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| CHALLENGING THE PRIVACY OF MEMBERSHIP BASED CLUBS Published in the Massachusetts Academy of Trial Attorneys Journal, Fall, 2000 Issue |
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| Country Clubs. Exclusive? Probably. Expensive? Most likely. Prestigious? Absolutely. Private? Probably not. The expansion and continuing definition of G.L. c. 272, '92A, and the meaning of the words public accommodation have placed many membership based clubs on tenterhooks. The Legislature in G.L. c. '92A defines a place of public accommodation as any place, whether licensed or unlicensed, which openly accepts or solicits the patronage of the general public and, without limiting the generality of this definition, whether or not it be a facility identified by statute. Ch. 272, '98, guarantees all persons the right to full and equal use of all places of public accommodation, free from any distinction, discrimination or restriction, on account of race, color, religious creed, national origin, sex, deafness, blindness, ancestry, or physical or mental disability. The Massachusetts statutes provide all persons the right to full and equal accommodations, facilities, advantages and privileges of any place of public accommodation. This statute identifies and declares this right to be a civil right. The language of G.L. c. 272, '92A, provides only limited guidance as to what facilities are to be considered places of public accommodation. The guidance that the statute provides is specific reference to places such as resorts, places of amusement, places of sport, or any place which is open and accepts or solicits the patronage of the general public. The next natural territory for exploration is into facilities which traditionally have considered themselves Aprivate@. Country Clubs, for example, are ripe for examination. It is generally understood that the First Amendment prohibits the government from interfering with two types of Freedom of Association: the right Ato enter into and maintain certain intimate human relations;@ and A the right to associate for the purpose of engaging in those activities protected by the First AmendmentBspeech, assembly, petition for the redress of grievances, and the exercise of religion@. Roberts v. United States Jaycees, 468 U.S. 609, 617-618, 104 S.Ct. 3244, 3249-50, 82 L.Ed.2d 462 (1984), Directors of Rotary Int=l v. Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 1945, 95 L.Ed.2d 474 (1987). U.S.C.A. Const. Amend.1. However, it has also been held that there is no First Amendment impediment to the application of G.L. c. 272 '' 92A and 98, the statute which prohibits the discrimination of people in public accommodations based upon race, color, religious creed, national origin, sex sexual orientation, etc., to certain membership based clubs. In this regard, although the First Amendment protects and ensures the right of unfettered association, without being regulated by the government, it does not protect discriminatory associations in membership clubs that fall under the definitions detailed in ' 92A. |
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