Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles

Madsen, J.

(concurring) — I agree with the majority that the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, requires a “fraternal organization” to be “distinctly private” in order to qualify for exemption under RCW 49.60.040(10). I further agree with the analysis concluding that the Fraternal Order of Eagles (Eagles) does not qualify for such exemption. I write separately, however, to address the Eagles’ additional constitutional challenge that application of the WLAD to require the Eagles to admit women as members violates the current members’ First Amendment rights to freely associate and to clarify that the “distinctly private” exemption in the WLAD simply embodies the constitutional standard set forth by the United States Supreme Court.

Before reaching the constitutional issue, the dissent’s position that the WLAD is facially inapplicable to the membership policies of the Eagles calls for brief comment. In his dissent, Justice Sanders contends that membership in an organization is not a “place of public . .. accommodation” under RCW 49.60.040(10), and he admonishes the majority for “not even attempt[ing] ‘to tie the term “place” to a physical location.’ ” Dissent (Sanders, J.) at 269 (quoting Boy Scouts of Am. v. Dale, 530 U.S. 640 , 657 & n.3, 120 S. Ct. 2446 , 147 L. Ed. 2d 554 (2000)). The majority, however, is correct in holding that the WLAD’s guaranty against discrimination because of race, creed, color, national origin, sex, or disability applies to the Eagles as a “place of public resort, accommodation, assemblage, or amusement.” RCW 49.60.030(l)(b). The definition of “place *258 of public . . . accommodation” includes membership policies of groups who extend an open invitation to the public to “gather 0, congregate 0, and assemble 0 for amusement, recreation, or public purposes.” RCW 49.60.040(10). See U.S. Jaycees v. McClure, 305 N.W.2d 764 (Minn. 1981); Nat’l Org. for Women v. Little League Baseball, Inc., 127 N.J. Super. 522 , 318 A.2d 33 (App. Div. 1974). See also majority at 250 n.111.

The Minnesota Supreme Court and the New Jersey Superior Court, Appellate Division, have recognized that “ ‘place of public accommodation’ or a ‘facility’ is less a matter of whether the organization operates on a permanent site, and more a matter of whether the organization engages in activities in places to which an unselected public is given an open invitation.” McClure, 305 N.W.2d at 773 (citing Little League Baseball, 127 N.J. Super, at 530-31). The New Jersey Superior Court, Appellate Division, held that membership in the Little League constitutes a “place of public accommodation” under New Jersey’s Law Against Discrimination, N.J. Stat. Ann. § 10:5-5 (1) (West 1996). Little League Baseball, 127 N.J. Super, at 531. The court explained that “[t]he statutory noun ‘place’ (of public accommodation) is a term of convenience, not of limitation,” and the “place” of public accommodation is the ball field where the children play. Id. The “agglomeration of the arrangements which Little League and its local chartered leagues . . . provide” constitute the statutory example of “ ‘accommodations, advantages, facilities and privileges’ ” that are provided at these places of “public accommodation.” Id.; N.J. Stat. Ann. §§ 10:5-5 , 10:5-12© (West 1996).

Since Little League conducted its activities in public places and “the invitation [was] open to children in the community at large, with no restriction (other than sex),” Little League could not discriminate based on sex. Little League Baseball, 127 N.J. Super, at 531. Likewise, the Minnesota Supreme Court held the Jaycees as a “place of public accommodation” because the group did little screening for membership, other than sex, and did allow women to *259 become associate members. McClure, 305 N.W.2d at 773 . Thus, the Jaycees had an “open invitation to virtually anyone to become a dues paying individual or associate member.” Id.

Likewise, as determined by the majority, the nonselec-tivity of the Eagles provides an “open invitation” to the public to become a dues paying member. The Eagles calls for widespread recruitment and a large membership base and even invites women to become Auxiliary members with use of the Eagles’ facilities. The recruitment process specifically emphasizes a lack of selectivity on the part of the group, summed up in the Eagles’ slogan, “Every Member Owes at Least One New Member to His Aerie Each Year. A large membership makes it possible for us as a fraternity to give you so much for the small dues you pay.” Majority at 254.

Moreover, the WLAD broadly defines “place of public . . . accommodation,” and the legislature has directed that “[t]he provisions of [chapter 49.60 RCW] shall be construed liberally for the accomplishment of the purposes thereof.” RCW 49.60.020. The WLAD’s proscription against discrimination “includes, but is not limited to, any place ... or use of any property or facilities,” followed by a list of examples. RCW 49.60.040(10) (emphasis added). The “public place” definition, accordingly, includes application to fixed places or mobile sites occupied for public use. In this case, the “placets] of public . . . accommodation” include the local Aerie facilities, the State Aerie’s meeting place, as well as all the mobile sites where the Eagles meets for activities such as the National Convention, civic and charity events, and holiday celebrations. The Eagles’ activities and events constitute the statutory examples of places “where the public gathers, congregates, or assembles for amusement, recreation, or public purposes.” RCW 49.60.040(10).

In sum, the Eagles invites the public to its numerous meeting and activity venues which constitute “placets] of public. .. accommodation” and render the WLAD appli-

*260 cable to prevent the Eagles from discriminating in its membership policies. RCW 49.60.030(l)(b), .040(10).

The majority correctly looks to federal case law in making its determination that the Eagles is not “distinctly private” to warrant exemption from the WLAD’s requirements. Majority at 251-52. See Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 546 , 107 S. Ct. 1940 , 95 L. Ed. 2d 474 (1987); Roberts v. U.S. Jaycees, 468 U.S. 609, 620 , 104 S. Ct. 3244 , 82 L. Ed. 2d 462 (1984). The majority analyzes the nature of the Eagles, whether public or private, by applying factors enumerated by the United States Supreme Court. Roberts, 468 U.S. at 620 (noting relevant factors in determining whether a relationship is intimate or attenuated of personal attachments include size, purpose, policies, selectivity, congeniality, and other characteristics that may be pertinent).

In Roberts , however, the United States Supreme Court set out these factors to aid in its determination of whether an organization has distinctive intimate characteristics that might afford it constitutional protection of the decision of its members to exclude women. Id. at 621 . The Roberts case addresses the long established right to intimate association, embodied in the Bill of Rights’ security of individual liberty. Id. at 618 . The right to intimate association affords “the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.” Id. (citing, e.g., Pierce v. Soc’y of the Sisters, 268 U.S. 510, 534-35 , 45 S. Ct. 571 , 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 , 43 S. Ct. 625 , 67 L. Ed. 1042 (1923)). The protection of intimate relationships from undue intrusion by the State safeguards individual liberties. Id.

The WLAD’s language specifically exempting “any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations” recognizes the constitutional right to intimate association afforded to such groups. RCW 49.60.040(10). The legislature exempts “distinctly private” groups from the *261 WLAD’s requirements because to apply the law to private entities constitutes undue intrusion by the State on the right to engage in intimate associations. When relationships lack an intimate nature, however, the concern of constitutional protection lessens. As the United States Supreme Court has stated:

Determining the limits of state authority over an individual’s freedom to enter into a particular association therefore unavoidably entails a careful assessment of where that relationship’s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments.

Roberts, 468 U.S. at 620 . The majority holds that the Eagles is not “distinctly private.” Put another way, the relationships among Eagles members are not so intimate as to afford the group constitutional protection in the decision of its members to exclude women.

Although the majority does not discuss it, the Eagles raise a second argument that the court must address: whether the application of the WLAD to compel the Eagles to accept women unconstitutionally infringes on the group’s freedom of expressive association. Freedom of expressive association has long been recognized as providing individuals the “right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion.” Roberts, 468 U.S. at 618 , 622 (citing, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-09, 932-33 , 102 S. Ct. 3409 , 73 L. Ed. 2d 1215 (1982); Larson v. Valente, 456 U.S. 228, 244-46 , 102 S. Ct. 1673 , 72 L. Ed. 2d 33 (1982); In re Primus, 436 U.S. 412, 426 , 98 S. Ct. 1893 , 56 L. Ed. 2d 417 (1978); Abood v. Detroit Bd. of Educ, 431 U.S. 209, 231 , 97 S. Ct. 1782, 1797 , 52 L. Ed. 2d 261 (1977)). The First Amendment rights 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.” Roberts, 468 U.S. at 622 .

The Eagles pursues a wide variety of social, cultural, and religious ends. The group’s stated purpose is to:

*262 Unite fraternally for mutual benefit, protection, improvement, social enjoyment and association, all persons of good moral character who believe in a Supreme Being to inculcate the principles of liberty, truth, justice and equality .... To promote and raise funds for duly authorized Fraternal Order of Eagles charities and contribute to worthwhile charitable causes.

Clerk’s Papers at 866. The activities and objectives of the Eagles implicate freedom of speech, assembly, and the exercise of religion. Thus, the WLAD’s requirement that the Eagles admit women works as state interference with the group’s organizational structure and affairs. See Roberts, 468 U.S. at 623 (holding no clearer example of intrusion into the internal structure or affairs of a group than a regulation that forces the group to accept members it does not desire). The court must determine whether requiring the Eagles to admit women may impair the members in their expression of viewpoints and endeavors.

The United States Supreme Court has announced the following test for determining whether state action violates the right of expressive association:

Infringements on [the right to expressive association] 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.

Roberts, 468 U.S. at 623 . Thus, the First Amendment right to expressive association is not without limits.

Washington certainly has a compelling interest in deterring and eradicating discrimination, and we have held the purpose of the WLAD as a policy of the highest order. Allison v. Hous. Auth., 118 Wn.2d 79, 86 , 821 P.2d 34 (1991); see also majority at 246 nn.90-91. Furthermore, the WLAD’s goal of preventing and ending discrimination on the basis of “race, creed, color, national origin, sex, or . . . disability” in “place [s] of public . . . accommodation” does not relate to the suppression of ideas, nor does the WLAD impose any serious burden on the members’ freedom of expressive association. RCW 49.60.030(l)(b), .040(10).

*263 It is most persuasive that the Eagles opened membership to women from 1995-1998 and allowed all women admitted during that time period to retain their memberships after closing membership to women once again in 1998. The action exemplifies that the presence of women does not hinder the ability of the Eagles to engage in protected activities or to disseminate the group’s preferred views. The imposition of the WLAD to require the Eagles to admit women does not pose a change to the organization’s stated purpose, supra at 261-62; nor does it restrict the Eagles’ ability to exclude individuals who do not support these stated ideologies. Furthermore, even if application of the WLAD infringes in some part on the Eagles’ protected First Amendment rights, the WLAD’s proscriptions are no greater than is necessary to accomplish Washington’s compelling interest in eradicating discrimination.

For these reasons, I would hold that the Eagles members’ right to expressive association is not violated by application of the WLAD to require the organization to admit women members.

Johnson, J., concurs with Madsen, J.