Lahmann v. Grand Aerie of Fraternal Order of Eagles

43 P.3d 1130, 180 Or. App. 420, 2002 Ore. App. LEXIS 531

• Court: Court of Appeals of Oregon
• Decided: April 3, 2002
• Docket: 99C-17528; A110813
• Status: Published

Opinions

KISTLER, J.

Plaintiff Elaine Shimer brought this action seeking a declaration that the Oregon Public Accommodation Act, ORS 30.670 et seq.,1 requires the Fraternal Order of the Eagles to admit women as members.² On cross-motions for summary judgment, the trial court granted plaintiffs motion and denied defendants’. It held that the Fraternal Order of the Eagles is a “place of public accommodation” and thus may not exclude women. On appeal, the Eagles argue that the Public Accommodation Act was not intended to reach the membership policies of private organizations. In the Eagles’ view, they remain free to exclude any person from membership on the basis of that person’s race, sex, or religion. Although we do not agree that the Public Accommodation Act is as narrow as the Eagles perceive, we conclude that the court erred in resolving this case on summary judgment; the question whether the Fraternal Order of the Eagles is a “place of public accommodation” presents a disputed issue of material fact. We accordingly reverse and remand.

The Fraternal Order of the Eagles was founded in Seattle, Washington, in 1898. The order is divided into international, state, and local aeries, which engage in social service programs within the community and also provide social activities for their members. Since its founding, the order has been active in supporting the passage of workers’ compensation laws, pension laws for workers and their families, and the federal social security act. Local aeries are also authorized to provide health and funeral benefits to their members.³

Local aeries actively recruit new members in the community, setting goals for new memberships and awarding prizes for those who recruit the most new members. Before November 1995, the eligibility requirements for membership in local aeries required that prospective members be at least 21 years of age, be of good moral character, believe in the existence of a supreme being, and be male. Women are not permitted to join, although there are ladies’ auxiliary units at most of the local aeries. There are numerous events in which only aerie members — that is, men — can participate. These include weekly membership meetings and initiation ceremonies that are performed in accordance with memorized rituals. The rituals include various references to male virtue and brotherhood as well as prayers and references to God. At these meetings, the men also consider proposals relating to fund allotment for local aerie activities. Women who want to propose funding for particular activities must ask male aerie members to submit proposals on their behalf.

In November 1995, the Eagles Grand Tribunal issued an opinion in which it determined that the order must “yield to prevailing civil law” and remove the word “male” from its eligibility requirements. Consequently, local aeries were free to eliminate the gender restrictions in their local membership policies, although they were not required to do so. Aerie 2081, the local aerie that plaintiff wants to join, decided to admit women after learning about the Grand Tribunal’s opinion. It ultimately admitted at least 15 women, two of whom have served on its board of trustees.

In July 1998, at its annual convention, the international Grand Aerie reversed its stance on admitting women. It notified all local aeries that applicants are required to be male and that any application not in compliance with that requirement would not be processed by the Grand Aerie. In light of the Grand Aerie’s decision, Aerie 2081 decided that it would not admit any more women as members. Since that time, all women who have applied for membership have had their applications rejected.

Plaintiff has been a member of the ladies’ auxiliary since December 1998, and she has volunteered substantial amounts of time to the local aerie. She submitted her membership application to Aerie 2081 in February 1999, along with her application fee, because she wanted to be able to participate in the membership meetings and vote on important aerie issues. Because the aerie was no longer accepting applications from women, it rejected her application.

In June 1999, plaintiff was participating in a wagering game at Aerie 2081. During the course of the game, another player suggested a rule change. Plaintiff, along with several other female aerie members, auxiliary members, and male aerie members, objected to the rule change. Several days later, plaintiff received notice that Aerie 2081 was taking disciplinary action against her for “conduct unbecoming an Eagle,” based upon the complaint that she made about the rule change. The only other members who were disciplined were female aerie members. The auxiliary members who had not applied for aerie membership were not disciplined, nor were any of the male aerie members. Plaintiff then initiated this action, seeking a declaration that the Eagles’ “male only” membership policy violates the Public Accommodation Act.

On cross-motions for summary judgment, the trial court granted plaintiff’s motion and denied defendants’. It ruled that the Public Accommodation Act applies to the Eagles because they emphasize recruitment and, except for a member’s gender, are unselective in their membership policies. The court also determined that the Eagles are subject to the act because they consider business connections important and because they offer their services to the public. The trial court accordingly ruled that the Eagles cannot discriminate on the basis of gender and must allow women to become members.

On appeal, the Eagles argue that their order is not a “place of public accommodation” within the meaning of the act. More specifically, they argue that, in Schwenk v. Boy Scouts of America, 275 Or 327, 551 P2d 465 (1976), the Supreme Court held that the membership policies of a private organization are not subject to the Public Accommodation Act even though the goods and services that the organization provides to the public may be. The Eagles reason that the trial court erred when it failed to follow Schwenk. They argue alternatively that, if the act applies to them, it violates the state and federal constitutions. We begin with the Eagles’ statutory argument.

The Public Accommodation Act provides:

“All persons within the jurisdiction of this state shall be entitled to the fall and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, religion, sex, marital status, color or national origin.”

ORS 30.670. The phrase “[a] place of public accommodation” means “any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise.” ORS 30.675(1). The statute also contains an exception from that definition; it provides that “a place of public accommodation does not include any institution, bona fide club or place of accommodation which is in its nature distinctly private.” ORS 30.675(2).

As initially enacted, the Public Accommodation Act applied to any “place of public accommodation, resort, or amusement” and referred to hotels, motels, restaurants, taverns, and the like. See Or Laws 1953, ch 495, § 2; Schwenk, 275 Or at 332.⁴ The focus was whether those places were open to the public except for persons of a particular race, religion, or national origin. Or Laws 1953, ch 495, §§ 1 and 2. The definition was amended in 1957 and again in 1961. Or Laws 1957, ch 724, § 1; Or Laws 1961, ch 247, § 1. As before, the definition was limited to specified kinds of places, and the most significant change was to extend the definition to “[a]ny place offering to the public goods or services.” As the court explained in Schwenk, the 1961 Legislature expanded the definition “to end discrimination in health and beauty salons, barber shops and medical services.” 275 Or at 333.

In 1973, the legislature amended the Public Accommodation Act to prohibit discrimination based on sex and marital status. Or Laws 1973, ch 714, § 1. The legislature also expanded the act’s reach; it redefined the phrase a “place of public accommodation” to mean “any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise.” Id. at § 2.

Three years later, in Schwenk, the court considered whether the Boy Scouts⁵ were a “place of public accommodation” within the meaning of the act. There was little doubt that the Boy Scouts offered boys “advantages [and] privileges whether in the nature of * * * amusements or otherwise.” The inquiry accordingly centered on whether the Boy Scouts were a “place or service” within the meaning of the definition. The Supreme Court explained that, because “the term ‘place or service’ ” was ambiguous,⁶ it was appropriate to review the 1973 act’s legislative history to determine what that term meant. Schwenk, 275 Or at 331.

The court explained that the act was intended to “ ‘include literally all phases of any business soliciting public patronage,’ ” but that statements in the legislative history suggested that it probably would not include the YMCA or the YWCA. Schwenk, 275 Or at 333 (quoting the testimony of Eleanor Meyers) (emphasis in original).⁷ The court concluded from the history that “the [legislature’s] primary concern and purpose * * * was to prohibit discrimination by business or commercial enterprises which offer goods or services to the public.” Id. at 334 (emphasis in original). The court noted that its conclusion was supported by the Bureau of Labor’s summary of the 1973 amendments to the Public Accommodation Act, which explained:

“ ‘The legislative history is clear that [the amended definition of a place of public accommodation] is intended to be a broad one and to apply to all types of businesses which offer goods and/or services to the public. This includes the services of credit, financing mortgages, loans, and insurance as well as hotels, motels, retail sales[.]’ ”

Id. at 335 (quoting the bureau’s summary) (emphasis in original).

Having canvassed the legislative history, the court turned to the question whether the Public Accommodation Act applied to the Boy Scouts. It noted that, if, as it appeared, the legislature intended that the YMCA would not be subject to the act, then “it is difficult to see how the legislature could have intended any different application of that [a]ct to the Boy Scouts of America.” Id. at 335. The court did not hold that the Boy Scouts or the YMCA came within the exclusion in subsection (2) for “bona fide club[s] * * * which [are in their] nature distinctly private.” Id.; see ORS 30.675(2). Nor did it specifically identify what characteristic of either the YMCA or the Boy Scouts exempted them from the general definition of a place of public accommodation under subsection (1). See ORS 30.675(1). Rather, the court’s holding rests on the syllogism that the act was not intended to reach the YMCA; that, for the purposes of this issue, the Boy Scouts and the YMCA were the same; and therefore, that the act did not apply to the Boy Scouts.

The court did not explicitly tie the conclusion that it drew from the legislative history — that “the [legislature’s] primary concern and purpose * * * was to prohibit discrimination by business or commercial enterprises which offer goods or services to the public” — to its holding that the act does not apply to the YMCA and, by extension, to the Boy Scouts. It did explain, however, that “the legislative history of the Oregon Public Accommodation Act, when taken as a whole, is sufficiently clear so as to compel the conclusion that the term ‘place of public accommodation,’ * * * was not intended by the Oregon legislature to include the Boy Scouts of America, at least to the extent of requiring it to accept applications by girls for membership.” Schwenk, 275 Or at 336 (emphasis added). In light of the court’s reliance on the whole legislative history, its rationale appears to be that the Boy Scouts are not a business or a commercial enterprise and thus are not subject to the Public Accommodation Act.

That is how we explained Schwenk’s rationale when, 10 years later, we were asked to decide whether the Lions Club was a “place of public accommodation” within the meaning of the Oregon Public Accommodation Act. See Lloyd Lions Club v. Int. Assoc. of Lions Clubs, 81 Or App 151, 724 P2d 887 (1986), rev dismissed 303 Or 698 (1987).⁸ We stated that the Supreme Court had construed the Public Accommodation Act in Schwenk “as prohibiting discrimination only ‘by business or commercial enterprises which offer goods or services to the public.’ ” Id. at 153 (quoting Schwenk, 275 Or at 334) (first emphasis added; second emphasis in original). We agreed that, after Schwenk, the primary issue in Lloyd Lions Club was whether the Lions Club, as an organization, was a “community service organization [exempt from the act or] a business or commercial enterprise subject to [it].” 81 Or App at 154.⁹ Relying on the trial court’s factual findings, we held:

“[D]efendant is a business which sells memberships and substantial concomitant business advantages to the male public throughout the state. Defendant is not a ‘private’ organization. It is open to virtually all, except women. Its revocation of the Lloyd club’s charter was an action aimed at denying its business product and services to a segment of the population on the basis of sex.”

81 Or App at 156-57.

Three propositions follow from Lloyd Lions Club. First, our opinion in Lloyd Lions Club rests on the proposition that a “place of public accommodation” is a business or commercial enterprise that offers privileges or advantages to the public. 81 Or App at 153. That proposition follows directly from Schwenk. Second, we recognized that, depending on the facts of a particular case, even community service organizations may be business or commercial enterprises for the purposes of the Public Accommodation Act. Id. at 157-58. Finally, we recognized that some private organizations may have such unrestrictive membership criteria that the organization is effectively open to the public. Id. at 157.

As we understand the Eagles’ primary argument on appeal, they take issue with the final proposition noted above and argue that, in holding that the membership policies of private organizations may be subject to the Public Accommodation Act, our opinion in Lloyd Lions Club impermissibly departed from the Supreme Court’s decision in Schwenk. We disagree with that argument for at least two reasons. As explained above, the court did not hold in Schwenk that every private organization’s membership policies are exempt from scrutiny under the Public Accommodation Act. Nothing in Schwenk is inconsistent with our recognition in Lloyd Lions Club that some nominally private organizations may be so unselective in their membership criteria that they are effectively public.

Beyond that, the argument that the Eagles advance on appeal is at odds with the text of the statute. As noted above, ORS 30.675 distinguishes between organizations that “offe[r] to the public” advantages or privileges, ORS 30.675(1), and “institution^ and] bona fide club[s]” that are “in [their] nature distinctly private,” ORS 30.675(2). The former are subject to the Public Accommodation Act; the latter are not. In exempting “distinctly private” organizations from the act’s reach, the legislature made clear that the act applies to organizations that are only nominally private. Put another way, the legislature’s use of the phrase “distinctly private” reflects a recognition that the evidence may show, in any given case, that some ostensibly private organizations have such unrestrictive membership criteria that they are effectively public. Our decision in Lloyd Lions Club gives effect to that textual distinction. We find no reason to depart from it. See Newell v. Weston, 156 Or App 371, 380, 965 P2d 1039 (1998), rev den 329 Or 318 (1999) (stating the standard for overruling our own cases).

The dissent takes a different tack. It starts from the proposition that membership in the Eagles is a discrete “service” within the meaning of the Public Accommodation Act that should be examined separately. 180 Or App at 440 (Edmonds, P. J., dissenting). Relying on legislative history, the dissent concludes that the act applies to “commercial ‘services’ that, in their provision of goods, services, lodging, amusements or other things, impact females in their financial, vocational, and income-earning activities and interests.” Id. at 442.¹⁰ Because the dissent concludes that membership in the Eagles “provides solely fraternal benefits without the accompanying purpose of providing any economic advantages,” it would hold “[a]s a matter of law [that] the membership service offered by the Eagles is not subject to the act[.]” Id. at 436.

We are not persuaded by the dissent’s analysis for three reasons. First, it is difficult to square the dissent’s analysis with the court’s interpretation of the Public Accommodation Act in Schwenk and our explanation of both the act and Schwenk in Lloyd Lions Club. After reviewing the legislative history of the 1973 amendments to the act, the court explained in Schwenk that “the primary concern and purpose of the Oregon legislature in its enactment of the Oregon Public Accommodation Act was to prohibit discrimination by business or commercial enterprises which offer goods and services to the public.” 275 Or at 334 (emphasis in original). The limiting principle that the court drew from the legislative history turned on the nature of the place or service, not the type of “accommodations, advantages, facilities or privileges” it provides. After Schwenk, the question is whether a place or service is a “business or commercial enterpris[e],” not whether it offers business-related advantages or privileges. Under Schwenk, a business, such as an amusement park or a dating service, may not discriminate against persons based on their race, sex, or religion. That is so even though the benefits those two businesses offer are recreational rather than business-related.¹¹

Were there any doubt about the question, our decision in Lloyd Lions Club removed it. It bears repeating what we stated in Lloyd Lions Club: “In Schwenk * * *, the Supreme Court construed those provisions [of the Public Accommodation Act] as prohibiting discrimination only ‘by business or commercial enterprises which offer goods or services to the public.’ ” Lloyd Lions Club, 81 Or App at 153 (quoting Schwenk, 275 Or at 334) (first emphasis added; second emphasis in original). The dissent would depart from Schwenk and Lloyd Lions Club and hold that membership in an organization will be subject to the Public Accommodation Act only when the benefits that membership entails “impact females in their financial, vocational, and income-earning activities and interests.” 180 Or App at 442 (Edmonds, P. J., dissenting). That distinction is at odds with our explanation of Schwenk's holding in Lloyd Lions Club and our reasoning in that decision.¹² Similarly, nothing in the Schwenk court’s discussion of the legislative history supports it.

Second, the dissent’s analysis is difficult to square with the text of the Public Accommodation Act. The dissent would hold that the question whether a service is a place of public accommodation turns on the type of benefits that the service provides. ORS 30.675(1), however, provides that a place of public accommodation means “any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise.” The statute does not say that the term “place or service” is limited to organizations that offer only business-related benefits or advantages to the public. It says precisely the opposite. According to the text of the statute, the term means “any * * * service offering * * * facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise.” (Emphasis added.)¹³

Finally, the dissent reasons that the legislative history reveals that the ‘legislature also focused on commercial ‘services’ that, in their provision of goods, services, lodging, amusements, or other things, impact females in their financial, vocational, and income-earning activities and interests.” 180 Or App at 442 (Edmonds, P. J., dissenting). The dissent concludes: “In the legislature’s view, the kinds of services that the act addresses are those involving financial matters or those in which business people associate together in such a way that the exclusion of females would disadvantage them.” Id. at 442.¹⁴ To be sure, some of the legislative history is directed to places and services that affect a woman’s ability to compete on equal terms with men in the business and financial world. But the legislature’s concern for equality was not that limited.

Eleanor Meyers, the representative from the Civil Rights Division of the Bureau of Labor, testified:

“The Bureau of Labor has heard from citizens about experiences indicating discrimination because of one’s sex exists in some restaurant facilities, some hotel and motel rental practices, some practices in the sale of business services, and a large number of experiences related to the granting of credit services.”

Testimony, House State and Federal Affairs Committee, HB 2116, March 2,1973, Ex 1 (statement of Eleanor Meyers). As Meyers’ testimony makes clear, the concern about equality for women was not limited to ensuring equality in business-related services but extended as well to equal treatment in renting motel and hotel rooms and to a woman’s ability to obtain credit on the same terms as a man. Similarly, in arguing that discrimination on the basis of sex should be prohibited, Jane Edwards explained that there was no rational basis for excluding women from taverns, without suggesting that equality of access to taverns related to anything other than social activities. Testimony, House State and Federal Affairs Committee, HB 2116, March 2,1973, Ex 6 (statement of Jane Edwards). The legislative history provides no reason to impose the limit that the dissent would on the statute’s text.

Our understanding of the legislative history “is also supported by the views expressed by the then Administrator of the Civil Rights Division of the Oregon Bureau of Labor in a summary of the Public Accommodation Act entitled ‘House Bill 216 — 1973 Amendments to Laws Against Discrimination’ and prepared shortly after passage of the 1973 Amendments.” See Schwenk, 275 Or at 334.¹⁵ The administrator explained:

“Because of the growing concern over the credit practices of various financial institutions the question was raised as to what constituted a ‘place of public accommodation’ and specifically whether the offering of credit and related services fell within the scope of this provision. The definition of a ‘place of public accommodation’ was therefore changed to make very clear that the law applies to any place offering any kind of goods or services to the public, including institutions which offer credit.”

Oregon State Bar CLE, 1973 Legislation 186 (1973) (emphasis added). Consistently with that explanation, the legislative history reveals that the 1973 Legislature did not intend to limit a person’s access to organizations depending on the type of benefits they offered.

We accordingly adhere to our decision in Lloyd Lions Club that the question whether an organization is a place of public accommodation 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. In this case, we reverse and remand to allow the trier of fact to determine whether the Eagles are, like the Lions, in the business of selling memberships and whether their membership criteria are unselective. This case arises on summary judgment, and there is evidence in this record that the Eagles are as much in the business of selling memberships as the Lions were. There is also evidence that, except for the Eagles’ decision to exclude women, they are as unselective in whom they admit as the Lions. Put another way, the trier of fact reasonably could find that the Eagles are a business and that their membership criteria are so generally unselective that they offer their product— membership in their organization — to the public.

To be sure, the nature of the Eagles’ product differs from that of the Lions. Although the Eagles’ local organizations are authorized to offer disability and death benefits to their members, the Eagles generally appear to offer more civic and social benefits and fewer economic or business advantages than the Lions offered. But that difference would not preclude the trial court from finding that the Eagles are a business subject to the act. As noted above, the act is not limited to businesses that supply economic or business advantages. Rather, it applies to businesses that offer to the public “accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise.” ORS 30.675(1).

Although the facts in this case are comparable to those in Lloyd Lions Club and the trier of fact properly could find as a factual matter that the Eagles are a place of public accommodation, we cannot say as a matter of law that it was required to do so. Indeed, in Lloyd Lions Club, we declined the defendant’s invitation to review de novo the “critical disputed findings of the trial judge in this case * .* * that defendant is in the business of selling memberships and that its membership criteria for men are unselective,” 81 Or App at 155 n 2, and we relied on the trial court’s resolution of that factual issue. As we implicitly recognized in Lloyd Lions Club, the trial court in that case could have drawn competing inferences whether the Lions were a community service or a commercial organization, and we conclude that the trier of fact could have done so here as well.¹⁶ We accordingly reverse the judgment and remand the case for a trial to determine whether the Eagles are subject to the Public Accommodation Act. See Lloyd Lions Club, 81 Or App at 156-57.

We note one final point. The dissent reasons that, if the Public Accommodation Act applies to the Eagles, it violates the right of association protected by the state and federal constitutions. In our view, it would be premature to reach those issues until the historical facts that underlie whether the Public Accommodation Act applies to the Eagles are resolved at trial. Not only would we be reaching a constitutional issue that could potentially be resolved on statutory grounds, but the parties may also develop additional facts on remand that will bear on the constitutional issue if the trier of fact finds that the act applies to the Eagles.¹⁷

Reversed and remanded.

1 ORS 30.670 through ORS 30.685 were renumbered in 2001 and are currently codified as ORS 659A.400 through ORS 659A.409. References to ORS 30.670 through ORS 30.685 in this opinion are to the 1999 version unless otherwise stated.

2 Because two of the plaintiffs have dismissed their claims, only Shimer’s claim remains. Defendants consist of the international Grand Aerie of the Fraternal Order of Eagles, the State of Oregon Aerie, and the local aerie, Willamette Aerie No. 2081. We refer to defendants collectively as the Eagles.

3 The Eagles’ brochure, “Active F.O.E. Membership and You,” refers to the conditions for receiving sickness and injury benefits. Section 115.1 of the statutes that govern the Eagles authorizes each local aerie to provide its members with sickness, disability, and funeral benefits. However, the local aerie that plaintiff wants to join does not offer its members disability benefits. Although the local aerie previously had offered its members death benefits, no new member has been enrolled in the death benefit program for many years.

4 The act was first enacted in 1953. See Or Laws 1953, ch 495, § 2. It provided:

“A place of public accommodation, resort or amusement shall mean any hotel, motel or motor court, any place offering to the public food or drink for consumption on the premises, or any place offering to the public entertainment, recreation or amusement!.]”

5 The plaintiff in Schwenk wanted to be a Cub Scout; she sued the Boy Scouts because they operated the cub scout program she wanted to join. Schwenk, 275 Or at 329.

6 The court described the statutory phrase “place or service” as a unitary “term,” the meaning of which was ambiguous. Schwenk, 275 Or at 331. In inquiring what that term meant, the court did not distinguish between the words “place” and “service” or attempt to assign separate meanings to them. See id. at 334-35.

7 The court noted that, when Eleanor Meyers was asked whether the bill would affect the YMCA and the YWCA, she replied:

“ T don’t believe it would as such. That’s a question that needs further research. It depends on what services could be called distinctly private.’ ”

Schwenk, 275 Or at 334 (quoting Meyers’ testimony).

8 In Lloyd Lions Club, the International Association of Lions Clubs had revoked the Lloyd Lions Club’s charter because it had accepted women as members. 81 Or App at 153. The local club brought an action against the international association alleging that the association had violated the Oregon Public Accommodation Act. Id.

9 We did not frame the question as whether membership in the Lions, viewed separately, was a place or service subject to the act. See Lloyd Lions Club, 81 Or App at 156-57. Rather, the question that we answered was whether the national Lions organization was a business or commercial enterprise. Id.

10 It appears from this statement that the dissent would engage in a two-part inquiry in determining whether a service is a place of public accommodation. It would ask initially whether the service is commercial rather than noncommercial. It would ask next whether the service offers business-related or economic advantages. Only if the answer to both questions is “yes” would the dissent hold that the service is subject to the Public Accommodation Act.

11 The dissent relies on the reference to “business or commercial activities” in Justice O’Connell’s dissenting opinion in Schwenk to support its reading of the majority opinion in that case. 180 Or App at 439 (Edmonds, P. J., dissenting). Not only is the phrase “business or commercial activities” consistent with our understanding of the majority opinion, but Justice O’Connell later referred to the “majority’s conclusion that the legislature intended the public accommodatio[n] act to apply only to business or commercial enterprises’’ Schwenk, 275 Or at 342 (O’Connell, J., dissenting) (emphasis added).

12 In Lloyd Lions Club, we reasoned that the national Lions organization was itself a business, that its members were its customers, and that membership in the organization was the commodity that it sold them. 81 Or App at 156.

13 Textually, the definition of a place of public accommodation divides into three parts: The phrase means “[1] any place or service [2] offering to the public [3] accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise.” ORS 30.675(1). In Schwenk, the court addressed the first part of that definition. It held that the “term ‘place or service’ ” was ambiguous and interpreted it. Schwenk, 275 Or at 331. The court did not address the third part of the definition, which is unambiguously broad.

14 Although the dissent reasons that the legislature focused on places and services that affect women in their business and financial lives, see 180 Or App at 441-42 (Edmonds, P. J., dissenting), it apparently would apply the limitation that it draws from the legislative history to services but not to places. The dissent never explains why the limiting principle it derives from the legislative history would not apply equally to both places and services, since the Schwenk court recognized that both words were ambiguous. See Schwenk, 275 Or at 331.

15 The Supreme Court relied on another portion of this summary to support the conclusion that it drew from the legislative history. See Schwenk, 275 Or at 334-35. Generally, after-the-fact summaries of legislative history have little, if any, weight in determining what the legislature intended. We rely, however, on the summary only to the same extent that the court did — as support for the conclusion that we draw from the testimony that was before the legislature when it enacted the 1973 amendments.

16 The dissent reasons that a passage from Genevieve Lahmann’s affidavit should not have been admitted. 180 Or App at 451-52 (Edmonds, P. J., dissenting). It also reasons that an advertisement offering a discount to Eagles’ members, although admissible, does not reflect the Eagles’ policy. Id. at 452-53. Both pieces of evidence bear on the question that the dissent would find dispositive — whether the Eagles offer business-related benefits. As explained above, however, the question is whether the Eagles are a business or commercial enterprise, not whether they offer business-related benefits. Beyond that, defendants moved to strike only one clause in the passage that the dissent quotes from Lahmann’s affidavit. They moved to strike the clause, “Others consider Eagles membership to be a benefit to their business interests.” Not only have defendants not assigned error to the trial court’s ruling on their motion to strike, but, even if the court had struck the statement, the remainder of the sentence, which was not the subject of defendant’s motion to strike, makes the same point. The next clause in the sentence states: “Eagles are encouraged to patronize the businesses of fellow Eagles members.”

17 For example, although the Eagles no longer accept women as members, it appears that the women who were admitted from 1995 to 1998 remain in the organization. If so, their continued presence may bear on the question whether including women within the Eagles would force the organization to send a message concerning women with which the Eagles disagree. Compare Boy Scouts of America v. Dale, 530 US 640, 653, 120 S Ct 2446, 147 L Ed 2d 554 (2000) (requiring the Boy Scouts to accept a gay scout leader would “force the organization to send a message * * * that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior,” a message with which the Scouts disagreed), with Roberts v. United States Jaycees, 468 US 609, 617-29, 104 S Ct 3244, 82 L Ed 2d 462 (1984) (concluding after a fact-intensive analysis that requiring the Jaycees to include women as members would not affect their constitutionally protected associational interests).