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Lahmann v. Grand Aerie of Fraternal Order of Eagles10/12/2005
, and the Eagles do not deny, that, due to their nonselective membership practices, their organization is de facto open to the public. Nothing in the legislative history of the act implies that its framers intended to exempt such organizations.
III. CONSTITUTIONALITY OF APPLYING THE ACT TO THE EAGLES
Having concluded that the act compels the Eagles to accept and fairly consider applications from women, we must now address the Eagles' arguments that such compulsion violates their rights under the religion and free assembly clauses of the Oregon Constitution, Article I, sections 2, 3, and 26, and their so-called rights of expressive association under the First Amendment to the United States Constitution. We begin with their arguments under the Oregon Constitution. State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983).
A. Article I, sections 2 and 3
Article I, section 2, of the Oregon Constitution provides:
"All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences."
Article I, section 3, of the Oregon Constitution provides:
"No law shall in any case whatever control the free exercise, and enjoyment of religeous opinions, or interfere with the rights of conscience."
The Eagles contend that "the ct cannot be constitutionally applied to the Eagles' membership policy, because a particularized theistic religious belief is a prerequisite to membership * * *." The trial court ruled that this case does not implicate the Eagles' religious freedom because, in essence, they are not being compelled to admit atheists. The Eagles respond that " f the ct applies to defendants' membership policies, then all of the ct applies." (Emphasis in original.)
We agree with the trial court. Plaintiff's complaint against the Eagles challenges only the gender-based admission. The judgment from which the Eagles seek relief declares only that policy to be a violation of the act, and it enjoins them from pursuing only that policy. The Eagles' constitutional defense, therefore, can be relevant only to the gender policy. Put another way, the Eagles cannot in this case raise a facial attack on the entire act, including its asserted requirement that they accept nonbelievers, because nobody has challenged their policy of rejecting nonbelievers, and no court has commanded them to cease that practice. If in fact the Eagles have such a policy, and if a plaintiff with standing challenges it, and if a lower court determines that the policy violates the act, then we would have the occasion to determine whether enforcement of the act against the Eagles violates Article I, sections 2 and 3. At this time, the issue is not before us.
B. Article I, section 26
We next turn to the question whether application of the act to the Eagles violates their members' rights
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