Ocean Grove cannot discriminate against gays, despite claims that forcing it to allow civil unions to be performed on its pavilion conflict with the Ocean Grove Camp Meeting Association‘s religious beliefs and first-amendment rights.
The community is a “nearly 1-square-mile section of Neptune Township” controlled by the Methodist organization, according to The Star-Ledger. The group has “used the pavilion for both religious services and public events” for many years, but was sued by a pair of Ocean Grove residents, Harriet Bernstein and Luisa Paster, when it nixed their 2007 request for use of the pavilion for their civil union ceremony.
According to a Civil Rights division press release,
an investigation found that the refusal to permit the civil union ceremony violated the public accommodation provisions of the state’s Law Against Discrimination and did not violate First Amendment Rights. The Division investigation found that the Camp Meeting Association had been permitting the public to use the Boardwalk Pavilion for weddings and secular events and that the Association had gained a Green Acres tax exemption from the state Department of Environmental Protection nearly 20 years ago after a finding that the Pavilion will be open to the public “on an equal basis.” (Following filing of the civil rights complaint, the DEP rejected a renewal of the Green Acres tax exemption for the Boardwalk Pavilion in September 2007.)
The Finding of Probable Cause states in part, “When it invites the public at large to use it, the Association is subject to the Law Against Discrimination, and enforcement of that law in this context does not affect the Association’s constitutionally protected right to free exercise of religion.”
What is striking to me is that the ruling echoes earlier state court decisions allowing protest groups access to public spaces, even if it does not specifically mention those earlier decisions (it focuses instead on properties owned by religious groups).
The ruling once again brings into focus the issue of a privatized public sphere — in this case, a pavilion used by the public but owned privately. The question of what rights the public has in a privatized culture — think of Twin Rivers in East Windsor, shopping malls like Quaker Bridge, privately owned space like Palmer Square — will only grow in importance as more and more of our lives falls under the auspices of commercial entities.
The rule that should apply — summed up by Lawrence Lustberg, cooperating attorney for the American Civil Liberties Union in a comment to The Star-Ledger is that “once you open your facility to the general public, then it’s got to remain open on a nondiscriminatory basis.”
Hank Kalet 