II. Elliot-Larsen and P.A. 70

A. Introduction

Michigan adopted P.A. 70 in 1992 to amend the Elliot-Larsen Act to include private clubs.[6] Prior to these amendments, discrimination was outlawed in a "place of public accommodation."[7] The term was defined as "a business or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public."[8] Because of concern that "not so private clubs have been restricting the access to and use of their facilities by women,"[9] P.A. 70 was proposed. The changes made in the Elliot-Larsen statute by P.A. 70 and their potential impact will be considered in this section.

B. The Enumeration

Unhappy with the legal definition of places of public accommodation, Michigan specifi-cally included certain clubs under P.A. 70. It states:

Place of public accommodation also includes the facilities of the following private clubs:

i. A country club or golf club.

ii. A boating or yachting club.

iii. A sports or athletic club.

iv. A dining club, except a dining club that in good faith limits its membership to the members of a particular religion for the purpose of furthering the teachings or principles of that religion, and not for purpose of excluding individuals of a particular gender, race or color.[4]

The degree of specificity found in this litany of places represents typical legal jargon. The inclusion of such clubs by explicit iteration leaves numerous other clubs exempted. Because of this enumeration, entities may try to redefine themselves so that they are not "country clubs" or other enumerated clubs. Courts will then be forced to determine what factors make something a "country club" or other enumerated club. As a consequence, clubs that have the same number of members as included clubs may be exempt from the law. Besides this definitional problem, P.A. 70 also created numerous practical ones.

C. Places of Public Accommodation

The Elliot-Larsen statute made an exception for private clubs before the adoption of P.A. 70. The current statute applies to certain enumerated clubs without regard to their public or private status. However, the actual embrace of the modified Act may be less encompassing than appears on the face of the statute because legislatures may not regulate truly private clubs because of limits placed on regulations by the United States Constitution.

Before being modified in 1992, M.C.L.A §37.2301 applied only to "places of public accommodation." In Rogers v. International Association of Lions Clubs,"[10] a federal court was called upon to decide whether or not the Lions Club was included under M.C.L.A. 37.2301. In that case, a woman had been admitted into a Lions Club in violation of the International Lions Club rules."[11] The local Lions Club challenged the national club's action as violative of M.C.L.A. §37.2302.[12] The defendant claimed that it was protected by the statutory exemption for private clubs.[13]

The federal court noted that this provision had not been interpreted by the Michigan courts.[14] It proceeded to interpret the statute in light of Roberts v. United States Jaycees, discussed below. The court there held, "the essence of privacy is selectivity."[15] Without selectivity a place cannot be considered private. If a club is private though, it has constitutional protection from state intrusion. Thus, the Constitution prevents P.A. 70 from regulating truly private clubs even though it attempts to do so. The impact of the Lions Club and Roberts opinions cannot be overlooked.

No matter what the Michigan statute may say, states may not prohibit private clubs from discriminating because truly private clubs are protected by the First Amendment as understood in Roberts. Therefore, insofar as P.A. 70 attempts to regulate private clubs regarding discrimination, it is unconstitutional. States may not prevent discrimination by private associations.

On the other hand, since the Lions Club court interpreted M.C.L.A. §37.2302 in light of Roberts, discrimination by any but private clubs was prohibited before the passage of P.A. 70. Nevertheless, P.A. 70 did add regulations to clubs. These added regulations will have severe practical effects detrimental to most members of most clubs.

D. The Regulations in P.A. 70

Not content with prohibiting race or gender discrimination, P.A. 70 added an entirely new section regulating the economic affairs of clubs to the Elliot-Larsen statute. This addition will require clubs to change the way memberships are handled, thereby hurting most members of the club. Because the regulations imposed by P.A. 70 are bad economics, they will not serve the purpose of eliminating discrimination and may even contribute to it because clubs may have to prevent entirely spouses from using their facilities. Since the stockholding member of most golf and dining clubs currently are men, women may find that P.A. 70 will result in their being unable to participate in activities at their spouses' clubs.

The likelihood of P.A. 70 actually causing discrimination can be seen by looking at its language in light of the practical workings of golf and dining clubs. M.C.L.A. §37.2302a states:

(2)   If a private club allows use of its facilities by one or more adults per membership, the use must be available to all adults entitled to use the facilities under the membership. All classes of membership shall be available without regard to race, color, gender, religion, marital status, or national origin. Memberships that permit use during restricted times may be allowed only if the restricted times apply to all adults using that membership.

This section's most troublesome aspect is found in its first and last sentences. These sentences require clubs that allow use of their facilities by one or more adults per membership to allow all such adults equal use of the facilities at all times.

However, this part of the statute was enacted to change the fact that some golf clubs were not allowing women the use of certain tee times because they were reserved to members.[16] Certainly, if such a practice were followed at a country club, it would have been illegal before adoption of P.A. 70 if such action constituted discrimination on the basis of gender.

It is true that clubs – including golf clubs – may have prevented women and men from using the facilities at certain times. Insofar as such actions were not based on gender discrimination, but membership discrimination, they should be allowed. A consideration of the actual practice of clubs in this matter is informative.

E. Practical Matters

Many athletic, golf, and dining clubs have long accommodated people who apply and become members of the clubs (the "shareholders") by allowing children and spouses to enjoy some of the same benefits as the shareholders. They do this because opening the clubs to the shareholders' families allows the club facilities to be more fully used and serves the shareholders better. However, the shareholders recognize that at certain times the demands on the clubs exceed capacity and use must be limited. At these times, shareholders have agreed to limit the use of club facilities to the shareholders or to the shareholders and their paying guests. The club managers can gauge demand at certain times and try to accommodate the shareholders first. The consequence of this policy is generally that women have been pre-vented from using certain tee times because they are not shareholders at the clubs. If a woman were a shareholder and were discriminated against, Elliot-Larsen and other laws have long provided a remedy. Before P.A. 70, clubs could and did make certain times available only to shareholders. As a result of P.A. 70, club management appears incapable of legally making such distinctions between shareholders and their spouses or children. Thus, clubs seem to have two equally problematic choices.

On the one hand they can require that spouses and children of shareholders acquire their own memberships. The cost of such memberships will make this impractical for virtually all members. Thus, spouses will not be able to use the facilities at all because if they are allowed to use the facilities, the law demands that they have equal access to the facilities. Because of P.A. 70, clubs must strictly adhere to allowing only members to use their facilities. As a consequence, even if a club is unused at certain times when a non-shareholder family member would want to use it, club managers will have to prevent the family member from using the facility. This will harm those persons related to the spouse who are not members. Since most shareholders at most clubs are men, the effect of P.A. 70 will be to shut the clubhouse doors to women.

On the other hand, the club may allow family memberships. If it does so, it must allow all the members equal access to the club facilities. Because clubs will no longer be able to reserve the use of facilities at certain times for the shareholding members, the facilities will be overcrowded at prime use times. As a result, the value of the membership will decrease for those who want to or can use the membership only during such times.

Again, this will mean that some facilities will close or lower their standards. Women will be hurt by such closures more than men because, as noted above, the men will join clubs whose high dues ensure access to shareholders at prime times.

Several presidents of some of the golf and country clubs in the metropolitan Detroit area discussed how the law has been interpreted by them and the results of these interpretations. Some of these club leaders were, however, unwilling to be quoted because of their fear of prosecution or litigation. Their reactions provide insight into the legal implications of P.A. 70.

Responding to P.A. 70, clubs have done a variety of things. Some clubs have immediately established different membership classes.[17] They think that if the membership is divided into classes, then these different classes may be allowed different use of club facilities. Apparently, the sponsor of the bill, Senator Lana Pollack, has indicated that she thinks such actions are legal.[18] The clubs are arguing that by so acting they are not allowing "use of [their] facilities by one or more adults per membership."[19] Therefore the club need not make its facilities open to all at all times. If this interpretation of the law is correct, P.A. 70 will have done nothing except encumber clubs with this process. In short, the law will be meaningless.

Other clubs have established regulations so that only one designated person per member-ship may use certain facilities at set times. The members may designate different people every month. This action is another attempt to deal with the rule and it too seems to have received a nodding approval. These, and other measures adopted by clubs, highlight the quandary in which the clubs find themselves.

Golf courses and country clubs are limited in capacity. If the law forces clubs nearly to double the number of persons who can use those facilities during prime times, the clubs "run a risk of detracting from the benefits of the club."[20] Virtually all the club officers who responded to inquiries indicated that they had as yet had "no problems." This lack of problems was due to the clubs changing their rules or relying on the understood customs of the club.[21] However if these new regulations are struck down, or if the understood rules change as new members join the club, the current standoff will not last.

F. Conclusion

P.A. 70 is a failure because it threatens to prevent market forces from working at clubs. Under the law, it appears that a club cannot gauge the demand for its services at various times and develop different types of services for different membership classes. In short, in this day when computers are allowing businesses to pinpoint demand curves and supply needs, the Michigan legislature has prevented clubs from using these business tools. The loser, as the planned economies of Eastern Europe have shown, is the consumer. The effect of P.A. 70 has nothing to do with race, gender, or any other personal characteristic. It only involves economics – and economics at its worst.