(dissenting).
1. I respectfully dissent on several grounds. However, I totally agree with this court’s assumption of jurisdiction. In County of Hennepin v. Civil Rights Commission of Minneapolis, 355 N.W.2d 458 (Minn.Ct.App.1984), this court considered whether the district court had jurisdiction in an appeal from the Minneapolis Civil Rights Commission and affirmed a district court decision dismissing a petition for review for lack of jurisdicition. There were no dissents. County of Hennepin is a well-reasoned opinion which concludes jurisdiction in this court is grounded upon a legislative grant of power.
A recent appeal made directly to this court from a Minneapolis Civil Rights Commission decision was also affirmed without dissent. See Potter v. LaSalle Sports & Health Club, 368 N.W.2d 413 (Minn.Ct.App.1985). A dissent now on jurisdictional grounds denies precedent and is unwarranted.
2. There exists no constitutional right to homosexual activity, private or public. As recently as 1985, in Dronenburg v. Zech, 741 F.2d 1388, reh’g en banc denied, 746 F.2d 1579 (D.C.Cir.1984), it was held that private, consensual, homosexual conduct is not constitutionally protected. The court stated:
More to the point, the Court in Doe v. Commonwealth’s Attorney for Richmond, 425 U.S. 901 [96 S.Ct. 1489, 47 L.Ed.2d 751] (1976), summarily affirmed a district court judgment, 403 F.Supp. 1199 (E.D.Va.1975), upholding a Virginia statute making it a criminal offense to engage in private consensual homosexual conduct. The district court in Doe had found that the right to privacy did not extend to private homosexual conduct be*797cause the latter bears no relation to marriage, procreation, or family life. 403 F.Supp. at 1200. The Supreme Court’s summary disposition of a case constitutes a vote on the merits; as such, it is binding on lower federal courts.
* * * Qourj- jjas ijste(j as illustrative of the right of privacy such matters as activities relating to marriage, procreation, contraception, family relationships, and child rearing and education. It need hardly be said that none of these covers a right to homosexual conduct. * * ⅝ We would find it impossible to conclude that a right to homosexual conduct is “fundamental” or “implicit in the concept of ordered liberty” * * *.
* * * We have no guidance from the Constitution or, as we have shown with respect to the case at hand, from articulated Supreme Court principle. If courts of appeals should, in such circumstances, begin to create new rights freely, the volume of decisions would mean that many would evade Supreme Court review, a great body of judge-made law would grow up, and we would have “pre-exempt[ed] for [ourselves] another part of the governance of the country without express constitutional authority.” If the revolution in sexual mores that appellant proclaims is in fact ever to arrive, we think it must arrive through the moral choices of the people and their elected representatives, not through the ukase of this court.
Turning from the decided cases, which we do not think provide even an ambiguous warrant for the constitutional right he seeks, appellant offers arguments based upon a constitutional theory. Though that theory is obviously untenable, it is so often heard that it is worth stating briefly why we reject it. Appellant denies that morality can ever be the basis for legislation or, more specifically, for a naval regulation, and asserts two reasons why that is so. The first argument is: “if the military can defend its blanket exclusion of homosexuals on the ground that they are offensive to the majority or to the military’s view of what is socially acceptable, then no rights are safe from encroachment and no minority is protected against discrimination.” Appellant’s Opening Brief on Appeal at 11-12. Passing the inaccurate characterization of the Navy’s position here, it deserves to be said that this argument is completely frivolous. The Constitution has provisions that create specific rights. These protect, among others, racial, ethnic, and religious minorities. If a court refuses to create a new constitutional right to protect homosexual conduct, the court does not thereby destroy established constitutional rights that are solidly based in constitutional text and history.
Appellant goes further, however, and contends that the existence of moral disapproval for certain types of behavior is the very fact that disables government from regulating it. He says that as a matter of general constitutional principle, “it is difficult to understand how an adult’s selection of a partner to share sexual intimacy is not immune from burden by the state as an element of constitutionally protected privacy. That the particular choice of partner may be repugnant to the majority argues for its vigilant protection — not its vulnerability to sanction.” Appellant’s Opening Brief on Appeal at 13. This theory that majority morality and majority choice is always made presumptively invalid by the Constitution attacks the very predicate of democratic government. When the Constitution does not speak to the contrary, the choices of those put in authority by the electoral process or those who are accountable to such persons, come before us not as suspect because majori-tarian but as conclusively valid for that very reason. We stress, because the possibility of being misunderstood is so great, that this deference to democratic choice does not apply where the Constitution removes the choice from majorities. *798Appellant’s theory would, in fact, destroy the basis for much of the most valued legislation our society has. It would, for example, render legislation about civil rights, worker safety, the preservation of the environment, and much more, unconstitutional. In each of these areas, legislative majorities have made moral choices contrary to the desires of minorities. It is to be doubted that very many laws exist whose ultimate justification does not rest upon the society’s morality. For these reasons, appellant’s argument will not withstand examination.
Id. at 1391-97 (citations omitted) (footnote omitted). It seems clear that when an anti-discrimination ordinance conflicts with the first amendment’s freedom of religion, the first amendment should prevail. In addition, it should be noted that sodomy is still a crime in Minnesota. Minn.Stat. § 609.293 (1984).
3.I respectfully disagree with the determination that the Club does not have standing to assert the free exercise clause as a defense to the claims of discrimination. The Club is a closely held corporation. The owners and operators, Arthur Owen, Mark Crevier and Forrest Larson, are all born-again Christians whose fundamentalist religious convictions “require them to act in accordance with the teachings of Jesus Christ and the will of God in their business as well as in their personal lives.” State ex rel. McClure v. Sports & Health Club, Inc., 370 N.W.2d 844 (Minn.1985). If their religious practices conflict with state requirements, their closely held corporation must be able to assert their free exercise rights as defense. Otherwise, these three men would be effectively precluded from entering the marketplace. Can it be said that a professional person who incorporates a sole professional corporation loses all constitutional rights because of the incorporation? Such a result would be absurd. Individuals of strong religious convictions do not live in a vacuum or practice their faith only on their days of worship. Religious values should and do permeate a person’s daily activities.
The distinction between institutional rights of free exercise and a corporation’s assertion of the free exercise rights of its principals is a distinction without a difference when a corporation is closely held. While such a distinction might be pertinent under different factual circumstances, it is unimportant here. The Club operates as a reflection of its principals’ religious beliefs. In order for Owens, Crevier and Larson’s free exercise rights to be protected, the Club must be able to assert those rights.
4. I also disagree with that portion of the decision that makes a finding with regard to Owens’ religious beliefs. Such a finding must be made by the administrative body. Our role is to review the finding, if requested, to determine whether it is supported by substantial evidence. Therefore, I would remand for further findings.
It should be noted that courts are not arbitrators of scriptural interpretation. The application and interpretation of religious beliefs and teachings “is not within the judicial function and judicial competence.” Thomas v. Review Board of Indiana Employement Security Division, 450 U.S. 707, 716, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981).
5. I finally disagree with the award of damages. After Loso observed Blanding’s dance, he told Blanding it was “disruptive” or “wrong” and he was in risk of losing his membership. Blanding’s membership was not terminated until after he refused to talk about the situation with management. Compensatory damages were $7500, punitive damages $6000, attorney’s fees and costs $4500, for a total award of $18,000. This seems excessive as I view the Health Club’s conduct as being more of elementary rudeness. The basis for the award, that Blanding will incur additional charges in the next 30 years, is speculative. There are dozens of health facilities of various kinds in the Twin Cities area available to him. The punitive damages statute was aimed at serious, wanton, and malicious conduct of a degree higher than is found in this case.
*799Even if the Club is wrong in their claim that they were exercising a religious right, their action was based upon a sincere defense based upon their religious principles. There should have been solid findings of fact that the act was egregious and proven malicious. There was no evidence that because Blanding was no longer a member of the Health Club that he lost any friends, suffered any private or public embarrassment, was prevented from getting a job, was hindered in advancing in any way, or suffered any direct or indirect economic loss.
Blanding’s refusal to talk exacerbated an otherwise small incident which in itself did not result in a loss of Club membership. Thus, his refusal to discuss the situation constitutes a proper defense for the Club.
While I have the deepest compassion for those discriminated against in any way, I must apply the law as I interpret it to be.