, and they are three or four in number, and they appear in the front of their annual report each year, and they are positions on various political issues.

The vote on those comes up through the states, through their delegates to the annual convention, and is voted on by their executive committee and their executive board of directors.

So, through a process of representation and a process of distilled voting, the organization issues those statements.

But what I am saying here is that the requirement that women get into this organization, the requirement that the state puts on them through its public accommodations statute, wouldn't affect the positions that the Jaycees takes on those particular issues, because there is no sex-based link between the issues.

Unidentified Justice: Counsel, you refer frequently to the fact that the Jaycees are a business or a commercial organization.

You touched on a couple of points that perhaps support that view.

I'll ask you a question or two, and then I'd like to hear you itemize, A, B, C, D, the characteristics that make this a business.

I suppose these chapters are nonprofit corporations.

Are they incorporated?

Richard L. Varco Jr: It's incorporated.

Unidentified Justice: They are incorporated?

Richard L. Varco Jr: Yes.

It's a Missouri corporation.

Unidentified Justice: Right.

Did it pay any income taxes?

What is a Missouri corporation?

The international or the chapter?

Richard L. Varco Jr: The national, Justice White.

The national.

Yes.

Unidentified Justice: What are the chapters?

Are they incorporated?

Richard L. Varco Jr: I don't know the answer to that.

I don't think that they are.

I think that they could be viewed as you would view a franchise, various franchises, without the corporate aspect of it.

Unidentified Justice: Excuse me.

I turn you back to Justice Powell.

Let's see.

I asked you whether or not they had filed income tax returns.

Richard L. Varco Jr: I don't know.

I suspect that the national files income tax returns.

I would doubt that the local chapters file income tax returns.

Unidentified Justice: In that respect, is it any different from the Kiwanis Club?

I'm sure they pay no dividends.

You said they were... solicit--

Richard L. Varco Jr: Not the monetary types.

Unidentified Justice: --Do they advertise in the newspapers and magazines for members?

Radio and television for members?

Richard L. Varco Jr: I think that they might.

I think that some of the local chapters might.

Unidentified Justice: Does the record show whether or not they do?

Richard L. Varco Jr: I don't know.

Unidentified Justice: You don't know.

Well, you say they buy members.

Is this like buying products in a supermarket?

What do you men by that?

Richard L. Varco Jr: What I mean by that is that--

Unidentified Justice: You used the term "buy".

Richard L. Varco Jr: --Yes.

What I mean by that is this: after you're recruited, if you learn about the Jaycees through the recruitment that they do... and they do recruit through efforts of their members and through letters to corporations, through letters to businesses seeking members... you--

Unidentified Justice: What do they pay?

In other words, if you buy, you pay for it.

Richard L. Varco Jr: --They pay a fee, a membership fee.

And that fee buys them the right to be a member in the organization and to receive the training and the benefits that the organization has.

Unidentified Justice: They're selling the training.

Richard L. Varco Jr: They market and sell that training, the Jaycees does.

Unidentified Justice: Do they publish any annual reports showing profits and loss?

Richard L. Varco Jr: Yes, they do.

Unidentified Justice: Are those in the record?

Exhibit 20, Your Honor, is one of their--

--An annual report that's sort of like a church report or business report, or how would you characterize that?

Richard L. Varco Jr: I would characterize it as an annual report that a business puts out.

It has all of the same items in there that many corporate reports have.

Unidentified Justice: What other characteristics make these entities businesses rather than voluntary associations?

Richard L. Varco Jr: Well, I think that what characterizes this as a business as opposed to a voluntary association or a private membership club is the commercial nature of the transaction that's involved.

The ties that bring people to this are the desire to buy something for a price, to get some training, to participate in this.

Unidentified Justice: But churches train people for religion, and all sorts of organizations train for civic participation... Kiwanis, Rotary, Lions, Masons, whatever.

Is the training factor alone dispositive in your view?

Richard L. Varco Jr: I don't think any one factor is dispositive.

Unidentified Justice: Well, aside from training, what else?

Mr. Varco, if I may interrupt, you say one factor that isn't dispositive.

I think the Minnesota Supreme Court said there was just one factor it relied on... was the public sale of memberships to anybody who would pay the price.

That's the whole basis for their finding, isn't it?

Richard L. Varco Jr: What I'm trying to describe are the various aspects of that offering to the public.

Unidentified Justice: But they didn't rely on anything, as I read their opinion, for the business holding except for the fact of the public sale of memberships to anybody who was 18 to 35, male, and would pay the price.

But every private club requires dues.

Often they require the payment of an initiation fee.

Richard L. Varco Jr: Yes, but this organization doesn't make its money solely off of dues.

If you look at their annual report for 1980, I believe that their budget was $4.2 million and only $2.6 of that came from dues.

The rest of that money came from other sources, sales of merchandise, sales of membership lists, advertising in a magazine that they publish.

And, Justice Stevens, the Minnesota Supreme Court did say it was a business and it offered its goods and services to the public, but when it did it looked at an extensive record which shows just how similar to a business this organization is, viewing its members as customers, selling and advertising the way a business would.

Unidentified Justice: I understand.

But the principal point they relied on... they made other findings, too... but on the business issue, the thing they stressed was simply that they just sold these memberships like anybody who wanted to buy them can have one.

Richard L. Varco Jr: Yes.

Underlying that is the fact that what gets you into the Jaycees is your ability to spend the money to do it, in the same way that your ability to purchase goods in a department store is based upon the dollars that you have in your pocket.

Unidentified Justice: How is it different, in what respect, from the Kiwanis, the Rotary, and 29 other luncheon clubs?

Richard L. Varco Jr: Well, one thing that is--

Unidentified Justice: They purchase the membership, in your terms, for X dollars and pay so much every time they attend a luncheon.

Isn't that right?

Richard L. Varco Jr: --Yes, that's correct.

Unidentified Justice: Now, in these clubs that Justice Powell and others have referred to, very frequently they take one lawyer, one doctor, one dentist, one hairdresser perhaps, and the purpose of that... there can't be much doubt about it... to promote business for the doctors, the lawyer, the banker, whoever.

Now, why is the Kiwanis Club or the Rotary Club any different from the Junior Chamber of Commerce?

Richard L. Varco Jr: One of the problems with this case is that there is so much evidence about the Jaycees and so little about precisely these clubs that you've described.

And my suspicion is, is that the difference between the Jaycees and these clubs is that there is some degree of selectivity, something other than the ability to spend money.

Unidentified Justice: Selectivity in one sense, that it's just one lawyer, so that he has a monopoly or a potential monopoly on that incoming business.

Richard L. Varco Jr: But if there's a privacy aspect that has to be protected here, it's protected because of selectivity.

It's because this organization is more like the picnic among friends or the private club in which friendship or status gets you in.

That simply isn't here true with respect to the Jaycees.

Anybody can get in.

Unidentified Justice: Well, at least they assert that they're selective in that they want only males between the ages of 18 and 36 or something like that.

Richard L. Varco Jr: That's correct.

But by the same token, that simply is too big a pool to say, because they exclude women, they're not selective.

Unidentified Justice: Who says it's too big a pool?

Richard L. Varco Jr: The composition of the pool.

Unidentified Justice: What authority says that's too big a pool in your terms?

Richard L. Varco Jr: It's too public a pool.

The distinction between men and women is simply too large a distinction to claim that if we keep women out, we're not offering this to the public.

I think there's cases distinguishing the private club exemption under Title II in which football as a sport was offered only to youth, a far narrower field than we have here, in which the Court held that that was a public offering because it was offered to such a big group of people.

I'd like to reserve whatever--

Unidentified Justice: What about the Girl Scouts now in Minnesota?

Are they going to have to be a public accommodation and admit boys, do you suppose, because there may be an aggressive marketing between certain ages of members?

Richard L. Varco Jr: --If the Girl Scouts operate in the same fashion as the Jaycees operate in, they will probably be considered a public accommodation for purposes of the Minnesota Human Rights Act.

Unidentified Justice: And the Boy Scouts, too.

Richard L. Varco Jr: That's correct.

Unidentified Justice: Well, do you... the District Court said that even if the Jaycees are interested in promoting only women's... only men's point of view... that the state interest is compelling and overrides that association freedom.

Richard L. Varco Jr: Yes.

Unidentified Justice: Do you agree with that?

Richard L. Varco Jr: Yes.

Unidentified Justice: You think it's just like a hotel?

Richard L. Varco Jr: I see very little difference between what the Jaycees do and how they operate and being able to go into a hotel with a dollar and get a room or a meal.

Unidentified Justice: Where can you go to a hotel for a dollar?

[Laughter]

Speak up.

Richard L. Varco Jr: Not in this town, Your Honor.

[Laughter]

Unidentified Justice: You can take that as a figure of speech.

Richard L. Varco Jr: I'd like to reserve the balance of my time if the Court has no further questions.

Chief Justice Warren E. Burger: Mr. Hall.

ORAL ARGUMENT OF CARL D. HALL, JR., ESQ. ON BEHALF OF THE RESPONDENT

Carl D. Hall Jr: If the Court please, Chief Justice and may it please the Court, our concerns in this case have been pretty much the same as those expressed by the Court here.

The United States Jaycees is not a business.

It's a membership organization, substantially similar to hundreds of others in this country... Kiwanis, Lions, and others.

To be specific, some of the questions answered, the Jaycees is a tax-exempt nonprofit Missouri corporation.

All of the state organizations are likewise tax-exempt corporations, as are the local organizations, and they are all tax-exempt as 501(c)(4) organizations or civic leagues, and they granted exemption pursuant to a published ruling under that category some many years ago by the Internal Revenue Service.

This organization has existed since 1920 and is essentially the same today as it was then, in the sense that its sole purpose is to promote the interest of men.

It's a young men's organization.

Its purpose is to... essentially to assist young men in their development by means of community service.

Unidentified Justice: Well, isn't it young businessmen?

Carl D. Hall Jr: No, it's not young businessmen?

it's any young men.

Unidentified Justice: Any young men.

Young preachers, anybody?

Carl D. Hall Jr: That's right.

Any young man between the ages--

Unidentified Justice: School teachers?

Young school teachers?

Carl D. Hall Jr: --Young school teachers, young doctors, young lawyers, young preachers, anyone who wants the organization can join and receive the benefits.

The essential objective of the organization is to develop young men through participation in community projects.

These projects vary by the thousands.

They are essentially developed by the local organization itself.

The national organization does develop programs, but essentially most of the programs are developed locally.

Unidentified Justice: Mr. Hall, can you identify any of those programs in which the sex of the participant supporting it would tend to make him either support or oppose the program?

Carl D. Hall Jr: I can't think of any program that would.

I think... I cannot.

I think where the problem comes in, the statement has been made that if women are admitted, it won't really change the organization or its views.

Unidentified Justice: Well, presumably, it would change the organization because they'd have women instead of just men.

But would it change any of the programs that they have been engaged in since 1920?

Carl D. Hall Jr: It could very well.

The programs are... in terms of local programs... are by the thousands.

I don't think the programs would change so much as it would the interest advanced.

The interest advanced by the organization is that of young men.

And, presumably, any organization which admits women as voting members, in due time its--

Unidentified Justice: Which of the programs advances the interests of young men without equally advancing the interests of young women who might also be executives?

Carl D. Hall Jr: --As I said earlier, I don't know of any external program in that sense.

The program which you--

Unidentified Justice: How about any internal objective of the organization?

Carl D. Hall Jr: --It would indeed.

It would indeed change the internal, because the internal programs are directed to the self-improvement of just young men.

Unidentified Justice: Of course, the word 1920, didn't it?

Carl D. Hall Jr: That's right.

Unidentified Justice: When the word "men" was often used to cover both sexes.

Carl D. Hall Jr: And it has... and although the organization has voted three times on this question, the membership has still indicated they desire the organization to continue as an organization to advance the interests of young men.

Unidentified Justice: You say it would change the organization.

How it would it change it?

Is there some... does the record have some explanation in it by the national organization, by its officers, as to why they confined their membership to men, other than we just like men better than women?

Carl D. Hall Jr: Of the majority of... they voted three times and, of course, the majority voted all three times.

And the reasons, of course, could be varied as there are people voting, but essentially the thrust has always been that the young men want an organization which promotes the interests of young men.

Women have organizations--

Unidentified Justice: What interests are there of young men that would be frustrated by having women members?

Carl D. Hall Jr: --I think the desire of young men simply to have an organization that they entirely run and promotes solely their interest.

Unidentified Justice: So that's really sort of a club sort of a rationale, a privacy rationale, other than a First Amendment rationale, isn't it?

Carl D. Hall Jr: No.

The First Amendment, as we understand it, would protect the interests of any group who desires to meet and associate for the purpose--

Unidentified Justice: Whether it was communicating anything distinctive or not.

Carl D. Hall Jr: --This organization... we would advance that, but in this case it's more than that.

In this case--

Unidentified Justice: Well, I don't know that you... I thought you answered Justice Stevens that you don't know of anything that would be different externally.

All of its communications would be the same, wouldn't it?

Carl D. Hall Jr: --No, it's communications would not.

Unidentified Justice: What?

What wouldn't?

How... what would happen?

Carl D. Hall Jr: Well, the... as pointed out earlier, in the number of matters which the organization votes on not only nationally, but locally, each year number in the hundreds.

The national itself takes a vote each year on various issues, but all the 6,000 organizations also, from time to time, take public positions on issues of local community--

Unidentified Justice: Can you name me one position that applies only to men?

Carl D. Hall Jr: --Beg pardon?

Unidentified Justice: One position that they have taken that applies only to men.

Carl D. Hall Jr: I can't think of a public commitment issue which is applied only to men, but I can foresee that the organization itself, if they take a vote on ERA or the draft or abortion, or any of those sensitive issues, they could very well take a different position.

There are... I think it's not rational--

Unidentified Justice: Have they done so up to date?

Carl D. Hall Jr: --To my knowledge, they have not taken a vote on those sensitive issues, but they certainly are going to.

Unidentified Justice: The only position they've taken is, they don't have any interest in women.

Carl D. Hall Jr: No.

I think the interest is that they have--

Unidentified Justice: Have they taken that vote or not?

Carl D. Hall Jr: --Beg pardon?

Unidentified Justice: They haven't taken that vote, have they?

Carl D. Hall Jr: About interest in women--

Unidentified Justice: Yeah.

Carl D. Hall Jr: --To my knowledge, they have not.

Unidentified Justice: Would you respond to the view of the state that this is a business?

Carl D. Hall Jr: Yes, I will.

Unidentified Justice: I think that's an important question, since apparently that was a basic decision on which the state--

Carl D. Hall Jr: It is our position that the Jaycees is not a business; it's a bona fide membership organization like the thousands of others.

Its members elect its officers, control its affairs, determine its course of action, make up its budget, determine exactly where it will go.

Unidentified Justice: --Everything you've said so far could apply to a business.

What about the concept of selling membership?

Carl D. Hall Jr: There is no... well, it does not sell memberships.

It recruits memberships in the sense that of membership organization.

It no more sells memberships than the Rotary or Kiwanis or any other women's organization, Junior League or any other, sells memberships.

All of those organizations recruit new people and they issue members in return for dues.

The Jaycees does exactly the same thing.

Unidentified Justice: But some organizations vote people in.

Do you vote them in here, or do they just... you pay your dues and you come in?

Carl D. Hall Jr: That's up, pretty much, to the local chapter itself.

Age 18 to 35 are eligible.

How that local chapter would go about it would be pretty much left up to the local chapter itself.

Unidentified Justice: So anybody can walk in off the street and join, if you're male?

Carl D. Hall Jr: That is possible, if you're 18 to 35.

That's the purpose of the organization, to promote young men, and they could.

Unidentified Justice: Well, they can't compare that with all those organizations you named.

Carl D. Hall Jr: Beg pardon?

Unidentified Justice: Some of those organizations you named, one vote can keep you out.

Carl D. Hall Jr: That's true.

Unidentified Justice: Right.

Well, that's a little different.

Carl D. Hall Jr: In this case, there could be also... local people could be excluded on a de facto basis likewise, and that's in the record.

Unidentified Justice: Mr. Hall, may I ask you just a question?

The debate as to whether it's a business or not--

Carl D. Hall Jr: Yes.

Unidentified Justice: --In what sense are we asking that question?

I think the Minnesota Supreme Court has told us in a rather surprising opinion, to be quite honest about it, says it is

"a business within the meaning of of the Minnesota statute. "

Carl D. Hall Jr: Yes.

Unidentified Justice: So don't we have to accept that as that's where we start from?

Carl D. Hall Jr: No.

The--

Unidentified Justice: Do we have the power to reinterpret the Minnesota statute?

Carl D. Hall Jr: --Yes.

I think you have the power to analyze the facts in making the constitutional inquiry as to whether this organization's right to free association has been--

Unidentified Justice: Why don't you just accept the fact that within the meaning of the Minnesota statute, this is a business?

But that doesn't solve the case.

Carl D. Hall Jr: --Well, if that were accepted, we would abridge constitutional rights by just pure imposition of labels.

Unidentified Justice: Why?

Why?

You would still have your constitutional argument.

Carl D. Hall Jr: Well--

Unidentified Justice: Just because it's a business doesn't solve your constitutional question.

All it does is solve that it's a public accommodation within the meaning of the statute.

Carl D. Hall Jr: --Our point is the same as Judge Arnold made, that the label "business" is simply a distortion of the facts.

Unidentified Justice: Suppose it is.

The Minnesota Legislature and the Minnesota Supreme Court can't determine the constitutional question here.

We determine that issue, don't we?

Carl D. Hall Jr: Yes.

But... I'm sorry, I didn't follow your question.

Unidentified Justice: We determine the constitutional question--

Carl D. Hall Jr: That's correct.

Unidentified Justice: --not the Minnesota Legislature or the Minnesota Supreme Court.

Carl D. Hall Jr: That's correct.

Unidentified Justice: Because the Supreme Court of Minnesota says this is a business under Minnesota law.

That's the last word on Minnesota law.

Carl D. Hall Jr: I'm not quarreling that the last word on whether or not they label this a public... that label, they are the last word.

The point I'm making is that that label does not preclude the constitutional analysis.

That's the point we're making.

Unidentified Justice: Mr. Hall, what about the selectivity question?

Can any young man between 18 and 35 be admitted?

Carl D. Hall Jr: The organization does have a wide admission policies of young men 18 to 35.

Our position is that does not take away our right to free association.

Unidentified Justice: Right.

But is it a fact that any man between those ages is admitted?

Carl D. Hall Jr: Yes.

That is true, except for de facto exclusion on a local basis where people tend to admit people and recruit people, as in St. Paul, where they're primarily business.

But in New Orleans it may be another way, and in Los Angeles it may be another, where people tend to recruit people they have something in common with.

But it is true that it does not have an exquisite or exclusive method of recruitment.

However, all the decisions of this Court that have dealt with the right of freedom association, to my knowledge, none of those cases have dealt with organizations that have had highly selective or private club membership policies.

And there's nothing in the cases that we have seen that indicate that an organization with this kind of a policy could not enjoy that freedom.

Unidentified Justice: Part of your submission is that the First Amendment protects private organizations, whether they're communicative organizations or not.

Just fraternal organizations.

Carl D. Hall Jr: That is our position, although in this case, there is broad communication of controversial public issues.

In this case, the--

Unidentified Justice: But none of which... none of which you can identify that would be different if women were--

Carl D. Hall Jr: --I can't identify... if the organization itself, it were required to comply with the Minnesota injunction and admit women, it is inconceivable... and I think you're rational to assume that the organization won't change and that its viewpoint won't change.

Anytime the membership--

Unidentified Justice: --Well, you haven't identified one yet.

I've asked about it several times.

Carl D. Hall Jr: --Abortion.

Unidentified Justice: Well, you don't know what its viewpoint is.

Carl D. Hall Jr: Well, they've never voted on it, but I can't predict the issues--

Unidentified Justice: How do you know?

All men don't agree on it either.

Carl D. Hall Jr: --I can't predict what the viewpoint will be on any given issue that may come up next year or the year after that.

Unidentified Justice: But you just think it inevitably would be different?

Carl D. Hall Jr: I think an organization in which you change the membership from one which is all men, dedicated to voting the interests of men, and you change it to an organization which also includes women, I think it's only rational to assume that that organization is going to undergo a substantial change.

Unidentified Justice: But now, it seems to me that there's something that has to depend on the nature of the organization.

If you have an organization of all male stockbrokers that are solely concerned with the business of stockbrokering and what's happening to stockbrokering, and they're required to take in women stockbrokers, it seems to me that the great focus on stockbrokering may be very little different between men and women.

On the other hand, if you have an organization of male chauvinists that says we're tried of this affirmative action in favor of women, we want what we think is a square deal, it seems to me there you get a different thing.

But you haven't really shown that the Jaycees are in the latter category at all, that they espouse anything close to men's rights or the kinds of issues that men and women might feel differently about.

Carl D. Hall Jr: Well, the important point that I think perhaps I haven't made clear is that this organization's essential core purpose is to advance the interests of young men, just as there are women's organizations which central core purpose is to advance women.

If you would require those women's organizations to admit men, you're going to change the organization.

If you require this organization to admit women, I think it's inevitable that you're going to essentially change it.

I think we have a constitutional right to have an organization which just promotes the interests of young men.

And I don't think that we can expect that if it becomes an orgnanization in which women are members, that they're going to long stand for leaving the organization with the sole purpose to advance the interests of men.

Unidentified Justice: Aren't you just afraid that the women will "take over"?

Carl D. Hall Jr: Maybe that... that may be a... Judge Doyle of the Tenth Circuit suggested that may be a possible fear, and if it is, I think it's the kind of fear that would be legitimately protected by any group.

Women may keep out men for fear they'll take over.

I think it's a legitimate right to do so.

Unidentified Justice: Well, if the suffragette movement of a century ago had taken in men, they probably wouldn't have had the women's vote quite as soon as they did, would they?

Carl D. Hall Jr: That's right.

And I think if women had been in this organization five years ago or even six years ago, they would not have been willing to spend the kind of money this organization is spending to uphold its constitutional right to be a men-only organization.

Unidentified Justice: Mr. Hall, I'm afraid we're not giving you much chance to argue, but the Court of Appeals for the Eighth Circuit, in its holding paragraph on page A2, says this:

"We hold that the Jaycees, a substantial part of whose activities involve the expression of social and political beliefs and the advocacy of legislation and constitutional change does have the right of association protected by the First Amendment. "

No. 1, do you think the record supports that reading by the Court of Appeals?

Carl D. Hall Jr: Yes, it will.

There... in Exhibit 19, as a matter of fact, there is a list... a long list of positions taken on critical controversial issues by the local organizations.

In addition to that, in I think it's Exhibit 3, there is also a long list of positions which the organization has taken over the years.

They've taken the... the record itself reveals many positions since 1956.

Actually, they were taking them even before that.

Unidentified Justice: Mr. Hall, those exhibits are in the record, but not in any appendix that we have before us.

Carl D. Hall Jr: That's true.

They're in the record.

Both of those exhibits are in the record before the District--

Unidentified Justice: But none of them can you identify as just male issues, as just promoting the interests of men.

As you say, your primary interest is in promoting the interests of young men.

Carl D. Hall Jr: --Yes.

Unidentified Justice: And yet all of your public positions... none of your public positions can you identify as

"promoting the interests of young men. "

as distinguished from young women.

Carl D. Hall Jr: That's true.

But the taking of positions on various issues is only one part of the way in which young men are developed.

Young men are developed in this organization not just by taking positions on issues; that's only a part of it.

Young men are developed primarily by running projects which, in turn, benefit the community, whether it's the Hartford Open or the Patty Berg Classic, or whether it's--

Unidentified Justice: And associating with other young men.

Carl D. Hall Jr: --That's right.

That's correct.

And being officers and directors of those groups.

Unidentified Justice: But aren't those projects designed to teach them to be good, effective executives?

Carl D. Hall Jr: Beg pardon?

Unidentified Justice: That's part of their training to be effective executives, isn't it?

Carl D. Hall Jr: And they learn by doing.

Unidentified Justice: And I suppose women wouldn't learn the same thing?

Women learn exactly the same way.

Carl D. Hall Jr: If women did it, they could benefit from it.

Unidentified Justice: Well, what do the associate members do?

Don't they... don't they participate in these programs?

Carl D. Hall Jr: Beg pardon?

Unidentified Justice: Don't the associate members, the women, participate in these programs?

Carl D. Hall Jr: The associate members do participate in these programs.

They do not have the right to vote or control policy of the organization.

Unidentified Justice: Well, I know, but they participate in all these training programs.

They learn how to run meetings.

Carl D. Hall Jr: They do not serve as officers, but the associate members have run projects, yes.

Unidentified Justice: Sure, they run projects and they're trained, and they get the same exposure, except they aren't officers of the organizations and don't vote.

Carl D. Hall Jr: And do not vote or hold office.

That's correct.

Unidentified Justice: Well, tell me, what other right do they have, other than to pay their dues?

[Laughter]

Carl D. Hall Jr: I'm sorry.

Unidentified Justice: What other right do the women have, other than to pay dues?

Carl D. Hall Jr: Well, first of all, this is a voluntary organization, Justice Marshall, and the women don't have to join on that basis.

And they are a very small group.

The number of associate members is very small at this time.

It's about 9,000, and only a small portion of that are women associate members.

Women have not joined in large droves as associate members.

Unidentified Justice: That's understandable.

Carl D. Hall Jr: And I don't blame them for that, and that's their choice to make--

Unidentified Justice: I was wondering if you wondered.

Carl D. Hall Jr: --Beg pardon?

Unidentified Justice: I was wondering if you did wonder why they didn't join.

[Laughter]

But in Minnesota, when it was opened up, apparently women did join in substantial numbers.

Carl D. Hall Jr: Either... that was primarily in violation of the bylaws.

As I recall, Minnesota did not adopt any program, and that was just a flat violation of bylaws, and that's how we got--

Unidentified Justice: But suffice it to say, in those organizations where the membership was opened up, the women joined in substantial numbers.

Carl D. Hall Jr: --Beg pardon?

Unidentified Justice: In those clubs that opted to open the membership up to full membership for women, women did join in substantial numbers.

Carl D. Hall Jr: That's correct.

They did join in substantial numbers.

The point we make here is that if... no one would, I think, urge that now or any other active organization, that the state would have the right to dictate what that organization advocates.

And yet, in this particular case, by dictating the composition of its membership--

Unidentified Justice: Well, now as I understand the state's attorney, he's not arguing that the state can dictate what the Jaycees advocate.

I didn't hear him to say that at all.

Did he?

Carl D. Hall Jr: --No, he doesn't.

But he arrives at the same conclusion by dictating who the membership, and by dictating the membership you effectively determine how that organization will... its collective voice and its programs.

Unidentified Justice: I don't think your opponent would have said... would say that his arguments all apply to a situation where there was something called the National Organization of Men, that it anti-affirmative action, anti-ERA, and so forth.

I think perhaps he would say the difference between that case and your case is, you haven't shown that the Jaycees are the counterpart of NOW.

Carl D. Hall Jr: Yes.

It seems irrational to assume that this organization, to continue as an all-male organization, has to deliberately take positions on ERA or abortion in order to show how anti-woman it is.

It doesn't seem to make sense that they can't have an all-male organization.

There are all-women organizations, and I think they're accepted.

Someome asked, will this affect the Girl Scouts or the Boy Scouts?

I don't think there is any question.

It has already... the trend of this kind of litigation has already affected the Boy Scouts in California.

Unidentified Justice: You're basically asserting a First Amendment right.

And the state is asserting a right to eliminate discrimination on the basis of race and sex in its public accommodations law.

And I guess you will concede that the state does have power to regulate and prevent discrimination on the basis of race and sex.

Carl D. Hall Jr: In a public accommodation.

Unidentified Justice: In a public accommodation.

And it has defined the Jaycees as a public accommodation.

So that requires us, I suppose, to apply some kind of a balancing test as in O'Brien and see whether the public interest and concern in elimination of discrimination is sufficient to uphold the regulation.

Right?

Carl D. Hall Jr: No.

I don't concede that it's a balancing function at all.

The label "public accommodation" which they placed on the Jaycees, in which that state law determination is final, that that does not foreclose the necessary constitutional analysis to see if the Jaycees... the right--

Unidentified Justice: Well, but the constitutional analysis is what I'm trying to get at.

We apply an O'Brien type test, do we?

Carl D. Hall Jr: --You would apply the test of Griswold v. Connecticut and Shelton v. Tucker and other cases which have set forth the basic fundamental right of freedom of association to choose our own members.

That's the test that we would apply.

Unidentified Justice: Well, but you have businesses that said we don't want to serve blacks.

We have a restaurant and we're not going to serve blacks.

And this Court has said that the state's interest in eliminating discrimination is enough to put a stop to that.

Carl D. Hall Jr: Yes, but--

Unidentified Justice: All right.

So you have... you have this kind of balancing to look at, don't you--

Carl D. Hall Jr: --Well, the two situations are not comparable.

In the case of the traditional public accommodation... the restaurant, the theater, the motel, and so forth... those do not have private associational characteristics.

Those, in fact... sharing a plate of food in a restaurant doesn't have any private associational characteristics.

That's much different than the local Jaycee organization, which many of them have anywhere... a minimum of 20 to--

Unidentified Justice: --Don't you think those were the arguments that were made in those cases?

The same argument you make.

Carl D. Hall Jr: --In the public accommodation cases, the right of freedom of association was not made, to my knowledge, because they were no private associational characteristics involved in a restaurant or a motel, as distinguished from this case where a local Jaycee organization of 20 or 30 or 40 or 50 young men associate together on week-to-week basis.

Unidentified Justice: What if they associate together to organize a training school for young executives?

Carl D. Hall Jr: Beg pardon?

Unidentified Justice: What about a training school for young executives which had different projects and seminars and so forth?

Carl D. Hall Jr: Well, if it's a training school for young executives, in the context now of a commercial enterprise--

Unidentified Justice: Young male executives.

Carl D. Hall Jr: --Yes.

Young male executives in the context of a commercial enterprise, I think that that would be a public accommodation.

They'd have to admit women.

Back to the earlier question, the Jaycees is simply not a business.

It does not... it's a nonprofit organization, and does not have the characteristics of a business.

Unidentified Justice: You made reference to the National Organization for Women and some of these women's organizations.

I notice in their brief that they filed here, that there are 200,000 women and men in that organization.

Apparently, they do take in men.

Carl D. Hall Jr: Yes.

As to those organizations, the problem of admitting anyone to interfere with their fundamental underlying purpose has not been a problem.

Some of the organizations who have filed as amicus here, however, do limit their membership to women, and legitimately so, because those organizations feel that they're promoting the interests of women, and if they want to do that they should limit their organization to women.

There are large organizations in this country which do limit their memberships strictly to women for the sole purpose of advancing the interests of women.

Unidentified Justice: Mr. Hall, I notice that from Exhibit 3, that the Jaycees in 1981 urged a constitutional amendment requiring Congress to balance the budget every year.

And in 1983 they urged a constitutional amendment to support voluntary prayer in American schools.

Now, are those fairly typical of the types of things that the Jaycees do?

Carl D. Hall Jr: Yes.

That's of... typical in terms of the national positions they will take.

The local positions by local organizations would be much more tied to local bond issues, to local problems of local and state interest.

One further question I'd like to address, and that's the question of vagueness.

Presumably, in this case, if the Jaycees have a desire to comply with this statute in any way, the question is how could the bylaws be amended?

They meet each and every June, and could amend the bylaws in any way that the membership chose to do so.

Now, we submit that not only is it impossible for an ordinary individual to know how to amend the bylaws in this case to comply with Minnesota's law so as to be like the Kiwanis, that I submit it would even be literally impossible for the average, ordinary, intelligent lawyer to amend the Jaycees bylaws to comply with it in order to be more a private organization like the Kiwanis, as distinguished from a public organization like the Jaycees.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further?

You have one minute remaining.

Richard L. Varco Jr: Unless the Court has some questions, Mr. Chief Justice, I have no further remarks.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until Monday next at 10:00.