New York City has adopted a local law that forbids discrimination by certain private clubs. The New York Court of Appeals rejected a facial challenge to this law based on the First and Fourteenth Amendments. We sit in review of that judgment.
In 1965, New York City adopted a Human Rights Law that prohibits discrimination by any "place of public accommodation, resort or amusement."
In 1984, New York City amended its Human Rights Law. The basic purpose of the amendment is to prohibit discrimination in certain private clubs that are determined to be sufficiently "public" in nature that they do not fit properly within the exemption for "any institution, club or place of accommodation which is in its nature distinctly private." As the City Council stated at greater length:
For these reasons, the City Council found that "the public interest in equal opportunity" outweighs "the interest in private association asserted by club members." Ibid. It cautioned, however, that it did not purpose "to interfere in club activities or subject club operations to scrutiny beyond what is necessary in good faith to enforce the human rights law," and the amendments were not intended as an attempt "to dictate the manner in which certain private clubs conduct their activities or select their members, except insofar as is necessary to ensure that clubs do not automatically exclude persons from consideration for membership or enjoyment of club accommodations and facilities and the advantages and privileges of membership, on account of invidious discrimination." Ibid.
The specific change wrought by the amendment is to extend the antidiscrimination provisions of the Human Rights Law to any "institution, club or place of accommodation [that] has more than four hundred members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business." N. Y. C. Admin. Code § 8-102(9) (1986). Any such club "shall not be considered in its nature distinctly private." Ibid. Nonetheless, the city also stated that any such club "shall be deemed to be in its nature distinctly private" if it is "a corporation incorporated
Immediately after the 1984 Law became effective, the New York State Club Association filed suit against the city and some of its officers in state court, seeking a declaration that the Law is invalid on various state grounds and is unconstitutional on its face under the First and Fourteenth Amendments and requesting that defendants be enjoined from enforcing it. On cross-motions for summary judgment, the trial court upheld the Law against all challenges, including the federal constitutional challenges. The intermediate state appellate court affirmed this judgment on appeal; one judge dissented, however, concluding that the exemption for benevolent orders violates the Equal Protection Clause because it fails to accord equal protection to similarly situated persons. 118 App. Div. 2d 392, 505 N.Y.S.2d 152 (1986).
The State Club Association appealed this decision to the New York Court of Appeals, which affirmed in a unanimous opinion. 69 N.Y.2d 211, 505 N.E.2d 915 (1987). The court rejected the First Amendment challenge to Local Law 63, relying heavily on the decisions in Roberts v. United States Jaycees, 468 U.S. 609 (1984), and Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537 (1987). It ruled that any infringement on associational rights is amply justified by the city's compelling interest in eliminating discrimination against women and minorities. In addition, the
The State Club Association appealed to this Court. We noted probable jurisdiction, 484 U.S. 812 (1987), and we now affirm the judgment below, upholding Local Law 63 against appellant's facial attack on its constitutionality.
The initial question in this case is whether appellant has standing to challenge the constitutionality of Local Law 63 in this Court.
Appellant is a nonprofit corporation, which essentially consists of a consortium of 125 other private clubs and associations in the State of New York, many of which are located in
This reading of Hunt is incorrect. Under Hunt, an association has standing to sue on behalf of its members when those members would have standing to bring the same suit. It does not matter what specific analysis is necessary to determine that the members could bring the same suit, for the purpose of the first part of the Hunt test is simply to weed out plaintiffs who try to bring cases, which could not otherwise be brought, by manufacturing allegations of standing that lack any real foundation. Here, however, the appellant consortium has standing to sue on behalf of its member associations as long as those associations would have standing to bring the same challenge to Local Law 63.
New York City's Human Rights Law authorizes the city's Human Rights Commission or any aggrieved individual to initiate a complaint against any "place of public accommodation, resort or amusement" that is alleged to have discriminated in violation of the Law. N. Y. C. Admin. Code § 8-109(1) (1986). The Commission investigates the complaint and determines whether probable cause exists to find a violation. When probable cause is found, the Commission may settle the matter by conciliatory measures, if possible; if the matter is not settled, the Commission schedules a hearing in which the defending party may present evidence and answer the charges against it. After the hearing is concluded, the Commission states its findings of fact and either dismisses the complaint or issues a cease-and-desist order. § 8-109(2). Any person aggrieved by an order of the Commission
None of these procedures has come into play in this case, however, for appellant brought this suit challenging the constitutionality of the 1984 Law on its face before any enforcement proceedings were initiated against any of its member associations. Although such facial challenges are sometimes permissible and often have been entertained, especially when speech protected by the First Amendment is at stake, to prevail on a facial attack the plaintiff must demonstrate that the challenged law either "could never be applied in a valid manner" or that even though it may be validly applied to the plaintiff and others, it nevertheless is so broad that it "may inhibit the constitutionally protected speech of third parties." City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). Properly understood, the latter kind of facial challenge is an exception to ordinary standing requirements, and is justified only by the recognition that free expression may be inhibited almost as easily by the potential or threatened use of power as by the actual exercise of that power. Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940). Both exceptions, however, are narrow ones: the first kind of facial challenge will not succeed unless the court finds that "every application of the statute created an impermissible risk of suppression of ideas," Taxpayers for Vincent, supra, at 798, n. 15, and the second kind of facial challenge will not succeed unless the statute is "substantially" overbroad, which requires the court to find "a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." 466 U. S., at 801.
We are unpersuaded that appellant is entitled to make either one of these two distinct facial challenges. Appellant conceded at oral argument, understandably we think, that the antidiscrimination provisions of the Human Rights Law
These characteristics are at least as significant in defining the nonprivate nature of these associations, because of the kind of role that strangers play in their ordinary existence, as is the regular participation of strangers at meetings, which we emphasized in Roberts and Rotary. See Roberts, supra, at 621; Rotary, supra, at 547. It may well be that a considerable amount of private or intimate association occurs in such a setting, as is also true in many restaurants and other places of public accommodation, but that fact alone does not afford the entity as a whole any constitutional immunity to practice discrimination when the government has barred it from doing so. Hishon v. King & Spalding, 467 U.S. 69, 78 (1984). Although there may be clubs that would be entitled to constitutional protection despite the presence of these characteristics, surely it cannot be said that Local Law 63 is invalid on its face because it infringes the private associational rights of each and every club covered by it.
On its face, Local Law 63 does not affect "in any significant way" the ability of individuals to form associations that will advocate public or private viewpoints. Rotary, 481 U. S., at 548. It does not require the clubs "to abandon or alter" any activities that are protected by the First Amendment. Ibid. If a club seeks to exclude individuals who do not share the views that the club's members wish to promote, the Law erects no obstacle to this end. Instead, the Law merely prevents an association from using race, sex, and the other specified characteristics as shorthand measures in place of what the city considers to be more legitimate criteria for determining membership. It is conceivable, of course, that an association might be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion. In the case before us, however, it seems sensible enough to believe that many of the large clubs covered by the Law are not of this kind. We
The facial attack based on the claim that Local Law 63 is invalid in all of its applications must therefore fail. Appellant insists, however, that there are some clubs within the reach of the Law that are "distinctively private" and that the Law is therefore overbroad and invalid on its face. But as we have indicated, this kind of facial challenge also falls short.
The overbreadth doctrine is "strong medicine" that is used "sparingly and only as a last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). A law is constitutional unless it is "substantially overbroad." Id., at 615. To succeed in its challenge, appellant must demonstrate from the text of Local Law 63 and from actual fact that a substantial number of instances exist in which the Law cannot be applied constitutionally. Yet appellant has not identified those clubs for whom the antidiscrimination provisions will impair their ability to associate together or to advocate public or private viewpoints. No record was made in this respect, we are not informed of the characteristics of any particular clubs, and hence we cannot conclude that the Law threatens to undermine the associational or expressive purposes of any club, let alone a substantial number of them. We therefore cannot conclude that the Law is substantially overbroad and must assume that "whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied." Id., at 615-616.
Appellant claims, however, that the Law erects an "irrebuttable" presumption that the clubs covered under it are not
Appellant also contends that the exemption in Local Law 63 for benevolent and religious corporations, which deems them to be "distinctly private" in nature, violates the Equal Protection Clause.
As written, the legislative classification on its face is not manifestly without reasoned support. The City Council explained that it limited the Law's coverage to large clubs and excluded smaller clubs, benevolent orders, and religious corporations because the latter associations "have not been identified in testimony before the Council as places where business activity is prevalent." Local Law No. 63, § 1, App. 15. This explanation echoes the logic of the decision in New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 (1928), which upheld a New York law that exempted benevolent orders from having to file certain documents with the State that must be filed by most other corporations and associations. See N. Y. Civ. Rights Law § 53 (McKinney 1976). The Court rejected a claim that the statute violated the Equal Protection Clause, finding on the evidence before it that the legislative distinction was justified because benevolent orders were judged not to pose the same dangers as other groups that were required to file the documents. Bryant, supra, at 73-77. In addition, New York State law indicates that benevolent orders and religious corporations are unique and thus that a rational basis exists for their exemption here. For well over a century, the State has extended special treatment in the law to these associations, and each continues to be treated in a separate body of legislation. See N. Y. Ben. Ord. Law §§ 1-14 (McKinney 1951 and Supp. 1988); N. Y. Relig. Corp. Law §§ 1-437 (McKinney 1952 and Supp. 1988). It is plausible that these associations differ in their practices and purposes from other private clubs that are now covered under Local Law 63. As the Appellate Division in this case pointed out,
Appellant contends, however, that the benevolent and religious corporations exempted in the Law are in fact no different in nature from the other clubs and associations that are now made subject to the city's antidiscrimination restrictions. Because the Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike," Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985), appellant contends that the exemption violates the Clause.
In support of its argument, appellant observes that appellees offered no evidence to support the city's position that benevolent and religious groups are actually different from other private associations. Legislative classifications, however, are presumed to be constitutional, and the burden of showing a statute to be unconstitutional is on the challenging party, not on the party defending the statute: "those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Vance v. Bradley, 440 U.S. 93, 111 (1979). In a case such as this, the plaintiff can carry this burden by submitting evidence to show that the asserted grounds for the legislative classification lack any reasonable support in fact, but this burden is nonetheless a considerable one. United States v. Carolene Products Co., 304 U.S. 144, 154 (1938).
We therefore affirm the judgment below.
JUSTICE O'CONNOR, with whom JUSTICE KENNEDY joins, concurring.
I agree with the Court's conclusion that the facial challenge to Local Law 63 must fail. I write separately only to note that nothing in the Court's opinion in any way undermines or denigrates the importance of any associational interests at stake.
The Court reaffirms the "power of States to pursue the profoundly important goal of ensuring nondiscriminatory access to commercial opportunities in our society." Roberts v. United States Jaycees, 468 U.S. 609, 632 (1984) (O'CONNOR, J., concurring in part and concurring in judgment). But our cases also recognize an "association's First Amendment right to control its membership," acknowledging, of course, that the strength of any such right varies with the nature of the organization. Id., at 635. Balancing these two important interests calls for sensitive tools. As it has been interpreted, Local Law 63 is such a device.
In a city as large and diverse as New York City, there surely will be organizations that fall within the potential reach of Local Law 63 and yet are deserving of constitutional protection. For example, in such a large city a club with over 400 members may still be relatively intimate in nature, so that a constitutional right to control membership takes precedence. Similarly, there may well be organizations whose expressive purposes would be substantially undermined if they were unable to confine their membership to those of the same sex, race, religion, or ethnic background, or who share some other such common bond. The associational rights of such organizations must be respected.
But as the Court points out, ante, at 11-12, 13-14, and indeed, as appellant conceded, Tr. of Oral Arg. 11-12, the existence
JUSTICE SCALIA, concurring in part and concurring in the judgment.
I concur in the judgment of the Court, and join all except Part IV of its opinion. I note that Part III assumes for purposes of its analysis, but does not hold, the existence of a constitutional right of private association for other than expressive or religious purposes.
With respect to the equal protection issue discussed in Part IV of the opinion, I do not believe that the mere fact that benevolent orders "are unique," ante, at 16, suffices to establish that a rational basis exists for their exemption. As forgiving as the rational-basis test is, it does not go that far. There must at least be some plausible connection between the respect in which they are unique and the purpose of the law.
It is true, as appellant urges, that under the New York State statute to which Local Law 63 technically refers, no characteristic must be possessed in order to qualify as a "benevolent order" except the characteristic of being listed by the legislature in § 2.