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Lahmann v. Grand Aerie of Fraternal Order of Eagles10/12/2005
--and therefore are not within the meaning of the act-- subsection (2) is read out of existence. See Keller v. SAIF, 175 Or App 78, 82, 27 P3d 1064 (2001), rev den, 333 Or 260 (2002) ("We will not construe a statute in a way that renders its provisions superfluous."). If the exemption for "private" organizations under subsection (2) is to have any effect, whether an organization is "in its nature distinctly private" cannot depend exclusively on whether its services are offered to the public. The focus of the inquiry must instead be on the nature of the benefits offered and the purpose of the organization. In this case, the Eagles offer a benefit of private association for social purposes and are, in their nature, distinctly private.
Assuming that there is some ambiguity in the phrase "in its nature distinctly private," that ambiguity is resolved by the legislative history of the Public Accommodations Act. As described above, the bill's sponsor expressly represented to the legislature that "men have the right to congregate, if they want to, without women." Nothing in the text of the act or its legislative history suggests that an organization that allows individuals to congregate exclusively with members of the opposite sex is somehow covered by the act if the organization is otherwise unselective. The trial court found that the driving force for becoming a member of the Eagles was to be involved in social activities, and that finding is supported by the evidence. In sum, the majority by judicial fiat effectively holds that, without additional selective membership criteria, men no longer have the right to congregate for social activities outside the presence of women under the Public Accommodations Act. I dissent because the majority has rewritten ORS 30.675(2) to mean something that the legislature never intended.
The second ground on which I dissent is the majority's holding that Article I, section 26, of the Oregon Constitution does not extend protection to the members of the Eagles to assemble to engage in what are primarily social activities. Article I, section 26, provides:
"No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of greviances ."
According to the majority, "the framers intended the assembly clause to accomplish what it recited, that is, to ensure the right to assemble in order to deliberate on matters of public concern as a part of the political process." ___ Or App at ___ (slip op at 23) (emphasis added). It follows, under the majority's reasoning, that Article I, section 26, does not confer "a right of association that applies to organizations such as the Eagles." ___ Or App at ___ (slip op at 24).
The majority writes a limitation into Article I, section 26, that
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