So Oregon has a new case that, while pretty much terrible for all concerned, is very interesting from a law geek’s perspective.
As someone who participated in law-drafting exercises while in law school with adjunct professors who took back the class’ collective work to the provincial legislative assembly, I’ve had about the most minimal input into drafting law that could still be truthfully, if technically, called input at all. Nonetheless, even if my input was minimal, my work with these two professors was significant and they have spent their entire careers drafting legislation. It’s a topic I took to eagerly and (if they weren’t just puffing me up) well. And, it turns out, I know just enough to know that I’d be in way over my head trying to address a recent issue that came up with respect to non-discrimination law in Oregon.
There’s always something you don’t consider when drafting law, even when you think you’re being as thorough and detail-oriented as possible. The recent case between a church and an event-rental company in Portland (my home-away-from-home back in the States) illustrates this perfectly.
For (at least in large part) good reasons, churches*1 and certain other religious have received exemptions from a great many aspects of non-discrimination law. This is true not merely in the US, but around the world. Of course, justice seems to demand this in some cases (Would you want a church to have to hire a preacher without discriminating on the basis of religion?), but in other cases the rationale is less clear and less compelling. For-profit companies are generally treated very differently, and laws that forbid for-profit corporations from discriminating against customers or potential customers are common.
In the modern capitalist world, however, even churches are seeking economic efficiencies. Some churches rent space. My own shul in Portland (when I lived there) rented space from a Christian church to be used for Friday night and Saturday shabbat services. Other churches, like my congregation’s host, own their buildings but rent out the space for as much time as possible when it is not needed for regular services or additional congregant-specific ceremonies (like weddings).
In Portland, a Catholic church that qualifies as old in a modern west coast city but would be positively modern in Boston, Philadelphia, or Providence, adopted a policy that is becoming more and more common. Rather than attempting to actively manage every possible rental, making advertisements to reach out to customers, and do all the other non-religious work that would be needed to get the most economic benefit out of the time its space is available, The Holy Rosary church rented its space to a private business, holding back certain times when the church space would be needed for congregants. That private business “Ambridge”*2 then used the space for event rental, and that business did the advertising and scheduling and customer service and routine collections/accounting work that is necessary in any event rental business.
Ambridge seem like nice enough folks, and they certainly didn’t have any desire to discriminate against queer people. But they were offered a contract by Holy Rosary that included a clause requiring that Ambridge would not entangle themselves with, including by renting space to, people or entities with whom the church wouldn’t want to be associated. That meant no queer parties. No local BDSM meet-ups. Probably no muslim get togethers for all I know. The facts as they’ve come to light focus on the church’s disapproval of Very Sexxxy Sex, but the church’s concerns don’t necessarily stop there.
In any case, a very mainstream queer group, actually a group generally considered a “gay/lesbian” group rather than a queer group, PFLAG approached Ambridge. Portland’s “Black Chapter” of PFLAG which works primarily for social acceptance and support and through mostly quiet, less visible community/neighborhood means asked to rent space from Ambridge. Ambridge reportedly replied that it would like to be able to do so, but was limited by its contract with Holy Rosary.
That’s when things blew up. There were legitimate criticisms about why Ambridge would be willing to accept a contract that calls for discriminating against certain people and groups, and more criticisms of the church’s placement of the limiting clause within the contract in the first place. Moreover, Ambridge seemed to be required by statute not to discriminate, while the church seemed permitted by statute to write discriminatory clauses into its contracts in at least some cases. Any specific limits on exactly when the church could use its liberty to discriminate to insert discriminatory clauses in contracts has not been established.
Ambridge tried to fix its reputation through a number of means, but one of these was hiring an out gay person, Mr Gary Sorrels. Ambridge alleges that hiring Mr. Sorrels was then used by Holy Rosary to terminate its contract with Ambridge. As a result, Ambridge is suing Holy Rosary for breach of contract and related causes, asking for specific damages and reserving the right to request punitive damages later if warranted*3.
Although this is a private suit, the extent of Holy Rosary’s ability to discriminate and whether its legal authority to discriminate can ever be delegated (and to what extent) is a very public issue.
If Holy Rosary can discriminate in renting out its own worship hall to some people who want to hold a wedding there but not others, it could almost certainly require a management company to do the scheduling of these events for them, and in that case would seem to be able to have that management company inform queer customers that they aren’t welcome, rather than being forced to make the announcement themselves.
However, the relationship with Ambridge was different. Ambridge was a non-political, non-religious and definitely non-queer organization. Just a regular old for-profit company. Once Holy Rosary rents the space to Ambridge for 6 days a week in order to get regular, dependable income, Ambridge is no longer just some management company contracted to keep a schedule and tell Holy Rosary’s rental clients about Holy Rosary’s policies. Ambridge has the legal right to that space 6 days out of 7, with the expectation that they’ll sublet it for a few hours at a time for events. For the purposes of the law, is that different? Now instead of Ambridge (or someone) helping Holy Rosary enter into their own event-rental contracts, there’s one rental contract between Holy Rosary and Ambridge and another contract between Ambridge and someone, like PFLAG-PBC who wants to hold an event.
The statute here (2017 ORS 659A.006) looks like it has a tendency to lean one way to me. Take a look at paragraph 3, which is the basis of the church’s power to discriminate:
It is not an unlawful practice for a bona fide church or other religious institution to take any action with respect to housing or the use of facilities based on a bona fide religious belief about sexual orientation as long as the housing or the use of facilities is closely connected with or related to the primary purposes of the church or institution and is not connected with a commercial or business activity that has no necessary relationship to the church or institution.
The facilities are directly used for worship, so its very possible that “the use of facilities is closely connected with or related to the primary purposes of the church or institution”. Throwing parties may not seem closely connected, but worship is and the party is “connected with or related to” the primary purpose of the church by virtue of the fact that the party space is also the primary worship space of the church.
However, the law also requires that the party/event/other use of the facilities
is not connected with a commercial or business activity that has no necessary relationship to the church
The purpose of the church is not to make money. They are renting to an event company in order to make money. The party is certainly “connected to” this business activity since PFLAG-PBC was seeking to rent from a for-profit company, not the church itself. On the other hand, this is not a defeater if that activity has at least one “necessary relationship” with primary purpose of the church.
Since the primary purpose of the church building is to provide a place for congregants to worship, if the church shows it wasn’t taking in enough money and had to rent out the space to pay for the building’s upkeep, then perhaps the “commercial or business activity” had a “necessary relationship” to the primary function of the facilities. The facts as I know them so far incline me to say that its more likely that the courts will find that Ambridge could not discriminate and Holy Rosary could not require them to. This might apply not only to the PFLAG-PBC rental but also to the hiring of Gary Sorrels. However, it’s far from a clear cut question unless there’s something as an outsider to Oregon law that I’m missing (which is, frankly, probable, but not everything I’m missing would necessarily make it a clear cut question).
For various reasons specific to Oregon’s state constitution and its interpretive history, it’s probable that requiring churches themselves to abide by a sexual orientation non-discrimination statute would be found unconstitutional. If this exemption was determined to be constitutionally insufficient to protect churches, then the statutory language would cease to be the limiting factor on the question of whether Holy Rosary can require Ambridge to discriminate (effectively delegating its authority to discriminate). So even if we knew how courts were likely to decide the statutory question, that still might not settle the matter.
To me, whatever the ultimate decision is on the contract-related matters of the case, the importance of any decision on whether a statutory freedom to discriminate can be delegated will far outweigh the $2 million dollars or so that Holy Rosary might owe to Ambridge.
*1: Here used in its legal meaning as a non-profit corporation dedicated to creating opportunities for worshipping according to any religion, not merely one specific religion and certainly not limited to Christianity. In this post, I’ll also use “church” to mean buildings owned by such non-profits where worship takes place on a regular or quasi-regular basis. I hope that doesn’t end up being confusing.
*2: “Holladay Investors dba The Ambridge Event Center”. “dba” stands for “Doing Business As”, showing that the name on the paperwork is not necessarily the name that it uses in its advertising. Customers will generally know a business as its DBA. I’ll be using the short form “Ambridge” for this business in this post.
*3: This isn’t necessarily an odd position to take since frequently a decision that seems discriminatory and worthy of starting a lawsuit isn’t necessarily obviously malicious or otherwise deserving of punitive damages. However, after the lawsuit begins and discovery takes place, a review by the plaintiffs of newly accessible evidence like e-mails might reveal quite clear evidence that punitive damages are reasonable to request.
This post drew from a half-dozen sources or maybe a bit more, but relied most heavily on two of the first three I read:
The Oregonian’s web portal, Oregonlive had more than one good article about this, but you can start with this one.
Courthousenews gave me more info in this report.
If you want to see the statute at issue, you can peruse it here.