2004 Fall, 12. Membership Organizations as Places of Public Accommodation Under New Hampshire's Law Against Discrimination.

AuthorBy Alison Bethel1

New Hampshire Bar Journal


2004 Fall, 12.

Membership Organizations as Places of Public Accommodation Under New Hampshire's Law Against Discrimination

New Hampshire Bar Journal Fall 2004, Volume 45, Number 3 Membership Organizations as Places of Public Accommodation Under New Hampshire's Law Against Discrimination By Alison Bethel1 INTRODUCTION

New Hampshire's Law Against Discrimination ("LAD") prohibits discrimination, based on age, sex, race, creed, color, marital status, physical or mental disability, national origin, and sexual orientation, in any place of public accommodation.2

Under the LAD, a place of public accommodation includes: any inn, tavern or hotel, whether conducted for entertainment, the housing or lodging of transient guests, or for the benefit, use or accommodations of those seeking health, recreation or rest, any restaurant, eating house, public conveyance on land or water, bathhouse, barbershop, theater, golf course, sports arena, health care provider, and music or other public hall, store or other establishment which caters or offers its services or facilities or goods to the general public.3 However, "any institution or club which is in its nature distinctly private" is not a place of public accommodation.4

In Franklin Lodge of Elks v. Marcoux, the New Hampshire Supreme Court, followed the statutory mandate requiring a broad interpretation of the LAD.5 For that case, the Court held that the Franklin Lodge, a membership organization, was a place of public accommodation, and not an exempt club.6

This article explains the Franklin Lodge holding, discusses the applicability of the holding to the Girl Scouts (also among which was sued recently under the LAD), and briefly outlines possible federal constitutional limitations to application of the LAD based on the United States Supreme Court decision in Boy Scouts of America v. Dale.7


The Elks Club is a nationwide organization, divided into approximately 2,000 local chapters, called Lodges. In 1997, Franklin Lodge had approximately 620 male members. The Lodge operated a bar and grill open to members and their guests. The Lodge also hosted social activities and fund-raisers throughout the year. Some of the activities, such as weekly bingo games, were open to the public. Non-members were also permitted to lease the Lodge premises for private functions. The Lodge depended on revenues from these activities open to the public, receiving a substantial portion of its budget from them.8

To become a member of the Lodge, an individual "must be a citizen of the United States, believe in God, be at least twenty-one years of age, be of good character and not be a Communist." Prior to 1995, membership was open exclusively to males.9

In 1997, the petitioners, four females, applied for membership in the Franklin Lodge. After interviews, the investigating committee approved their applications. Their names, along with the names of one other woman and five men, were presented to the members of Franklin Lodge on a block ballot. The members voted to reject the block ballot. Thereafter, individual ballots were distributed and the five men were accepted while the five women were rejected on two successive ballots.10

Four of the women filed charges with the New Hampshire Commission for Human Rights ("Commission"), alleging unlawful gender discrimination in a place of public accommodation. After a hearing, the Commission held that the Lodge was not a "distinctly private" organization and that it had unlawfully discriminated against the women. The Commission awarded each woman $10,000 in compensatory damages, as well as attorney's fees and costs. On appeal, the Superior Court affirmed the Commission's decision. The Lodge then appealed to the Supreme...

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