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Lahmann v. Grand Aerie of Fraternal Order of Eagles10/12/2005
s 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. 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 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
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