Live free or die!

The other side of sex, tolerance, democracy, autonomy and what-not: the Elks have to admit women, and if members make sexist remarks while discussing a particular application they can get stuck with stiff damages for emotional harm.

The New Hampshire Supreme Court decided that the Elks are a “public accommodation” because they have lots of members, most applicants get the required 2/3 vote for admission, and they cover a lot of their budget by putting on events open to the public (to which women are in fact admitted). Since the Elks are a public accommodation they have to admit women, and since sexist comments are intentional the plaintiffs are entitled to compensatory damages for emotional harm the comments caused.

So what are the various guardians of the law telling us?

  1. If men want to commune with other men by engaging in buggery, that’s cool, and we all have to respect that.
  2. If men want to commune with other men by having a social club, it’s a crime against nature, and if they’re rude about their same-sex preferences, they can get stuck with $10,000 damages for every woman whose feelings are hurt.

Net effect: the true meaning of American freedom today is that we can have whatever private vices we want so long as we don’t try to govern ourselves in things that have a public component. With the Fourth of July coming up it’s good to bear that in mind.

One point the decision leaves unsettled is how the Elks can police their own compliance when membership decisions are made democratically by secret ballot. They can control language, but what about votes? Presumably they’ll have to have quotas of some sort—democracy is a good thing, but only within limits. How to do that within the limits of Justice O’Connor’s demand that affirmative action methods be “soft” and not “hard” may, for all I know, become the subject of future litigation.

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