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| The Club was a non profit Massachusetts corporation that was organized to encourage and promote the proper use of rods, guns, and hunting dogs, to propagate fish and game when practicable, and to further better relations between sportsmen and the community, to promote social relations among its members, to assist in enforcing the fish and game laws, and to protect all fish and game. The Club was not open to the public, nor did the Club accept the patronage of the public. The Club=s principal source of income was its membership dues. The Club also received income from the rental of its property, and an annual clambake open to the public and from beer sales to its members and guests. The requirements for membership in the Club were that an applicant must live in Concord or its abutting towns. The applicant had to be male, 21 years old or have parental permission, and be eligible for a sporting license. There were no other Astated@ requirements for membership. The applicant was required to obtain signatures of three Club members on his application, one as a sponsor and two additional members as cosponsors. However, there was no set period of time for which the sponsors had to know the applicant in order to sponsor him as a member. A careful scrutiny of the practice of the club, however, revealed that the application process was not as regimented as professed. In one instance, the president of the Club sponsored an applicant for membership after having only met him briefly on one occasion. Sponsors would also historically provide signatures of cosponsors who were acquaintances of the sponsor, but who had never met the applicant. The practice appeared more to be a rubber stamp of approval without genuine review. Thereafter, the applicant was required to appear before the Club=s Board of Governors for an interview, and then be approved for membership by the Board. The applicant=s name had to be announced in the Club=s monthly general membership meeting and after approval by the Board, the applicant had to be approved by the general membership. Again, the procedure, on its face, appears to require a rigorous review, devised to weed out unsavory applicants by providing what appears to be many opportunities of rejection. The appearance is one of exclusivity, thus falling within the exception of G.L. c. 272 ' 92A. However, the Commissioner found differently. In making the decision, the Commissioner considered the fact that in the past fifteen years period prior to the hearing, the Club had only denied membership to only three applicants. One was Donna Page, and the other two were men who had previously violated gun laws. The Commissioner also considered evidence that approximately 50% of the applicants failed to ever appear for their interview, although sponsored by three members, and were rejected as a result. The inference that the Commissioner took from that information was that there were many applicants who had not actually been selected by their sponsors, as indicated by their lack of interest. The evidence showed that the records of the governors= meeting confirmed that separate votes were not taken on each individual applicant. Instead, a vote was taken to admit the slate of applicants as a whole, sometimes up to eleven at a time. Further, sponsors were not required to appear before the board to defend their sponsorships nor was there a requirement that provided that the applicant appear at the general meeting which voted on the approval of the application. Again, the practice appeared to be more of an en masse rubber stamp without scrutiny of each individual application. Evidence that appeared to be given great weight by the Commissioner was that in 1980 (the year that Page applied for membership), and in 1981, every male applicant who applied for membership and appeared for an interview was admitted to the Club. Thus, the Commissioner, as affirmed by the Supreme Judicial Court, determined that due to the Club=s apparent absence of genuine selectivity in membership, the Club was within the reach of G.L. c. '' 92A and 98, and therefore subject to G.L. c. 151B. The Commissioner further determined, and the SJC agreed , that the intent of the Legislature was that private clubs, under certain circumstances, should be deemed Aa place of public accommodation, resort or amusement@. This determination was evidenced, in the opinion of the commissioner and the SJC, by the enactment of the two amendments to the Statute, (1971 and 1978), coupled by the 1968 ruling in the case of Rockland v. Massachusetts Commission Against Discrimination, 355 Mass, 10, 14 242 N.E.2d 536 holding that '92A must be given Aa broad, inclusive interpretation@ in order to achieve its remedial goal of eliminating and preventing discrimination. As such, the SJC affirmed the Commissioner=s ruling that the Concord Rod and Gun Club was a place of public accommodation subject to G.L. c. 151B, and that by refusing to admit women based upon their sex, it had violated the antidiscrimination statute. The SJC weighed the Commissioner=s findings and further determined that the antidiscrimination statute did not impair the members= rights of intimate association, nor the inclusion of women burden the male members= rights of expressive association. In the conclusion of the opinion, the Court made it perfectly clear that the statute did not require that women be admitted solely because they were women. It simply prohibited their exclusion solely because they were women. |
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