The Private Club and the Supreme Court Decision in Obergefell v. Hodges

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The Private Club and the Supreme Court Decision in Obergefell v. Hodges

Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition.[1] In Obergefell v. Hodges, the U.S. Supreme Court held the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Pp. 3-28. Other states have similar marriage definitions.

What effect, if any, will this holding have on private organizations not bound by the 14th Amendment? For example, should private social clubs consider addressing and revising the definition of “spouse” in their bylaws if they desire to discriminate against same sex couples seeking club membership? What does the club’s culture require or accommodate respecting same sex couples as members or prospective members?

Historically, we have consistently recommended to private clubs they limit membership to a single person and not to couples. This recommendation, if followed,  avoids a multitude of potential problems upon death or divorce of one of the couples. Now, it becomes obvious, if the club desires to maintain a semblance of control over who may become members, it must refine and circumscribe the membership eligibility requirements.

It is no longer sufficient to define spouses as the lawful spouse of a member. As the state in which the club is located is now required to recognize same sex marriages, then a person who is married to  a prospective member of the same sex, is the lawful spouse of the prospective member. Further, unless the club amends its bylaws or rules, a present same sex spouse of an existing member (who up until the recent Supreme Court decision would not have been recognized by the Club as a member’s spouse), in the absence of a bylaw to the contrary, will step into whatever rights a surviving spouse has upon the death of the same sex member. Similarly, a divorced same sex member spouse will have the right or option to seek former spouse membership, if the club provides for this latter membership category.

Thus, if the club does not desire to accommodate same sex couples as a formal and legal matter [notwithstanding it may permit (knowingly or unknowingly) same sex preference members but just doesn’t recognize or desire to recognize same sex spouses], it likely needs to amend its bylaws or rules to specifically re-define “spouse of a member” as a person of the opposite sex of a member lawfully married to a member. Doing so should enable the club to successfully defend a claim of a same sex widow or widower of a deceased member from enforcing surviving spouse rights or privileges.

If the club is a tax exempt organization, there is no prohibition against discriminating on the basis of sex or sexual preference. I.R.C. Section 501(i) only proscribes discrimination on the basis of race, color or religion and then only if the discriminatory language is embedded in the club’s governing documents or any written policy statement.[2]

However, if the club is not distinctly or truly private and is deemed a place of public accommodation, then state law may mandate it not discriminate against same sex couples. What constitutes distinctly or truly private is a multi-faceted issue and beyond the scope of this writing.[3] Title II of the Civil Rights Act of 1964 (discrimination in places of public accommodation) is not implicated because it presently only prohibits discrimination based upon race, color, religion, or national origin.[4]

If the organization’s leadership decides it wants to be inclusive and not be seen as discriminating against same sex couples, then before undertaking to “de-sexualize” its membership offerings and classifications, the leadership might conduct a discreet survey among its existing membership to test the notion. Such practical issues, e.g.,  as whether both members of a same sex married couple may participate in men or women only events are presented. Too often, club leaders assume without ascertaining in advance what the temperament of its membership may be before acting on a sensitive issue. While leaders are expected to lead, they and their organization are better served by doing their homework in advance rather than after the fact.

We recall one club that knew it had members of a same sex persuasion being concerned about being known as the “go to” club for gay and lesbian couples. Such concern, reminiscent of the concern of neighborhoods of encroachment of persons of color back in the last Century, may be overblown.  Private clubs once concerned about the inclusion of anyone other than a “WASP” as a member now are replete with diverse memberships reflective of the society in which they repose. We surmise this modern phenomenon is not surprising given the economics of private clubs since 2008. However, it is up to each private club to preserve its members’ choice in choosing with whom  they wish to socialize and recreate.

However, if a club determines its mission is to serve as a “traditional family club”, i.e., limited to heterosexual couples and their children, then it might state as such in their mission statement and include the mission statement in its governing documents. Private clubs today continue to experience an onslaught of political extremism, of an attempt by a few to destroy our established social institutions. The social gathering of private persons in a purely private way is indeed a fragile, precious and forever at risk phenomenon.

No personal civil rights are created by distinctly private club membership as all related and resulting interests are in the nature of social privileges and dependent upon contract.  “Civil rights,” outside those inherent in the intangible property interest of a member, as applicable, are of no consideration in establishing the rights of usage and access to a club’s facilities.  There is no initial assumption that any otherwise qualified person will be entitled to admission to membership.  A candidate for Membership may be denied admission at a distinctly private club because the candidate is not deemed acceptable to the Membership acting through its elected or appointed agents, for any or no reason.

Private clubs, as their name suggests, are exclusive institutions developed by and for groups of like-minded individuals. They are cousins to other protected organizations like political parties and religious groups who, because of their value to society, are protected from excessive governmental interference in their operations and they are afforded special tax status.  Supreme Court Justice Brennan put it best in stating “the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others.  Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one’s identity that is central to any concept of liberty.”[5]

The right to associate, or not to associate, has been the focal point of legal challenges to private clubs for over half a century. Through these numerous challenges the court system has defined the boundaries between acceptable association rights and need to ensure equality for all segments of society. These ever-evolving boundaries set the parameters within which clubs can safely operate without risking legal liability or threatening their special tax-exempt status.

The First Amendment to the U.S. Constitution guarantees freedom of association.  Its purpose is to protect individuals from excessive government interference in their lives and to facilitate the ability of people to associate in furtherance of their personal interests.  Both of these activities are seen as essential for the healthy maintenance of democracy.  Since the right to associate is also the right to exclude, courts have struggled to create a balance between freedom of association and equality.

“In a world in which the wildernesses [places of refuge]     are dwindling and it is almost impossible to escape the surveillance of governments [and activists] and the wearisome demands of community, modern Westerners are tempted to court chaos.  Four hundred years ago, our ancestors, on the contrary, preferred to cherish civilization, a construct they felt to be fragile, precious and forever at risk.” Lucy Hughes-Hallett, Cleopatra 159 (Harper & Row 1990).

Private clubs today continue to experience an onslaught of political extremism, of an attempt by a few to destroy our established social institutions. The social gathering of private persons in a purely private way is indeed a fragile, precious and forever at risk phenomenon.

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. The author of this blog is not certified by any state agencies or boards of legal specialization. This blog may constitute attorney advertising in some jurisdictions. © 2015 Fred L. Somers, Jr., P.C.

[1] Obergefell v. Hodges, U.S. Supreme Court, ____U.S. _______ (June 26, 2015) [Syllabus] Case Nos. 14-556,  14-562, 14-571 and 14-574.

[2] (i) Prohibition of discrimination by certain social clubs

Notwithstanding subsection (a), an organization which is described in subsection (c)(7) shall not be exempt from taxation under subsection (a) for any taxable year if, at any time during such taxable year, the charter, bylaws, or other governing instrument, of such organization or any written policy statement of such organization contains a provision which provides for discrimination against any person on the basis of race, color, or religion. The preceding sentence to the extent it relates to discrimination on the basis of religion shall not apply to—

(1) an auxiliary of a fraternal beneficiary society if such society—

(A) is described in subsection (c)(8) and exempt from tax under subsection (a), and

(B) limits its membership to the members of a particular religion, or

(2) a club which in good faith limits its membership to the members of a particular religion in order to further the teachings or principles of that religion, and not to exclude individuals of a particular race or color.

[3] For further information on what constitutes “distinctly  or truly private” see, e.g., “Privacy Checklist”,

[4] See

[5] Roberts v. United States Jaycees, 104 S.Ct. 3244, 3250 (1984)

Copyright 2016

Fred l. Somers, Jr., P.C

Atlanta, GA 30338