New Jersey Administrative Law Judge Finds Ocean Grove Violated State Law Against Discrimination in Civil Union Dispute

New Jersey Administrative Law Judge Solomon A. Metzger ruled on January 12, 2012, that the Ocean Grove Camp Meeting Association, a body associated with the United Methodist Church that owns and operates a square mile of real estate on the New Jersey shore in the Township of Neptune, violated the New Jersey Law Against Discrimination by refusing to rent the Boardwalk Pavilion on its property for a civil union ceremony involving a lesbian couple. Bernstein v. Ocean Grove Camp Meeting Association, OAL Dkt. No. CRT 6145-09, Agency Dkt. No. PN34XB-03008 (N.J. Office of Administrative Law).

The case arose in March 2007 when Harriet Bernstein and Luisa Paster filled out an application to use the Boardwalk Pavilion for their ceremony under the recently-enacted New Jersey Civil Union Act. At the time, the Boardwalk Pavilion was advertised by Ocean Grove as available for rental for weddings for a fee of $250, and the only basis on which an application for that purpose had ever been denied was scheduling conflicts with religious programming or other community or charitable events. But Ocean Grove rejected the application, according to Judge Metzger’s opinion, on the ground that “same-sex civil unions conflicted with scriptural teaching regarding homosexuality and that [Ocean Grove] could not condone such a ceremony at the Pavilion.”

Judge Metzger had first to consider whether the Boardwalk Pavilion was a “place of public accommodation” under the New Jersey LAD. This task was simplified by Ocean Grove’s decision back in 1989 to apply for a “Green Acres” real-estate tax exemption for the area that includes the Pavilion. Under New Jersey law, a “Green Acres” exemption may be granted for private property that is opened to the public for recreational use without restriction. The Ocean Grove application “describes the area as public in nature.” Neptune Township had actually opposed the application, arguing that Ocean Grove was governed by religious restrictions that made it doubtful that it could meet the requirement under the Green Acres tax program that required that property under the program be open to public use on an equal basis without discrimination. But Ocean Grove countered that they would make the Pavilion available for public use “without reservation.” Judge Metzger pointed out that the website on which they advertised the Pavilion’s availability made no reference to any religious doctrinal requirements. Indeed, the Pavilion was rented for a wide variety of wedding ceremonies, many of which would not strictly comply with Methodist doctrine.

Ocean Grove received the Green Acres exemption, which it renewed every three years until this controversy came up and it was denied a renewal in the wake of the resulting publicity. As Ocean Grove pointed out, it could have obtained a tax exemption based on its religious affiliation – but of course such an exemption would not carry with it the requirement of being open to public use without doctrinal reservations.

Judge Metzger observed that the issue of public accommodation needed to be resolved as of the date when Bernstein and Paster applied to rent the facility in March 2007, and as of that time it was clearly a place of public accommodation and thus subject to the law. Subsequent developments are irrelevant to this case.

The other issue that had to be determined was whether as a religiously-affilated organization, Ocean Grove was entitled to an exemption from the non-discrimination requirement. “From this record,” Judge Metzger wrote, “it appears respondent was renting space at the Pavilion for weddings, an activity largely detached from associational expression or speech. Respondent did not inquire into religious beliefs or practice because it did not sponsor, or otherwise control, these weddings. Some volunteers may have been around to observe or be helpful, but no more. These ceremonies might have been devoid of references to Christian doctrine, might have contained language or symbolism antithetical to Christian doctrine, and any passerby could stop to listen. The arm’s length nature of the transactions gave respondent a comfortable distance from notions incompatible with its own beliefs. That same distance pertained to civil unions.”

Judge Metzger observed that the NJ Law Against Discrimination is “a neutral law of general application,” and it is not “focused on or hostile to religion. I do not believe that the facts pose a true question of religious freedom,” he wrote, “but were they to, the matter would not be governed by the high bar of ‘strict scrutiny,’ but by a much lower standard that tolerates some intrusion into religious freedom to balance other important societal goals. Respondent can rearrange Pavilion operations, as it has done, to avoid this clash with the LAD. It was not, however, free to promise equal access, to rent wedding space to heterosexual couples irrespective of their tradition, and then except these petitioners.”

The judge’s reference to “rearrange Pavilion operations” referred to Ocean Grove’s decision after this issue blew up to get out of the wedding rental business, remove their website promoting the space for that purpose, and acquiesce in the decision by the state not to renew their Green Acres tax exemption with its equal access requirement. But this case, of course, was decided based on the facts as of March 2007.

Bernstein and Paster were not seeking damages, but merely a declaration that their right of access to public accommodations had been violated, so Judge Metzger did not award damages, concluding that a “finding of wrongdoing should be an adequate redress.” The Administrative Law Judge’s decision is actually a recommendation to the Director of the Division on Civil Rights, who makes the final decision as a matter of law after considering an “exceptions” to the ALJ’s decision that might be filed by either party.

This story originally ran in the February 2012 Issue of Lesbian/Gay Law Notes; you can read the entire February 2012 issue here.