EDMONDS, P.J., dissenting.

The majority errs when it holds that summary judgment under ORCP 47 is precluded in this case. It concludes that there is a question of material fact as to whether membership in the Fraternal Order of Eagles (Eagles) is subject to Oregon's Public Accommodation Act (act) because "the Eagles are, like the Lions, in the business of selling memberships" and "the trier of fact reasonably could find that the Eagles are a business and that their membership criteria are so generally unselective that they offer their product — membership in their organization — to the public." 180 Or. App. at 434. The majority misinterprets the meaning of the act and the Supreme Court case interpreting it. Once the act is properly interpreted, no genuine issue of material fact remains. As a matter of law, the membership service offered by the Eagles is not subject to the act because it provides solely fraternal benefits without the accompanying purpose of providing any economic advantages.

The text and context of the act is the starting point in the analysis. ORS 30.670 (1999) provides:

"(1) All persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommondation, without an distinction, discrimination or restriction on account of race, religion, sex, marital status, color or national origin."

ORS 30.675 provides:

"(1) A place of public accommodation, subject to the exclusion in subsection (2) of this section, means any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise."

"(2) However, a place of public accommodation does not include any institution, bona fide club or place of accommodation which is in its nature distinctly private."

To understand what is in issue in this case in light of the above statutes, it is important to identify what is not in issue. The Eagles are not, at least for purposes of this case, a "bona fide club or accommodation which is in its nature distinctly private." Some of their activities, including the furnishing of food, beverages, and social amusements, are not distinctly private and, in fact, the evidence shows that those activities are open to both genders. Consequently, ORS 30.675(2) has no application to this case. Second, the membership activity of the Eagles is not "a place * * * offering to the public accommodations, advantages, or facilities" within the meaning of subsection (1). ORS 30.675(1) (emphasis added). A "place" within the definition of the phrase "place of public accommodation" in ORS 30.675(1) connotes a physical locale. Although an Eagles' lodge could be a "place" within that definition for purposes of the activities that are open to the public, physical access to the lodge is not the issue in this case. That leaves only one alternative for coverage under ORS 30.675(1). Does membership in the Eagles constitute a "service" within the meaning of the word in the statute as contemplated by the legislature? If it does not constitute a "service," then it is not subject to the act, regardless of the fact that the Eagles's other activities could be subject to the act.

In Schwenk v. Boy Scouts of America, 275 Or. 327, 551 P.2d 465 (1976), the Supreme Court held that the word "service" has a specialized particular meaning within the act. It is the majority's misunderstanding of what the Schwenk court said about the word "service" that leads it to an erroneous analysis. As I discuss below, the word "service" in the statute, as Schwenk interpreted it, encompasses only those activities or advantages of accommodations, advantages, facilities, or privileges that are commercial in nature, e.g., those that the legislature wanted to be made available to the public without discrimination by the offeror. That limitation on the definition of the word "service" is not my creation from whole cloth; it is found in Schwenk and in the legislative history of the act. It is also compelled by a comparison of the results in Schwenk with the legislative history.

In Schwenk, a nine-year-old girl brought an action under the act through her guardian ad litem. She alleged a violation of the act as the result of the Boy Scouts' refusal to accept her application as a cub scout because she was a female rather than a male. She did not allege that the Boy Scouts were subject to the act because they were a business or a commercial organization. Rather, she alleged that the Boy Scouts offered "scouting services and programs to members of the public in Oregon." Schwenk, 275 Or. at 329. She argued that they were subject to the act because membership in the Boy Scouts is a service and therefore a place of public accommodation. In response, the defendant contended, among other things, that the legislative history of the act demonstrates that its purpose was "to bar discrimination in businesses which offer goods or services to the public." Id. at 331 (emphasis in original). In its analysis to determine the legislature's intent, the court held that the words "place or service" in subsection (1) were ambiguous, and it therefore turned to the legislative history of the act to determine the legislature's intent.

After examining the legislative history, the court said:

"It would appear from the foregoing that the primary concern and purpose of the Oregon legislature in its enactment of the Oregon Public Accommodation Act was to prohibit discrimination by business or commercial enterprises which offer goods or services to the public.

"It may be true, as contended by plaintiff, that the Boy Scouts of America is not a `bona fide club or place of accommodation which is in its nature distinctly private,' so as to come within the exception provided by [ORS 30.675(2)] from compliance with provisions of the [act]. The same may also be true of the YMCA and YWCA.

"If, however, as would appear from the legislative history of that Act, the Oregon Legislature intended that services offered by the YMCA and YWCA would not be subject to the provisions of the act ( with the possible exception of the operation of facilities for `public accommodation' without membership rights), it is difficult to see how the legislature could have intended any different application of that Act to the Boy Scouts of America." Id. at 334-35 (first emphasis in original; second emphasis added).

The court concluded:

"In our opinion, however, the legislative history of the [act], when taken as a whole, is sufficiently clear so as to compel the conclusion that the term `place of public accommodation' as defined by ORS 30.675, as amended in 1973, was not intended by the Oregon legislature to include the Boy Scouts of America, at least to the extent of requiring it to accept applications by girls for membership." Id. at 336 (emphasis added).

Justice O'Connell dissented. He said, "I find nothing in the Act nor in the legislative background of the Act which suggests that it was to apply only to business or commercial activities." Id. at 337. He asserted, "There is nothing about the wording of the Oregon Act which suggests that it was intended to be confined to commercial activities[.]" Id. at 339. He explained, "I cannot accept the majority's narrow interpretation of the Act, limiting it to commercial activities or to material advantages such as the obtention of credit." Id. at 341. O'Connell said, "The recurring distinction in the legislative history is between that which is a public accommodation and that which is `distinctly private'; it is not the distinction between commercial and non-commercial relied upon in the majority opinion." Id. at 342. The Schwenk majority did not assert that O'Connell misstated its position that the act focuses on commercial activities and advantages.

In summary, the plaintiff in Schwenk argued that the Boy Scouts were subject to the act because they offered membership services broadly to the public. The Boy Scouts countered that the purpose of the act was to bar discrimination only in businesses or commercial enterprises that offer services to the public and that they were not a business or commercial enterprise. The Schwenk court did not adopt either interpretation of the act advanced by the parties. Its methodology is clear. It acknowledged, as the plaintiff contended, that the Boy Scouts organization was not an exempt club or place of private accommodation under ORS 30.675(2), as also could "be true of the YMCA and YWCA." Schwenk, 275 Or. at 335. It then made a comparison of the membership services of the Boy Scouts with the membership services offered by the YMCA and the YWCA. It noted that the legislature did not intend the act to cover the membership services of the YMCA and the YWCA. In light of that fact, it concluded that "it is difficult to see how the legislature could have intended any different application" of the act to the Boy Scouts. Id.

What is most significant in regard to the majority's interpretation of Schwenk in this case is that neither the majority nor the dissenting opinion in Schwenk framed the inquiry as whether the Boy Scouts are subject to the act because they are a business or commercial enterprise. In other words, it was not germane to the Schwenk court's reasoning whether or not the YMCA, the YWCA and the Boy Scouts could be deemed business or commercial enterprises as organizations. Rather, for purposes of analysis of coverage under the act, the court focused on the separate membership activity of the Boy Scouts and evaluated it discretely. It was only by engaging in an "activity-by-activity" or "service-by-service" analysis, as the legislature intended, that the majority in Schwenk could have reached the conclusion that it did, and that methodology should control our analysis in this case.

Thus, following the lead of the Schwenk court, the proper analysis in this case begins with the understanding that the "place or service" phrase in ORS 30.675(1) is ambiguous, and that fact requires us to resort to the legislative history underlying the act.

The legislature added the "service" language in 1973. Or. Laws 1973, ch 714, § 1. The overall tenor of the legislative history underlying the 1973 amendments demonstrates that the legislature sought to extend certain rights to females that the act had already extended to other groups. As Jane Edwards testified before the House Committee,

"Many important business and economic decisions are made in public places which exclude women. Further it is impossible for employers and society generally to recognize women as equal in business and professional communities and yet consider them inferior socially. The result is that unless places of public accommodations are open to persons of both sexes, discrimination in employment will continue." Testimony, House State and Federal Affairs Committee, HB 2116, March 2, 1973, Ex 6.

As emphatic as the legislature's desire was to provide certain benefits to females, it was equally clear that it intended the scope of the act to be limited. The "places" discussed by the legislature were commercial places like restaurants or other physical locations that offer "goods, services, lodgings, amusements or otherwise" to the public. In addition to commercial places that accommodate the public, the legislature also focused on commercial "services" that, in their provision of goods, services, lodging, amusements, or other things, impact females in their financial, vocational, and income-earning activities and interests. In the legislature's view, the kinds of services that the act addresses are those involving financial matters or those in which business people associate together in such a way that the exclusion of females would disadvantage them. Although those services have no fixed physical location, they are services that are or should be available to both genders to afford equality of economic opportunity.

Thus, to summarize thus far, the statutory scheme as a whole is concerned with equal access by the public and provides, therefore, that all persons are entitled to the full and equal accommodation, advantages, facilities, and privileges of any place of public accommodation. ORS 30.670. For purposes of the act, a "place of public accommodation" is defined as either a place or a service. Thus, the phrase "places of public accommodation" in the statute includes places and services in which the legislature has said that the public has an interest in access without discrimination. The word "service" in the statute must be applied in accordance with the legislature's intent, and the act excludes from coverage under ORS 30.675(1) those services that the legislature did not intend to be classified as "places[s] of public accommodation." The scope of the limitation is found in the examples and the statements in the legislative history. The Schwenk opinion refutes the use of the majority's "nature of the organization" test. Rather, the Schwenk court used a test that focused on the advantages provided by the Boy Scouts' membership service. Schwenk teaches us that the test to be applied under the act is whether the individual "service" to which access is sought (in this case, Eagles' membership service) provides the kind of benefit that the legislature intended to be to regulated by the act. If it does, it is a "service" subject to the act. If it does not, it is beyond legislative regulation. When that test is applied in this case, the answer becomes apparent. The membership service of the Eagles, in the words of Justice O'Connell, is not a "commercial" activity nor, in the words of the statute, does it provide business or commercial "accommodations, advantages, facilities or privileges whether in the nature of goods services, lodgings, amusements or otherwise." Consequently, the Eagles are entitled to summary judgment as a matter of law.

The majority interprets the act and the Schwenk opinion differently. According to its reasoning: (1) a "place of public accommodation" is a business or commercial enterprise that offers privileges or advantages to the public; (2) community service organizations may be business or commercial enterprises for purposes of the act; and (3) "some private organizations may have such unrestrictive membership criteria that the organization is effectively open to the public" for purposes of the act. 180 Or. App. at 429. As to Schwenk, it says:

"[T]he court's holding rests on the syllogism that the act was not intended to reach the YMCA; that, for the purposes of this issue, the Boy Scouts and the YMCA were the same; and therefore, that the act did not apply to the Boy Scouts.

"The court did not explicitly tie the conclusion that it drew from the legislative history — that `the legislature's primary concern and purpose * * * was to prohibit discrimination by business or commercial enterprises which offer goods or services to the public' — to its holding that the act does not apply to the YMCA and, by extension, to the Boy Scouts. It did explain, however, that `the legislative history of the Oregon Public Accommodation Act, when taken as a whole, is sufficiently clear so as to compel the conclusion that the term `place of public accommodation,' * * * was not intended to include the Boy Scouts of America, at least to the extent of requiring it to accept applications by girls for membership. Schwenk, 275 Or. at 336 (emphasis added). In light of the court's reliance on the whole legislative history, its rationale appears to be that the Boy Scouts were not a business or a commercial enterprise and thus are not subject to the Public Accommodation Act." 180 Or. App. at 427-28.

The majority asserts that the limitation on the word "service" that Schwenk drew from the legislative history is based on "the nature of the place or service, not the type of `accommodations, advantages, facilities or privileges' it provides." 180 Or. App. at 430. Finally, the majority says that my interpretation of the holding in Schwenk is at odds with Justice O'Connell's description of the majority's holding in Schwenk and the text of the statute because the statute's definition of "place of public accommodation" is not limited to organizations that offer only business-related benefits to their members but also refers in general to "goods, services, lodgings or otherwise." It believes (not unlike Justice O'Connell) that the act has a broader focus than a "woman's ability to compete on equal terms with men in the business and financial world." 180 Or. App. at 432.

I begin my response to the majority by discussing our disagreement about the holding in Schwenk because, in my view, Schwenk provides the foundation for a proper interpretation of the act. The majority says that the Schwenk court's "rationale appears to be that the Boy Scouts are not a business or commercial enterprise and thus are not subject to the Public Accommodation Act." 180 Or. App. at 427-28. Thus, under the majority's analysis, the Schwenk court decided that the Boy Scouts as an organization were not to be treated as a business or commercial enterprise under the act. As stated previously, the opinions in Schwenk do not pose that issue or purport to answer it, and, necessarily, the majority must reach its understanding of the holding in Schwenk by inference. The majority correctly concedes that the Schwenk court "did not explicitly tie the conclusion that it drew" to the legislative history underlying the act. 180 Or. App. at 427. There is a good reason why the majority perceives a lack of support for its interpretation in the Schwenk opinion. When understood correctly, Schwenk was not decided on the basis that the Boy Scouts were not a business organization, but, rather, under an analysis that evaluated the offer of a membership service separately from the Boy Scouts' other activities.

Also, the majority's interpretation gives no effect to the Schwenk court's observation that, while the act could cover the YMCA's operations of facilities, it does not cover its offer of membership. If being a business or commercial enterprise is what makes the difference between coverage and noncoverage, then it is difficult to perceive how the Schwenk court could conclude that some of the YMCA's services are covered and others are not. The YMCA as an organization is either a business, or it is not; if that is the test for coverage, then all of its offerings of activities or advantages are covered by the act. Clearly, however, under the Schwenk court's interpretation of the act, some activities could be covered but others expressly are not.

Another conceptual problem with the majority's assertion that the act is intended to regulate only business or commercial organizations is that the Schwenk court declined to adopt a similar argument made by the Boy Scouts in that case. When faced with competing arguments by the plaintiff (that the Boy Scouts were subject to the act because they offered services and programs to the public) and by the Boy Scouts (that the purpose of the act was to bar discrimination only in businesses that offer goods or services to the public), the court, after resorting to the legislative history, focused on the advantages of the membership service offered by the Boy Scouts and concluded that its membership service was not the kind of service covered by the act.

The majority also proposes that the answer lies in "whether [the Eagles] membership policies are so unselective that the organization can fairly be said to offer its services to the public." 180 Or. App. at 434. One conceptual problem with that assertion is that the YMCA, the YWCA, and the Boy Scouts are all organizations that solicit the public for membership, and yet they were held not subject to the act by the Schwenk court. Moreover, had the Schwenk court adopted an "unselective offer to the public" test, it would have adopted the plaintiff's argument or Justice O'Connell's reasoning. O'Connell believed that the legislature intended the act to reach both commercial and noncommercial services. But, according to the Schwenk majority, a membership service that provides no economic or commercial advantage to its members falls into the category of a noncommercial service and is not subject to regulation under the act.

The majority also relies heavily on Lloyd Lions Club v. Int. Assoc. of Lions Clubs, 81 Or. App. 151, 724 P.2d 887 (1986), rev dismissed 303 Or. 698 (1987), in support of its interpretation of the act. It says that its understanding of the holding in Schwenk is also "how we explained Schwenk's rationale when, 10 years later, we were asked to decide whether the Lions Club was a place of `public accommodation' within the meaning of the Oregon Public Accommodation Act." 180 Or. App. at 428. In fact, Lloyd Lions Club is the perfect illustration of the "activity-by-activity" evaluation that must be used in order to give effect to the legislature's intent.

Lloyd Lions Club is an example of when a membership service is subject to ORS 30.675(1). It teaches that the legislature intended to regulate the membership service of organizations when membership in an organization is accompanied by concomitant business advantages. In that case, the court made a finding of fact that "defendant is a business which sells memberships and substantial concomitant business advantages * * *." 81 Or. App. at 156-57 (emphasis added). On appeal, we explained that the Lions' revocation of the local club's charter because it admitted female members "was an action aimed at denying its business product and services to a segment of the population." Id. at 157 (emphasis added). Our holding that the Lions were subject to the act was predicated on the finding that the Lions' membership service provides "substantial concomitant business advantages." As we said, the record demonstrates that "there is a `definite business connection' in being a Lion." Id. at 155. In other words, the Lions were subject to the act not because they were a commercial or business organization but because, in offering the "service" of membership, they also provided business or professional advantages that, in the legislature's view, should be available to both genders. The record in this case is in direct contrast to the record in Lloyd Lions Club. There is no evidence that membership in the Eagles provides a concomitant business advantage.

The majority misunderstands this court's reasoning and holding in Lloyd Lions Club. It says that

"[w]e did not frame the question as whether membership in the Lions, viewed separately, was a place or service subject to the act. * * * Rather, the question that we answered was whether the national Lions organization was a business or commercial enterprise." 180 Or. App. at 428 n 9.

However, the majority's interpretation of our opinion — that coverage under the act turned on whether the Lions' national organization was a business — is refuted by what this court said in Lloyd Lions Club:

"Defendant also argues that, because it is a nonprofit organization, it follows ipso facto that it cannot be a business or commercial enterprise and therefore cannot be subject to the Act as construed in Schwenk. We disagree. There is no automatic equivalency between an organization's overriding noncommercial character and the nature of specific activities it undertakes which are independent of its noncommercial activities. The fact that defendant's primary purpose is to render benevolent services in the community does not mean that its active promotion and sale of memberships, with the inducement and the consequence of business advantages for members, cannot be and is not a business or commercial activity. Carried to its extreme, defendant's argument would allow charitable organizations to exclude persons from events such as public bake sales on the basis of race, sex, religion or the other considerations forbidden by the Act." 81 Or. App. at 157-58 (emphasis added).

In other words, it does not follow from the fact that an organization, like the Lions is noncommercial in nature that it is not subject to the act. Rather, it was the business or commercial nature of the activity of selling membership, and the concomitant business advantage to members, that made the Lions subject to the act, despite its primarily noncommercial, benevolent purpose and its not-for-profit organizational nature.

The majority's focus on the word "enterprise" in the Schwenk opinion proves too much. The majority apparently would limit the term to one of its two possible meanings. An "enterprise" refers to "a unit of economic organization or activity." Webster's Third New Int'l Dictionary, 757 (unabridged ed 1993) (emphasis added). When the Schwenk court used the phrase " business or commercial enterprises which offer goods or services to the public" in its opinion, 275 Or. at 334 (emphasis added), it included within that description those "units of economic activity" that have a commercial purpose. Consistently with Schwenk, this court's opinion in Lloyd Lions Club acknowledged the nature of the Lions organization but then turned its focus to the Lion's specific activity of offering membership and evaluated that activity for coverage under the act. Consistent with Schwenk and a proper understanding of our opinion in Lloyd Lions Club, the correct inquiry in this case is whether the offer of membership by the Eagles to the public carries with it a concomitant business advantage. That inquiry necessarily requires a focus on the activity of membership in the Eagles and the benefits or advantages offered to members, and not on whether the Eagles organization is a business.

The majority also says that my interpretation is at odds with the text of the act because

"[t]he statute does not say that the term `place or service' is limited to organizations that offer only business-related benefits or advantages to the public[.] * * * According to the text of the statute, the term means `any * * * service offering * * * facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise." 180 Or. App. at 431-32. (Emphasis in original).

It also says that the legislature's focus was not limited to economic concerns regarding females in the work place. The majority is only partially correct, and in substance, the majority's complaints constitute a quarrel with the Schwenk court, not with me. As the Schwenk court held, the word "service" in the statute is ambiguous. That conclusion led it to the legislative history of the act to discern the legislature's intent about any limitation on the meaning of the word "service" in the statute. As the Schwenk court held, the legislative history demonstrates that the legislature intended to limit the meaning of the word "service" in the statute to certain services and intended other "services" to be exempted from the act.

Implicitly, the majority concedes in its interpretation of the act that the legislature intended some limitation. According to it, the limitation is based on whether the offeror of services is a business or commercial entity. Thus, the majority proposes a "nature of the organization" test. Yet the statute on its face does not contain that limitation either. In effect, both my interpretation and the majority's place limitations on the word "service" in the statute, and the query becomes which proposed limitation is the correct one. The answer to that query necessarily depends on the legislative history and the Schwenk court's interpretation of that history. That analysis leads to the understanding from the legislative history that whether the Eagles' membership service was intended by the legislature to be exempt turns on whether the Eagles' membership service is like the membership service of the YMCA, the YWCA, and the Boy Scouts.

As to the majority's complaint that my interpretation is inconsistent with the legislature's intent to regulate those places that provide noneconomic activities or advantages of "amusements or otherwise," the Schwenk court observed that the act is intended "primarily" to regulate business or commercial enterprises. It does not follow from that statement by that court that noncommercial organizations are excluded from regulation if they offer to the public amusements or other noneconomic activities or advantages through commercial enterprises. Thus, if a nonprofit organization operates a theme park, or drives a truck through neighborhoods, offering ice cream for sale, those activities constitute "places" or "services" that provide amusement and are therefore subject to the act. Those kinds of activities, although offered by a noncommercial entity, constitute commercial enterprises or activities. In contrast, the membership services of organizations like the YMCA, the YWCA, and the Boy Scouts have no indicia of commercial benefit or advantage to the member. The benefits of such services are associational in nature and, accordingly, are not subject to the act under the holding in Schwenk.

Finally, the majority asserts that "there is evidence in this record that the Eagles are as much in the business of selling memberships as the Lions were." 180 Or. App. at 434. If the majority means by that assertion that the Eagles are subject to the act because they actively solicit the public to recruit nonmembers and charge a fee for membership, then, again, the Boy Scouts, the YMCA, and the YWCA would also be subject to the act because they too are in "the business of selling memberships" to the public. But the solicitation of the public for membership, by itself, cannot trigger coverage under the act, or the Schwenk court would have held the Boy Scouts to be subject to the act, and the legislature would have considered the YMCA and YWCA to be subject to the act. The distinction between the membership services of those organizations and the membership service of the Lions can be based only on the fact that there was concomitant business advantage regarding membership in the Lions.

If, instead, the majority is asserting that there is a genuine issue of material fact in the record about whether the Eagles market their membership as providing a concomitant business or professional advantage, such as occurred in Lloyd Lions Club, then it asks the right question but reaches the wrong conclusion. The summary judgment record is devoid of evidence that the Eagles market themselves as providing a business-related advantage to their members or that membership in the Eagles does, in fact, provide such a benefit.

The application materials and brochures of the Eagles used in the recruitment of members describe the purposes of membership as

"fraternal services to All Our Members, Social Activities for Eagle Families, Civic Programs to Service the Community, Youth Guidance to Help Young People, Fun, Fellowship, [and] Fraternalism."

The preamble to defendants' constitution states the purposes of the organization, including,

"[t]o unite fraternally for mutual benefit, protection, improvement, social enjoyment and association, all persons of good moral character who believe in a Supreme Being to inculcate the principles of liberty, truth, justice and equality, to perpetuate itself as a fraternal organization and to provide for its government."

According to the evidence, members are not even allowed to discuss business other than Eagles business at membership meetings. Also, members do not identify themselves by vocation on their membership materials, directories, name tags, or other materials. Each of the members who submitted an affidavit in this case stated that his or her membership was motivated by the attraction of associating with other like-minded individuals. The uncontradicted evidence demonstrates that the Eagles' membership policy seeks to draw individuals together by common bonds of shared beliefs and mutual respect for certain virtues, regardless of their professional, employment, or business status.

At most, the record shows that some members of the Eagles use their membership in the organization to promote their individual businesses. In her affidavit, Lahmann asserts:

"Over the years, I have known many members of the Eagles. I have learned that people join the Eagles for many reasons. Some view the Local Aerie as a place to gather to socialize as adults with their families. Many support the charitable work of the organization. Others like to participate in community activities. An Eagles member is welcome at any Local Aerie anywhere, so some people join so that they can take advantage of Local Aeries when they are traveling, knowing that there will be one place in town where they can safely socialize and meet people with whom they share at least one common bond. Others consider Eagles membership to be a benefit to their business interests, since Eagles are encouraged to patronize the businesses of fellow Eagles members."

Defendants moved to strike the above statement during the hearing on the parties' cross-motions for summary judgment and renewed their objection to the evidence on hearsay grounds on appeal. I would hold that the continuing objection to the evidence on hearsay grounds is sufficient to preserve the issue on appeal. ORCP 47 D requires an affidavit in support of a summary judgment motion to "set forth such facts as would be admissible in evidence." The above evidence regarding the benefits of Eagles membership does not comply with ORCP 47 D. Plaintiff's statement does not offer facts but rather makes a bald conclusion. Moreover, those conclusions are necessarily based on inadmissible hearsay. It does not even identify those "others" who perceive a business connection associated with Eagles membership. OEC 802. Plaintiff's evidence should have been stricken, and we should not consider it.

Even if it is not stricken as inadmissible evidence, Lahmann's affidavit does not suffice to raise a genuine issue of material fact under ORCP 47. Her assertion is that some members "consider Eagles membership to be a benefit to their business interests." That assertion has no probative value to the issue of whether the Eagles as an organization has promoted membership as a service that provides "substantial concomitant business advantages." Instead, it speaks about the perception or motivation of some members of the Eagles. The act, however, regulates the "place" or the "service" that offers accommodations to the public. Nothing in the affidavit establishes that the Eagles' offer of membership is an offer of a commercial activity or advantage.

The record also contains an advertisement by an Eagles member in the April 1999 edition of the "Eaglebeak," the monthly publication of the Local Aerie. The advertisement says:

"MARSH CUSTOM TRACTOR SERVICE

362-4507

[graphic deleted] Mobile: 851-4241 Free On-Site Estimates

S E R V I C E S

Mowing: Lots, Acreages, Fields Roto-tilling: Gardens, lots, Seedbeds

DirtWork: Final Grading, Leveling, Building/Construction Sites,

Driveway/Roads.

Snowplowing: Driveways/Parking lots

10% Discount to Eagle Members 8/99"

As is the case with the evidence from plaintiff Lahmann's affidavit, the advertisement is not a promotion by the Eagles that membership in their organization will provide, in the language of Lloyd Lions Club, "substantial concomitant business advantages." Individual members of the Eagles are at liberty to offer whatever advantages they wish to other members, but those kinds of solicitations by members do not operate vicariously on behalf of the Eagles. Rather, ORS 30.675 makes it clear that services are subject to the act only when some activity or advantage, commercial in nature, is offered.

In summary, there is no evidence in this summary judgment record that demonstrates that the Eagles' membership service provides a concomitant economic or commercial advantage to their members. It is clear that, without that kind of evidence, or some other evidence showing that membership in the Eagles provides a benefit that the legislature intended to make subject to public accommodation, there is no coverage under the act. Applying the same test here that was applied in Schwenk whether the membership service is a commercial service to which the legislature would want to ensure public access as a matter of right — it follows that the Eagles are entitled to summary judgment in their favor.

In addition, there are at least two constitutional interests at stake that are lurking in the background of this case and that are interrelated: the right of free association and the right of free exercise of religious expression. Both interests find protection in the state and federal constitutions. The majority says that it is premature to reach the issue of whether the trial court's ruling infringes on those interests until the trial court resolves the historical facts. But the parties have framed the issues in this case to present a question of law, i.e., coverage under the statute, and there are no controverted facts in the record that would preclude summary judgment. The facts are what they are, and we must determine their legal import under the language of the statute. Consequently, the constitutional issues cannot be side-stepped. If the trial court's and plaintiffs' interpretations of ORS 30.675(1) are correct, then the constitutionality of the statute is in question because it regulates fraternal organizations in a way that implicates those rights.

Under the First Amendment to the United States Constitution and Article I, section 26, of the Oregon Constitution, the members of the Eagles are guaranteed the freedom of intimate association with whomever they choose.

See, e.g., Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). "[I]mpediments to the exercise of one's right to choose one's associates can violate the right of association protected by the First Amendment." Hison v. King Spalding, 467 U.S. 69, 80, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). In tracing the growing reach of state public accommodation laws, the United States Supreme Court also has pointed out:

"As the definition of `public accommodation' has expanded from clearly commercial entities, such as restaurants, bars and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organization has increased." Boy Scouts of America v. Dale, 530 U.S. 640, 656, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000).

That conflict will exist in this case under the majority's interpretation of ORS 30.675. The constitutional right of each member of the Eagles to associate only with persons of his own gender in his private associations will be infringed if the act is construed to require the Eagles to admit females as members. Because the membership meetings are intimate, private meetings in which members profess their beliefs and offer prayers together in secret, the government's forced inclusion of unwanted individuals will violate the rights of expressive association.

In Boy Scouts of America, 530 U.S. at 646, the Court recognized that the "forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints." For example, the Boy Scouts, if compelled to accept the presence of a homosexual scout leader, would be compelled to advance a viewpoint implicitly that they publicly condemn. See Boy Scouts of America, 530 U.S. at 647 ("forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express"); see also Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 544, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987). In Roberts, 468 U.S. at 621, the court explained:

"There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes a freedom not to associate." (Emphasis added.)

Citizens are also guaranteed the freedom to engage in expressive religious activity under our constitutions. That right is anchored in both the First Amendment guarantee of freedom of expression and the guarantee of free exercise of religion. Similarly, that right exists under the state constitution, in Article I, section 2's guarantee of freedom of worship and Article I, section 3's guarantee of free exercise of religious opinion. The right to choose how one will engage in religious expression has two dimensions: the right to worship in words and ways of one's choosing and the right to be free from compulsion to worship in ways one does not wish to worship. Both the federal and the state constitutions guarantee the right of an individual to choose with whom to worship as part of their way to worship.

As to the state's interest in eliminating discrimination because of gender, the Supreme Court has drawn a distinction:

"We recognized in cases such as Roberts and [ Board of Directors of Rotary Int'l] that States have a compelling interest in eliminating discrimination against women in public accommodations. But in each of these cases we went on to conclude that the enforcement of these statutes would not materially interfere with the ideas that the organization sought to express." Boy Scouts of America, 530 U.S. at 657.

No conclusion could be drawn here that the enforcement of ORS 30.675 against the Eagles would not materially interfere with the ideals of the organization. According to the membership rules of the Eagles, the membership meetings are conducted in strict privacy according to secret rituals with only members present. The secret oaths, affirmations, and prayers that occur at Eagles' members-only meetings emphasize belief in a Supreme Being, fraternalism, manly virtues, and brotherhood. Everyone in the meeting is required to participate in the affirmations and prayers and to share in the belief in a divine entity. The enforcement of the act against the Eagles would clearly interfere with the ideals that the Eagles seek to advance: the extolling of manly virtues and brotherhood in secret among males and the offering of prayers and affirmations to a Supreme Being in the company of like-minded males.

It is correct that the guarantees of freedom of association and freedom of worship are not absolute, but it is also clear that the state must have a compelling interest before it can constitutionally override these guarantees. See Cousins v. Wigoda, 419 U.S. 477, 488, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975). Here, there is no compelling state interest at stake because, as discussed above, there is no evidence that exclusion of females from membership in the Eagles affects their ability to compete economically or professionally. The only conceivable state interest at stake is forcible inclusion for the sake of inclusion, and that is an interest that cannot withstand constitutional scrutiny.

In summary, there are no genuine issues of material fact to be determined in this case. ORS 30.675 regulates only those "services" in which the public has an interest in equal access. The evidence is uncontradicted that membership in the Eagles offers no business or economically related advantage or other advantage in which the public has an interest. The majority could not be more wrong. Its holding is contrary to the legislature's expressed intent, the Supreme Court's holding in Schwenk, and, if extended to its logical end, the United States and the Oregon Constitutions.

I respectfully dissent.