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Lahmann v. Grand Aerie of Fraternal Order of Eagles10/12/2005
Court of Appeals opinion. Either the written requirements, or actual practices of this Aerie are so loose and non selective 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.'"
The majority appears to affirm the trial court based on what it characterizes as a finding of fact by the trial court and the perceived notion that the Eagles do not contest that finding. The majority declares that the Eagles "do not deny, that, due to their nonselective membership practices, their organization is de facto open to the public." ___ Or App ___ (slip op at 9). First, a more careful reading of the Eagles' brief demonstrates that they do in fact deny that they are open to the public. In their summary of argument, they assert, "Oregon's Public Accommodation Act was not intended to control the membership policies of private fraternal organizations, or to interfere with the right of such organizations to admit members based on criteria of their own choosing." (Emphasis added.) Later, the Eagles assert, "The FOE [Fraternal Order of the Eagles] is not a business or commercial enterprise, and it is 'in its nature distinctly private,' within the meaning of that phrase in [ORS 30.675(2)]." In fact, one of the subheadings of their brief is titled, "The exemption in the Act for a 'bona fide club * * * which is in its nature distinctly private' was intended to apply to a fraternal organization, and it does apply to the Eagles." (Omission in original.) Under that subheading, the Eagles devote seven full pages of their brief to their argument that they are within the "distinctly private" exemption under ORS 30.675(2), and they point to facts such as "the business meetings of an Eagles Aerie are conducted in secrecy, in rooms that 'are totally enclosed and no one is able to see inside'"; "Willamette Aerie owns its own buildings in Salem, and no one has access to meetings of the Aerie or the Auxiliary or to the social areas of the building unless they are members"; and some people join the Eagles "precisely because it is a private club." (Emphasis in original.)
Second, ORS 30.675(2) excludes from the definition of a place of public accommodation "any institution, bona fide club or place of accommodation which is in its nature distinctly private." Whether that exclusion applies to the Eagles is a mixed question of fact and legislative intent and not, as the majority proposes, just a question of fact. As a factual matter, the trial court found that the Eagles accept only men as members. The trial court also found that, " nder the regulations adopted by the Grand Aerie, in order to become a member, a person must be sponsored by two members, complete an application and be approved by the majority of members at a membership meeting." Also, the court was critical of the Willamett
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