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Publication Title

Washington University Law Quarterly

Abstract

The fierce defense of a private right to discriminate in club membership, exemplified by Justice Douglas' Moose Lodge opinion, is one of the glories and contradictions of our constitutional system; and, as Virginia Woolf deftly observes, exercise of the right even in a seemingly benign form imposes real harm on those excluded. The paradigm case that I will be discussing grows out of the controversy that may occur when a private organization or association, which might loosely be called a "club," excludes from membership certain people because of their racial, ethnic, sexual, or religious identity. The legal and human problems presented by such a case involve a conflict between the interest in being treated equally and the interest in being free to choose one's own personal relationships. Converted to a clash of rights, under federal or state law, the paradigm case becomes a collision between a right to be free from discrimination and a "right to discriminate" stemming from freedom of association.

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