Over the Boardwalk

Elizabeth's picture

It's Labor Day in the United States, and in the US for many people that doesn't mean "let's celebrate workers," it means "let's get to the beach" so I was pleased to find a story in this morning's New York Times that was a beach-related public/private space kind of story that touches on issues of sexuality and human rights.

The question is whether the Boardwalk Pavilion in Ocean Grove, NJ, is public space or private space, and whether the Ocean Grove Camp Meeting Association (a Methodist organization) must let the space be used by by gay and lesbian couples for the same purposes that straight couples use it: that is, for ceremonies celebrating their state-recognized unions.

The Camp Meeting Association owns all the property in Ocean Grove. Even home owners and business owners there don't own the property their buildings sit on. According to the Times article, "all the land, beach and 1,000 feet of the sea itself" have belonged to the Camp Meeting Association starting with some purchases in 1870. Their ownership of the property is not really in question in question.

However, according to the Times, for the past 18 years the beach, boardwalk and oceanfront have been part of the NJ Department of Environmental Protection's "Green Acres" program, which includes a tax exemption for the property owner in exchange for allowing privately owned space to be used for "public recreation and conservation." The tax exemption reportedly saves the Camp Meeting Association half a million dollars in taxes per year.

Clearly the state realizes that public access to places like beaches, forests, deserts, lakes, and rivers is important. That's why governments maintain parks. But sometimes important spaces are privately owned and then the government might create a program like the Green Acres program in order to increase public access to space that would otherwise be off limits. You can think of the tax exemption received by the Camp Meeting Association this way: The State of New Jersey is paying the Camp Meeting Association about $500,000 per year to assure that the land in question remains accessible to the public.

So, on the stretches of property covered by the tax-exemption should the CMA be able to discriminate in deciding who can use the property?

They think they can. In fact, the CMA has sued the State of New Jersey for abridging its First Amendment rights while receiving a half million dollar tax exemption for public use of its property. They make a comparison to disaster aid saying that the receipt of disaster aid money doesn't obligate a church to operate differently than it otherwise would, and thus that receipt of this tax exemption should not require them to allow people to use their property for purposes that they would not allow in their church.

Put aside, for a moment, your visions of bikini-clad women and well-oiled men streaming in for Sunday services. We're talking about marriage and civil union ceremonies, it is certainly true that receiving disaster aid might not obligate a church to start allowing civil unions to be performed in their building.

But the rules governing the Green Acres program cannot really be compared to those governing something like disaster relief money. The Green Acres program is all about enabling public use of private property. That's why they give such big tax exemptions in return. Here is the definition of "Public Use" from the Eligibility document governing the Green Acres program:

“'Public use” means a use or right of use available to the general public or some portion thereof for conservation or recreation purposes. Such use, and any limits thereon, shall be based on the uses best suited to the land, the capacity of the facility and the public benefits or advantages to be derived therefrom.

Further, in determining what property is eligible, the document specifies that eligible property "must be open for public use on an equal basis" (my emphasis).

And, in addressing what restrictions can be made on the use of the property, the document states:

Restrictions on the use of the real property by the public must be determined by the Commissioner to be necessary for proper maintenance and improvement of the property or because significant natural features of the land may be adversely affected by unrestricted access.

You can read a copy of the document here (MS Word file).

So back to the original question: In order to be eligible for this tax exemption can the CMA prevent some people from having civil union ceremonies on their Boardwalk but allow others to do so? That would seem to violate the "equal basis" clause of the guidelines. And it seems more than unlikely that allowing civil union ceremonies would interfere with "proper maintenance" or cause adverse affects in any way that marriage ceremonies would not. And in any case, the Commissioner didn't make the decision. The CMA folks did.

If the CMA is unhappy with the deal it made, it needs to find a way to withdraw its participation in the Green Acres program and start paying its full share of taxes.

And the rest of us need to be mindful that the maintenance of public space is incredibly important not just so we can go to the beach, but more importantly to protect our civil rights.

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