dissenting.
I respectfully dissent.
The attempt of the Jaycees to exclude women from their full membership seeks protection under what I consider to be an outdated rationale of our jurisprudence, one which relegated women to a status inferior to that of men.1
I. Right of Association.
The majority decision is that the Jaycees’ right of association cannot be made subordinate to the State of Minnesota’s application of its civil rights act. This view I find to be totally untenable. The court acknowledges that it is within the state’s prerogative to make the factual determination as to what may constitute a “place of public accommodation.” 2 In all due respect, it seems patently clear, however, that the majority decision rests upon an implied disagreement with the finding of the Minnesota Supreme Court that the Jaycees is a statutory “place of public accommodation.”3 The majority’s analysis is otherwise without much force.
It is true that “mere labels” cannot be used as subterfuge to undermine the proper exercise of constitutional rights. However, there should be little question that a state, as well as the federal government, may provide reasonable restrictions on the exercise of constitutional rights in a “place of public accommodation.” See, e.g., 42 U.S.C. § 2000a (1976). “Even a ‘ “significant interference” with protected rights of ... association’ may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.” Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659 (1976). The validity of substantial burdens on the right to associate is upheld when “they are necessary to further compelling state interests” and are “reasonably taken in pursuit of vital state objectives that cannot be served equally well in significantly less burdensome ways.” American Party v. White, 415 U.S. 767, 780-81, 94 S.Ct. 1296, 1305-1306, 39 L.Ed.2d 744 (1974).
The majority rests its decision on a balancing approach in which the state allegedly has failed to show that its interference with the Jaycees’ right to associate is justified. I have great difficulty with the court’s reasoning for several reasons.
First and foremost, the majority’s conception of the Jaycees is based upon factual
*1580error. The majority asserts, supra, at 1571, that a prohibition of the Jaycees’ sexually discriminatory membership practices
goes to the heart of the kind of association that plaintiff has had and desires to continue, an association for the advancement of the interests of young men.... It is natural to expect that an association containing both men and women will not . be so single-minded about advancing men’s interests as an association of men only.... An organization of young people, as opposed to young men ... will be substantially different from the Jaycees as it now exists.
Overlooked in recitation, - however, is the fact that the Jaycees is not now an association containing only men. It freely admits women, but relegates them to inferior positions within the organization. Women who • buy memberships participate in programs with the male members, but unlike men, they are not allowed to vote, hold office, or receive awards. United States Jaycees v. McClure, 305 N.W.2d 764, 765 (Minn.1981).
Moreover, the interests the Jaycees advance are not solely “young men’s interests.” A glance at the social, civic, and ideological activities of the Jaycees discussed in the majority opinion, supra, at 1569-1570, immediately discloses interests equally applicable to any state citizen, not just young men. The Jaycees operate on the arbitrary sentiment that men have a natural monopoly on such advocacies; this only serves to perpetuate the chauvinistic myth that women are incapable of dealing with such matters.
The majority proclaims that its holding “turns more on the presence of traditional First Amendment activity such as speech and advocacy of public causes, than on notions of privacy or intimacy.” Supra, at 1575. On this basis, the right of association pertaining to this “place of public accommodation” is elevated to override eon-cededly compelling state interests.4 Such bootstrapping lacks all potency, however, when the restriction the state seeks to apply does not create any threat to the exercise of the Jaycees’ speech and advocacy of public causes. The activities the Jaycees engage in have no relationship to its internal membership practices; an association of men with privileges superior to women does not enhance the effectiveness of the type of advocacy the group has undertaken. See NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct 1163, 1170, 2 L.Ed.2d 1488 (1958). Thus, application of the statute to the Jaycees would not curtail or intimidate any advocacy the association has pursued. See Runyon v. McCrary, 427 U.S. 160, 176, 96 S.Ct. 2586, 2597, 49 L.Ed.2d 415 (1976); Buckley v. Valeo, 424 U.S. at 28-29, 96 S.Ct. at 639; Lucido v. Cravath, Swaine & Moore, 425 F.Supp. 123, 129 (S.D.N.Y.1977).
The majority does admit that “[m]en are no more likely than women” to favor certain political issues, but then proceeds to apparently ground its holding on a potential “change in the Jaycees’ philosophical cast” since “[yjoung women may take a dim view of affirming the ‘brotherhood of man’ ” or other such expressions contained in the Jaycees’ creed. Supra, at 1571. Such a prediction, however, is unsupported by any factual basis. Many men as well as women believe women should be treated equally in accordance with men.5 On the other hand, many women oppose certain advances in women’s rights.6 The speculative supposition that the Jaycees’ creed “may” change if women are granted equal privileges is a *1581manifestly inadequate basis upon which to deprive the state from enforcing its overpowering interest within this sphere of public accommodations. See Buckley v. Valeo, 424 U.S. at 20-23, 25-29, 96 S.Ct. at 635-636, 637-639; American Party v. White, 415 U.S. at 790, 94 S.Ct. at 1310 (state regulation valid; “absolutely no factual basis” presented in support of claim of undue burden on first amendment rights regulation); Konigsberg v. State Bar, 366 U.S. 36, 51-53, 81 S.Ct. 997, 1007-1008, 6 L.Ed.2d 105 (1961); American Communications Assn. v. Douds, 339 U.S. 382, 396, 402-04, 406, 70 S.Ct. 674, 682, 685-686, 688, 94 L.Ed. 925 (1950); Railway Mail Association v. Corsi, 326 U.S. 88, 93-94, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945).
Furthermore, there is no claim or evidence, beyond the disputed membership practices, that any belief expressed in the Jaycees’ creed is carried over into affirmative doctrinal advocacy that would be restrained by application of the state statute. The belief and the advocacy of the “brotherhood of man” and other male-oriented credos, even if intended to connote believed deficiencies of the female gender, would, if threatened, receive robust protection under the first amendment. However, the conduct or practice of discriminatory treatment in a “place of public accommodation” on the basis of illegal criteria cannot be safeguarded under an asserted constitutional right of association that has, at best, a hypothesized' nexus to any deterrence of other protected first amendment rights. See Runyon v. McCrary, 427 U.S. at 176, 96 S.Ct. at 2597; Railway Mail Association v. Corsi, 326 U.S. at 93-94, 65 S.Ct. at 1487; cf. Norwood v. Harrison, 413 U.S. 455, 470 n. 10, 93 S.Ct. 2804, 2813 n. 10, 37 L.Ed.2d 723 (1973) (Court noted federal law barring discrimination in public accommodations, 42 U.S.C. § 2000a (1976)).
There should be little doubt that a sovereign has a compelling interest in eradicating second-class citizenship in places of public accommodation. The State of Minnesota has decreed that it is an unfair discriminatory practice “[t]o deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of ... sex.” Minn.Stat. § 363.03(3) (Supp.1982). The majority’s constitutional argument would make sense if the Jaycees were a private membership organization possessing private associational characteristics. However, it has already been determined otherwise; the Jaycees is a “business ... facility ... whose goods, ... privileges [and] advantages ... are ... sold, or otherwise made available to the public.” 305 N.W.2d at 766-74; see Minn. Stat. § 363.01(18) (Supp.1982) (statutory definition of “place of public accommodation”). The legislative history and the evidence in the record clearly supports the legal and factual findings reached by the Minnesota court as to the Jaycees.7 In any event, the court’s determination of facts and state law are binding upon us in our task to determine the constitutionality of applying this state law to the Jaycees. See NAACP v. Button, 371 U.S. 415, 431-32, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963); Railroad Commission v. Pullman Co., 312 U.S. 496, 499-500, 61 S.Ct. 643, 644-645, 85 L.Ed. 971 (1941).
II. Vagueness.
The majority concludes that the Minnesota Supreme Court has provided no discernible standard for distinguishing “public” from “private” organizations. This conelu*1582sion does not rest on the stipulated definition by the Minnesota Supreme Court of a “public” membership organization, which the majority concedes “probably is not vague,” supra, at 1577, but on the unexplained comment in the state court opinion, 305 N.W.2d at 771, that the Jaycees could not “be viewed analogously to private organizations such as the Kiwanis International Organization."
The state determination that the Kiwanis is a “private” association is readily explainable, however, on the basis of the Kiwanis’ membership requirements reported in the record and quoted in the majority opinion here. See supra, at 1578. The Minnesota court denotes as one criterion for the public-private distinction the use of standards in selecting new members and a formal procedure by which membership is restricted. The membership of the Kiwanis group is limited so that the number of members in any one given occupational classification cannot exceed 20% of the total active membership. Such a restriction circumscribes membership boundaries and would serve in itself to make the Kiwanis “private,” unlike the Jaycees which has no limiting requirements except for age and sex.
The failure of the Minnesota court to identify specifically this difference between the Kiwanis and the Jaycees which is apparent in the record cannot justify invalidating the state statute as applied to membership organizations. A developed body of federal and state case law exists which analyzes various characteristics as public or private within the context of public accommodations statutes; the Minnesota court adopted these accepted standards from other courts for the criteria it employed to determine that the Jaycees’ memberships are, in statutory terms, “made available to the public.” See 305 N.W.2d at 770. Long usage as well as common understanding provides well-defined contours to the public-private distinction the Minnesota court utilized. See Grayned v. City of Rockford, 408 U.S. 104, 110-12, 92 S.Ct. 2294, 2299-2301, 33 L.Ed.2d 222 (1972); Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 159, 91 S.Ct. 720, 724, 27 L.Ed.2d 749 (1971); cf. NAACP v. Button, 371 U.S. at 434, 83 S.Ct. at 338 (state statute as construed by state court is invalid; statutory definition appeared to depart from common-law concept and state court did not clarify). If a statute can be made constitutionally definite by a reasonable construction, we have a duty to give the statute that construction, United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954); this same requirement should be equally applicable to the words of a state supreme court construing a state statute.8 See Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840 (1948). “Condemned to the use of words, we can never expect mathematical certainty from our language.” Grayned v. City of Rockford, 408 U.S. at 110, 92 S.Ct. at 2299. See Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973).
Moreover, even if the outermost boundaries of the public-private distinction is assumed to be imprecise, under accepted principles of constitutional adjudication, the Jaycees, who clearly fit within the definition of a “place of public accommodation,” has no standing to challenge the vagueness of this statute as construed and applied to hypothetical organizations not before us. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974).
III. Overbreadth.
The majority does not reach the over-breadth issue, but nevertheless insinuates invalidity on this basis of the state statute as construed. As an example that some *1583protected activities may be prohibited, the majority alludes to the right of a single-issue political party, devoted to the passage or defeat of the Equal Rights Amendment, to limit its membership to one gender. Supra, at 1577. I fail to see how such an illustration is applicable to a statute aimed at “place[s] of public accommodation.” Although a political party of this sort may be determined to be “public” under the selectivity and size criteria employed by the Minnesota court, such an association would not fit other requirements of a “place of public accommodation.” The hypothetical political party would not be a business offering or selling goods, services, privileges, or advantages, nor could its characteristics possibly be harmonized with other categories within the Minnesota public accommodations law.
Because a statute declared to be over-broad cannot be enforced until narrowed, application of the doctrine is “strong medicine” and is to be used “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. at 613, 93 S.Ct. at 2916. “[Particularly where conduct and not merely speech is involved, ... the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. at 615, 93 S.Ct. at 2917. The potential effect of this statute on protected associational choices is mere speculation. See id.; Ohralik v. Ohio State Bar Association, 436 U.S. 447, 462 n. 20, 98 S.Ct. 1912, 1922 n. 20, 56 L.Ed.2d 444 (1978). In such a situation, “whatever over-breadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.” Broadrick v. Oklahoma, 413 U.S. at 615-16, 93 S.Ct. at 2917-2918.
In conclusion, I find the state statute as construed can be constitutionally applied to the discriminatory membership practices of the United States Jaycees, and is neither vague nor overbroad. I would affirm the decision of the district court.
HEANEY, Circuit Judge.I would grant the petition for rehearing en banc.
The Minnesota Legislature decided that it would take permissible constitutional steps to eliminate discrimination in economic matters because of sex. To this end, it passed Minnesota Statute, Section 363.03(3) (1980), which makes it an unfair discriminatory practice to deny any person the full and equal enjoyment of the services, privileges and advantages of a place of public accommodation because of sex.
The Minnesota Department of Human Rights found that the United States Jaycees was a place of public accommodation within the meaning of the statute. It also found that the Jaycees had discriminated against women by denying them full membership in the organization. The Minnesota Supreme Court reached a similar conclusion. In so doing the Court noted that the Jaycees is a business organization whose primary aim is to advance the business careers of its members.
We should accept the public policy decision of the Minnesota Legislature and the holding of the Minnesota Supreme Court. Both are fully supported by the record.
Young women are entitled to share in the good jobs in our society according to their abilities. They will not share fully in these jobs, however, as long as young men are exclusively eligible for membership in the “right business organization,” which gives them an edge in hiring for and promotion to leadership positions. To be sure, the Jaycees sponsor many social activities and events. They also take positions on some of the great issues of our time. But these activities are not central to their purpose. The central purpose is rather to learn the techniques and skills and to form the acquaintances that will serve as a basis for leadership positions today and tomorrow.
Young men have the right to associate with whomever they please, but under Minnesota law they should not be able to form an organization that is primarily business oriented and exclude young women from that organization when the effect of that exclusion is to deprive the latter of an equal opportunity for leadership positions.
.See, e.g., Hoyt v. Florida, 368 U.S. 57, 61-62, 82 S.Ct. 159, 162, 7 L.Ed.2d 118 (1961) (Florida statute relieving women but not men from jury service not unconstitutional); Goesaert v. Cleary, 335 U.S. 464, 466, 69 S.Ct. 198, 199, 93 L.Ed. 163 (1948) (Michigan statute forbidding females to act as bartenders unless the wife or daughter of male owner not violative of equal protection); Muller v. Oregon, 208 U.S. 412, 421-22, 28 S.Ct. 324, 326-327, 52 L.Ed. 551 (1908) (state statute limiting females’ workday to 10 hours a day not unconstitutional); Cronin v. Adams, 192 U.S. 108, 114-15, 24 S.Ct. 219, 220, 48 L.Ed. 365 (1904) (state may condition issuance of liquor license by prohibiting women from entering place where liquor is sold); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178, 22 L.Ed. 627 (1874) (fourteenth amendment does not confer right to vote on women); Bradwell v. State, 83 U.S. (16 Wall.) 130, 138-39, 21 L.Ed. 442 (1872) (federal constitution does not prohibit state from excluding women from the practice of law).
. As Judge Arnold says, supra, at 1579:
We of course take as a given that the Jaycees is a “place of public accommodation” within the meaning of the Minnesota statute. The Supreme Court of Minnesota has answered that question, and it has the last word. Its “construction fixes the meaning of the statute [and] ... puts ... words in the statute as definitely as if it had been so amended by the legislature.” Winters v. New York, 333 U.S. 507, 514 [68 S.Ct. 665, 669, 92 L.Ed. 840] (1948).
. This is made clear, for example, when the majority says: “The Jaycees may not be ‘private’ or ‘social’ in quite the sense that the Runyon Court used those terms [‘private social organization’], but it comes closer to those categories than a school that holds itself out as willing to sell its services to any member of the public.” Supra, at 1575.
.The majority also contends that it is unclear whether the Jaycees can avoid the effect of the Department of Human Rights’ cease-and-desist order simply by withdrawing from the state. Supra, at 1572. I agree with the district court, however, 534 F.Supp. at 772, that the order must be construed according to its intent which was to require the Jaycees to do business in Minnesota in compliance with Minnesota law, if at all.
. For example, many Jaycees’ chapters, including the Minneapolis and St. Paul chapters, presumably with large male constituencies, have flouted the national organization’s practices which are sexually discriminatory.
. This posture is illustrated by the nation’s struggles with the Equal Rights Amendment to the United States Constitution.
. The Supreme Court of Minnesota resolved that the Jaycees is a business because its members are treated as customers; the product sold is membership in a leadership-training organization. 305 N.W.2d at 768-69. The court found that the Jaycees is a public, not private, business because the organization is unselec-tive in those to whom it sells memberships, rewards vigorous recruitment, and strives for unlimited growth. Id. at 769-71. The court furthermore decided that both the fixed site of the Jaycees’ state headquarters and the mobile sites, including door-to-door solicitation of new members, constitutes public business facilities where an unscreened, unselected, and unlimited number of persons are invited. Id. at 771-74.
. As in United States Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 580, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973), it is significant that the state legislature has mandated the creation of advisory committees to disseminate technical assistance to interested persons. See Minn.Stat. § 363.05(17), (20), (21) (Supp.1982). To remove doubts as to the meaning of the law insofar as the state commission is concerned, advice can be sought on the validity of proposed courses of conduct.