Freedom of association has long been cherished by Americans. Alexis De Toqueville noted during his travels through America, "There's one country in the world which, day in, day out, makes use of unlimited freedom of political association. And the citizens of this same nation, alone in the world have thought of using the right of association continually in civil life, and by this means have come to enjoy all the advantages which civilization can offer."
Similarly, this country has had a long history of equality. Under our Constitution, all citizens are equal under the law and the right to vote is guaranteed to our citizenry. Freedom and equality came into apparent conflict when Congress and the states began enacting laws preventing discrimination by associations. Such laws infringe on the individual's ability to associate by promoting equality. This infringement occurs because associations of all types discriminate by their very nature, i.e. the Irish/American Club discriminates against persons without Irish ancestry.
When seen in the context of a club like the Irish/American club, few persons are moved to promote a law preventing such an association from discriminating. However, many clubs are not so benign. Certainly, groups such as the Skinheads or the Ku Klux Klan, which promote racial hatred, are criticized, and many want to regulate them. Because laws are written in universal terms, if lawmakers enact laws that regulate the Skinheads, they will in turn regulate organizations whose purposes are universally respected. This tension between freedom of association and government enforcement of equality is not easy to maintain at a point where most wish. Instead, government is often seen as not acting enough – thereby ignoring the values of equality – or as acting too much, thereby preventing free association:
This issue was recently enlivened by the adoption of Public Act 70 of 1992 ("P.A. 70" or "the Act") by the state of Michigan. P.A. 70 modified M.C.L.A. 37.2301 of the Elliot-Larsen law dealing with clubs. Before the adoption of P.A. 70, private clubs were exempt from federal and state laws dealing with discrimination. Their exemption existed as long as they were deemed private. The pertinent part of the law recategorized private clubs as public.
Chapter 37 of the Michigan Compiled Law was modified, according to the original sponsor of P.A. 70, "to eliminate discrimination against women and minority members of private country and golf clubs." However, this report will show that the law does not have any effect on discrimination due to race or gender. Instead, the Act limits the freedom of clubs to provide the spouses of members access to the club. If any access is allowed, the law requires equal access even though the spouse does not pay membership dues. Whether or not the law will accomplish any useful purpose and what other problems it may create will be explored here. The law will clearly be seen to fail the purpose set forth by its own author.
It is necessary to investigate P.A. 70 within the context of other state and federal laws to understand the value of the law. First, this report will explain P.A. 70 in the context of Michigan's Elliot-Larsen law. In considering Michigan's Elliot-Larsen statute, this report will consider some of the practical difficulties faced by those trying to implement P.A. 70. This review will show that P.A. 70 will not have any positive effects beyond what could have been achieved without the Act and that the Act may force the closure of some clubs because they will not be able economically to manage its mandates. Second, this report will look at the federal law regarding discrimination and whether or not a law like P.A. 70 was necessary or duplicative. Because an extensive net of federal law exists to prevent discrimination and because state law was equally comprehensive, the stated purpose for enacting P.A. 70 is suspect.
Finally, this report will explore the value of freedom of association and how P.A. 70 might affect this constitutional right. P.A. 70 will be seen as law that severely limits nondiscriminatory behavior by clubs.