(dissenting) :
I am not persuaded to accept the reasoning adopted and the result favored by the majority. We are not to be guided by considerations of a desirable social policy since such considerations are not relevant here. The plaintiff’s case must stand or fall upon what Congress has provided in Title II, section 201 et seq., of the Civil Rights Act of 1964 (42 U.S. C. Subchapter II, § 2000a et seq.), and a reasonable construction of the language *103of the Act convinces me that it was not intended to cover the health and athletic membership clubs of the Raleigh YMCA, a nonprofit corporation. In fact, a contrary intention is readily discernible.
The district court found this to be a case of first impression and I have been unable to find a case on all fours with this one. It is obviously a case intended as a “test,”- as to the plaintiff and others, of the applicability of the provisions of the Act under the unusual facts and circumstances here existing.
The clear purpose of Title II of the Civil Rights Act of 1964 was to eliminate discrimination on the grounds of “race, color, religion, or national origin” in specified places of public accommodation. Here it is plaintiff’s theory, accepted by my brothers, that the health and athletic club facilities of the YMCA and the building in which they are housed are, within the meaning of the Act, a place of “public accommodation,” and that the rejection of plaintiff’s application for membership was discriminatory because of his race. My first and principal point of disagreement is with the conclusion^ that the Raleigh YMCA is a single ./establishment wholly covered by the Act and that the health and athletic facilities are not separate from the facilities and services provided in the Community Building. The District Court stated in Nesmith v. Young Men’s Christian Ass’n of Raleigh, N.C., Inc., 273 F.Supp. 502, 506 (D.C.E.D.N. C., 1967):
«* * *. in the first place, it cannot be said that the health and athletic club facilities are physically located within the premises of the Community Building, the covered establishment. The facilities are located in separate buildings and constitute separate and distinct operations. The facts that the two structures are physically connected by a covered walkway, some of the operations of the two facilities are carried on by the same person, and both buildings are served by the same heating unit and other utilities, are of little consequence.”
The Community Building fronts on Hillsboro Street in the City of Raleigh, North Carolina, and the main entrance is at the front of the building. The health and athletic clubs and facilities are housed and operated in a much smaller separate building which fronts on Jackson Street with the main entrance at the front where a “Members Only” sign is conspicuously placed. No one is admitted to the athletic club building without a membership card, issued to him upon payment of the not insubstantial annual membership fee and upon approval by the membership committee, and this has been true since the two buildings here involved were constructed in 1960, four years prior to the passage of the Act. Several cases have reached the courts where a change in operations after passage of the Act was found to be only a sham and obviously adopted for the sole purpose of escaping the effect of the provisions of the Act. This is not such a case.
As the majority recognizes, the particular circumstances here must be examined to determine whether the Raleigh YMCA is a “single establishment” wholly covered by the Act, or whether the health and athletic facilities are indeed separate from the “covered portions.”
Some of the facilities and services provided in the Community Building are made available to local residents and transients without discrimination on account of race, but not all such facilities are open to all segments of the general public. In fact, occupancy of sleeping accommodations is restricted to males although the coffee shop and other areas are open to both males and females.
Admittedly, however, the Community Building is a “covered establishment” under the Act but, in determining whether the health and athletic clubs’ building is a “place of public accommodation,” we look to the specific provisions of the Act. Subsection (b) of sec*104tion 2000a of Title II provides the definition of a place of public accommodation.1
There is no contention made in this case that discrimination or segregation is “supported by State action” nor is there any contention that the activities or operations conducted in the separate health and athletic building, standing alone, affect commerce. Clearly, paragraphs (1), (2), and (3) of section 2000a(b) have no application to the health and athletic activities or the separate building in which they are conducted unless such activities are covered by the provisions of paragraph (b) (4).
Subsection (b) (4) (A) (i) refers to any establishment which is physically located within the premises of any establishment otherwise covered by subsection (b); and (4) (A) (ii) refers to any establishment within the premises of which is physically located any such covered establishment. I disagree with my brothers with respect to their interpretation of these provisions in light of the facts. I agree with the district court that the athletic building is not physically located, within the premises of the covered Community Building nor is the Community Building physically located within the premises of the athletic building.
However, assuming arguendo for the purposes of subsection (b) that a broad and liberal interpretation of these provisions as to physical location is appropriate and desirable in the circumstances, we are met with the further provision which refers back to both (i) and (ii) of (4) (A), which reads as follows:
“ * * * and (B) which holds itself out as serving patrons of such covered establishment.” (Emphasis added.)
In short, any “establishment” under either (i) or (ii) is a place of public accommodation only if provision (B) is applicable. There is no evidence of any such holding out by the separate health and athletic clubs as serving patrons, as such, of the facilities and services available in the Community Building. All the evidence is most emphatically to the contrary. The word “and” before “(B)” is a significant and obviously deliberate limitation. There is no evidence in conflict with the lower court’s findings that the athletic clubs are not physically located within the Community Building premises and do not, and never have, held themselves out as serving patrons of the Community Building. Plaintiff objects to the “restrictive construction” of the Act by the district court but, more appropriately, such objection or criticism should be directed to the limitations contained in the Act itself which Congress saw fit to impose.
In Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), the plaintiff sought a declaratory judgment and an injunction, attacking the constitutionality of portions of Title II of the Civil Rights Act of 1964, 78 Stat. 241, 243; *10542 U.S.C., Subchapter II, § 2000a et seq. From Justice Clark’s opinion it would appear that the real purpose of the public accommodations portion of the Civil Rights Act of 1964 was not to reach such organizations as the separate health and athletic membership clubs operated by the YMCA, but was to provide for nondiseriminatory use of public hotels, motels, restaurants and certain other establishments that were customarily used by the traveling public so that there could be a free movement in commerce without discrimination as to race or color. At pages 252 and 253, 85 S.Ct. at page 355, the Court stated:
“While the Act as adopted carried no congressional findings the record of its passage through each house is replete with evidence of the burdens that discrimination by race or color places upon interstate commerce. * * *
This testimony [presented in hearings before certain congressional committees] included the fact that our people have become increasingly mobile with millions of people of all races traveling from State to State; that Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same; that often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight * * *; and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook which was itself ‘dramatic testimony to the difficulties’ Negroes encounter in travel. * * *. This testimony indicated a qualitative as well as quantitative effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler’s pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community.”
The same theme — the basis of congressional action by virtue of the power of Congress over interstate commerce— found in the Atlanta Motel case appears in the companion case of Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964).
To hold that the Civil Rights Act of 1964 applies to the distinctly separate health and athletic membership clubs operated by the YMCA would, in my opinion, be stretching the language of section 2000a to an unwarranted and unintended degree. There is nothing to indicate that Congress sought such a result. I would affirm the judgment below.
. (b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an estabment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
(4) any establishment (A) (i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.