Lahmann v. Grand Aerie of Fraternal Order of Eagles

121 P.3d 671, 202 Or. App. 123, 2005 Ore. App. LEXIS 1343

• Court: Court of Appeals of Oregon
• Decided: October 12, 2005
• Docket: 99C-17528; A122320
• Status: Published

Opinions

SCHUMAN, J.

This case requires us to decide whether the Fraternal Order of Eagles’ policy of barring women from membership in its “aeries” violates the Public Accommodations Act, former ORS 30.670 to 30.685 (1999),¹ and if so, whether enforcement of the act so as to compel the organization to consider applications from women would be unconstitutional. The case is before us for the second time. In our first opinion, we held that the act prohibits an organization such as the Eagles from discriminating in its membership policies on the basis of sex if the organization is a “business or commercial enterprise” and “its membership policies are so unselective that the organization can fairly be said to offer its services to the public.” Lahmann v. Grand Aerie of Fraternal Order of Eagles, 180 Or App 420, 434, 43 P3d 1130, rev den, 334 Or 631 (2002) CLahmann I). We remanded the case to the trial court, however, because, on the record before us, we were unable to determine whether those factual predicates existed. The trial court found that they did and entered a judgment against the Eagles.² The Eagles appeal, renewing their arguments that the act does not apply to them and that, if it does, such an application is unconstitutional. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Established in 1898, the Fraternal Order of Eagles is a national fraternal organization with over one million members. The group’s stated purpose is to promote principles of “liberty, truth, justice, [and] equality, for home, for country, and for God.” At the national level, the Eagles have supported the enactment of pension and workers’ compensation laws. At the state and local level, members perform community service projects and socialize together.

The Eagles have a national governing body called the Grand Aerie, which oversees state and local aeries. It does so by issuing “statutes,” one of which establishes the membership requirement at issue in this case: “No person shall be eligible to be elected to membership in any Local Aerie unless such a person is a male, is of good moral character, and believes in the existence of a Supreme Being [.]” Although that requirement has been in existence since the organization’s founding, the Grand Aerie in 1952 authorized the establishment of “Ladies’ Auxiliaries” for women at the local and national levels. According to the Ladies’ Auxiliary Rules and Regulations, the Grand Aerie retains “complete jurisdiction and control over the Grand [Ladies’] Auxiliar/’ with limited exceptions, and the “Grand [Ladies’] Auxiliary shall have no purposes that are apart from the aims of the Fraternal Order of Eagles.” A local aerie may be affiliated with an auxiliary, but auxiliary members may not attend aerie meetings or vote on aerie matters.

In 1995, the Grand Tribunal of the Eagles, a branch of the national organization charged with interpreting the Eagles’ constitution, issued an opinion stating that “the use of the word ‘male’ in [the membership requirement] is not consistent with prevailing civil law.” As a result, the Willamette aerie, along with many others, admitted some women to membership. That practice, however, was short lived. In 1998, the Grand Aerie rejected a proposal to abandon the male-only requirement for aerie membership, and the Grand Tribunal withdrew its opinion concerning the male-only requirement. Since then, the Grand Aerie has not permitted local aeries to accept membership applications from women, and the Willamette aerie has followed that policy.

The Willamette aerie has an auxiliary. The two groups share a lodge, which features a bar, dining facilities, a dance floor, and meeting rooms. In 1999, plaintiff, a member of the Willamette auxiliary, applied for membership in the Willamette aerie, but her application was rejected on the basis of her gender. Thereafter, plaintiff (and two other rejected female applicants who have since voluntarily dismissed their claims) initiated this action under the Public Accommodations Act against the national, state, and local aeries, seeking declaratory and injunctive relief.

The relevant parts of the act are ORS 30.670 and ORS 30.675. ORS 30.670 stated:

“All persons within the jurisdiction of this state shall be entitled to the full 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 30.675 defined the phrase “place of public accommodation”:

“(1) A place of public accommodation, subject to the exclusion in subsection (2) of this section, 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.

“(2) However, a place of public accommodation does not include any institution, bona fide club or place of accommodation which is in its nature distinctly private.”

On cross-motions for summary judgment, the trial court denied defendants’ motion and granted plaintiffs’, ruling that the organization is a “place of public accommodation” because it emphasizes recruitment, offers its services to the public, and is unselective in recruiting except for its rule against admitting women to aeries. The Eagles appealed, arguing that the trial court’s understanding of “place of public accommodation” was too expansive. Lahmann I, 180 Or App at 424. According to the Eagles, the act did not apply to fraternal organizations. As noted, we rejected that position and explained that “the question whether an organization is 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 rights: the right of religious freedom guaranteed by Article I, sections 2 and 3, of the Oregon Constitution; the right to “assemble] together in a peaceable manner to consult for their common good” guaranteed by section 26; and the right of “expressive association” found in the First Amendment to the United States Constitution. We find neither argument to be persuasive.

II. APPLICABILITY OF THE PUBLIC ACCOMMODATIONS ACT

In their first assignment of error, the Eagles take issue with our conclusion in Lahmann I that an organization that bars women but otherwise has a de facto open membership policy cannot qualify for the act’s exemption for distinctly private organizations. The first impediment that argument confronts is the “law of the case” rule. As the Oregon Supreme Court has explained, “when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive * * * upon the appellate court itself in any subsequent appeal * * State v. Montez, 324 Or 343, 347, 927 P2d 64 (1996), cert den, 520 US 1233 (1997) (quoting State v. Pratt, 316 Or 561, 569, 853 P2d 827 (1993)). The Eagles acknowledge the general applicability of the rule, but they point out that we have in the past recognized that “[t]he law of the case doctrine is essentially one of judicial economy and judicial discretion,” State v. Metz, 162 Or App 448, 454, 986 P2d 714 (1999), rev den, 330 Or 331 (2000), and that the rule “is generally not applied with the same rigor as res judicata,” Morley v. Morley, 24 Or App 777, 781, 547 P2d 636 (1976).

Although we may, as the Eagles argue, exercise the discretion to waive a rigid application of the rule when we independently discover (or a party brings to our attention) a persuasive new argument, particularly one based on new information or new developments in the law, this case does not present an appropriate occasion for such a waiver. The Eagles’ new arguments are not persuasive.

In their first argument, they contend that our opinion in Lahmann I significantly and prejudicially misconstrues binding precedent. They reason as follows. In Schwenk v. Boy Scouts of America, 275 Or 327, 336, 551 P2d 465 (1976), the Supreme Court held that the Boy Scouts did not qualify as a “public accommodation” under the act. The court reached that decision despite the fact that it knew from the parties’ briefs that the organization was open to all male applicants of the appropriate age. Thus, the Eagles conclude, it must be true that an organization with a de facto nonselective membership policy can qualify for the exemption. We therefore erred in Lloyd Lions Club v. Int. Assoc. of Lions Clubs, 81 Or App 151, 157, 724 P2d 887 (1986), rev dismissed, 303 Or 698 (1987), when we held that an organization with a de facto nonselective membership policy cannot be a distinctly private organization for purposes of the act. It 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, 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.³

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 Article I, sections 2, 3, and 26, of the Oregon Constitution, 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 [sic] 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 (sic) opinions, or interfere with the rights of conscience.”

The Eagles contend that “the [a]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 “ [i] f the [a]ct applies to defendants’ membership policies, then all of the [a]ct applies.” (Emphasis in original.)

We agree with the trial court. Plaintiffs 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 of assembly under Article I, section 26, of the Oregon Constitution, which states:

“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 (sic).”

According to the Eagles, application of the act restrains their members “from assembling together in a peaceable manner to consult for their common good[.]”

The trial court ruled that the Eagles’ argument under section 26 was controlled by Roberts v. United States Jaycees, 468 US 609, 104 S Ct 3244, 82 L Ed 2d 462 (1984). According to the trial court, that case stands for the proposition that “[t]he right of assembly is not absolute and may be restricted * * * in order to protect the citizenry from the harm of gender discrimination.” The trial court seemed to assume that section 26 confers a right of association that is coextensive with the right of “expressive association” in the First Amendment. However, in the Oregon Bill of Rights, the right to assemble stands in a section discrete from the rights of free speech and free exercise of religion. It differs from its federal counterpart in text, context, judicial gloss, and historical underpinning. To the extent that Roberts is relevant to this case, it is relevant to the Eagles’ federal claim, and we discuss it in that context below. The Eagles’ argument under section 26 requires a separate inquiry.

Underlying that argument are two premises. The first is that the “assembling together” to which the section refers includes assembly whose primary objective is what the trial court found the Eagles’ purpose to be — marketing civic or social benefits such as amusement — and is not limited to assembly directed primarily toward determining some political policy or achieving some political objective. The second premise is that freedom to assemble necessarily implies freedom to exclude unwanted participants from the assembly. In order to prevail, the Eagles must be correct in both of those premises. Because we conclude below that the first premise is wrong, we do not deal with the second premise.

The existing case law provides no support for the conclusion that section 26 applies to social gatherings or, indeed, to any gatherings other than those dedicated to political advocacy. When Oregon courts discuss section 26, they do so exclusively in that context.⁴ Although we mentioned section 26 in Lloyd Lions Club, 81 Or App at 158, we did so only to report that the defendants had cited that provision in their argument. We did not discuss it.

The text of section 26, on the other hand, provides useful interpretive material. It protects the rights of “the inhabitants” to engage in three activities: “assembling together * * * to consult for their common good,” “instructing their Representatives,” and “applying to the Legislature for redress of greviances (sic).” The uncomplicated structure of the section suggests that the three protected activities are substantively related; no original section of Article I serializes a list of unrelated rights. The last two rights, instruction of representatives and applying to the legislature for redress of grievances, are unequivocally political. Thus, the section’s wording suggests that “assembling together” refers to assembly for deliberation about issues affecting the welfare of the public (the “common good” of “the inhabitants”), and the balance of the section protects the ability of “the inhabitants” to give practical effect to their deliberations by ensuring that they may voice their determinations to others who might respond politically.

The operative terms of the section, as they were defined in Noah Webster, An American Dictionary of the English Language (1828) (photo reprint 1970), support that interpretation. The phrase “to assemble,” when used intransitively, meant, “[t]o meet or come together; to convene, as a number of individuals.” Webster, An American Dictionary at 14. Thus, “assembling together” is easily understood as convening in a single body, or “assembly.” Moreover, as we explain below, meeting together to confer about issues affecting society was precisely the province of the “assembly,” a town-based, political body that deliberated over “instructions” to representatives in eighteenth- and nineteenth-century America.

The term “consult,” when used as an intransitive verb, indicated deliberation by a collective body to develop a position:

“1. To seek the opinion of another by, a statement of facts, and suitable inquiries, for the purpose of directing one’s own judgment; followed by with.

“Rehoboam consulted with the old men. 1 Kings 12. David consulted with the captains of thousands. 1 Chronicles xiii.

“2. To take counsel together; to seek opinions and advice by mutual statements, enquiries and reasonings; to deliberate in common.

“The chief priests consulted that they might put Lazarus to death. John xii.

“3. To consider with deliberation. Luke xiv.”

Id. at 47 (emphasis in original). Thus, “assembling together to consult” meant to gather and deliberate in order to formulate a judgment or policy. The purpose of the group deliberation, determining and promoting “the common good” of “the inhabitants,” also indicates political objectives. Thus, when section 26 was drafted, as now, protecting the right of the inhabitants of the state to assemble together to consult for their common good cannot plausibly be construed to mean protecting the right of a self-selected group to share drinks, food, and fellowship — the “amusements” or “civic and social benefits” that the trial court found to be the primary service provided by the Eagles.

An examination of the historical foundation on which section 26 was built also demonstrates that its objective was to protect the people’s right to gather for the purpose of deliberating on and promoting political policies. Although we lack documentation of the Oregon framers’ purpose for enacting section 26, an examination of the general historical circumstances that led to the creation of similar assembly clauses supports the conclusion that the section was aimed at protecting the people’s ability to convene deliberative gatherings for the purpose of promoting the “common good,” formulating policy positions, and taking them to the political arena.

There is no evidence of debate concerning section 26 in the sessions of the standing committee on the Bill of Rights at the Oregon Constitutional Convention, and the Oregon framers adopted the provision with no discussion. See generally Charles Henry Carey ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 (1926); see also Claudia Burton and Andrew Grade, A Legislative History of the Oregon Constitution of 1857 Parti (Articles I & II), 37 Willamette L Rev 469, 544 (2001) (noting absence of evidence of debate on section 26). The proceedings of the Oregon Constitutional Convention indicate, however, that the Bill of Rights of the Indiana Constitution served as a model for Oregon’s. See, e.g., Carey, The Oregon Constitution at 101-02 (remarks of convention delegate Delazon Smith advocating the inclusion of a bill of rights in the Oregon Constitution and characterizing the Indiana Constitution of 1851 as the “best pleas [ing]” “of all the constitutions of all the states”). Article I, section 26, of the Oregon Constitution is identical to Article I, section 31, of the Indiana Constitution of 1851, and it is not difficult to conclude that section 26 was drawn directly from that document. See Carey, The Oregon Constitution at 469 (tracing sources of the Oregon Constitution); Burton and Grade, 37 Willamette L Rev at 483-84 (reviewing the sources of the Oregon Constitution and noting the strong circumstantial evidence that the “members of the Committee on Bill of Rights drew heavily on the Bill of Rights of the Indiana Constitution of 1851 when drafting Oregon’s Bill of Rights”).

The 1850 Indiana Constitutional Convention adopted its version of the assembly clause on December 6, 1850, without amendment or debate. 1 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 1850, 989 (1850). The source of Indiana’s assembly clause is unclear. Parts of the Indiana Constitution of 1816, subsequently amended by the 1850 Indiana Constitutional Convention, may have been modeled on provisions in other state constitutions, including those of Ohio, Kentucky, Tennessee, and Pennsylvania. See generally Robert Twomley, The Indiana Bill of Rights, 20 Ind L J 211, 212-13 (1944). The assembly clauses in those possible models are strikingly similar, frustrating attempts to trace the “bloodline” of Oregon’s assembly clause to predecessors that predate the Indiana Constitution.⁵ There is no record of case law interpreting the assembly clause of the Indiana Constitution before the enactment of the Oregon Constitution.

Lacking useful evidence of the intent of the framers of either the Oregon or Indiana conventions concerning section 26, or its likely model, we are left to seek out “historical circumstances” more generally.

The right of the people to voice their concerns to governmental representatives is evident in the Magna Carta,⁶ but the predicate right to gather in order to deliberate matters appears to have grown out of the historical context of town governance in prerevolutionary America. A useful starting point for appreciating the significance of the right of assembly is eighteenth-century Massachusetts, where town assemblies served a vital role in government, and where British attempts to suppress assemblies would contribute to the declaration and preservation of assembly rights across the young nation.

John Adams’s Letter to Abbe De Marly described town inhabitants’ practice of gathering and deliberating issues of consequence in colonial Massachusetts:

“These towns contain upon an average, say six miles or two leagues square. The inhabitants who live within these limits are formed by law into corporations, or bodies politic, and are invested with certain powers and privileges, as for example, to repair the great roads or highways, to support the poor, to choose their selectmen, constables, collectors of taxes, and above all, their representatives in the legislature; as also, the right to assemble, whenever they are summoned by their selectmen, in their town halls, there to deliberate upon the public affairs of the town, or to give instructions to their representatives in the legislature. The consequences of these institutions have been, that the inhabitants, having acquired from their infancy the habit of discussing, of deliberating, and of judging public affairs, it was in these assemblies of towns or districts that the sentiments of the people were formed in the first place, and their resolutions were taken from the beginning to the end of the disputes and the war with Great Britain.”

Charles F. Adams ed., 5 The Works of John Adams 492, 495 (1851) (emphasis added). In prerevolutionary Massachusetts (then a royal province), the work of the assembly of townspeople was a necessary element of local and regional governance. Margaret E. Monsell, “Stars in the Constellation of the Commonwealth”: Massachusetts Towns and the Constitutional Right of Instruction, 29 New Eng L Rev 285, 288 (1995). The right of representation to the wider, royal provincial assembly “belonged to the town as a corporate body rather than to its inhabitants as individuals,” so the deliberation and communication of concerns of provincial import, particularly relations with the crown, rested on the collective shoulders of townspeople gathered in local assemblies. Id. at 291. Individuals within the town meeting drew up instructions for the town’s representative to the provincial body, “and these would then be debated and voted upon by the entire town meeting.” Id. In addition to managing the town’s internal affairs, townspeople developed positions on matters of regional importance and, at times, instructed representatives to take positions directly opposing the British Parliament. See, e.g., John Adams, Instructions of the Town of Braintree to Their Representative Ebenezer Thayer, Charles F. Adams ed., 3 The Works of John Adams 465, 467 (1851) (urging noncompliance with the Stamp Act of 1765).

Attempts by the British government to ban town assemblies in Massachusetts catalyzed the Revolution. In 1774, the so-called Intolerable Acts required appointment of council representatives by royal writ rather than election and starkly limited town meetings to a single, annual gathering for the election of assembly representatives. Monsell, 29 New Eng L Rev at 293. The towns continued to meet in defiance of the British mandate. Id. That year, representatives from every colony except Georgia met in Philadelphia at the First Continental Congress to protest the Intolerable Acts, define America’s rights, and limit British power. See generally Erwin C. Surrency, The Transition from Colonialism to Independence, 46 Am J Legal Hist 55 (2004). The Declaration and Resolves of the First Continental Congress recited that “assemblies have been frequently dissolved, contrary to the rights of the people, when they attempted to deliberate on grievances,” and proclaimed: “The inhabitants of the English colonies * * * have a right peaceably to assemble, consider of their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.” Declaration and Resolves of the First Continental Congress, 1774, reprinted in Bernard Schwartz, 1 The Bill of Rights: A Documentary History 215, 216, 217 (1971). Shortly thereafter, the Declaration of Independence lamented the failure of the British government to answer the concerns of the colonies, stating that colonists’ “repeated Petitions have been answered only by repeated injury,” and the Revolutionary War ensued.

In the decades after the war, the colonies-turned-states explicitly reserved to the people the right to assemble and instruct (or petition) their political representatives. For example, Article 19 of the Declaration of Rights in the Massachusetts Constitution of 1780 guaranteed the right of the people to assemble in towns for the purpose of consulting about the “common good,” in phrasing very similar to Oregon’s Article I, section 26:

“The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.”

See also, e.g., NC Const, Art 18 (1776) (“the people have a right to assemble together, to consult for their common good, to instruct their Representatives, and to apply to the Legislature, for redress of grievances”); NH Const, Art 32 (1784) (“The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and request of the legislative body * * * redress * * *.”); Pa Const, Art IX, § 20 (1790) (“The citizens have a right in a peaceable manner to assemble together for their common good, and to apply to those invested with the powers of government for redress of grievances.”).

Thus, the drafters of the earliest state constitutions labored under the recent memory of British attempts to suppress town meetings and assert control over representative governments. It is not difficult to infer that those actions figured prominently in colonists’ decisions to safeguard the right to assemble, and to fuse it to guarantees of the right of instruction and the right to petition the legislature for assistance in redressing wrongs.

In 1791, the Bill of Rights was added to the federal constitution; the First Amendment guaranteed the rights of assembly and petition:⁷

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Significantly, the drafters of the federal bill of rights did not parse into separate amendments the rights of free speech and free assembly; nor did they specify that the right of assembly was “for the purpose of’ petition. See Richmond Newspapers, Inc. v. Virginia, 448 US 555, 578 n 13, 100 S Ct 2814, 65 L Ed 2d 973 (1980) (discussing deliberations of First Congress concerning assembly rights). Nonetheless, the federal right of assembly was construed in the nineteenth century as the right to gather for the express purpose of consulting to petition the federal government. See, e.g., Slaughter-House Cases, 83 US (16 Wall) 36, 118, 21 L Ed 394 (1872) (Bradley, J., dissenting); see also Jason Mazzone, Freedom’s Associations, 77 Wash L Rev 639, 742 (2002) (addressing associations protected by the assembly clause and noting “we have largely overlooked [the] political aspect of associations that lay at the core of their treatment in the early Republic”).

In time, the right of assembly and the right of free expression were conflated in the First Amendment. See, e.g., McDonald v. Smith, 472 US 479, 490, 105 S Ct 2787, 86 L Ed (1985) (Brennan, J., concurring) C‘[W]e have recurrently treated the right to petition similarly to, and frequently as overlapping with, the First Amendment’s other guarantees of free expression.” (Emphasis added.)); Thomas v. Collins, 323 US 516, 530, 65 S Ct 315, 89 L Ed 430 (1945) (“It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. * * * They are cognate rights * * * and therefore are united in the First Article’s assurance.”). Ultimately, federal constitutional law came to include a guarantee of expressive association, as we discuss in the next section. But no similar development has occurred in Oregon constitutional law. At most, the rights of free expression and assembly or instruction have been simultaneously invoked in certain fact situations and the claims disposed of either separately or together in an almost summary fashion. See, e.g., Ausmus, 336 Or at 508.

In sum, from an examination of assembly clauses in their initial social and political contexts, we conclude that they were drafted in literal terms as a reaction against attempts to limit the ability of colonists to assert themselves politically. Assuming that the framers of the Oregon Constitution appreciated the import of the right of assembly for consultation on the common good to the communities that employed it in the late-eighteenth through the mid-nineteenth century, we conclude that 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.

We therefore cannot conclude, as the Eagles would have us do, that section 26 confers a right of association that applies to organizations such as the Eagles. No Oregon court has construed the provision in that manner. The text does not address assembly for expressions apart from those directed specifically for the “common good.” Nor does the initial political purpose of assembly clauses indicate that the framers of the Oregon Constitution understood section 26 as an expansive guarantee of expressive association or purely social assembly divorced from matters of public concern. Although it is true that, at the national level, the Eagles have on occasion apparently been known to support particular political objectives, nothing in the record before us, and nothing suggested by the Eagles, indicates that discourse about matters of public concern or political importance occupies anything more than an insignificant amount of aerie time or resources. And to the extent that such matters are a part of the Eagles’ mission, nothing in the record suggests that allowing women to join aeries would interfere with that function.

C. First Amendment to the United States Constitution

Finally, the Eagles argue that application of the act abridges their members’ expressive association rights under the First Amendment, because their membership policy to exclude women is itself “expressive” and that admission of women in the aerie would impair its secret rituals in which aerie members address one another as “Brother” and refer to “manly character” and “Brotherhood.” The trial court ruled that the Eagles’ claim could not meaningfully be distinguished from a similar claim that was rejected by the United States Supreme Court in Roberts. We agree.

The relevant facts in Roberts and in the present case are strikingly similar. Like the Eagles, the Jaycees were a national organization whose membership was limited to males, with an associated, nonvoting membership available to women. Roberts, 468 US at 613. Like the present case, the litigation in Roberts arose under a state statute prohibiting discrimination in public accommodations. Like Oregon’s act, the Minnesota Human Rights Act broadly defined “public accommodation” as “ ‘a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.’ ” Id. at 615 (quoting Minn Stat § 363.03 (1982)). Like the Eagles, the Jaycees maintained that the civil rights statute, by compelling them to admit women, violated members’ freedom of association. Id. at 612.

The Court first held that the First Amendment did, in fact, protect association: “An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.” Id. at 622. Thus, the right to associate is “implicit in the right to engage in activities protected by the First Amendment.” Id. The Court also acknowledged that, in some cases, government interference with a private organization’s internal policies could interfere with members’ rights to associate for the exercise of free expression: “There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire.” Id. at 623.

The Court nonetheless emphasized that, even in such cases, the right to associate for expressive purposes is not absolute; rather, its restriction “may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas that cannot be achieved through means significantly less restrictive of associational freedoms.” Id. Applying those precepts to the Jaycees, the Court determined that the state’s goal of “eradicating discrimination against its female citizens,” a central purpose of the statute, “plainly serves compelling state interests of the highest order.” Id. at 623, 624. The Court concluded that the state achieved its interests in the least restrictive way by applying the Human Rights Act to prevent the Jaycees from restricting regular membership to men. Id. at 626.

The Court found no evidence that admission of women as regular members would impair the Jaycees’ ability to engage in the full range of “civic, charitable, lobbying, fundraising, and other activities worthy of constitutional protection under the First Amendment.” Id. at 627. In terms that can be applied to the present case with only insignificant alterations, the Court continued:

“There is * * * no basis in the record for concluding that admission of women as full voting members will impede the organization’s ability to engage in these protected activities or to disseminate its preferred views. The Act requires no change in the Jaycees’ creed of promoting the interests of young men, and it imposes no restrictions on the organization’s ability to exclude individuals with ideologies or philosophies different from those of its existing members. Moreover, the Jaycees already invites women to share the group’s views and philosophy and to participate in much of its training and community activities. Accordingly, any claim that admission of women as full voting members will impair a symbolic message conveyed by the very fact that women are not permitted to vote is attenuated at best.”

Id. (citations omitted).

The reasoning of Roberts was applied in Bd. of Dirs. of Rotary Int’l v. Rotary Club, 481 US 537, 107 S Ct 1940, 95 L Ed 2d 474 (1987). There, the defendant, Rotary International (Rotary), was a private humanitarian organization devoted to encouraging high ethical standards in professional contexts and “good will and peace in the world.” Id. at 539 (citation omitted). Rotary challenged the application of California’s public accommodation act, the Unruh Act, to require the admission of women in its all-male clubs. Rotary contended that its exclusionary policy created an “aspect of fellowship” that the men enjoyed, and that the all-male policy facilitated the establishment of clubs in foreign countries. Id. at 541. The Court determined that application of the statute did not unduly interfere with the club members’ freedom of expressive association, explaining:

“In this case * * * the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members’ ability to carry out their various purposes. As a matter of policy, Rotary Clubs do not take positions on ‘public questions,’ including political or international issues. To be sure, Rotary Clubs engage in a variety of commendable service activities that are protected by the First Amendment. But the Unruh Act does not require the clubs to abandon or alter any of these activities. It does not require them to abandon their basic goals of humanitarian service, high ethical standards in all vocations, good will, and peace. Nor does it require them to abandon their classification system or admit members who do not reflect a cross section of the community. Indeed, by opening membership to leading business and professional women in the community, Rotary Clubs are likely to obtain a more representative cross section of community leaders with a broadened capacity for service.”

Id. at 548-49 (citations omitted). The Court added, “Even if the Unruh Act does work some slight infringement on Rotary members’ right of expressive association, that infringement is justified because it serves the State’s compelling interest in eliminating discrimination against women.” Id. at 549.

Thus, both Roberts and Bd. of Dirs. of Rotary Int’l demonstrate that application of an antidiscrimination law does not impermissibly abridge a group’s right to expressive association when the expression resides principally in a membership policy that discriminates based on sex. In the present case, although application of the act would make the gendered language in the aerie rites inaccurate for mixed company, the effect on the entire ritual is slight. Moreover, a preference for male company alone does not amount to a “significant” burden on a group’s expressive association. See Bd. of Dirs. of Rotary Int’l, 481 US at 548. As in Roberts, the record does not support the conclusion that requiring the Eagles to evenhandedly consider women for membership will significantly (or even modestly) impair the Eagles’ broad-based social and charitable efforts. See Roberts, 468 US at 627. With the exception of the ritual, which is only occasionally performed, and once-weekly aerie membership meetings, all of the Eagles’ activities are undertaken by both aerie and auxiliary members. The record indicates that aerie and auxiliary members cooperate directly in recruitment, committee service, fundraising, and charitable activities. Together, they accomplish the principal task of their social mission — socializing — on a daily basis. Finally, the fact that women, for a time, were permitted to join the Willamette aerie and were allowed to remain cuts against any claim that application of the act will impose more than a minor burden. See Bd. of Dirs. of Rotary Int’l, 481 US at 549 n 8 (“Appellants’ argument [that admission of women will impair the effectiveness of its organization] is undermined by the fact that women already attend the Rotary Clubs’ meetings and participate in many of their activities.”).

The Eagles rely on Boy Scouts of America v. Dale, 530 US 640, 120 S Ct 2446, 147 L Ed 2d 554 (2000), in which the Court held that application of New Jersey’s public accommodations law to require the Boy Scouts to retain a homosexual member violated the Boy Scouts’ expressive association rights. Dale employed the same analysis that the Court developed in Roberts and Bd. of Dirs. of Rotary Int’l. It inquired whether the organization engaged in expressive activity; if so, whether requiring the organization to accept the person who was denied membership would interfere in a significant way with that expressive activity; and, if so, whether that interference was accomplished in the least intrusive manner and served a compelling interest. Dale, 530 US at 647-48. The Court determined that the Boy Scouts, whose stated mission was the inculcation and transmission of values, including, centrally, the value that homosexuality was immoral and unclean, engaged in expressive activity. Id. at 651. Because the antihomosexual value was central, frequently asserted, and long-standing, and because accepting an acknowledged homosexual as a scout leader would send a message of acceptance that was contrary to that value, such acceptance would significantly interfere with the organization’s ability to express its message. Id. at 654-56. Finally, the Court concluded that “[t]he state interests embodied in New Jersey’s public accommodations law do not justify such a severe intrusion on the Boy Scouts’ right to freedom of expressive association.” Id. at 659.

The Eagles’ reliance on Dale is misplaced. In this case, the slight impairment to the Eagles’ expressive activity does not approximate the level of harm that triggered the Court’s concern in Dale. Whereas, according to the Court, requiring admission of homosexuals to the Boy Scouts would be tantamount to promoting homosexual conduct, a clear violation of that organization’s values, the Eagles has not demonstrated any similar harm that accepting women would inflict on its effort or goals — “liberty, truth, justice, equality, for home, for country, and for God.” Rather, as in Roberts and Bd. of Dirs. of Rotary Int’l, “the enforcement of [the act] would not materially interfere with the ideas that the organization sought to express.” Dale, 530 US at 657. In any case, even if application of the act worked a significant impairment on the Eagles’ association rights, the state’s compelling interest in remedying gender discrimination by means of the Public Accommodations Act far exceeds any harm to the Eagles’ expressive association.

IV. CONCLUSION

The Public Accommodations Act applies to the Eagles because, as the trial court found and the Eagles do not dispute, the organization provides amusement and civic services, and it offers them unselectively to the male public. Enforcing the act so as to require the Eagles to consider women for membership on the same terms that they consider men does not violate the organization’s members’ rights under the state constitution’s guarantee of religious freedom, nor does it violate their right freely to assemble to consult for their common good; neither case law, text, context, nor history provides any reason to apply section 26 to groups engaged principally in activities outside of the political realm. Moreover, applying the act will not violate the members’ right of expressive association because admitting women will not require the Eagles to send a message contrary to one of the organization’s core values, and, even if it did, that interference with associational rights would be justified by the state’s compelling interest in eliminating gender discrimination.

The dissent declares that “the import” of our decision “is that females must now be admitted to male-only social organizations and males must be admitted to female-only social organizations, or those establishments are in violation of the law.” 202 Or App at 149 (Edmonds, J., dissenting). We disagree. The decision stands only for the proposition that a business or commercial enterprise in Oregon that is otherwise open to the public does not have a constitutional right to discriminate on the basis of gender, and that, in fact, such discrimination violates the Oregon Public Accommodations Act. At this stage in the evolution of our political community, laws permitting the opposite of that conclusion would be cause for alarm.

Affirmed.

1 In 2001, ORS 30.670 to 30.685 were renumbered as ORS 659A.400 to 659A.409 and amended in ways that are not relevant to this case. References to the Public Accommodations Act in this opinion are to the 1999 version, unless otherwise noted.

2 We use the term “Eagles” to refer variously to defendant organizations, the national Fraternal Order of Eagles and its Oregon and Willamette Aeries, and to aerie members.

3 The dissent argues that the question whether the Eagles are “distinctly private” is a mixed question of fact and law, and the legal issue is whether an organization with a nonselective admission policy can be called “distinctly private” for purposes of the act. 202 Or App at 152 (Edmonds, J., dissenting). That is correct. However, it is a legal question that we decided in Lahmann I, contrary to the dissent’s current position (a position, we note, that the Eagles themselves do not here argue). In that case, we reiterated our position in Lloyd Lions Club v. Int. Assoc. of Lions Clubs, 81 Or App 151, 157, 724 P2d 887 (1986), rev dismissed, 303 Or 698 (1987), that “some private organizations may have such unrestrictive membership criteria that the organization is effectively open to the public.” Lahmann 1, 180 Or App at 429. We then restated that legal conclusion and remanded the case to the trial court to decide the remaining fact question — whether the Eagles “membership criteria are so generally unselective that they offer their product — membership in their organization — to the public.” Id. at 434. The trial court held that the criteria were, in fact, that unselective. Evidence supports that finding.

4 See State v. Ausmus, 336 Or 493, 507, 85 P3d 864 (2004) (declaring a statute overbroad because it could interfere with, for example, assembly intended to alarm, annoy, or inconvenience government leaders); Vannatta v. Keisling, 324 Or 524, 547-48, 931 P2d 770 (1997) (regulation of elections; campaign finance limitations); Huffman and Wright Logging Co. v. Wade, 317 Or 445, 459-60, 857 P2d 101 (1993) (punitive damages imposed against political protesters); Deras v. Myers, 272 Or 47, 54, 535 P2d 541 (1975) (regulation of elections; campaign expenditure limitations); State v. Laundy, 103 Or 443, 462, 204 P 958 (1922) (section 26 would not prohibit “assemblages from counseling the commission of a crime”); Ladd v. Holmes, 40 Or 167, 189, 66 P 714 (1901) (regulation of elections; political parties); Fidanque v. Oregon Govt. Standards and Practices, 141 Or App 495, 506, 920 P2d 154(1996), rev’don other grounds, 328 Or 1, 969 P2d 376 (1998) (regulation of political action; lobbyist registration fees).

5 Article VIII, section 19, of the Ohio Constitution of 1802 states:

“That the people have a right to assemble together, in a peaceable manner, to consult for their common good, to instruct their representatives, and to apply to the legislature for a redress of grievances.”

Article XII, section 22, of the Kentucky Constitution of 1792 states:

“That the citizens have a right, in a peaceable manner, to assemble together for their common good, and to apply to those invested with the powers of government for redress of grievances or other proper purposes by petition, address, or remonstrance.”

Article IX, section 20, of the Pennsylvania Constitution of 1790 states:

“The citizens have a right in a peaceable manner to assemble together for their common good, and to apply to those invested with the powers of government for redress of grievances or other proper purposes, by petition, address or remonstrance.”

Article XI, section 22, of the Tennessee Constitution of 1796 states:

“That the citizens have a right, in a peaceable manner, to assemble together for their common good, to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address or remonstrance.”

6 In Chapter 61 of Magna Carta, the king promised

“that if we or our justiciar, or our bailiffs, or any of our servants shall have done wrong in any way toward any one, or shall have transgressed any of the articles of peace or security and the wrong shall have been shown to four barons of the aforesaid twenty-five barons, let those four barons come to us or to our justiciar, if we are out of the kingdom, laying before us the transgression, and let them ask that we cause that transgression to be corrected without delay.”

Richard L. Perry, ed., Sources of Our Liberties 21 (1959).

7 Like the right of instruction, the right to petition, preferred in some state constitutions and in the First Amendment, was preceded generally by an assembly guarantee. For a discussion of the right to petition in state and federal constitutions, see generally, Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 Fordham L Rev 2153 (1998).