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Lahmann v. Grand Aerie of Fraternal Order of Eagles10/12/2005
t necessarily follows that our opinion in Lahmann I, which relied on Lloyd Lions Club, was itself wrongly decided; we followed one of our own opinions when we should have followed the contrary, governing opinion by the Supreme Court.
That argument does not survive scrutiny. ORS 30.675 stated a two-part inquiry for determining what organizations are "public accommodations" and therefore covered by the act's nondiscrimination rule. The first part, ORS 30.675(1), stated the general types of organizations that are covered by the act: those that offer particular specified goods or services. If an organization does not offer such goods or services, then it is exempt from the act. Further, the act does not apply if the organization is "distinctly private." ORS 30.675(2). Thus, an organization is exempt from the act in either of two circumstances: first, if it does not provide the specified services, or second, if it is distinctly private.
The Eagles are of course correct to point out that the necessary implication of Schwenk is that an organization that is nonselective can be exempt. That situation can occur if the organization, in addition to being nonselective, is also one that does not provide the specified goods or services. Such an organization is exempt regardless of whether it is selective or nonselective because it does not provide the specified goods or services. The Boy Scouts, according to Schwenk, is that kind of organization: The act did not apply there because the services offered by the Boy Scouts were not subject to the provisions of the act. 275 Or at 335. The court never addressed the nonselectivity issue. It never suggested that a nonselective organization that did provide the specified goods or services--such as the Lions Club--could (contrary to the plain meaning of the act) be exempt. Thus, when we held in Lloyd Lions Club that the club, which we held to be nonselective, was not exempt, we did not contradict Schwenk. Both cases are correct, both are consistent with the act, each is consistent with the other, and neither is inconsistent with the holding in Lahmann I: The act applies to an organization that both provides the benefits specified in ORS 30.675(1) and is not distinctly private as specified in ORS 30.675(2).
The Eagles' second argument for reconsidering our holding in Lahmann I is based on legislative history, and it reduces to the following proposition: When the act was first passed and when it was amended, private fraternal organizations had a well-established, legislatively recognized presence; the sponsors of the act and those who voted on it knew that fact, and they explicitly averred that the act would not apply to those organizations. It would, however, apply to organizations that called themselves private clubs only as a ruse to avoid allowing African-American patrons or members. The short and sufficient refutation of that argument is this: The trial court found as fact
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