Discrimination Revisited, courtesy of Augusta National
April 14th, 2003
In a protest this weekend, a small members of the National Organization for Women (NOW) protested the all-male membership policy of the Augusta National Golf Club, where the Masters Tournament is held. NOW has been calling for some time for laws to prevent this sort of policy.
I believe that such laws are misguided, though at the same time, encourage Augusta National to invite women to participate in their tournament. My legal concerns center around two issues: freedom of association and unintended consequences.
Freedom of Association
Freedom of association is, put simply, the right for any person to associate with any other person. As a corollary, it also encompasses the right to not associate with any other person. Freedom of association is generally understood to be derived from the 1st amendment to the U.S. constitution.
Freedom of association means that I can choose my own friends, no matter what the government thinks. I can choose to hang out with the people I want to, and shun people I dislike. There are no requirements on this. I can choose whatever people I like. As an example, men can choose to exclude women from a game of darts, and women can choose to exclude men from a baby shower.
In a very real sense, people use discimination every day. We discriminate about which roads to take to work, qualifications of candidates for a job, and even which TV shows to watch. This is all perfectly fine.
Where we get into trouble is when certain criteria are used in the discrimination process. For instance, if race or gender is a criteria for giving someone a home loan, rather than monthly income or credit history, this is a form of discrimination that is unethical and illegal.
In general, private people and organizations can discriminate however they like according to the law as part of freedom of association. However, in the last 50 years, the government has placed limits on this ability. For instance, you can no longer refuse service to someone at a restaurant based on skin color — even if you own that restaurant, and you can no longer refuse employment to someone based on gender — even if you own the company.
These are important ways to make help improve the ability of all Americans to make an honest living, and I support them.
But note that they are narrowly drawn and do not infringe on private relationships. That is, anyone can form a club including or excluding anyone desired. Linux users can ban Microsoft employees from their clubs. And it is this protection that Augusta National is using to keep women off its membership books.
Now personally, I don’t think that there’s any reason that a bunch of pro golf players would want to keep women out. But it’s their call. Women could form a similar club and keep men out.
By forcing men to associate with women, you remove people’s choice to associate with whomenever they desire. And moreover, you force women to associate with men. Which brings me to the next part of my essay:
Unintended Consequences
If one removes the right to freedom of association based on gender, many things will happen. Augusta National would be forced to accept women onto its membership books and into its Masters tournament. They would have to treat the women equally, awarding them the same compensation as men if they follow the same rules as men.
But consider this: the WNBA would be forced to allow men to play on its teams, treating them equally. The WNBA would be forced to award men with the same compensation as women, assuming the men played by the same rules as women.
I don’t think this is a desirable outcome, as it could spell the end of a professional basketball organization for women, thus actually removing choices for women interested in sports.
Following up on my earlier examples, legislation banning freedom of association by gender would also require women to be included on men’s football or baseball teams and men on women’s volleyball or softball teams. In short, it would go far beyond the good Title IX has brought to women’s sports, and actually would abolish the differences between men’s and women’s sports.
Conclusions
Despite progress throughout the last 50 years, it’s unquestionable that there remains a gender gap in this country, and there is still progress to be made before women and men are treated equally.
At the same time, women and men both like to spend some time with same-gender friends. Making this illegal would, I think, bring more harm than good to the cause of advancing women’s sports in the United States.
I would like to say to NOW: if you really care about advancing opportunities for women in this country, you should not be pursuing legislation that will reduce those opportunities.
And to Augusta National: the best thing you can do in this situation is to let women into the Masters Tournament. Even if you seek to remain an all-male club, the Tournament seems to many (myself included) to be a somewhat separate event, and I don’t think your much-vaunted “atmosphere” would be harmed by having women a few feet closer to the golf ball on tournament week. (Women are already allowed on the course as spectators, after all.)
Categories: Society
