Tom Kirvan
Legal News, Editor-in-Chief
Her lawyer called her the “perfect plaintiff.”
It was a legal compliment that took years for the litigant to fully appreciate.
In 1988, Shelly Schellenberg had her parents uppermost in mind when she decided to join the Rochester Elks Lodge, a local fraternal organization known for its weekly bingo games, family dining, and weekend dances to the bubbly music of Lawrence Welk.
Little did she know that her desire to become an Elk would set off a legal firestorm that would be waged in various Michigan courts for the next decade, pitting the power of the national Elks organization against a divorced mother of one who soon would become consumed by an intense battle to break down a gender discrimination barrier.
On paper, it was not a fair fight. In one corner was The Benevolent and Protective Order of the Elks, a national organization with more than 1 million members and some 2,100 lodges across the U.S.
At the time, and throughout its history, the Order of the Elks was an all-male bastion, truly an exclusive fraternity where those of the opposite gender need not apply. The powerful herd was opposed by a local real estate agent who hoped that the $150 she spent to hire an attorney to write a strongly worded letter to the Rochester Elks Lodge would shame the membership into respecting the law.
“Could I have been more naïve about the legal system,” Shellenberg asked rhetorically in 2007 as she mused over the origin of the case that would set the Elks organization on its collective ear and coincidentally would spawn her interest in a new career.
The law.
On November 8, 2007 in Oakland County Circuit Court, Schellenberg made her legal journey complete, accepting the oath of responsibilities incumbent upon members of the State Bar during a swearing-in ceremony. Fittingly, the oath was administered to the new attorney by then-retired Michigan Court of Appeals Judge Hilda Gage, who presided over the 1988 case of Schellenberg v. Elks Lodge No. 2225 when she served on the Oakland Circuit Court bench.
Gage, who suffered from Multiple Sclerosis, died three years later, but to this day remains an inspiration to Schellenberg.
Among those on hand for the ceremony in the fall of 2007 was Michael Curhan, Schellenberg’s attorney throughout the 10-year legal battle that eventually “ordered defendant to accept plaintiff Sharon Schellenberg as a member and afford to her full and equal enjoyment of the goods, services, privileges and accommodations offered by Elks to its members,” according to a per curiam opinion of the state Court of Appeals in 1998.
Curhan is now of counsel with the Bloomfield Hills firm of Lipson Neilson. When he first met Schellenberg nearly three decades ago, he was an associate in a Southfield law firm in which, ironically, he was the only male member. He was assigned the case with no inkling that he was about to be involved in “something big,” Curhan acknowledged following the swearing-in ceremony.
“The case had been referred to us by the ACLU after they decided it wasn’t something they wanted to handle,” Curhan explained. “We were hopeful that a letter would put an end to the matter. No one was thinking about litigation at that point. I remember writing in the letter to the Elks that Shelly just ‘wants to be treated like any other Tom, Dick, or Harriet.’ For some reason, they failed to see the humor in that statement,” Curhan said with a chuckle.
It would prove to be a costly miscalculation, as the Elks Lodge retained a high-powered Detroit firm to do battle with a seemingly pesky plaintiff bent on challenging an age-old male membership requirement. Three lawyers reportedly were assigned to the defendant’s case and the “national Elks organization was monitoring it throughout,” according to Curhan.
But hardly anything turned out to be simple in a case that produced hundreds of motions, depositions, and hearings over the years. It found a home in Judge Gage’s Oakland County courtroom, periodically bouncing to the state Court of Appeals to consider the discrimination issue and then the complicated matter of attorney fees.
“Michael said I was the ‘perfect plaintiff,’ having a just cause, only asking for equitable relief, and willing to stick it out no matter how long it takes or how difficult it becomes,” Schellenberg said. “He was right. My experience convinced me that I may not be able to change the world, but I can change the corner of the world that I stand on.”
She had no such thoughts as the case unfolded, once again only hoping to gain membership to the local lodge for the benefit of her parents and for a place to enjoy dining with her real estate clients and colleagues.
“I also lived in a condo right next door to the lodge,” Schellenberg said. “I was literally in their parking lot, so the convenience also was a factor in my desire to join. I also liked the people there and their membership read like a ‘Who’s Who of Rochester.’”
Prior to filing suit, Schellenberg was a frequent visitor to the lodge, regularly dining there as a guest and periodically playing bingo at the site with her mother. When she asked for an application to join, she was immediately rebuffed, forcing her down a legal road lined with potholes.
“My knowledge of constitutional law was limited to the Miranda warning and the Fifth Amendment, both of which I knew about from watching TV,” said Schellenberg, a 1970 graduate of Rochester High School who earned her
associate’s degree from Oakland Community College. “I had never heard of the Elliott-Larsen Civil Right Act or all of the legal terms that were suddenly being bandied about.”
Judge Gage, in a 1989 opinion, found the rejection of Schellenberg’s application violated a provision of the Elliott-Larsen Civil Rights Act and ordered the Elks to “reconsider plaintiff’s application without consideration of gender.” The Elks Lodge appealed the ruling and the Court of Appeals affirmed Gage’s decision, remanding the case to the Circuit Court.
“On June 13, 1994, seventy-one members of the Elks showed up to vote on plaintiff’s application for membership,” the Court of Appeals wrote in its 1998 decision that effectively ended the protracted legal battle. “Fifty-eight voted against membership for plaintiff and thirteen voted for plaintiff. The members also voted on seven male applications that evening. All were voted in as new members.”
Eventually, the burden shifted to the Elks Lodge to “establish a legitimate nondiscriminatory reason why its members denied membership” to Schellenberg. The Elks did not, as the court again found in favor of the plaintiff, whom by this time had become quite “lawyerly” on all the legal skirmishing.
“I spent so much time in court that I think Judge Gage got sick of looking at me,” Schellenberg said with a smile. “The case consumed so much of my time and energy that I couldn’t help but be interested in the law.”
In 2002, four years after the case concluded, Schellenberg enrolled in Oakland University with plans to earn her bachelor’s degree. Upon graduation from Oakland in 2004, she headed to law school at Wayne State University.
“I thought I was too old to be going to law school, but I received a lot of encouragement from friends and family members to attend,” she said. “It was a leap of faith and I was older than most of my professors, but I’m glad I stuck it out.”
Still, despite being a trailblazer for women’s rights, Schellenberg had her female critics.
“After finally winning case through years of litigation, a woman approached me at a Christmas party,” Schellenberg recalled. “She told me that she thought it was ‘just awful’ that I had sued the Elks, and even though she believed in equal rights, that she would never have done such a thing.”
Schellenberg, while taken aback by the criticism, had a ready response.
“I told her that it is because of women like me that women like her get to vote,” Schellenberg said. “I realized then that the road to equality has been paved across the backs of many, many people.”
