13 February 2011

Oaks Rebutted, Chapter Two

Today we examine the second of Dallin Oaks' faux examples of restriction of religious freedom.

Oaks: "In New Jersey, the United Methodist Church was investigated and penalized under state anti-discrimination law for denying same-sex couples access to a church-owned pavilion for their civil-union ceremonies. A federal court refused to give relief from the state penalties."

Real story:

The Ocean Grove Camp Meeting Association (OGCMA), a Methodist organization but NOT the Methodist Church itself (Error #1 to Oaks), had a New Jersey state property tax exemption for a boardwalk pavilion in the seaside town of Ocean Grove. The exemption's purpose was to reward organizations for opening their buildings and facilities for public use. The OGCMA knew this, amd had opened the pavilion for a wide variety of public events that had nothing to do with the Methodist Church or Christian belief. It was used for band concerts, skateboarding, debates, and even Civil War re-enactments. The OGCMA also made it available for marriage ceremonies by people of any faith. But when a lesbian couple who'd been together for over 30 years (each partner in her 70's) wanted to use it for a commitment ceremony (not a marriage ceremony), the OGCMA said no.

The chairman of the OGCMA at the time was Scott Rasmussen, one of the original founders of ESPN, who subsequently became a Republican campaign consultant, founder of Rasmussen Reports, and business associate of at least two convicted felons. For more details, see http://therasmussenretort.blogspot.com/.

The New Jersey real estate commission ruled that if OGCMA wanted the property tax exemption for their pavilion which was open to the public, they could not discriminate as they had against the lesbian couple.

The lesbian couple filed a complaint against the OGCMA with the state Division of Civil Rights. They were joined in their civil rights suit by a second Ocean Grove lesbian couple who had also been denied use of the pavilion for their civil ceremony for the same reason.

The OGCMA tried to pre-empt the state action by filing suit in federal court asking that the civil rights case be dismissed. The federal judge refused, saying he had no authority to interfere with this particular issue of state law. (As a former law school dean and judge, Oaks surely knew this was the right result under well-settled law, yet he sought to give the opposite impression in his speech.)

The OGCMA appealed, and the 3d Circuit U.S. Court of Appeals in Philadelphia said the U.S. District Court was correct to dismiss the OGCMA's suit. The New Jersey Division on Civil Rights found that the OGCMA's refusal to rent the pavilion to the couple for their commitment ceremony violated the public accommodation provisions of New Jersey anti-discrimination laws.

Oaks represents this case as an assault on religious freedom. The real story is far less simple. Ocean Grove is a diverse town, not just a religious ministry. OGCMA had public funding and a special property tax exemption for the pavilion based on a representation that it would be open to the general public, rather than restricted to use by the Methodist religious group. The property tax treatment exemption was not a function of OGCMA’s religious status, but rather a result of its promise to provide open public access to the site.

Until it denied the lesbian couple's request to use the pavilion, OGCMA consistently treated the pavilion as public space and accepted secular and religious reservations for its use, subject to payment of a standard fee, and when not so reserved the pavilion was open for all to use. The OGCMA had never put up any signs or other public indication that the pavilion was private property.

At best this case shows competing public and private interests that must be balanced and reconciled. The balance tipped in favor of public accommodation and the application of laws prohibiting discrimination because OGCMA itself had sought preferential tax treatment for the pavilion based on its own conduct of opening the pavilion to all and sundry for virtually any public use—until a couple with whom the OGCMA had private religious disagreements sought to use the facility.

Similarly to the New Mexico case discussed yesterday, the OGCMA had chosen to enter the public sphere by opening its pavilion to public use by anyone willing to pay a fee. It expressly promised, as a condition of its tax exemption, that the public would have equal access to the pavilion. By so doing, it characterized the pavilion as a "public accommodation" and subjected itself to state civil rights laws governing public accommodations. Its effort to bar the lesbian couple from using the pavilion was a classic case of trying to have its cake and eat it too.

OGCMA always had and ultimately did exercise the power to withdraw the pavilion from public use and refuse all reservations of the space. But as long as they chose to open it to public use, the OGCMA—like the New Mexico photographer—couldn't claim that purely private religious reasons exempted them from compliance with statutes that applied to everyone else in a public activity which the OGCMA had chosen to pursue. Oaks, a former law school dean and judge, surely should have known that.

Again, Oaks paints an overly simplistic—and ultimately misleading—picture. His legal background means he should have known better than to do this. There was no "restriction of religious freedom" here. If the OGCMA didn't want to allow gay couples to use the pavilion, all they had to do was withdraw it from public availability. Which they ultimately did.

Tomorrow, we turn to alleged assaults on personal free speech, with the woeful cases of two university faculty members who Oaks says were disciplined for expressing personal convictions that homosexual behavior is sinful. As you may have guessed by now, the real stories aren't quite as Oaks would have us believe.


Chester said...

The longer I live, the more I agree with Boyd K. Packer when he said, "There is much that is true that isn't useful." Putting it another way, one might say - There is much that is not true that is useful. It certainly seems Oaks believes this maxim.

I don't want to take your thunder about the next post topic, but I'm hoping you'll point out the irony of Oaks using the university faculty members example when so many faculty and students at BYU have been disciplined for expressing their personal convictions. I am one of those.

Anyway, fantastic posts!

Invictus Pilgrim said...

Thanks for rising to this occasion, Rob. These things obviously need to be said, and I am glad that someone of your level of legal analysis and writing skills has taken this on.

It seems fairly apparent, first by looking at the sources that Oaks cites in his speech, and now from your analysis, that he was using information from right-wing and reactionary publications that had already skewed the facts. If this is indeed the case, shame on him for not researching the facts and coming to his own conclusions (assuming, perhaps naively, that they would have been different in such event). One would expect better from someone of his position and stature - both legal and religious.

Brett said...

I know that I'm coming late to this party, but thanks for putting together these detailed rebuttals. I had actually done some of my own research (wikipedia style) after being upset by Oaks speech at Chapman but I really appreciate your added insights.

It's interesting that in Oaks' first two examples the "enemy" is anti-discrimination laws. This would lead one to think that LDS Corp, in theory, should be targeting anti-discrimination laws in the same way they went after marriage equality in CA and other states. But they don't because they know that it would look bad (because it IS bad). Eventually the tides will turn and the same thing will happen with gay marriage: opposing it will look as bad as opposing inter-racial marriage.

And LDS Corp will do what it has done time and time again... back down and reveal that God is far more accepting than they originally thought.