Should private clubs be subject to antidiscrimination laws? Up till now the courts and Congress have basically said ''no.'' They have ruled in favor of freedom of association and the right of individuals to choose for themselves under the First Amendment of the Constitution.
However, a growing number of businesses are no longer paying dues for executives or other employees who belong to clubs that ban women or minorities. Their rationale: Many clubs or associations, although ostensibly social in nature, serve an important business function. And when business is transacted at such meetings, or as a result of them, it could imply that the organizations involved subscribe to the clubs' practice of bias.
The American Bar Association (ABA), the nation's largest group of lawyers, is caught right in the middle of this issue now. And its committee on individual rights and responsibilities is fanning the flames of controversy at the ABA's midsummer meeting here by proposing an amendment to the Civil Rights Act of 1964 which would extend the federal ban on discrimination in ''public accommodations'' to clubs that receive a substantial portion of their income - 20 percent or more - from business sources. The effect, observers say, would be to subject private clubs to the prohibition of Title II of the act, against discrimination on the basis of race, color, religion, or national origin.
Lawyers' groups in California, Massachusetts, Michigan, Minnesota, and Vermont favor such a move - as do metropolitan bars in Detroit, New York, Philadelphia, and Oakland, Calif. And they are urging ABA's House of Delegates to adopt such a resolution at this meeting. It wouldn't be binding. But advocates such as John A. Krsul, president of the state bar of Michigan, who is spearheading the proposed ABA antidiscrimination move, says that such action by this prestigious group of lawyers and judges could certainly prod congressional legislation.
In the past, the ABA has taken a stand for including private clubs which are mainly business-oriented under the public accommodations provision of the Civil Rights Act. However, prodded by the Illinois state bar and others - which insisted such a move was an infringement on personal and private rights - the ABA's House of Delegates rescinded this position last year.
John Feirich, former president of the Illinois bar, suggested that a club should be equated with one's home - not the marketplace. ''The Civil Rights Act does not belong in the kitchen,'' he says.
Although the Illinois group and other opponents to the individual rights committee's resolution have not officially changed their position, many have privately indicated they are getting ''heat'' from civil rights groups and that they won't openly block the passage of the proposed resolution.
In presenting the prosposal to ABA this week, Mr. Krsul will stress that some private clubs are simply extensions of the marketplace. And he will point out that membership dues are reported to the Internal Revenue Service as legitimate business expenses.
''A high percentage of club dues are provided by businesses and employers,'' the Krsul committee report says. ''Moreover, substantial revenues are derived from providing conference rooms (and) food and beverage services for business-related functions.''
While ABA debates the proposed change in the civil rights public accommodation provision, organization officials say they have already adopted a policy not to hold association functions in locales where clubs ban women and minorities.
In New York State, legislation has been introduced which defines private clubs as public accommodations when they subscribe to certain membership standards. In California, a law is pending which would deny state-granted licenses (such as one to sell and serve alcohol) to private clubs that discriminate. And a Philadelphia ordinance bars the city from paying membership fees for such clubs.
As a result of Senate Banking Committee hearings, the Federal Institution Examination Council has recommended that federal contractors not pay dues to biased clubs.
There is also pressure to put in the ABA's Code of Judicial Conduct a statement that judges should not be members ''of an organization that practices invidious discrimination.''