Eighty-five percent of Alta Ski Resort’s land is federal land leased by the U.S. Forest Service, and federal land must be accessible to U.S. residents for lawful purposes. This much we know is true.
A group of snowboarders are suing Alta on the grounds that the snowboarding ban, on federally leased land, violates their 14th Amendment right to equal protection. The defendants have named the U.S. Forest Service in their lawsuit. In other words, the lawsuit is nonsense on stilts.
The issue likely concerns the extent to which skiers at Alta Ski Resort, as members of a private firm, might be thought to have freedom of association under the First Amendment, and the extent to which their freedom to associate outweighs, or not, snowboarders’ right not to be discriminated against under the 14th Amendment.
For snowboarders to have a right not to be discriminated against snowboarders, as a class, must meet four conditions: (1) they have been historically the subject of discrimination; (2) they possess an “immutable” trait on the basis of which they are discriminated against; (3) they are an “insular minority” insofar as they lack political power to protect themselves via democratic processes; and (4) the particulars of their traits do not prohibit them from making valuable contributions to the system of social cooperation. Needless to say, snowboarders do not meet any of these, and are therefore not a protected class in any meaningful way.
The 14th Amendment as I have explained it here only involves “fundamental rights.” Whereas the black American who sues Augusta National Golf Club for its whites-only membership policy has a right “fundamental to our system of ordered liberty” at stake, the snowboarder who sues Alta for its skiers-only rider policy evidently does not.
This is not to say, however, that a 14th Amendment “rational basis review” as opposed to a “strict scrutiny review” does not apply. (To this point, I have rejected only strict scrutiny.) For a rational basis review to work for the defendants, they must show that prohibiting snowboarders is not even “rationally related” to a “legitimate state interest,” i.e., is not a means to a hypothetical state end.
However pointless the snowboarding ban might seem, rational basis as a framework for striking down the ban is unworkable. The ban is not the state’s means to an end, for the state does not have an interest in or an end for the ban. The prohibition in question is, after all, enacted and enforced by Alta, not the U.S. Forest Service. This is where the dubiousness of implicating the Forest Service in the lawsuit matters.
Moreover, in the Civil Rights Act of 1964, Section 42, Congress prohibits discrimination in “places of public accommodation,” but only on the grounds of race, color, religion or national origin, none of which apply to the snowboarders as such.
Alta’s “discrimination” against snowboarders is hence not a matter of public responsibility. And Alta skiers’ right to association has primacy over snowboarders’ right not to be discriminated against, because snowboarders as a class have no such right.
As an analogy, imagine a new club at the U which is opened to students who wear red shirts but closed to students who wear blue shirts. Such a club is not committing discrimination proper, and no amount of animus toward people with blue shirts could change that.
As Supreme Court Justice Thurgood Marshall remarked, “The Constitution does not prohibit legislatures from enacting stupid laws.” Likewise, it does not prohibit a private firm from enacting a stupid rule.
As I see it, the defendants have a final recourse beyond the 14th Amendment and the Civil Rights Act. They could sue on grounds that Alta’s prohibiting snowboarders violates the Architectural Barriers Act (ABA) of 1968, which holds that buildings or facilities “designed, built, altered or leased with federal funds” must be “accessible to the public.”
This is not to say, however, that the ABA will suffice, for it “do[es] not address the activities conducted in … buildings and facilities,” but merely mandates that their design should “comply with Federal standards for physical accessibility.” That is to say, it intends to promote access for people with disabilities, not snowboarders with a petty vengeance.
We are reminded, again, of the import of Justice Marshall’s remarks: that a dumb law or rule is not necessarily a discriminatory one, nor an unjust one, but just a dumb one.
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