Lahmann v. Grand Aerie of Fraternal Order, 99C-17528; A122320.

CourtSupreme Court of Oregon
Citation121 P.3d 671,202 Or. App. 123
Docket Number99C-17528; A122320.
PartiesGenevieve 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 Date12 October 2005
121 P.3d 671
202 Or. App. 123
Genevieve G. LAHMANN and Roger A. Stolley, Plaintiffs, and
Elaine Shimer, Respondent,
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; A122320.
Court of Appeals of Oregon.
Argued and Submitted April 8, 2005.
Decided October 12, 2005.

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

Dana L. Sullivan argued the cause for respondent. With her on the brief was McKanna Bishop Joffe & Sullivan, LLP.

Before WOLLHEIM, Presiding Judge, and EDMONDS* and SCHUMAN, Judges.

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This case requires us to decide whether the Fraternal Order of Eagles' policy of barring women from membership in its "aeries" violates the Public Accommodations Act, former ORS 30.670 to 30.685 (1999),1 and if so, whether enforcement of the act so as to compel the organization to consider applications from women would be unconstitutional. The case is before us for the second time. In our first opinion, we held that the act prohibits an organization such as the Eagles from discriminating in its membership policies on the basis of sex if the organization is a "business or commercial enterprise" and "its membership policies are so unselective that the organization can fairly be said to offer its services to the public." Lahmann v. Grand Aerie of Fraternal Order of Eagles, 180 Or.App. 420, 434, 43 P.3d 1130, rev. den., 334 Or. 631, 54 P.3d 1041 (2002) (Lahmann I). We remanded the case to the trial court, however, because, on the record before us, we were unable to determine whether those factual predicates existed. The trial court found that they did and entered a judgment against the Eagles.2 The Eagles appeal, renewing their arguments that the act does not apply to them and that, if it does, such an application is unconstitutional. We affirm.


Established in 1898, the Fraternal Order of Eagles is a national fraternal organization with over one million members. The group's stated purpose is to promote principles of "liberty, truth, justice, [and] equality, for home, for country, and for God." At the national level, the Eagles have supported the enactment of pension and workers' compensation laws. At the state and local level, members perform community service projects and socialize together.

The Eagles have a national governing body called the Grand Aerie, which oversees state and local aeries. It does so by issuing "statutes," one of which establishes the membership requirement at issue in this case: "No person shall be eligible to be elected to membership in any Local Aerie unless such a person is a male, is of good moral character, and believes in the existence of a Supreme Being[.]" Although that requirement has been in existence since the organization's founding, the Grand Aerie in 1952 authorized the establishment of "Ladies' Auxiliaries" for women at the local and national levels. According to the Ladies' Auxiliary Rules and Regulations, the Grand Aerie retains "complete jurisdiction and control over the Grand [Ladies'] Auxiliary" with limited exceptions, and the "Grand [Ladies'] Auxiliary shall have no purposes that are apart from the aims of the Fraternal Order of Eagles." A local aerie may be affiliated with an auxiliary, but auxiliary members may not attend aerie meetings or vote on aerie matters.

In 1995, the Grand Tribunal of the Eagles, a branch of the national organization charged with interpreting the Eagles' constitution, issued an opinion stating that "the use of the word `male' in [the membership requirement] is not consistent with prevailing civil law." As a result, the Willamette aerie, along with many others, admitted some women to membership. That practice, however, was short lived. In 1998, the Grand Aerie rejected a proposal to abandon the male-only requirement for aerie membership, and the Grand Tribunal withdrew its opinion concerning the male-only requirement. Since then, the Grand Aerie has not permitted local aeries to accept membership applications from women, and the Willamette aerie has followed that policy.

The Willamette aerie has an auxiliary. The two groups share a lodge, which features a bar, dining facilities, a dance floor, and meeting rooms. In 1999, plaintiff, a member of the Willamette auxiliary, applied for membership in the Willamette aerie, but her application was rejected on the basis of her

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gender. Thereafter, plaintiff (and two other rejected female applicants who have since voluntarily dismissed their claims) initiated this action under the Public Accommodations Act against the national, state, and local aeries, seeking declaratory and injunctive relief.

The relevant parts of the act are ORS 30.670 and ORS 30.675. ORS 30.670 stated:

"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 30.675 defined the phrase "place of public accommodation":

"(1) A place of public accommodation, subject to the exclusion in subsection (2) of this section, 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.

"(2) However, a place of public accommodation does not include any institution, bona fide club or place of accommodation which is in its nature distinctly private."

On cross-motions for summary judgment, the trial court denied defendants' motion and granted plaintiffs', ruling that the organization is a "place of public accommodation" because it emphasizes recruitment, offers its services to the public, and is unselective in recruiting except for its rule against admitting women to aeries. The Eagles appealed, arguing that the trial court's understanding of "place of public accommodation" was too expansive. Lahmann I, 180 Or.App. at 424, 43 P.3d 1130. According to the Eagles, the act did not apply to fraternal organizations. As noted, we rejected that position and explained that "the question whether an organization is a place of public accommodation under the act turns on (1) whether it is a business or commercial enterprise, and (2) whether its membership policies are so unselective that the organization can fairly be said to offer its services to the public." Id. at 435, 43 P.3d 1130. We explained that the term "business or commercial enterprise" includes organizations that market civic or social benefits. Id. We remanded the case so that a finder of fact could determine whether the organization is a "place of public accommodation" under that two-part definition. Id.

On remand, plaintiffs prevailed after a bench trial. The trial court found that

"the Eagles provide `* * * services, * * * amusements or otherwise.' It is clear that the Eagles offer few economic or business benefits but these are not the sole criteria for the statute. Civic and social benefits also meet the statutory requirements in that they are services and amusement.

"It is also this Court's opinion that the Eagles met the second criteria as set out in the Court of Appeals opinion. Either the written requirements, or actual practices of this Aerie are so loose and nonselective that it can easily be said that the Eagles offer their services to the public. The net effect of these very easy membership requirements is that it cannot be said that the Eagles are `* * * in its nature distinctly private' [under ORS 30.675(2)]."

The trial court entered a judgment declaring that "the policy of the defendants to exclude women" from Eagles membership "violates the State of Oregon's prohibition against discrimination in places of public accommodation" and enjoining the Eagles "from refusing to process any application for membership submitted by a woman who is otherwise qualified for Eagles membership." This appeal ensued.

Before this court, the Eagles do not contest the trial court's factual determination that the club's membership requirements are "so loose and nonselective that it can easily be said that the Eagles offer their services to the public." Nor do they argue (beyond a cursory sentence in their "Summary of Argument") that the trial court erred in concluding that their organization is a business enterprise because they market civic or social benefits. Rather, they present two purely legal arguments. First, they contend that, notwithstanding our opinion in Lahmann I, even if a fraternal organization such as the Eagles has an open admission practice, it

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nonetheless is exempt from the act because it is a "bona fide club or * * * is in its nature distinctly private." ORS 30.675(2). They base that argument on what they characterize as an analytic error in Lahmann I and on legislative history that was not brought to our attention before we wrote that opinion. Second, the Eagles argue that, if our analysis of the act is correct, then it cannot constitutionally be applied against them because doing so would violate several constitutional rights: the right of religious freedom guaranteed by Article I, sections 2 and 3, of the Oregon Constitution; the right to "assemb[le] together in a peaceable manner to consult for their common good" guaranteed by section 26; and the right of "expressive association" found in the First Amendment to the United States Constitution. We find neither argument to be persuasive.


In their first assignment of error, the Eagles take issue with our conclusion in Lahmann I that an organization that bars women but otherwise has a de facto open membership policy cannot qualify for...

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