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Another Perspective on the Ocean Grove Pavilion

Timothy Kincaid

December 30th, 2008

The Transplanted Lawyer at Not a Potted Plant blogsite provides another perspective about the decision to allow a lesbian couple to go forward with their lawsuit against the Ocean Grove Meeting Association for its refusal to rent the couple the boardwalk Pavilion for their civil union. In my commentary, I focused on the finding of the New Jersey Division on Civil Rights that one lesbian couple’s suit could advance. He finds more relevance in the fact that another lesbian couple was denied.

That two couples suing the Association with different results brings a contrast, one that should provide comfort to those worried about the infringment on religious rights and one that further illustrates the dishonesty in the way in which anti-gays have spun the story.

In Bernstein v. Ocean Grove Camp Meeting Association, a lesbian couple wanted to perform a civil union ceremony at a beachside facility owned and operated by a [Methodist] faith organization (it appears to not be a church per se, but it affiliates and identifies with [Methodist] Christianity). The New Jersey agency investigating the complaint found probable cause to permit the charge of discrimination proceed. But, in Moore v. Ocean Grove Camp Meeting Association, another lesbian couple wanted to perform their civil union ceremony at the exact same facility. In that case, no probable cause was found. Both case results were announced on the same day — yesterday.

Same facts, same defendant, same facility, decided on the same day, but different results.

The reason for different results is because the circumstances had changed. When Bernstein requested usage, the Pavilion had been used for a wide variety of purposes – religious and non-religious – including weddings of people of all faiths or no faith at all. All that was required was to pay a fee. Thus it was a “public accomodation”. And the sole reason for rejection of Bernstein’s usage of this public accomodation was that their union was of persons of the same sex.

But when Moore requested usage, the Association had changed their policy and tightened the purpose of the Pavilion. They no longer allowed weddings in the space at all and limited those who were allowed use of the space based on religious affiliation. Thus, the space was no longer a public accomodation but private property with restricted use. Therefore, religious exemptions again applied.

He further noted that this process, presenting one’s discrimination case before a board before a lawsuit, is further protection for religious bodies.

The Transplanted Lawyer found three lessons:

the first lesson is that someone who claims to be the victim of discrimination cannot immediately walk into court and file a successful lawsuit. They must present their charge to a state or federal agency for investigation first, and that agency has to investigate and decide if there’s any merit.

there is the second lesson about the law of discrimination. You are subject to the requirements of non-discrimination only if you are engaged in something called a “public accommodation.” So if you don’t want same-sex wedding ceremonies in your church, don’t rent your church out to people who are not members of your church’s congregation.

That’s the third lesson — [when invoking freedom of expression,] commercial activity does not enjoy the same level of Constitutional protection as expressive activity.

I found the arguments well thought out and easy to comprehend. And I think that the Tranplanted Lawyer very well expressed the moral of this story:

When the church stops being a church and starts being a banquet hall, then yes, it is vulnerable to a discrimination lawsuit because it’s not acting like a church anymore. The message to churches that are opposed to same sex marriages is “stay true to your faith and the law will be on your side.”

Comments

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Fiona
December 31st, 2008 | LINK

I have a question. Did the Ocean Grove Association lose their public accomodation tax break (and I believe other public funding that goes with being open to the public) for changing from a public accomodation site to a private restricted site? If they did not, then the second lawsuit should have continued. It’s not clear in the post if they lost the public perks or not.

Timothy Kincaid
December 31st, 2008 | LINK

Fiona,

The article on Not a Potted Plant goes into greater detail.

Dan B
January 1st, 2009 | LINK

Show up every day and perform a “Marriage”. Each one should be different, fun, and an excuse for a party / celebration.

Civil Rights – Why should we care?

One decision vs. another decision.

One celebration vs. another celebration.

Celebrating one love vs. another love.

Just SHOW UP AND CELEBRATE. They’ll fight and they’ll lose.

Then we can get together afterwards and argue the details.

cd
January 2nd, 2009 | LINK

We shouldnt forget, however, that ultimately all these scurrilous claims (be they about being forced to endorse gay marriages, or that it opens the door to polygamy, or whatever) are not things the other side really cares about.

They are all excuses and efforts intended to obstruct, to put promarriage people on the defensive, to diffuse and dilute efforts and demoralize supporters. And to appeal to tacit bigotries and arrogance in Undecideds.

We should not dignify all these tactical obstructions by treating them as legitimate or as entirely appropriate to address in the here and now. The innovation in Blitzkrieg doctrine was an understanding that to achieve victory, the strategic objectives could not be allowed to be greatly diluted or contradicted by tactical objectives or wasting unnecessary time or effort on tactical obstructions. Basically, defensive hard points had to be encircled and kept unable to exert enough force by an adequate minor force (often specialists) and the big offensive forces just bypass it with minimal losses.

That is perhaps what is needed here. A division of labor where specialists contain and attack the problems if not break them, while average grassroots activists march on toward the principal objective.

Update on post about the New Jersey church being told they have to allow same-sex weddings
January 3rd, 2009 | LINK

[…] religious in nature. The had even allowed non-religious weddings to be held there. As noted in the Box Turtle Bulletin, however, following the request by the lesbians to use the pavilion …the Association had […]

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