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all-male, all-female, all-black, all-gay, and all-whatever

private organizations per se unlawful in the State of New Columbia. All this would be true even if those organizations did not receive a penny of government benefits.

We do not believe that such organizations ought to or can
As Justices William O. Douglas and Thurgood

be outlawed.

Marshall once wrote:

[Our] view of the First Amendment and the
related guarantees of the Bill of Rights is that
they create a zone of privacy which precludes
government from interfering with private clubs or
groups. The associational rights which our
system honors permit all white, all black, all
brown, and all yellow clubs to be formed. They
also permit all Catholic, all Jewish, or all
agnostic clubs to be established. Government may
not tell a man or woman who his or her associates
must be. The individual can be as selective as
he desires.

Moose Lodge v. Irvis, 407 U.S. 163, 179-80 (1972) (Douglas &
Marshall, JJ., dissenting) (footnote omitted). Accord Bell y
Maryland, 378 U.S. 226 (1964), at 313 (Goldberg, J., Warren,

C.J., & Douglas, J., concurring); id. at 318, 332 (Black,
Harlan & White, JJ., dissenting). In recent years, the Supreme
Court has ruled that organizations like the Jaycees or a
private law partnership are not immune from the provisions of
anti-discrimination laws. Roberts y. United States Jaycees,
104 S. Ct. 3244 (1984); Hishon y. King & Spalding, 104 S. Ct.
2229 (1984). But those cases recognized that

[C]ertain kinds of personal bonds have played a
critical role in the culture and traditions of
the Nation by cultivating and transmitting shared

ideals and beliefs; they thereby foster diversity
and act as critical buffers between the individual
and the power of the State. Moreover, 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

Roberts v. United States Jaycees, supra, 104 S. Ct. at 3250
(citations omitted).

As drafted, Section 3 would also make unconstitutional a wide variety of other private conduct that ought not to be the government's concern. For example, a mom-and-pop store would not be permitted to hire the owners' children as parttime or summer employees preferentially to strangers, because that would be discrimination based on "parentage." Nor could a lawyer prefer his child over a stranger to be his law partner. The Catholic Church would not be allowed to limit the priesthood to males, nor would an orthodox Jewish synagogue be permitted to seat women in the balcony, because those would be acts of discrimination based on sex. Indeed, a parochial school could not prefer a Catholic for the position of headmaster, nor could the B'nai B'rith prefer a Jew for the position of Executive Director, because those would be clear instances of religious discrimination, and the draft Constitution permits no exceptions of any kind to any of its prohibitions.

Drinking and driving privileges could not be limited to persons over 21, or over 18, or even over 12, since that would

be discrimination based on age, which is prohibited without limitation. Nor could the right to vote in New Columbia elections be limited based on age.*/ It would be unlawful for insurance companies to charge different premiums for life or health or automobile insurance policies based on the age of the insured. For the same reason, all senior citizens' benefits (such as existing discounts on prescription drugs, telephone service and airline tickets) would be unconstitutional, as would be any mandatory retirement age in either public or private employment.

Private schools could not refuse admission to otherwise qualified students who could not afford the tuition, since that would be discrimination based on poverty. For the same reason, private lawyers, doctors, automobile mechanics or beauticians could not turn away indigent clients, patients or customers whose business they would accept on a paying basis. Movie theaters could not refuse admission to people who could not pay the ticket price, nor, apparently, could a store refuse to "sell" a television set or a mink coat to a poor person. Any number of equally absurd examples could easily be generated.

In our view, for the government to prohibit the kinds of private conduct catalogued above would be a very serious infringement of civil liberties. If there is any single

Article V, S 1(b) of the proposed Constitution restricts the franchise to those over 18 years of age, thus conflicting with Article I, S 3. It is not clear which would prevail.

principle that is the foundation of civil liberties, it is the principle that the government should mind its own business,

absent a good reason to do otherwise. The provision of the draft New Columbia Constitution that is quoted above effectively reverses that presumption, and with terribly oppressive


The basic source of all these problems, as we noted earlier, is the existence of the phrase "or private" in this section. It should be eliminated, and, as already noted, the ACLU views its unrestricted inclusion as such a serious violation of civil liberties that it might well oppose the adoption of this Constitution as a whole if the provision is not corrected. It is hard to think of anything that would be more destructive of civil liberties, or more evocative of "Big Brother," than this short phrase. No other state, by constitution or statute, has ever attempted such an unbounded incursion against the rights of its citizens. It is not exaggerating to call it a revolutionary proposal, and one that has never received the slightest public debate or attention. In this regard, it is worth emphasizing that this provision was not proposed by the Statehood Constitutional Convention, or ratified by vote of the electorate; it is merely the proposal of an informal, ten-member Task Force. As such, it is entitled to no particular deference.

We hasten to add that of course, private discrimination should not be and is not altogether immune from government

prohibition. Not at all.

Numerous federal and local laws

currently address problems of private discrimination in a variety of ways. For example, both the federal Civil Rights Act of 1964 and the D.C. Human Rights Act prohibit, subject to certain exceptions and limitations, many forms of private discrimination in employment, housing, education, and public accommodations. We approve and support these laws. And the enactment of additional prohibitions on private discrimination may well be appropriate. But, to protect important civil liberties interests, problems of private discrimination ought to be addressed with statutes that can be drafted with discretion and sensitivity

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for example, including exceptions

for bona fide occupational qualifications, business necessity, benefits for senior citizens, and the like

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rather than with a constitutional blunderbuss such as the Task Force's draft. The elimination of the words "or private" will not, however, solve all of the problems that are presented by the Task Force's revision of Section 3, because even the government must remain free to "discriminate" in some circumstances that would be prohibited by the draft. We noted above that the Task Force's draft of Section 3 would make minimum drinking or driving ages, or senior citizens' benefits, unconstitutional. Similarly, laws establishing minimum ages of consent for sexual intercourse, or marriage, or for signing binding contracts, or for becoming a police officer, would become unconstitutional. Laws requiring students to remain in school until a certain age




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