> FRATERNAL ORDER OF EAGLES, TENINO AERIE NO. 564 v. Grand Aerie of …

• Citation: 59 P.3d 655,148 Wash.2d 224
• Decision Date: 19 December 2002
• Docket Number: No. 71786-9.,71786-9.
• Court: United States State Supreme Court of Washington
• Parties: FRATERNAL ORDER OF EAGLES, TENINO AERIE NO. 564; Kathleen L. Conner; Lanette Davis; Julia A. Foster; Gayle L. Hartman; Kaycee L. Johnson; Annette M. Riley; Diane E. Roberts; Janet Tresenriter; Alice F. Vasser; and Whidbey Island Aerie No. 3418, Petitioners, v. GRAND AERIE OF FRATERNAL ORDER OF EAGLES, and Washington State Aerie, Fraternal Order of Eagles Washington State Aerie, Respondents.

59 P.3d 655

148 Wash.2d 224

FRATERNAL ORDER OF EAGLES, TENINO AERIE NO. 564; Kathleen L. Conner; Lanette Davis; Julia A. Foster; Gayle L. Hartman; Kaycee L. Johnson; Annette M. Riley; Diane E. Roberts; Janet Tresenriter; Alice F. Vasser; and Whidbey Island Aerie No. 3418, Petitioners, v. GRAND AERIE OF FRATERNAL ORDER OF EAGLES, and Washington State Aerie, Fraternal Order of Eagles Washington State Aerie, Respondents.

No. 71786-9.

Supreme Court of Washington, En Banc.

Argued June 27, 2002.

Decided December 19, 2002.

Rosemary Daszkiewicz, Maryln Hawkins, Seattle, for Petitioners.

John Widell, Seattle, for Respondents.

Bruce Johnson, Jeffrey Fisher, Seattle, Amicus Curiae on behalf of Conference of Private Organizations.

Vanessa Power, Margarita Latsinova, Seattle, Terry Fromson, David Cohen, Philadelphia, PA, Amicus Curiae on behalf of Women's Law Project.

Christine Gregoire, Attorney General, Maureen Hart, Jeffrey Even, Asst. Attorneys General, Olympia, Amicus Curiae on behalf of WA State Human Rights Commission.

SMITH, J.

Petitioners, two local chapters of the Fraternal Order of Eagles, Tenino and Whidbey Island Aeries, and several female members of the Tenino Aerie, ask this court to review a decision of the Court of Appeals, Division Two, which reversed a ruling of the Thurston County Superior Court that the male-only membership policy of the Grand Aerie of the Fraternal Order of Eagles barring admission of new female applicants violated the Washington Law Against Discrimination, chapter 49.60 RCW. We reverse.

QUESTION PRESENTED

The principal question presented in this case is whether the Washington Law Against Discrimination requires a "fraternal organization" to be "distinctly private" in order to qualify for exemption under the law.

STATEMENT OF FACTS

The Fraternal Order of Eagles (Eagles) was organized in this state in 1898.¹ It describes itself as a nonprofit fraternal organization with 1.6 million members worldwide.² Its stated purpose, according to its articles of incorporation, is to "[u]nite fraternally for mutual benefit, protection, improvement, social enjoyment and association, all persons of good moral character who believe in a Supreme Being to inculcate the principles of liberty, truth, justice and equality.... To promote and raise funds for duly authorized Fraternal Order of Eagles charities and contribute to worthwhile charitable causes."³ The Grand Secretary of Eagles in a declaration stated the organization advances only social and charitable activities and that it prohibits promotion of business or economic interests by its members.⁴

In its early history, the Eagles chartered Aeries or chapters in other states with male-only membership. It has continued growth over the years by adding chapters and members worldwide.⁵ The Grand Aerie serves as the overarching governing body, creating and enforcing the organization's rules and policies. Each local Aerie must adopt the Eagles' Constitution and policies established by the Grand Aerie.⁶ Each state has a State Aerie that holds meetings for discussion of policy issues prior to their annual state conventions.⁷

The Eagles traditionally restricted membership to males over 21 years of age who believe in a Supreme Being, have never been a member of the Communist party or advocated the overthrow of the government, and are of good moral character.⁸ An applicant for membership must be sponsored by two members; be interviewed by a committee which recommends the applicant's approval or rejection; and be approved by a majority vote.⁹ Within these broad confines, local Aeries are free to establish their own procedures for selecting new members.¹⁰ Regular male-only meetings and gatherings are held at designated times and in accordance with the by-laws for purposes of new member initiations and the conduct of social activities.¹¹ At these meetings, ceremonies and prayers are performed in strict accordance with secret rituals.¹² According to an Aerie officer, the secret rituals include "mainly references to manly virtue and brotherhood as well as prayers and references to God, [which] are significant and meaningful to members of the Order."¹³ Ritual competitions, he claims, are an integral part of state, regional, and national Eagle gatherings, and the presence of women would inhibit these ritual practices which are the essence of membership in the Fraternal Order of Eagles.¹⁴

Members in Washington State, approximating 66,000, belong to 106 local Aeries.¹⁵ Each local Aerie has a corresponding Auxiliary, patterned after the Eagles' exclusively male orders, that admits only women.¹⁶ Members of both the Eagles and the Auxiliary are permitted to use local Aerie facilities when available, and bring nonmember guests of either gender to the local chapter's club or social room.¹⁷ On occasion, local Aeries rent their facilities to the public for special events.¹⁸ In Washington, some local chapters serve lunch to members and non-members willing to pay, and hold public dances.¹⁹ Both male and female nonmembers attend national conventions in which nonmember guest speakers participate. Local Aeries also host weekly and monthly dinners, holiday celebrations, evening activities, and civic events—some of which are open to members, their families, guests, and, on occasion, to the public.²⁰

On November 27, 1995, the judicial branch of the Eagles, the Grand Tribunal, issued its formal Opinion 750 stating that the organization's male-only membership policy was inconsistent with prevailing civil law on gender discrimination.²¹ Following issuance of the opinion, Respondents and other local Aeries, including Olympia, Gig Harbor, and Spokane Valley, began admitting women as members with equal membership rights and privileges.²² At the Grand Aerie convention in July 1998, an attempt was made by motion to amend its Articles of Incorporation and Constitution to conform to the opinion of the Grand Tribunal by substituting "person" for "male" in the membership provisions. The proposed amendment was defeated.²³ The Grand Aerie subsequently withdrew Opinion 750 and issued a letter to all local chapters stating that "[a]s of July 30, 1998 it is a violation of the statutes to propose a female applicant into the Aerie...."²⁴ However, the letter stated that women granted Aerie membership between 1995 and 1998 retained full membership status.²⁵

On July 20, 1999, by amended complaint, local Aeries, Tenino Number 564 and Whidbey Island Number 3418, and nine female members of the Tenino chapter sued the Grand Aerie in the Thurston County Superior Court, claiming that the male-only admission policy violated the Washington Law Against Discrimination (WLAD) and Washington's Equal Rights Amendment; and stating that reversing the policy would not impinge on the Eagles' right of free association.²⁶ Upon completion of pretrial discovery, Petitioners moved for summary judgment on the grounds that the WLAD prohibited the Eagles' gender discrimination practice in "public accommodations."²⁷ In response, the Grand Aerie filed a cross-motion for summary judgment, asserting that RCW 49.060.040(10) provided an absolute exemption from application of the statute for fraternal organizations such as the Eagles.²⁸ Respondent Eagles asserted they were covered under the language of RCW 49.60.040(10) exempting "any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations."²⁹

The trial court, the Honorable Richard A. Strophy, interpreted RCW 49.060.040(10) as indeed exempting "fraternal organizations" from the WLAD, but only if the organizations could prove they were "distinctly private" in nature.³⁰ Considering the size of the Eagles' operations and membership recruitment programs, the trial court determined the organization was "public" in nature, falling outside the exemption.³¹

In his extensive oral ruling on January 28, 2000, Judge Strophy included the following statement:

I conclude ... that "fraternity" has as much do with a shared common purpose than it does with a men's club, if you will. And so looking not only to acts and practices, but to the defendants' own literature, and listening to the arguments of counsel, I find and conclude that there are no material facts about which there's a genuine dispute regarding the FOE [Fraternal Order of Eagles]'s aggressive and wide range of membership enhancement programs and goals, such that I conclude that the selectivity of membership is minimal in the Eagles.

The next factor for review by the Court in determining whether or not an organization is distinctly private is its size. Local Aeries in Washington average over 600 members. The state aeries have over 66,000. Nationally or internationally, there's approaching a million to over a million. But, certainly, the Court finds that the membership size and the membership enhancement programs are markedly different from those clubs or groups under scrutiny in the case law cited to the Court, such that in terms of considering and applying that factor, that one consideration, the size of Eagles and the local Aeries would militate against a finding that Fraternal Order of Eagles is distinctly private.

The next consideration is whether or not the community and the protected class— women—can participate in activities of the organization. It is, in my assessment of the record before me, beyond cavil or genuine dispute that the Eagles are an active outreach organization in the community that involves community members to participate in projects to aid other community members who are nonmembers and involves nonmembers in the activities of the organization from time to time such that I could not, given consideration to that factor, conclude that the Fraternal Order of Eagles is distinctly private.

Another factor is how admission of women would affect the male members' rights of association. The Grand Aerie and State Aerie argue,

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