Opinion

JUSTICE O'CONNOR, with whom JUSTICE KENNEDY joins, concurring.

I agree with the Court's conclusion that the facial challenge to Local Law 63 must fail. I write separately only to note that nothing in the Court's opinion in any way undermines or denigrates the importance of any associational interests at stake.

The Court reaffirms the

power of States to pursue the profoundly important goal of ensuring nondiscriminatory access to commercial opportunities in our society.

Roberts v. United States Jaycees, 468 U. S. 609, 468 U. S. 632 (1984) (O'CONNOR, J., concurring in part and concurring in judgment). But our cases also recognize an "association's First Amendment right to control its membership," acknowledging, of course, that the strength of any such right varies with the nature of the organization. Id. at 468 U. S. 635. Balancing these two important interests calls for sensitive tools. As it has been interpreted, Local Law 63 is such a device.

The Law identifies three factors to be used to determine whether a particular club is "distinctly private" for purposes of applying the city's antidiscrimination laws. As the Court notes, however, ante at 487 U. S. 15, n. 6, the court below has suggested that the factors identified in Local Law 63 are not exclusive, but are to be considered along with other considerations such as " size, purpose, policies, selectivity, congeniality, and other characteristics.'" 69 N.Y.2d 211, 222, 505 N.E.2d 915, 920-921 (1987) (quoting Roberts, supra, at 468 U. S. 620 ). See also United States Power Squadrons v. State Human Rights Appeal Bd., 59 N.Y.2d 401, 412-413, 452 N.E.2d 1199, 1204 (1983). An association or club thus is permitted to demonstrate that its particular characteristics qualify it for constitutional protection, despite the presence of the three factors specified in Local Law 63. University Club v. City of New York, 842 F.2d 37, 41 (CA2 1988) (noting that the three factors in Local Law 63 are not "the only ones relevant to the constitutionality of applying the new definition to [a particular club]"). Moreover, such organizations are provided with an adequate opportunity to raise any constitutional claims in the administrative proceedings through which Local Law 63 is applied. See ibid. See also ante at 487 U. S. 15.

In a city as large and diverse as New York City, there surely will be organizations that fall within the potential reach of Local Law 63 and yet are deserving of constitutional protection. For example, in such a large city, a club with over 400 members may still be relatively intimate in nature, so that a constitutional right to control membership takes precedence. Similarly, there may well be organizations whose expressive purposes would be substantially undermined if they were unable to confine their membership to those of the same sex, race, religion, or ethnic background, or who share some other such common bond. The associational rights of such organizations must be respected.

But as the Court points out, ante at 487 U. S. 11 -12, 487 U. S. 13 -14, and indeed, as appellant conceded, Tr. of Oral Arg. 11-12, the existence of such protected clubs does not mean that Local Law 63 cannot be applied to other clubs. Predominately commercial organizations are not entitled to claim a First Amendment associational or expressive right to be free from the antidiscrimination provisions triggered by the law. Because Local Law 63 may be applied constitutionally to these organizations, I agree with the Court that it is not invalid on its face.