Case: Fraternal Order of Eagles, Tenino Aerie v. Grand Aerie Fraternal Order of Eagles

Justices: Andy Fischer, Ross Richendrfer, Jim Hanson

Decision: Concurring in favor of Grand Aerie Fraternal Order of Eagles

This court concludes that the Fraternal Order of Eagles is a distinctively private organization under a constitutional interpretation of the Washington Law Against Discrimination (WLAD). Private groups have a constitutional right to assemble and to choose their members. African-American groups in furtherance of objectives to solidify black unity have a right to select only African-American members. Feminist groups in furtherance of objectives to promote women power have a right to select only female members. Similarly, the Fraternal Order of Eagles has a right to select only male members to further its objective of brotherhood and we find that its gender-based membership requirements are within the organization’s proper legal limits.

Initially, this court agrees with the Washington State Supreme Court’s determination that the principal question in this case is whether the WLAD “requires a ‘fraternal organization’ to be ‘distinctly private’ in order to qualify for exemption under the law.” The portion of the WLAD in questions is: “PROVIDED, That nothing contained in this definition shall be construed to include or apply to any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations.” While the plaintiff brings up some persuasive and troubling arguments about the grammatical problems in the WLAD; the fact that the WLAD separates fraternal organizations from other institutions lends weight to the interpretation that lawmakers meant to classify fraternal organizations, such as the Eagles, as being exempt from this law. On this, we agree with the appellant that because there is not a dispute over whether the Eagles are a fraternal organization or not, they ought to be properly classified as exempt from WLAD guidelines. The WLAD guidelines are comparable to the New Jersey anti-discrimination law’s exemption clause which reads: “Nothing herein contained shall be construed to include or apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private.” The only major difference between this and the WLAD is the WLAD’s inclusion of “fraternal organizations.” The New Jersey law shows that even with proper wording, an anti-discrimination law would not touch the Fraternal Organization of Eagles.

As such, this court disagrees with the Washington State Supreme Court’s mechanism for evaluating this case. Instead of evaluating the case solely on the basis of Washington State Law, the court ought to have looked to the Constitution of the United States. The first amendment of the Constitution states that the freedom of speech and the right to free association must be protected. The Constitution must be valued before state law because it is the one document that binds the whole nation instead of just individual documents that rule single states. The Constitution is in place to make law equal for everyone. Because of this, we believe that ruling for the Eagles on the grounds of their rights in the first amendment is the proper way to resolve this case.

As we say this, we do agree with the Washington State Supreme Court that a case-by-case basis approach is best: “Whether an organization qualifies as a fraternal organization is a judicial question to be resolved on the facts of the case… Merely designating an organization as a fraternal organization by creative naming is insufficient to escape requirements of the WLAD which are otherwise applicable.” (Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, Supreme Court of Washington, p. 33) This court feels secure that it is not practicing “creative naming” in designating the Fraternal Order of Eagles as a distinctly private organization and also an organization that is protected from the WLAD.

The court would also like to use part of the Roberts decision in order to make a clear standard for government regulation concerning clubs and private entities. Robert’s is pertinent in the sense that the case was focused on the nature of government intervention into questionably private organizations. It shows that: “There can be no clearer example of an intrusion into the internal structure of affairs of an association than a regulation that forces the group to accept members it does not desire.” (Roberts v. United States Jaycees, 468 U.S. 609; 104 S. Ct. 3244; 82 L. Ed. 2d 462; 1984 U.S. LEXIS 146; 52 U.S.L.W. 5076; p. 9). It is important that the government continually weigh possible interventions into an organization’s governing body and membership policies with the risk of the erosion of that group’s autonomy and organizational liberty. The Fraternal Order of Eagles has made it clear that they do not desire to accept women into their organization, thus government intrusion ought to be applied only in the case that the organization were not distinctively private.

The Washington state law must be read in context of the fact that exclusion of women by the Grand Aerie Fraternity of Eagles is primarily a question of the organization’s right to expressive association guaranteed in the 1^st Amendment. The Eagle’s right to freely associate is demonstrated by three lines of argument: the importance they attach to brotherhood and secret rituals, the degree of selectivity of the organization and this court’s decisions in Boy Scouts of America v. Dale and Roberts v. U.S. Jaycees.

Central to the idea of free association are the Fraternity of Eagle’s strong convictions for the ideals of brotherhood. As stressed by the appellant in his brief and oral argument, “forcing the organization by judicial decree to admit women severely infringes upon the rights of the Eagles to maintain brotherhood” (Appellant’s Brief, p.1). While it remains unclear to what degree the ideals of brotherhood would be compromised by the inclusion of women, brotherhood is a central tenet to the organization. Secret rituals and initiation practices of the Eagles are designed to develop strong bonds and brotherhood. The court agrees that the introduction of women could interfere with such initiation practices and the goal of developing and promoting brotherhood. Requiring the Eagles to include women in such secret rituals would compromise the mission of the organization and be a violation of their right to freely associate guaranteed in the 1^st Amendment.

Becoming a member of the Fraternity of Eagles is selective based on the criteria presented by the appellant. The plaintiff also agreed, “the trial court accurately identified the Eagles’s recruitment practices as selective” (plaintiff brief, p.4). The Eagle’s recruitment requirements include being nominated by two members in good standing, being 21 years of age, having good moral character, not being connected to the communist party in any way or wish to overthrow the government, and profess a belief in a Supreme Being. If a prospective member meets these criteria, then they must be interviewed and voted on by a local committee to become an Aerie. While the Eagles are a large organization with local chapters around the United States and are dedicated to increasing their membership, their fraternity is not open to anyone. Since it appears clear that the Eagles are a selective organization, this would indicate that they are a private institution under the criteria of Roberts v. United States Jaycees 1984.

In the Roberts v. United States Jaycees decision, a number of criteria including size, purpose, selectivity, public service and practices were used to determine if an organization is distinctly private. Although the Eagles are not a small organization, they do appear to be selective, thereby making them a private institution. The Eagles may offer public services and events, but this does not necessarily make them a public organization. They provide some public services as many other fraternal organizations do, but the selectivity of its membership and secret rituals place this organization more in the private realm. It is not the duty of the court to force private institutions to admit all people to their membership. The Washington Law Against Discrimination (WLAD) must be interpreted in light of the first amendment’s guarantee of free association.

In the Boy Scouts of America v. Dale (2000), this court ruled that private organizations have a right to freely associate. The Eagles are a private group and hence have freedom over the membership of their organization. Forcing membership of women would compromise the organization’s goal to foster and strengthen brotherhood. Some of the secret rituals of this organization are designed, apparently, for interaction between men to foster brotherhood and cannot be carried out in the presence of women.

Although the Eagles admitted women between 1995 and 1998, requiring them to continue this practice would infringe on their selective membership criteria, hinder the abilities of the Eagles to engage in secretive rituals and the pursuit of brotherhood, and violate their 1^st Amendment rights. Each local Aerie has a corresponding auxiliary that admits only women. These auxiliaries provide women with similar opportunities as men in becoming members of the Eagles. Whether the foundations of a fraternal organization are brotherhood or sisterhood, these groups believe that such bonds may only be formed with members of the same sex.

This decision in no way undermines the importance of state laws against discrimination. It merely demonstrates that fraternal organizations that do not qualify as public organizations are thus exempt from laws that infringe on an organization’s 1^st Amendment right to peaceably assemble. Public organizations however, fall under much greater scrutiny from state and federal statutes against discrimination. For these reasons, we conclude that the Fraternity of Eagles should not be required to admit women.