Bar Journal - Fall 2004
Membership Organizations as Place of Public Accommodation Under NH's Law Against Discrimination
By: Alison Bethel1
New Hampshire’s Law Against Discrimination ("LAD") prohibits discrimination, based on age, sex, race, creed, color, marital status, physical or mental disability, national origin, and sexual orientation, in any place of public accommodation.2
Under the LAD, a place of public accommodation includes:
any inn, tavern or hotel, whether conducted for entertainment, the housing or lodging of transient guests, or for the benefit, use or accommodations of those seeking health, recreation or rest, any restaurant, eating house, public conveyance on land or water, bathhouse, barbershop, theater, golf course, sports arena, health care provider, and music or other public hall, store or other establishment which caters or offers its services or facilities or goods to the general public.3
However, "any institution or club which is in its nature distinctly private" is not a place of public accommodation.4
In Franklin Lodge of Elks v. Marcoux, the New Hampshire Supreme Court, followed the statutory mandate requiring a broad interpretation of the LAD.5 For that case, the Court held that the Franklin Lodge, a membership organization, was a place of public accommodation, and not an exempt club.6
This article explains the Franklin Lodge holding, discusses the applicability of the holding to the Girl Scouts (also among which was sued recently under the LAD), and briefly outlines possible federal constitutional limitations to application of the LAD based on the United States Supreme Court decision in Boy Scouts of America v. Dale.7
THE FRANKLIN LODGE ANALYSIS
The Elks Club is a nationwide organization, divided into approximately 2,000 local chapters, called Lodges. In 1997, Franklin Lodge had approximately 620 male members. The Lodge operated a bar and grill open to members and their guests. The Lodge also hosted social activities and fund-raisers throughout the year. Some of the activities, such as weekly bingo games, were open to the public. Non-members were also permitted to lease the Lodge premises for private functions. The Lodge depended on revenues from these activities open to the public, receiving a substantial portion of its budget from them.8
To become a member of the Lodge, an individual "must be a citizen of the United States, believe in God, be at least twenty-one years of age, be of good character and not be a Communist." Prior to 1995, membership was open exclusively to males.9
In 1997, the petitioners, four females, applied for membership in the Franklin Lodge. After interviews, the investigating committee approved their applications. Their names, along with the names of one other woman and five men, were presented to the members of Franklin Lodge on a block ballot. The members voted to reject the block ballot. Thereafter, individual ballots were distributed and the five men were accepted while the five women were rejected on two successive ballots.10
Four of the women filed charges with the New Hampshire Commission for Human Rights ("Commission"), alleging unlawful gender discrimination in a place of public accommodation. After a hearing, the Commission held that the Lodge was not a "distinctly private" organization and that it had unlawfully discriminated against the women. The Commission awarded each woman $10,000 in compensatory damages, as well as attorney’s fees and costs. On appeal, the Superior Court affirmed the Commission’s decision. The Lodge then appealed to the Supreme Court, arguing that its premises are not a place of public accommodation under the LAD.11
The Lodge raised three arguments: (1) the definition of place of public accommodation did not include membership organizations; (2) the Lodge was not a place of public accommodation because it fell under the "distinctly private" exception; and (3) the Lodge was a place of public accommodation for the activities open to the general public but not for activities open only to members.12 The Lodge did not raise any defense based on the constitutional right of free association, a federal constitutional issue potentially implicated by the facts of the case.
The Court first addressed whether the Legislature intended the definition of public accommodation to include "membership practices of an organization like the Lodge." The Court acknowledged that membership organizations are "not easily analogized to the array of entities specifically listed in RSA 354-A:2, XIV, which are essentially commercial enterprises." However, the Court rejected the argument that membership organizations "that offer their facilities, services or goods to the general public" are exempt from the definition of public accommodation. In doing so, the Court noted that it was "mindful" of the Legislature’s desire to broadly construe the provisions of the LAD. The language of the exception applies only to "distinctly private" entities. Thus, the Court held that the Legislature intended for entities that appear private, but which "offer their facilities, services, or goods to the general public," fall under the statutory definition of "place of public accommodation."13
The Court next considered whether the Lodge itself as a membership organization, fell within the definition of a place of public accommodation. To make its determination, the Court looked at the following eight factors, commonly used in interpreting discrimination laws: "(1) whether its membership is genuinely selective; (2) its control over its operations; (3) its history; (4) the use of organization facilities by nonmembers; (5) its purpose; (6) whether it advertises for members; (7) whether it maintains a nonprofit status; and (8) the formalities it observes." The Court noted that the most important factor is membership selectivity because "[t]he essence of privacy is selectivity. If there is little or no selectivity, there is no basis to claim privacy."14
Applying the eight factors to the facts of this case, the Court concluded that the Lodge was a place of public accommodation under the LAD. First, although the Lodge had specific membership criteria, it was not a truly selective organization because the Lodge did not have a "plan or purpose of exclusiveness." The requirement that members believe in God was not sufficiently restrictive as it did not mandate affiliation with any particular religion, and "there are countless individual interpretations of . . . ‘God’ . . . or what it means to believe in God." Since virtually all male applicants who applied were accepted, membership was not genuinely selective.15
Next, the Court looked to "the Lodge’s practice of permitting non-members to use its facilities and access its services and goods." The Court rejected the Lodge’s argument that it should be treated as a public accommodation for the activities open to the public, and as a distinctly private organization for the activities open only to members. Due to the lack of membership selectivity, the Court found little difference between activities open to the general public and activities open only to members. Furthermore, the Lodge’s financial survival depended upon activities open to the public. The "public’s regular access to the Lodge’s facility, goods, and services during social and fundraising events and its substantial financial dependency upon commercial interaction with the public demonstrate[d] the Lodge’s public nature."16
Finally, the Court noted that the remaining factors further demonstrated that the Lodge was not a distinctly private organization, but was a place of public accommodation. Although the Lodge raised money to donate to various charities, there was no indication that the Lodge sought to advance a specific cause or purpose related to its membership. Furthermore, when hosting events, the Lodge relied heavily on volunteers from the Emblem Club, a women’s auxiliary organization with separate membership.17
Based on its application of the eight-factor test to the facts, the Court concluded that the Lodge was a place of public accommodation under the LAD.
IMPLICATIONS FOR OTHER MEMBERSHIP ORGANIZATIONS
Less than five months after the Franklin Lodge case was decided, in Steir v. Girl Scouts of the U.S., the United States District Court for the District of New Hampshire certified the following questions of law to the New Hampshire Supreme Court:
(1) Does [RSA] 508:8 (1997) apply to a claim brought on behalf of a minor pursuant to the New Hampshire Law Against Discrimination?
(2) Is either the Girl Scouts of the United States of America or a local Girl Scout troop operating under the supervision of an affiliated organization such as the Spar & Spindle Council a ‘place of public accommodation’ within the meaning of the New Hampshire Law Against Discrimination?18
Steir alleged disability discrimination. The District Court’s first question arose because the plaintiff had missed the LAD’s 180-day limitations period and hoped to invoke section 508:8’s general tolling period for minors. The Court decided that RSA 508:8 did not apply to the LAD. Therefore, the Court did not reach the merits of the second question. Thus, whether the Girl Scouts are a place of public accommodation under New Hampshire law remains an unsettled issue. The fact that the District Court certified the issue to the Supreme Court suggests that the answer to the question is unclear. However, a brief analysis of the factors used in Franklin Lodge suggests that the Girl Scouts would be considered a place of public accommodation under the LAD.
As the Court noted in Franklin Lodge, when determining whether a membership organization is a place of public accommodation, genuine selectivity of membership is the most important factor. Membership in the Girl Scouts is not "genuinely selective." The Girl Scouts’ web site states that Girl Scouting is open to "[a]ny girl or adult who agrees to try to live by the Girl Scout Promise and Girl Scout Law."19 Indeed, there are almost 3.8 million Girl Scouts and over 50 million American women have been a Girl Scout.20 Girl Scouts advertises for members online and in schools. On its web site, Girl Scouts indicates that it accepts adult volunteers, both male and female. In addition, college students are invited to join, or to create a chapter of the Campus Girl Scouts at their college or university.21
Furthermore, although the Girl Scout Promise states that members will "serve God," the Girl Scouts, like the Lodge, do not require affiliation with any religious denomination or sect. In fact, the Girl Scouts permit members to substitute "God" with "whatever word your spiritual beliefs dictate."22 Thus, although the Girl Scouts profess to have selective membership, their materials indicate that their membership is not "genuinely selective."
Other factors indicate that the Girl Scouts are a place of public accommodation under the LAD. Since its inception in 1912, Girl Scouts has welcomed all girls as members. By 1926, Girl Scouts had 137,000 members nationwide. Since 1912, the organization has been dedicated to education and promoting self-esteem of all girls. 23
Although there are a few factors that suggest that the Girl Scouts could be a private organization, these factors do not persuasively demonstrate that the Girl Scouts are distinctly private in nature. The Girl Scouts is a non-profit organization. Individual troops are operated locally and overseen by regional councils. Regional councils must abide by Girl Scouts USA’s policies. Girl Scouts USA oversees all regional councils, ultimately determining whether a specific regional council’s charter will be renewed.24 These few factors do not outweigh those that suggest that the Girl Scouts is a place of public accommodation.
It remains to be seen whether the Girl Scouts and other similar membership organizations will be considered a place of public accommodation under the LAD. However, if the Supreme Court continues to follow the statutory mandate requiring the LAD to be broadly interpreted, then membership organizations, including the Girl Scouts, which are open to the public and not genuinely selective will have a difficult time proving that they are distinctly private in nature. Accordingly, such membership organizations are likely to be considered placed of public accommodation under the LAD.
In Boy Scouts of America v. Dale,25 the United States Supreme Court held that the First Amendment prohibits states from imposing the requirements of their public accommodations law on organizations that engage in expressive activity, if the application of the law would infringe on the organizations’ freedom of expressive association. Thus, when determining whether an organization that engages in expressive activity is a place of public accommodation, one must also determine whether application of that state’s public accommodations law conflicts with that organization’s First Amendment rights. "As the definition of ‘public accommodation’ has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased."26 If there is a conflict, the First Amendment prohibits the state from applying its law against discrimination against the organization in that particular context.
Although the application of the Dale test is fact-specific and nuanced, it is essentially a two-part test. The test first asks whether the group engages in "expressive association."27 Second, the test asks whether "the forced inclusion" of the person invoking the statute would "significantly affect the [organization’s] ability to advocate public or private viewpoints."28 An expressive association cannot "erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message."29
In Dale there was an extensive record demonstrating an active, consistent expression by the organization of opposition to open homosexuality. In contrast, the United States Supreme Court has not found sufficient interference with expressive activity to exempt either the Jaycees30 or Rotary31 from application of non-discrimination laws. Given their current membership criteria it seems unlikely that either the Elks or the Girl Scouts could use the Dale decision as a shield from application of the LAD under New Hampshire law.
The Franklin Lodge decision is consistent with the Legislature’s mandate that the provisions of the LAD be liberally construed to prevent discrimination in places of public accommodation.32 Membership organizations that are open to the public will be considered places of public accommodation unless they truly are "distinctly private." An organization that is not genuinely selective in membership will have a difficult time proving that it is distinctly private. Therefore, most membership organizations without selective membership criteria will likely be considered a place of public accommodation under the LAD. Further, an organization that is not genuinely selective in membership is unlikely to be able to invoke the constitutional right of associational expression to avoid application of the LAD.
- J.D. Candidate, 2005, Franklin Pierce Law Center.
- RSA § 354-A:17.
- RSA § 354-A:2(XIV).
- Id. (Emphasis added.)
- RSA § 354-A:25.
- Franklin Lodge of Elks v. Marcoux, 149 N.H. 581 (2003).
- 530 U.S. 640 (2000).
- Franklin Lodge, 149 N.H. at 583.
- Id. at 584.
- Id. at 585.
- Id. at 586.
- Id. at 587.
- Id at 588.
- Id at 588-89.
- Id at 589-90.
- Steir v. Girl Scouts of the U. S. & Spar & Spindle Council, 150 N.H. 212 (2003).
- All About Girl Scouts, http://www.girlscouts.org/GS/About/allabout.htm (accessed Mar. 15, 2004).
- About Girl Scouts of the USA, http://www.girlscouts.org/about/#facts (accessed Mar. 15, 2004).
- Girl Scouts, Young Adults: Women and Men, http://www.girlscouts.org/ adults/justforvolunteers/ why_young.html (accessed Mar. 15, 2004).
- Girl Scout Promise and Law, http://www.girlscouts.org/program/promiselaw.html (accessed Mar. 15, 2004).
- Girl Scouts History, http://www.girlscouts.org/about/history.html (accessed Mar. 15, 2004).
- Steir v. Girl Scouts of the U.S. & Spar & Spindle Council, 218 F.Supp.2d 58, 61 (D. N.H. 2002).
- 530 U.S. 640 (2000).
- Id. at 657.
- Id. at 648.
- Id. at 650.
- Id. at 653.
- Roperts v. U.S. Jaycees, 468 U.S. 609 (1984).
- Board of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537 (1987).
- RSA § 354-A:25; RSA § 354-A:1.
Alison Bethel, Class of 2005, Franklin Pierce Law Center, Concord, New Hampshire