A Service of Rainbow Law

A unanimous panel of the U.S. Court of Appeals for the 3rd Circuit ruled in an unpublished decision issued on July 15 that U.S. District Court Judge Joel A. Pisano had correctly applied the Younger v. Harris federal abstention doctrine in dismissing a challenge by the Ocean Grove (NJ) Camp Meeting Association to an investigation by the New Jersey Division on Civil Rights of two discrimination complaints filed by lesbian couples who had been denied use of the Ocean Grove Boardwalk Pavilion for their civil union ceremonies.  However, the court ruled that Judge Pisano should have retained jurisdiction of the case to consider Ocean Grove's request for a declaratory judgment concerning its rights regarding all the property in the town apart from the Boardwalk Pavilion.  The ruling is available on Westlaw: 2009 WL 2048914.

The Ocean Grove Association is a Christian ministry dating from the 19th century which purchased a large area along the Jersey shore to establish its own religious colony, called Ocean Grove.  The Association still owns the land that the community of Ocean Grove is situated upon, although many people who are not members of the Association live in the community as tenants.  Included in that property is a seaside boardwalk that includes a Pavilion that is used by the Association for various religious activities and is also used by residents of the community for a variety of other events.  There is evidence that different-sex weddings have taken place there with the Association's permission.  After New Jersey enacted its Civil Union Act, two lesbian couples sought to hold their civil union ceremonies in the Pavilion, but they were turned down by the local authorities on the ground that "the requested use was inconsistent with the Association's religious beliefs," according to the opinion for the court of appeals by Judge Michael Chagares.

The two couples - Harriet Bernstein and Luisa Paster, and Janice Moore and Emily Sonnessa -- filed complaints with the New Jersey Division on Civil Rights, the agency that enforces the state's Law Against Discrimination, which bans sexual orientation discrimination in places of public accommodation.  There are plenty of meaty legal issues floating around in that case, including whether the Boardwalk Pavilion is a place of public accommodation or exempt as a religious facility, and whether the Association's Free Exercise Rights can prevail, especially when the Association had been a long-time recipient of tax benefits that were premised on the boardwalk and related facilities being open to public use.  [While this case has been pending, N.J. authorities withdrew certain tax benefits on the ground that the Association violated the requirement of making the facility available to the public without discrimination.]

But that's not what this July 15 ruling is about.  As soon as the complaints were filed, but before the Division launched its investigation, the Association rushed into federal district court, filing a lawsuit claiming that its First Amendment rights were being violated, and seeking an immediate preliminary injunction to block the Division's investigation until the federal court could rule on the merits of the first Amendment free exercise claim.  Judge Pisano rejected the demand for injunctive relief and dismissed the case, relying on Younger v. Harris abstention.  (Younger v. Harris is a 1971 U.S. Supreme Court ruling that established criteria for federal courts to determine whether it is appropriate to abstain from deciding cases where state judicial proceedings are under way involving the same parties and issues.)

Judge Pisano concluded that the Division's investigative process was part of a judicial proceeding, and that the Ocean Grove Association could raise its constitutional claims within that proceeding, so no resort to federal court was needed.  The Court of Appeals agreed with that conclusion, so far as it concerned the proceedings before the State Division on Civil Rights. 

However, it seems that the Association's federal complaint went further than that, asking as well for the court to determine its Free Exercise of Religion rights with regard to all of its Ocean Grove property.  After all, in the future same-sex couples might also ask to hold civil union (or eventually wedding) ceremonies in other places within the community, including the chapel or other parts of the boardwalk.  The Court of Appeals agreed with the Association that Younger v. Harris abstention was only appropriate regarding the Boardwalk Pavilion matter pending before the N.J. State Division, and that the case should be returned to Judge Pisano to proceed on the question of the Association's First Amendment free exercise rights concerning the rest of its property in Ocean Grove.

So, it is possible that there will a federal district court determination, after all, about whether the Ocean Grove Association, as owner of a municipality, is bound to comply with the N.J. Law Against Discrimination, and since this will involve construing the 1st Amendment Free Exercise of Religion rights of the Association, it could certainly have an effect on the ultimate outcome of the Boardwalk Pavilion cases, regardless of Judge Pisano's having dismissed the case so far as it concerns the Boardwalk Pavilion.

[Note - This was edited from the version originally posted to take account of the clarification regarding Ocean Grove offered by a commenter below.]

For clarity, Ocean Grove is not a separate New Jersey municipality. It is part of Neptune Township. There is no separate municipal government for Ocean Grove. The Ocean Grove Association owns a large portion of land in Neptune Township, including the amenities mentioned. (Comment by William S. Stinger)

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