Lahmann v. Fraternal Order of Eagles

• Citation: 43 P.3d 1130,180 Or. App. 420
• Parties: Genevieve G. LAHMANN and Roger A. Stolley, Plaintiffs, and Elaine Shimer, Respondent, v. GRAND AERIE OF FRATERNAL ORDER OF EAGLES, Fraternal Order of Eagles, Oregon State Aerie, and Fraternal Order of Eagles, Willamette Aerie No. 2081, Appellants.
• Decision Date: 03 April 2002
• Court: Court of Appeals of Oregon

43 P.3d 1130

180 Or. App. 420

Genevieve G. LAHMANN and Roger A. Stolley, Plaintiffs, and Elaine Shimer, Respondent, v. GRAND AERIE OF FRATERNAL ORDER OF EAGLES, Fraternal Order of Eagles, Oregon State Aerie, and Fraternal Order of Eagles, Willamette Aerie No. 2081, Appellants.

99C-17528; A110813

Court of Appeals of Oregon.

Argued and Submitted June 19, 2001.

Decided April 3, 2002.

Charles F. Hinkle argued the cause for appellants. With him on the briefs was Stoel Rives LLP.

Dana L. Sullivan, Portland, argued the cause for respondent. With her on the brief was Hoevet, Snyder & Boise, P.C.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

KISTLER, J.

Plaintiff Elaine Shimer brought this action seeking a declaration that the Oregon Public Accommodation Act, ORS 30.670 et seq.,¹ requires the Fraternal Order of the Eagles to admit women as members.² On cross-motions for summary judgment, the trial court granted plaintiff's motion and denied defendants'. It held that the Fraternal Order of the Eagles is a "place of public accommodation" and thus may not exclude women. On appeal, the Eagles argue that the Public Accommodation Act was not intended to reach the membership policies of private organizations. In the Eagles' view, they remain free to exclude any person from membership on the basis of that person's race, sex, or religion. Although we do not agree that the Public Accommodation Act is as narrow as the Eagles perceive, we conclude that the court erred in resolving this case on summary judgment; the question whether the Fraternal Order of the Eagles is a "place of public accommodation" presents a disputed issue of material fact. We accordingly reverse and remand.

The Fraternal Order of the Eagles was founded in Seattle, Washington, in 1898. The order is divided into international, state, and local aeries, which engage in social service programs within the community and also provide social activities for their members. Since its founding, the order has been active in supporting the passage of workers' compensation laws, pension laws for workers and their families, and the federal social security act. Local aeries are also authorized to provide health and funeral benefits to their members.³

Local aeries actively recruit new members in the community, setting goals for new memberships and awarding prizes for those who recruit the most new members. Before November 1995, the eligibility requirements for membership in local aeries required that prospective members be at least 21 years of age, be of good moral character, believe in the existence of a supreme being, and be male. Women are not permitted to join, although there are ladies' auxiliary units at most of the local aeries. There are numerous events in which only aerie members— that is, men—can participate. These include weekly membership meetings and initiation ceremonies that are performed in accordance with memorized rituals. The rituals include various references to male virtue and brotherhood as well as prayers and references to God. At these meetings, the men also consider proposals relating to fund allotment for local aerie activities. Women who want to propose funding for particular activities must ask male aerie members to submit proposals on their behalf.

In November 1995, the Eagles Grand Tribunal issued an opinion in which it determined that the order must "yield to prevailing civil law" and remove the word "male" from its eligibility requirements. Consequently, local aeries were free to eliminate the gender restrictions in their local membership policies, although they were not required to do so. Aerie 2081, the local aerie that plaintiff wants to join, decided to admit women after learning about the Grand Tribunal's opinion. It ultimately admitted at least 15 women, two of whom have served on its board of trustees.

In July 1998, at its annual convention, the international Grand Aerie reversed its stance on admitting women. It notified all local aeries that applicants are required to be male and that any application not in compliance with that requirement would not be processed by the Grand Aerie. In light of the Grand Aerie's decision, Aerie 2081 decided that it would not admit any more women as members. Since that time, all women who have applied for membership have had their applications rejected.

Plaintiff has been a member of the ladies' auxiliary since December 1998, and she has volunteered substantial amounts of time to the local aerie. She submitted her membership application to Aerie 2081 in February 1999, along with her application fee, because she wanted to be able to participate in the membership meetings and vote on important aerie issues. Because the aerie was no longer accepting applications from women, it rejected her application.

In June 1999, plaintiff was participating in a wagering game at Aerie 2081. During the course of the game, another player suggested a rule change. Plaintiff, along with several other female aerie members, auxiliary members, and male aerie members, objected to the rule change. Several days later, plaintiff received notice that Aerie 2081 was taking disciplinary action against her for "conduct unbecoming an Eagle," based upon the complaint that she made about the rule change. The only other members who were disciplined were female aerie members. The auxiliary members who had not applied for aerie membership were not disciplined, nor were any of the male aerie members. Plaintiff then initiated this action, seeking a declaration that the Eagles' "male only" membership policy violates the Public Accommodation Act.

On cross-motions for summary judgment, the trial court granted plaintiff's motion and denied defendants'. It ruled that the Public Accommodation Act applies to the Eagles because they emphasize recruitment and, except for a member's gender, are unselective in their membership policies. The court also determined that the Eagles are subject to the act because they consider business connections important and because they offer their services to the public. The trial court accordingly ruled that the Eagles cannot discriminate on the basis of gender and must allow women to become members.

On appeal, the Eagles argue that their order is not a "place of public accommodation" within the meaning of the act. More specifically, they argue that, in Schwenk v. Boy Scouts of America, 275 Or. 327, 551 P.2d 465 (1976), the Supreme Court held that the membership policies of a private organization are not subject to the Public Accommodation Act even though the goods and services that the organization provides to the public may be. The Eagles reason that the trial court erred when it failed to follow Schwenk. They argue alternatively that, if the act applies to them, it violates the state and federal constitutions. We begin with the Eagles' statutory argument.

The Public Accommodation Act provides:

"All persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, religion, sex, marital status, color or national origin."

ORS 30.670. The phrase "[a] place of public accommodation" means "any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise." ORS 30.675(1). The statute also contains an exception from that definition; it provides that "a place of public accommodation does not include any institution, bona fide club or place of accommodation which is in its nature distinctly private." ORS 30.675(2).

As initially enacted, the Public Accommodation Act applied to any "place of public accommodation, resort, or amusement" and referred to hotels, motels, restaurants, taverns, and the like. See Or. Laws 1953, ch. 495, § 2; Schwenk, 275 Or. at 332,551 P.2d 465.⁴ The focus was whether those places were open to the public except for persons of a particular race, religion, or national origin. Or. Laws 1953, ch. 495, §§ 1 and 2. The definition was amended in 1957 and again in 1961. Or. Laws 1957, ch. 724, § 1; Or. Laws 1961, ch. 247, § 1. As before, the definition was limited to specified kinds of places, and the most significant change was to extend the definition to "[a]ny place offering to the public goods or services." As the court explained in Schwenk, the 1961 Legislature expanded the definition "to end discrimination in health and beauty salons, barber shops and medical services." 275 Or. at 333,551 P.2d 465.

In 1973, the legislature amended the Public Accommodation Act to prohibit discrimination based on sex and marital status. Or. Laws 1973, ch. 714, § 1. The legislature also expanded the act's reach; it redefined the phrase a "place of public accommodation" to mean "any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise." Id. at § 2.

Three years later, in Schwenk, the court considered whether the Boy Scouts⁵ were a "place of public accommodation" within the meaning of the act. There was little doubt that the Boy Scouts offered boys "advantages [and] privileges whether in the nature of * * * amusements or otherwise." The inquiry accordingly centered on whether the Boy Scouts were a "place or service" within the meaning of the definition. The Supreme Court explained that, because "the term `place or service'" was ambiguous,⁶ it was appropriate to review the 1973 act's legislative history to determine what that term meant. Schwenk, 275 Or. at 331, 551 P.2d 465.

The court explained that the act was intended to "include literally all phases of any business soliciting public patronage," but that statements in the legislative history suggested that it probably would not...