If the Elks Lodge wants to deny membership to women it must give up its liquor license, two attorneys told the Utah Supreme Court Wednesday.
As long as the lodge holds a liquor license, it can't legally deny membership to women, said attorneys representing the Utah attorney general's office and a woman denied membership in a St. George lodge. To do so violates the state's civil rights act, they said.Not so, said Glen Hanni, attorney for the lodge. Hanni told the high court that Utah's civil rights act does not apply to the Elks Lodge because the lodge is a private, nonprofit organization with a selective membership.
The state's civil rights act prohibits discrimination by "places of business." But the St. George Elks Lodge is not a place of business intent on making a profit like General Electric or one of the Big Three automakers, Hanni said.
State Judge J. Philip Eves agreed. Sandra Beynon tried to become a member of the St. George Elk's Lodge in 1987. The lodge turned her down because she is a woman. Beynon sued.
Eves ruled in favor of the lodge, concluding that the Utah Legislature did not intend "place of business" to include select clubs.
Beynon appealed that ruling to the high court. The Utah attorney general's office joined in Beynon's appeal, saying Eves' ruling will make it impossible for the state to enforce the civil rights act "in every private nightclub in the state," assistant Utah attorney general Frank Mylar told the court.
Utah Supreme Court justices questioned whether the Elks Lodge was exempt from the civil rights act just because it is private and nonprofit. Utah requires all clubs holding liquor licenses to be private and nonprofit.
What makes the Elks Lodge's private, nonprofit status different from Green Street's or the New Yorker's, asked Justice Christine Durham.
Even though clubs like the Green Street and the New Yorker in Salt Lake City are technically private, the owners still find ways to make a profit, Hanni said. "The owner of the New Yorker is not down there for his health. He is down there to make money."
So is the Elks Lodge, retorted Justice Michael D. Zimmerman. "The Elks Lodge certainly doesn't sell $250,000 of liquor a year for fun," Zimmerman said. The Elks may spend their money differently than the New Yorker does, but it, too, makes money.
The Elks can't use money as a distinguishing characteristic in determining whether or not they are a place of business, Zimmerman said.
"Then we don't have anything to talk about," Hanni replied.
However, Hanni tried several tacks in defending the Elks ban against women.
The Elks are different from other private clubs because they are more selective in their membership, he said. Members must be nominated by other Elks members and they must meet several requirements, including a willingness to pledge allegiance to the flag and an avowal of no communist involvement. At most private clubs, "all you have to do is walk up, sign your name and pay your $20 or $30 and you're a member," Hanni said.
Ladies of the Elks - wives and widows of Elks members - have the same privileges as the male Elks members except they can't attend business meetings, he said. An Elks meeting "is like a religious meeting. It's highly ritualistic. It's very important to the members that only members attend."
Brian Barnard, Beynon's attorney, challenged Hanni's claim that the Elks Lodge is a selective club with an exclusive membership. Since Beynon was rejected, the St. George lodge has accepted every male applicant, he said. That club has more than 1,000 members, including more than 8 percent of the male population in St. George, he said.
Hanni urged the court to uphold Eves' ruling. Barnard and the state asked the justices to overturn the ruling.
The justices could choose a third option: send the matter back to Eves for trial.