U.S. Court Won't Hear
Suit by Church
That Barred Same-Sex
By Mary Pat
Gallagher, November 8, 2007
A United Methodist Church group that
barred use of its facilities for civil union ceremonies will have no federal
forum to raise a First Amendment challenge to a state probe of its actions.
U.S. District Judge Joel Pisano dismissed the case, Ocean Grove Camp Meeting
Association v. Vespa-Papaleo, 07-CV-3802, last Wednesday under a doctrine
requiring federal court abstention where, among other considerations, the
plaintiff has an adequate state-court forum for raising constitutional claims.
The suit was prompted by the New Jersey Division on Civil Rights' investigation
of complaints filed by two lesbian couples who wanted to rent the Ocean Grove
boardwalk pavilion for their civil union ceremonies but were refused.
The Ocean Grove Camp Meeting Association owns the roughly one-square mile of
land comprising the Ocean Grove section of Neptune Township, including the beach
front, boardwalk and pavilion.
The association, which is affiliated with the United Methodist Church, said
allowing same-sex unions would violate its religious beliefs. Though it
had earlier rented the pavilion for weddings, it claims it ceased the practice
as of April 1, shortly after turning down Harriet Bernstein and Luisa Paster in
Bernstein and Paster filed a complaint with the civil-rights division in June.
The second couple, Janice Moore and Emily Sonnessa, denied in April under the
association's revised policy, filed in July.
In its suit, filed Aug. 13, the association said it would be "thrust into
government compelled expressive association with those who promote same-sex
'civil unions'" if it is forced to allow them at its facilities. "Such
forced association would severely compromise the Association's desire to
communicate to the general public a message consistent with its religious views
on marriage and family," said the complaint.
The association challenged the constitutionality of the state Law Against
Discrimination to the extent it is applied to interfere with the association's
religious rights. It asked for a declaration that the LAD cannot be
applied that way and for an injunction that bars such application.
The association's motion for a preliminary injunction, argued Oct. 4, at the
same time as the state's motion to dismiss, was denied that same day.
In granting the motion to dismiss, Pisano applied the abstention doctrine of
Younger v. Harris, 401 U.S. 37 (1971), finding its three-part test was
satisfied: The pending state proceedings are judicial in nature, they
implicate important state interests and the plaintiff has an adequate
opportunity to raise its constitutional concerns in the state proceedings.
He also found there was no bad faith, harassment or other extraordinary
circumstances that would preclude Younger abstention.
Pisano rejected the association's argument that the civil rights proceeding was
not "judicial" in nature because no probable cause finding has yet been made.
He cited a 1986 case, Ohio Civil Rights Commission v. Dayton Christian Schools,
477 U.S. 619, in which the U.S. Supreme Court held a district judge should have
abstained where a religious school challenged the Ohio Civil Rights Commission's
investigation of a sex discrimination complaint by a teacher dismissed after she
Division on Civil Rights Director J. Frank Vespa-Papaleo was away and could not
be reached for comment.
David Wald, of the Office of the Attorney General, says the investigations had
been on hold and the dismissal means the agency can "go forward to determine
whether the Ocean Grove Camp Meeting Association is violating the LAD, as the
Stephen Hyland, a Westmont attorney whose practice focuses on gay and lesbian
issues, says the ruling reaffirms that the Division on Civil Rights is "the best
mechanism for these types of disputes."
He says resolution of the discrimination complaints "will come down to whether
there's some exemption under state law for every asset an otherwise religiously
exempt organization has" and whether the pavilion is deemed publicly accessible.
The attention focused on the Ocean Grove association's policy on same-sex
ceremonies led the state Department of Environmental Protection to revoke a tax
exemption for the pavilion and the land underneath it.
In a Sept. 15 letter to Scott Hoffman, the association's administrator,
Commissioner Lisa Jackson said the pleadings in the federal suit and a letter
from Michael Behrens, an association lawyer, made it "clear the pavilion was not
open to all persons on an equal basis," even though equal access is a
prerequisite to eligibility for the tax exemption under the Green Acres program.
Behrens, of the Messina Law Firm in Holmdel, referred questions to lead counsel
Brian Raum of the Alliance Defense Fund, who did not return a call. The
fund, a Christian advocacy group based in Scottsdale, Ariz., focuses on issues
such as opposing abortion and same-sex marriage and defending prayer in public
schools and the public display of the Ten Commandments.