Human Rights Commission, Waltraud Keiley, Marilyn McMillan, Jane Thibodeau and Mayleen Ventura v. Benevolent and Protective Order of Elks of the United States of America and B.P.O.E., Hartford, Vermont, Lodge No. 1541

This appeal arises out of the Washington
Superior Court's summary judgment dismissal of plaintiffs' claim that
defendants, Benevolent and Protective Order of Elks of the United States of
America ("National Elks") and Benevolent and Protective Order of Elks,
Hartford, Vermont, Lodge 1541 ("Hartford Lodge"), discriminated against
them on the basis of sex in violation of 9 V.S.A. § 4502(a) when
plaintiffs' applications for membership in the Hartford Lodge were denied.
On appeal, plaintiffs argue that the trial court erred by: 1) ruling that
the Fair Housing and Public Accommodations Act ("FHPA"), 9 V.S.A. §§
4500-4507, does not bar membership discrimination by fraternal lodges; and
2) granting summary judgment for defendants because genuine issues of
material fact still remained. We agree, and therefore reverse and remand
for further proceedings consistent with this opinion.

2. This case is not about whether a genuinely private club -
fraternal or otherwise - can choose to discriminate on the basis of sex in
membership selection. That a private club can do so under our public
accommodations statute - whatever one thinks of the merits of such a choice
- is not open to doubt. See U.S. Jaycees v. McClure, 305 N.W.2d 764, 771
(Minn. 1981) (private associations and organizations are unaffected by
state's public accommodations law, and a court's determination that one
organization is not private under statute will have no effect on groups
that are in fact private and selective in membership). The issue before us
is whether the Hartford Lodge is a private club, or is so open and
nonselective in offering its facilities and privileges that it can be
considered a "place of public accommodation" within the meaning of the
FHPA.

3. We conclude that membership in a fraternal organization is
covered by the FHPA if such membership is essentially open to the public,
and we remand the case to the trial court so that the trier of fact may
make the factual findings necessary for a determination of that issue. Our
decision today is in conformity with the decisions of other jurisdictions,
which have held that similar public accommodations statutes extend to the
membership of a fraternal order in certain circumstances. See, e.g.,
Fraternal Order of Eagles, Inc., Tucson Aerie #180 v. City of Tucson, 816
P.2d 255, 256 (Ariz. Ct. App. 1991) (holding that fraternal organization is
subject to local public accommodations ordinance as a "place of public
accommodation"); Schellenberg v. Rochester, Michigan Lodge No. 2225, of the
Benevolent and Protective Order of Elks, 577 N.W.2d 163, 169 (Mich. Ct.
App. 1998) (discussing prior appeal where appellate court already found
that Elks was a "place of public accommodation"); Franklin Lodge of Elks v.
Marcoux, 825 A.2d 480, 485 (N.H. 2003) (holding that public accommodations
statute extends to Elks membership); Lahmann v. Grand Aerie of Fraternal
Order of Eagles, 43 P.3d 1130, 1131 (Ct. App. Or. 2002), review denied, 54
P.3d 1041 (Or. 2002) (remanding for factual determination of whether
fraternal order was "place of public accommodation"); Fraternal Order of
Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles,
59 P.3d 655, 668 (Wash. 2002) ("[T]he [Washington Law Against
Discrimination] reaches the membership policies of organizations.").

4. Hartford Lodge is a subordinate lodge of National Elks, the
largest benevolent fraternal order in America with approximately 1,200,000
members and over 2000 local lodges. At the time of plaintiffs'
applications, Hartford Lodge had 1042 members. From its inception in 1868
until 1995, National Elks required all candidates for membership to be
male. In 1995, the statutes of the National Elks were amended to delete
this requirement. The charter of the Hartford Lodge was automatically
amended to conform to the change by operation of the National Elks
statutes, despite the fact that Hartford Lodge voted against the amendment.
The amendment was communicated to the Hartford Lodge through mailings, a
speech, a newsletter and a magazine. (FN2)

5. To qualify for membership in the Elks, an individual must be
a United States citizen, at least twenty-one years of age, of good
character, and must believe in God. Hartford Lodge also alleges that it
adheres to an application screening process that consists of: a private
invitation to visit the Lodge; several visits by the prospect to meet
members; the prospect requesting and receiving a membership application;
the prospect submitting an application with personal history information;
the prospect pledging to pursue the organization's charitable objectives
and adhere to its statutes, by-laws, obligation and other rules, rituals
and procedures; an investigation of the prospect's background by a Hartford
committee; approval of the investigation committee based on National's
written membership criteria noted above; evaluation of the application and
an investigation committee report by the full membership; subjective
evaluation by the full membership of whether the prospect is "compatible;"
and approval of full membership and induction with formal pledge.
Plaintiffs alleged on summary judgment that Hartford Lodge had over a 99%
acceptance rate for white men, and that it accepted 269 new members from
1990-99, rejecting only ten applicants. Seven of these applicants were
women, including plaintiffs, and one was an African American man.

6. Hartford Elks owns and operates a large lodge facility in White
River Junction. It opens these facilities to the public for weekly bingo
games and rents the premises to members of the general public for private
functions, such as wedding receptions which it will also cater for a fee.
During the fiscal year ending in March 1996, Hartford Lodge reported
$1,113,636 in gross revenue from bingo and rip-open tickets. Plaintiffs
allege that National Elks received over $12,000,000 from membership dues in
the year plaintiffs applied for membership, and that this constituted 80%
of its earned income for the year, although these allegations are in
dispute.

7. In 1996, plaintiffs Waltraud Keiley, Marilyn McMillan, Jane
Thibodeau, and Mayleen Ventura applied for membership as the first female
applicants to Hartford Lodge. The four women were members of the Hartford
Elks Emblem Club, which holds meetings at the Hartford Lodge, at the time
of their membership applications. The women were interviewed by an
investigating committee and were recommended for acceptance as members.
Hartford Lodge then voted on the membership applications, and rejected the
female applicants but accepted the sole male applicant at that time. At a
second meeting in January 1997, the women applicants again failed to
receive the necessary votes and were not admitted to Hartford Lodge as
members.

8. In August 1998, plaintiff Vermont Human Rights Commission and
the individual plaintiffs filed this case against defendants in superior
court. National Elks filed a motion for summary judgment in December 1999,
and the court denied the motion on April 13, 2000 in a decision and order
written by Judge Bryan. In his decision, Judge Bryan noted Vermont's
"public policy commitment to eradicating sex discrimination by public
establishments in this state" as demonstrated through its legislative
enactment of anti-discrimination and human rights laws. The court
determined that "Hartford Elks Lodge is a place of 'public accommodation'
because it is in the business of selling memberships to a club" and
rejected National Elks' argument that it had no authority or involvement
over the membership decisions of a local lodge.

9. Hartford Lodge filed a motion to reconsider the April 13th
decision in which Judge Bryan determined that Hartford Elks was a place of
public accommodation. Hartford Lodge argued that whether the Hartford Elks
is a place of public accommodation is a disputed fact for the jury to
determine. Judge Bryan declined to alter the April 13th decision,
observing that "if the question of public accommodation is still alive, it
is certainly not well. This question likely will be disposed of quickly at
trial, and if not by the court as a matter of law, then by the jury under
instructions that will leave little doubt as to the result." He added that
"the Hartford Elks remains at liberty to convince Judge Katz, if it can,
that the question of public accommodation is for the jury. After hearing
the evidence, he remains free to submit the question [to the jury], should
he so choose."

10. In September 2000, plaintiff Human Rights Commission filed a
motion for summary judgment. National Elks also filed a second motion for
summary judgment in October 2000, followed by Hartford Lodge's motion for
summary judgment, which was filed in November 2000. On October 17, 2001,
the superior court ruled on the motions and dismissed the case in favor of
defendants. In its order, written by Judge Katz, the court concluded that
"the [FHPA] does not govern the membership of Hartford Elks, merely its
operation of its admittedly public facilities. . . . i.e., bingo games and
rental of the hall to large groups." The court reached its conclusion
based on its determination that the operative section of the statute, 9
V.S.A. § 4502(a), was governed, for the purposes of this case, by the
definition of "place of public accommodation" contained in 9 V.S.A. §
4501(1), and that this definition did not bar discrimination by the
Hartford Elks "providing they remain strictly selective in their membership
requirements and procedures."

11. In reviewing a grant of summary judgment, we apply the same
standard as the superior court. Wentworth v. Fletcher Allen Health Care,
171 Vt. 614, 616, 765 A.2d 456, 459 (2000) (mem.). Summary judgment is
appropriate "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that any party is entitled
to a judgment as a matter of law." V.R.C.P. 56(c)(3). It is not the
function of the trial court to find facts on a motion for summary judgment.
Fritzeen v. Trudell Consulting Eng'rs, Inc., 170 Vt. 632, 633, 751 A.2d
293, 296 (2000) (mem.). Thus, as long as a genuine issue of material fact
remains, summary judgment may not serve as a substitute for a determination
on the merits. Id.

I.

12. Plaintiffs first argue that the trial court erred by ruling
that, as a matter of law, the Fair Housing and Public Accommodations Act
("FHPA"), 9 V.S.A. §§ 4500-4507, does not bar membership discrimination by
fraternal lodges. Section 4502(a) of the Fair Housing and Public
Accommodations Act, a remedial statute, prohibits an owner or operator of a
place of public accommodation from refusing or denying a person the
advantages or privileges of the place of public accommodation on the basis
of the person's race, creed, color, national origin, marital status, sex or
sexual orientation. 9 V.S.A. § 4502(a). (FN3) Section 4501(1) defines
"place of public accommodation" as "any school, restaurant, store,
establishment or other facility at which services, facilities, goods,
privileges, advantages, benefits or accommodations are offered to the
general public."

13. The interpretation of a statute is a question of law, and
therefore this Court's review is "nondeferential and plenary." In re S.
Burlington-Shelburne Hwy. Proj.,13 Vt. L. Wk. 374, 375, 817 A.2d 49, 51
(2002) (mem.). Our paramount goal, when interpreting a statute, is to
effectuate the intent of the Legislature. Tarrant v. Dep't of Taxes, 169
Vt. 189, 197, 733 A.2d 733, 739 (1999). In order to effectuate this
intent, we look to the statute's language and any legislative history, as
well as the legislative policy the statute was designed to implement.
Perry v. Med. Practice Bd., 169 Vt. 399, 406, 737 A.2d 900, 905 (1999). We
are guided by the "whole of the statute and every part of it, its subject
matter, the effect and consequences, and the reason and spirit of the law."
In re P.S., 167 Vt. 63, 70, 702 A.2d 98, 102 (1997). Where there are
similar statutes in other jurisdictions, we are also guided by the
interpretations of those statutes. State v. Weller, 152 Vt. 8, 13, 563
A.2d 1318, 1321 (1989). As a remedial statute, the FHPA must be liberally
construed in order to "suppress the evil and advance the remedy" intended
by the Legislature. 3 N. Singer, Statutes and Statutory Construction §
60.01, at 183 (6th ed. 2001); see also Human Rights Comm'n v. LaBrie, Inc.,
164 Vt. 237, 245, 668 A.2d 659, 665 (1995); Town of Killington v. State,
172 Vt. 182, 191, 776 A.2d 395, 402 (2001).

14. One such evil that public accommodations statutes, such as the
FHPA, seek to suppress is the "deprivation of personal dignity that surely
accompanies denials of equal access to public establishments." Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 250 (1964). By
preventing this "stigmatizing injury, and the denial of equal opportunities
that accompanies it," the Legislature, through the FHPA, rejects archaic
stereotypes and protects the citizens of Vermont from "a number of serious
social and personal harms." Roberts v. United States Jaycees, 468 U.S.
609, 625 (1984) (discussing purpose of similar public accommodations
statute in Minnesota).

15. When the FHPA was first enacted in 1957, predating comparable
versions of the federal Civil Rights Act of 1964, sex was not a protected
classification. Over the last forty-five years, however, several
amendments have broadened its scope with regard to the groups protected
from discrimination under the statute and the establishments or facilities
covered by definition. In Vermont, it has been illegal to deny a person
the privileges or advantages of a place of public accommodation on the
basis of sex since 1988. See 1987, No. 74, § 1 (codified at 9 V.S.A. §
4502(a)) (adding sex as a protected classification under the statute).
(FN4)

16. Many states, as well as the federal government, have created
an exemption from the definition of "place of public accommodation" for
bona fide clubs which are distinctly private in nature. See, e.g., Ariz.
Rev. Stat. Ann. § 41-1441(2) (West 1992); Ark. Code Ann. § 16-123-102(7)(B)
(Michie Supp. 2003); Idaho Code § 18-7302(e) (Michie 1997); Kan. Stat. Ann.
§ 44-1002(h) (2000); Ky. Rev. Stat. Ann. § 344.130(1) (Michie 2001); La.
Rev. Stat. Ann. § 49:146(A)(2) (West 2003); Md. Code Ann., Art. 49B, § 5(f)
(2003); Mich. Comp. Laws Ann. § 37.2303 (West 2001); Minn. Stat. Ann. §
363.02(2) (West 1991); Mont. Code Ann. § 49-2-101(20)(b) (2003); Neb. Rev.
Stat. § 20-138 (1997); N.H. Rev. Stat. Ann. § 354-A:2 (XIV) (1995); N.M.
Stat. Ann. § 28-1-2(H) (Michie 2000); N.D. Cent. Code § 14-02.4-02(12)
(1997); Okla. Stat. Ann. 25 § 1401(1)(i) (West 1987); Or. Rev. Stat. §
659A.400(2) (2001); R.I. Gen. Laws § 11-24-3 (2002); S.C. Code Ann. §
45-9-20 (2002); S.D. Codified Laws § 20-13-1(12) (2002); Tenn. Code Ann. §
4-21-102 (2003); Utah Code Ann. § 13-7-2(1) (2001); Wash. Rev. Code Ann. §
49.60.040(10) (West 2002); Wis. Stat. Ann. § 106.52(1)(e)(2) (West 2002).
The public accommodations statute in New York goes further and specifically
includes benevolent orders, such as the Elks, within its "distinctly
private" exemption. N.Y. Executive Law § 292(9) (McKinney 2001) ("For the
purposes of this section, a corporation incorporated under the benevolent
orders law or described in the benevolent orders law but formed under any
other law of this state . . . shall be deemed to be in its nature
distinctly private.").

17. Our Legislature, however, did not create such an exemption
for fraternal organizations in the FHPA. The Legislature has created
exemptions for fraternal organizations when it clearly intends to exempt
fraternal organizations from the ambit of a statute. For example, the
Legislature has included several exceptions for fraternal organizations and
institutions in other statutes. See 31 V.S.A. § 506 (municipal regulation
of dance halls, bowling alleys, pool halls and coasting); 9 V.S.A. §
4452(3) (residential rental agreements); 18 V.S.A. § 1743(1) (smoking in
public places). The Elks contend that such an exemption is not necessary
where, as the group argued here, a fraternal organization is clearly not
included under the definition of "place of public accommodation" in the
first place. In 1993, however, the Legislature specifically exempted from
"places of public access," 18 V.S.A. § 1741(2), "buildings owned and
operated by . . . fraternal . . . organizations when used by the membership
of the organization, their guests or families . . ." from the restrictions
on the possession of lighted tobacco products. Id. § 1743(1). Finally, in
9 V.S.A. § 4502(d), the Legislature created an exemption to the public
accommodations section of the FHPA for owners of establishments which
provide lodging to transient guests with five or fewer rooms for rent, and
it did not include fraternal organizations within this exemption section.
We will not presume an exemption to exist where the Legislature has not so
intended or indicated through the plain language of the statute. Cf. Vt.
Dev. Credit Corp. v. Kitchel, 149 Vt. 421, 425, 544 A.2d 1165, 1167 (1988)
(if Legislature intended to exempt an organization from a statute it could
have added them to list of exempted organizations, and where it did not, we
will not presume an exemption to exist).

18. Notwithstanding the trial court's doubt that the Legislature
considered the potential impact of the FHPA on fraternal organizations, the
trial court's summary judgment opinion properly framed the salient question
before it: "The issue in this case is whether the Hartford Elks, and more
specifically membership in the Hartford Elks, is a 'place of public
accommodation' such that it is subject to the provisions of the statute."
For the reasons more fully explained below, we conclude that answering that
question on summary judgment was premature, given the genuine issues of
material fact still in dispute.

II.

19. The assessment of whether a club constitutes a place of
public accommodation rather than a private selection entity has been the
subject of substantial case law. See Franklin Lodge, 825 A.2d at 485
(listing cases). Courts have commonly applied and weighed several factors
to determine whether a club is private or public including: a) whether the
group's membership is genuinely selective; b) the amount of control the
existing members have over the club's operations; c) the history of the
organization; d) the use of club facilities by non-members; e) whether the
organization advertises or directs its publicity to anyone other than
members; f) the purpose of the organization; and g) any profit motive.
See, e.g., id.; McClure, 305 N.W.2d at 770 (stating that two criteria tend
to be used in cases deciding whether a group is private or public for the
purposes of a public accommodations statute: (1) the selectiveness of the
group in the admission of members and (2) the existence of limits on the
size of the membership).

20. The principal factor in determining whether a club fits within
the definition of "place of public accommodation" is a club's selectivity.
See Fraternal Order of Eagles, Tenino Aerie No. 564, 59 P.3d at 669
("Inquiry entails examining the selectivity of the organization in
membership practices and scrutinizing whether the invitation to gather is
open to the public."); United States v. Trustees of the Fraternal Order of
Eagles, Milwaukee Aerie No. 137, 472 F. Supp. 1174, 1175 (E.D. Wisc. 1979)
("[T]he most important factor in determining whether a club is in fact
private is the process which the club actually uses in selecting its
members.") (emphasis added). It is not enough for an organization to
appear selective on paper while in fact offering memberships to the general
public; rather an organization must be genuinely selective. See United
States v. Lansdowne Swim Club, 894 F.2d 83, 86 (3d Cir. 1990). Procedures
and criteria for membership are "insufficient to establish selectivity
where they do not function as true limits on admission." Franklin Lodge,
825 A.2d at 486.

21. This selectivity factor is so important that it alone may
determinative of the outcome if an organization lacks genuine selectivity.
Id.. "[A] formal procedure requiring nothing more than membership approval
is insufficient to show genuine selectivity." Lansdowne Swim Club, 894
F.2d at 86 (determining that swim club criteria for membership admission of
being interviewed, completing an application, submitting two letters of
recommendation and tendering payment of fees were not "genuinely
selective"); see also Trustees of the Fraternal Order of Eagles, Milwaukee
Aerie No. 137, 472 F. Supp. at 1176 (finding that Eagles Club formal
membership requirements were not selective in fact when, among other
factors, the number of applications accepted were compared with the number
of rejected applications).

22. Hartford Lodge substantially relies upon Kiwanis Int'l v.
Ridgewood Kiwanis Club, 806 F.2d 468, 476 (3d Cir. 1986), in which the
United States Court of Appeals held that a local club, Kiwanis Ridgewood,
was not a "place of public accommodation" within the meaning of New
Jersey's statute that prohibits unlawful discrimination in places of public
accommodation. In stark contrast to Hartford Lodge, which has some
800-1000 members, the Kiwanis Ridgewood club had only twenty-eight members.
Id. at 475. In its selectivity analysis, the court noted that ten of the
twenty-eight members had been members for over twenty years, and that, in
the decade preceding the case, Kiwanis Ridgewood admitted no more than
twenty new members. Id. Hartford Lodge admitted approximately 270 new
members from 1990-1999, and there is no indication that the Elks have a
limit on the number of new members allowed.

23. Here, plaintiffs presented evidence on summary judgment that
National Elks issues a Membership Control Manual to all Lodges in which it
emphasizes the importance of maintaining "good business principles and
management practices" in "a Lodge's Membership Procurement Program." The
manual encourages each lodge to set definite goals for "Membership
Procurement" of "at least 10 percent of the year's beginning membership:
i.e., if membership was 700 on April 1, the Lodge's goal should be to
initiate 70 new members." National Elks encourages lodges to "promote
friendly rivalries among committees and the membership, both for submitting
the names of prospects and for actually signing them up" and to "reward a
winning committee or team with a free dinner or other minor recognition."
The National Grand Lodge gives awards and offers incentives for members who
sponsor or recruit a certain number of new members. In a sample letter
for new members, it writes that membership would be beneficial to "every
one of our neighbors who is at least 21 and believes in God and in helping
others." The Minnesota Supreme Court has declared that this kind of
"continuous concern for growth undercuts [a] national organization's claim
to be a private organization." McClure, 305 N.W.2d at 771 (holding that
the United States Jaycees was a "place of public accommodation" covered by
statute).

24. Because the nature of a court's inquiry into whether an
organization offers memberships to the general public is fact specific,
determinations must be made on a case-by-case basis. The material factual
findings required for a determination of genuine selectivity must be made
by the trier of fact. See Lahmann, 43 P.3d at 1131 (holding that "the
question whether the Fraternal Order of the Eagles is a 'place of public
accommodation' presents a disputed issue of material fact"); New York State
Club Ass'n, Inc. v. City of New York, 505 N.E.2d 915, 919 (N.Y. 1987),
aff'd 487 U.S. 1, 18 (1988) ("whether a 'distinctly private' club is a
place of public accommodation is a question of fact"). As defendant
Hartford Lodge conceded at oral argument before this Court, the defendants'
selectivity was "a very hotly disputed issue."

25. As noted, plaintiffs have alleged that, from 1990-99, only
ten applications have been rejected by the Hartford Lodge out of over 270
total applications. Seven of the rejected applicants were women, one was
an African American man, and one had a criminal record. Based on this
allegation, plaintiffs alleged that Hartford Lodge has a 99.3% acceptance
rate for all white men. In its response to plaintiffs' statement of
undisputed facts Hartford Lodge did not dispute plaintiffs' raw numbers,
but asserted that they yielded a somewhat lower acceptance rate of 97%.
More important, Hartford Lodge also alleged that the numbers were
misleading because, in fact, the first step in its application process is
to screen potential members "for compatibility with existing members." It
further alleged that many potential applicants fail to pass this step.
Thus, Hartford Lodge argued, in effect, that it was far more selective than
the final acceptance figures suggested.

26. These conflicting claims concerning the actual selectivity
level of Hartford Lodge are highly material, and remain in sharp dispute.
Furthermore, there is no indication that the trial court considered or
reviewed these material allegations in determining that the Elks is "more
private than public." The formal membership procedures that the Elks claim
to use are not alone sufficient for a finding of genuine selectivity. See
Franklin Lodge, 825 A.2d at 486 (determining that use of particular
membership criteria and formal screening procedures by Elks are inadequate
to establish selectivity where "virtually all men who apply and satisfy
minimum standards are admitted"). Because genuine issues of material fact
remained regarding defendants' selectivity in extending memberships, it was
not appropriate for the trial court to find that the Hartford Lodge was not
subject to the Vermont Public Accommodations statute. See Fritzeen, 170 Vt.
at 633, 751 A.2d at 296 (trial court should not find facts on a motion for
summary judgment, nor should summary judgment serve as a replacement for a
determination on the merits when a genuine issue of material fact remains);
Fraternal Order of Eagles, Tenino Aerie No. 564, 59 P.3d at 670 n.126 ("The
'distinctly private' factors serve as material facts because the outcome of
the case relies on proving the factors favor one conclusion over the
other.").

III.

27. National Elks asserts that the summary judgment in its favor
should be affirmed for reasons independent of the trial court's conclusion
that FHPA does not regulate Hartford's membership. Those additional
reasons are: (1) National Elks is not a "place" and thus cannot be a "place
of public accommodation" under the FHPA; (2) National Elks is not an "owner
or operator of a place of public accommodation" and thus the FHPA does not
apply to it; and (3) National Elks cannot be held liable for the alleged
discriminatory action of the local lodge. National Elks concedes that the
trial court did not reach these additional issues, but invites us to affirm
summary judgment as to National Elks on any or each of those grounds. We
decline to do so.

28. First, we are unpersuaded by National Elks' argument that
because it does not own a "place" within Vermont, it is insulated from the
reach of the public accommodations statute. See Roberts, 468 U.S. at 616
(application of Minnesota Human Rights Act to nonprofit national membership
appellee United States held valid where Minnesota Supreme Court determined
appellee was "a place of public accommodation" within the meaning of the
Act). (FN5)

29. Second, decision on the issue of National Elks' liability, if
any, for the alleged discriminatory acts of Hartford Lodge is premature.
Material issues of fact remain as to whether the Lodge is a public or
private entity for purposes of the FHPA. Further, plaintiffs have alleged
that National Elks has substantial and direct supervisory responsibility
over Hartford Lodge, a representation vigorously disputed by National Elks.
National Elks' related legal arguments that agency law and the common law
integrated enterprise doctrine disfavor the imputation of liability for
discrimination must similarly await the development of a factual record
more complete than the one before us.

IV.

30. Because we conclude that lodge membership is not necessarily
excluded from the definition of "place of public accommodation" under the
FHPA, we also address defendant National Elks' argument that this reading
of the statute renders it unconstitutionally overbroad and vague. The
United States Supreme Court has declared that the "overbreadth doctrine"
must be used "sparingly" and "as a last resort." Broadrick v. Oklahoma,
413 U.S. 601, 613 (1973). In Roberts, the Court upheld the Minnesota
Supreme Court's interpretation of the state's public accommodations statute
because the court adopted "commonly used and sufficiently precise
standards" and applied constructions that would exclude private groups from
the statute's reach. 468 U.S. at 631. The Court determined that the
'sufficiently precise standards' included, "a number of specific and
objective criteria - regarding the organization's size, selectivity,
commercial nature, and use of public facilities - typically employed in
determining the applicability of state and federal antidiscrimination
statutes to the membership policies of assertedly private clubs." Id. at
629. Thus, the statute, explained the United States Supreme Court, "does
not create an unacceptable risk of application to a substantial amount of
protected conduct." Id. at 631. The Minnesota public accommodations
statute contains language similar to Vermont's FHPA, and we have
interpreted it on similar grounds using the same familiar standards of
application. Thus, we do not agree with defendants' contention that our
reading of the statute and use of the applicable tests renders the statute
overbroad.

31. When a statute forbids the doing of an act in terms so vague
that persons of common intelligence must guess at its meaning and differ as
to its application, it is void for vagueness. In re S.M., 2003 VT 41, 14,
824 A.2d 593. As with the overbreadth analysis above, the test we
articulated for determining the reach of the FHPA to membership
organizations is similar to the standards that were formulated by the
Minnesota Supreme Court in McClure and upheld by the United States Supreme
Court in Roberts. This confined application ensures that the statute's
scope is "readily ascertainable" and removes any void-for-vagueness
concerns. See Roberts, 468 U.S. at 629-30.

32. National Elks and Hartford Lodge assert that the FHPA is
unconstitutional if applied to membership votes of local fraternal lodges,
arguing freedom of intimate association on personal liberty grounds and
freedom of expressive association as a First Amendment claim. It is
unnecessary to address this constitutional claim given the posture of the
case before us, and we will not do so. In re Wildlife Wonderland, Inc.,
133 Vt. 507, 520, 346 A.2d 645, 653 (1975) (declaring that we will not
consider constitutional claims unless disposition of the case requires it).

33. We note that in order to preserve the individual liberty
secured by the Bill of Rights, highly personal relationships, such as
familial relationships, must be protected from unjustified interference by
the State. Roberts, 468 U.S. at 618-19. These relationships are often
characterized by their "relative smallness, a high degree of selectivity in
decisions to begin and maintain the affiliation, and seclusion from others
in critical aspects of the relationship." Id. at 620. Thus, personal
associations that lack these qualities will not necessarily be afforded
such protection. See id. at 621 (finding "the Jaycees chapters lack the
distinctive characteristics that might afford constitutional protection to
the decision of its members to exclude women" because the two local
chapters were "neither small nor selective" where each chapter had around
400 members and new members were "routinely recruited and admitted with no
inquiry into their background" and a local officer "could recall no
instance in which an applicant had been denied membership on any basis
other than age or sex"). The United States Supreme Court has explained
that simply because some amount of intimate association may occur in a
club, as may also occur in many restaurants and other places of public
accommodation, that alone "does not afford the entity as a whole any
constitutional immunity to practice discrimination when the government has
barred it from doing so." New York State Club Ass'n, 487 U.S. at 12. Like
the test for "genuine selectivity" to decide whether an organization is
included under the definition of "place of public accommodation," certain
factual findings must be made by the trier of fact before we can fully
consider Hartford Lodge's intimate association claim under the test
discussed by the United States Supreme Court in Roberts. See Lahmann, 43
P.3d at 1138 (declining to reach the issue of whether applying the Oregon
Public Accommodation Act to the Fraternal Order of Eagles violates their
right of association until after factual findings have been made).

34. Similarly, a freedom-of-expressive-association First
Amendment claim requires courts to "examine whether or not the application
of the state law would impose any 'serious burden' on the organization's
rights of expressive association. . . . [T]he associational interest in
freedom of expression [is] set on one side of the scale, and the State's
interest on the other." Boy Scouts of America v. Dale, 530 U.S. 640,
658-59 (2000). The argument that the FHPA is unconstitutional if applied
to the membership votes of local fraternal lodges requires a much greater
record than is before us. See New York State Club Ass'n, 487 U.S. at 10
(without record of actual fact that a substantial number of instances exist
in which antidiscrimination law cannot be applied constitutionally, it
cannot be concluded that the law threatens to undermine the associational
or expressive purposes of any club, let alone a substantial number of
them). We cannot conclude that the FHPA is unconstitutional on the basis of
what is before us, and will not assume the overbreadth ascribed to it by
appellees. See id.; Broadrick, 413 U.S. at 615-16 ("whatever overbreadth
may exist should be cured through case-by-case analysis of the fact
situations to which its sanctions, assertedly, may not be applied").

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