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Federal Court Ruling on “Religious Exemptions” from Anti-Discrimination Laws on Same-Sex Weddings May Preview Supreme Court Decision

Posted on: September 25th, 2017 by Art Leonard No Comments

 

Chief Judge John R. Tunheim of the U.S. District Court in Minnesota ruled in Telescope Media Group v. Lindsey, 2017 WL 4179899, 2017 U.S. Dist. LEXIS 153014 (D. Minn., Sept. 20, 2017), that for-profit businesses do not enjoy a constitutional right to refuse to provide their services for same-sex weddings on the same basis that they provide services for different-sex weddings.  Turning back a case brought by the anti-gay religious litigation organization, Alliance Defending Freedom (ADF), Judge Tunheim issued a comprehensive ruling that may provide a preview of what the U.S. Supreme Court will say in the Masterpiece Cakeshop case from Colorado during its forthcoming term, at least regarding the 1st Amendment issues common to both of the cases.

ADF immediately announced that it will appeal the court’s ruling to the U.S. Court of Appeals for the 8th Circuit, based in St. Louis, Missouri.

Judge Tunheim’s ruling is particularly significant because it is the first by a federal court to address this issue. Since 2013, several state appellate courts have ruling against such exemptions from compliance with state anti-discrimination laws, rejecting appeals by defendants who sought to overturn rulings against them by state human rights agencies in cases involving wedding photographers, florists, bakers, and wedding venues.  In this case, however, a videography business that claimed to be planning to expand into the wedding video business sought an advance declaration from the federal court that they would be constitutionally protected if they were threatened with prosecution under Minnesota’s ban on public accommodations discrimination because of sexual orientation.

This issue has previously avoided litigation in the federal courts because there is no federal law prohibiting discrimination because of sex or sexual orientation by businesses providing goods or services to the public. When “sex” was added as a prohibited ground of discrimination through a floor amendment to the pending Civil Rights Act in Congress in 1964, the amendment was directed solely to the employment discrimination section of the bill.  The public accommodations section was not amended to include “sex”.  The Equality Act bill first introduced in Congress two years ago would add both “sex” and “sexual orientation” to that part of the Civil Rights Act.

The state rulings all came in cases where businesses were being prosecuted under a state law. Because these are local businesses operating in the same jurisdiction where the plaintiffs live, there was no basis for the defendants to remove them to federal court, since the federal constitutional arguments were raised as defenses, and federal “removal” jurisdiction is based either on diversity of citizenship of the parties or a federal question being raised by the plaintiff in the complaint.

This case was brought by ADF on behalf of Carl and Angel Larsen and their company, Telescope Media Group, which specializes in producing videos for a fee. They are interested in expanding their business to include wedding videos.  They strongly oppose same-sex marriage, and one of their goals in expanding their business is to propagate their view that only a marriage between a man and a woman is appropriate by including in every contract they make a provision by which the couple purchasing the video gives Telescope Media the right to provide public access to the video through their website and postings on social media.  Thus, their mission in expanding into the wedding video business is not just to make money but also to promote different-sex marriage, which they consider to be an institution that is endangered by social changes such as the marriage equality movement.  They also want to be able to include a notice on their website that they do not provide video services for same-sex marriages.

The Minnesota public accommodations law was amended in 1993 to add “sexual orientation” to the prohibited grounds of discrimination. After Minnesota’s legislature enacted a marriage equality law in 2013, the Minnesota Department of Human Rights (MDHR) published an “interpretive guidance” for businesses covered by the law, stating clearly that the state law “does not exempt individuals, businesses, nonprofits, or the secular business activities of religious entities from non-discrimination laws based on religious beliefs regarding same-sex marriage.”  The guidance makes clear that people denied services by such businesses could file discrimination charges with the agency, which could result in penalties for violation of the law.

ADF alleged in its complaint that Telescope Media has already been contacted by at least one same-sex couple seeking video services for their wedding, but they were told that Telescope Media does not do wedding videos. This is legal, since they are not discriminating between same-sex and different-sex couples.  They claim they want to get into this potentially lucrative business, but are concerned about exposing themselves to legal liability, and seek the shelter of a declaratory judgment that they are privileged to turn down same-sex wedding business.

ADF came up with seven legal theories in support of their claim to constitutional protection, based on the 1st and 14th Amendments. They claimed that any legal requirement that they must provide services to same-sex couples would violate their rights to freedom of speech, expressive association, free exercise of religion, equal protection of the laws, and both procedural and substantive due process.  Their freedom of speech argument subdivides into the freedom to advertise their wedding video business as available only to different-sex couples, and their freedom not to be compelled to produce wedding videos that celebrate same-sex marriages and thus communicate a message of approval that contradicts their religious-inspired views.  The court rejected their argument that under the Minnesota law they could be compelled to display publicly any same-sex marriage videos that they might produce.

Judge Tunheim carefully and systematically rejected all of their arguments, citing extensively to U.S. Supreme Court decisions dealing with comparable situations. Before tackling the substantive issues, he had to deal with whether this lawsuit was an attempt to get an advisory opinion, which is beyond the jurisdiction of federal courts.  In this case, the fact that the MDHR has announced in advance its view that declining same-sex marriage business would violate the Human Rights Act helped to convince the court that prosecution of Telescope Media if it implemented its business plan was not merely theoretical.  If they have a constitutional right, the existence of the law and the agency’s intention to enforce it back their claim that they are being deterred from potentially exercising a constitutional right by expanding their business.  Thus, Tunheim rejected the argument by the state’s attorneys that the court had no jurisdiction over the case, since there is a real “case or controversy,” not a purely hypothetical case.

Turning to the merits, however, Judge Tunheim agreed with the growing body of state court appellate decisions that have rejected these constitutional arguments, for all the reasons that have been cited in those cases.

The court found that the MDHR is not a content-based regulation of speech, does not target religion, is subject only to intermediate scrutiny under 1st and 14th Amendment principles, and is sustained by the state’s important interest in preventing discrimination by businesses providing goods and services to the public.

Judge Tunheim rejected ADF’s argument that requiring a business to make wedding videos for same-sex couples if they make them for different-sex couples would violate the prohibition against government-compelled speech.   “Where a business provides a ‘conduit’ that allows others to pay for speech,” as in the case where the business makes an expressive product like a video for monetary compensation, “strict scrutiny is usually unnecessary because there is ‘little risk’ of compelled speech or that the public will attribute the message to that of the speaker,” he wrote.  “Further, courts generally do not find compelled speech where the speaker may easily disclaim the message of its customers.”

“The law does not compel the Larsens to speak a specific government message,” he continued, “unlike the message on the license plate in Wooley or the words of the pledge of allegiance in Barnette,” referring to cases where the Supreme Court held that a state cannot compel a person to display a political message on his license plate or to speak the flag salute against his will.  “The law does not dictate how the Larsens carry out any of their creative decisions regarding filming and editing.  While the law does incidentally require wedding videographers to make videos they might not want to make, the concerns undergirding the application of the compelled speech doctrine to instances of hosting another’s message are immaterial.”

At the heart of his analysis was the simple proposition that “speech-for-hire is commonly understood to reflect the views of the customer. Weddings are expressive events showcasing the messages and preference of the people getting married and attendees, who do things like speak, dress, and decorate in certain ways.  A video of a wedding depicts this expressive event, and while videographers may exercise creative license to fashion such a video, the videographer is a ‘conduit’ for communication of the speech and expression taking place at the wedding.”

Further, he pointed out, the Larsens can always post an announcement on their website stating that they are complying with the law by making videos of same-sex weddings, but that they are opposed to same-sex marriage. This sets their case apart from Hurley, the Supreme Court case holding that Massachusetts could not compel parade organizers to include a gay group if the organizers did not want to send a gay rights message through their parade.  Finally, he pointed out, making wedding videos for same-sex couples would not impede the Larsens’ ability to propagate their own message.  They would not be required to exhibit these videos on their website or place them on social media, as the court found that the MDHR would not be interpreted to impose such a requirement.

The court held that the ability of the MDHR to decide whom to prosecute under the statute did not destroy its content-neutral character, and that requiring Telescope Media to afford equal access to its services for same-sex weddings did not violate its right of expressive association. Indeed, ADF’s argument on this issue would undermine all anti-discrimination laws, were a court to accept the argument that every interaction with a potential customer could be avoided on grounds of “forced association.”  Historically-mind people may recall that then-Professor Robert Bork opposed the public accommodations provisions of the proposed Civil Rights Act in 1964 by describing the proposition that forcing businesses to provide services to people of color as one of “surpassing ugliness” because it would force people into unwanted personal associations.  These sorts of views led to the defeat of Bork’s nomination by President Reagan to the Supreme Court in 1987.

Because the judge found the Minnesota Human Rights Act to be content-neutral as far as religion goes, it easily rejected the idea that evenhanded application of the law would constitute a violation of free exercise, and it similarly rejected the argument that the law imposed an “unconstitutional condition” on the Larsen’s ability to conduct business in Minnesota. Because the law applied to all videography businesses, there was no viable Equal Protection claim.  Similarly, there was no viable procedural due process claim since the law’s prohibition was not unduly vague, and its use of the phrase “legitimate business purposes” to describe circumstances under which a business could refuse to provide a service to a consumer had a well-established legal meaning that would not leave reasonable people guessing as to the scope of their legal obligations.

Finally, having found that the law did not unconstitutionally abridge any of the Larsen’s substantive constitutional rights, the court easily concluded that it did not violate the 14th Amendment’s substantive due process protection for individual liberty. The court found that there is no recognized “fundamental right to work or operate a business free from regulations that one dislikes.  Absent some authority to the contrary, the Court declines to expand the reach of substantive due process to these facts, as the doctrine is ‘reserved for truly egregious and extraordinary cases,’” citing several U.S. Supreme Court decisions limiting the scope of substantive due process doctrine.

Judge Tunheim found that the state’s attorneys had “met their burden to demonstrate that Counts I-VII in the Amended Complaint all fail as a matter of law,” so there is nothing left to litigate and the court granted the state’s motion to dismiss the complaint.

ADF’s appeal to the 8th Circuit is unlikely to result in a quick decision, because the Supreme Court will soon schedule oral arguments in the Masterpiece Cakeshop case, which presents many of the same issues.  This is an appeal of a ruling by the Colorado Court of Appeals that the Cakeshop and its proprietor, Jack Philips, violated the state’s human rights law by refusing to make a wedding cake for a same-sex couple because of his religious objections to same-sex marriages.  The hearing will probably take place later this year, with a decision expected in the spring of 2018.

The 8th Circuit may decide to follow the same procedure it followed in 2014 and 2015 when it received state appeals from district court marriage equality rulings while a similar case from the 6th Circuit was pending in the Supreme Court. The 8th Circuit put the appeals “on hold” to see what the Supreme Court would do, and then after the Obergefell ruling it simply followed the Supreme Court’s lead, as it would be required to do by precedent.

However, because ADF has alleged various legal theories that were not advanced in the Masterpiece Cakeshop case, a Supreme Court ruling in that case may not definitively answer all the questions raised in Telescope Media, so it is possible that the 8th Circuit will find this case different enough to justify going forward without waiting for the Supreme Court’s ruling.

 

Oregon Appeals Court Affirms Damages Award Against Bar That Ousted LGBT Social Club

Posted on: September 26th, 2015 by Art Leonard No Comments

The Court of Appeals of Oregon has affirmed an award of $405,000 against a North Portland bar and the bar’s owner, Chris Penner, upon a finding by the Oregon Bureau of Labor and Industries (OBLI) that they violated the state’s public accommodations law by denying “equal accommodations” to an informal social club that included gay and transgender people. Blachana, LLC v. Oregon Bureau of Labor and Industries, 273 Ore. App. 806, 2015 Ore. App. LEXIS 1116, 2015 WL 5595483 (Sept. 23, 2015). The court rejected the petitioners’ outlandish argument that they hadn’t discriminated and their conduct was protected by the 1st Amendment freedom of speech.

The case involves an informal social group called Rose City T-Girls that met in bars on Friday nights. The membership was diverse, including lesbians, gay men, transgender people, transvestites, and straight people as well. For a time they were meeting in a bar then called P Club in North Portland. On June 18, 2012, the proprietor of the bar phoned one of the “regulars” of the club and left a voicemail, asking that they not come to his bar on Friday nights. As transcribed by the recipient, the call stated: “Hello, my name is Chris, I’m the owner of the P Club Bar and Grill on North Lombard. Um, unfortunately, uh due to circumstances beyond my control I am going to have to ask for you, Cass, and your group not to come back on Friday nights. Um, I really don’t like having to do that but unfortunately it’s the area we’re in and it’s hurting business a lot. If you have any questions, please feel free to give me a call. . . Again I’m really sorry about having to do this but yeah give me a call. Thanks, bye.”

The recipient of this call left a voicemail for Chris Penner, asking the “real reason” for his request, and received the following voice mail: “Hello Cassandra, this is Chris from the P Club. Sorry it took me awhile to return your phone call. There is no underlying reason for asking you folks not to come back other than money. Um, sales on Friday nights have been declining at the bar for the last 18 months. Uh, about a year ago I was looking at asking you folks not to come in anymore and the girls said, “No, no, no don’t,” so I gave it a while longer. Um, I own another bar in north Portland; sales are going great on Fridays, and so I’ve done some investigating as to why my sales are declining and there’s two things I keep hearing: People think that (a) we’re a tranny bar or (b) that we’re a gay bar. We are neither. People are not coming in because they just don’t want to be there on a Friday night now. In the beginning sales were doing fine but they’ve been on a steady decrease so I have to look at what the problem is, what the reason is, and take care of it; that’s my job as the owner. So unfortunately, I have to do what I have to do and that is the only reason. It’s all about money.”

Cassandra Lynn recorded and transcribed the calls and shared them with the other members of the group, and none of them returned to P Bar. Instead, they filed complaints with BOLI, which enforces the state’s public accommodations law. That law bans discrimination because of sexual orientation and gender identity. BOLI found a violation of the law based on a complaint by the Commissioner of the agency, and assessed damages of $50,000 for each complainant and $5,000 in penalties against the bar and Penner.

On appeal, Penner’s counsel argued that actually the law had not been violated, as none of the complainants had come to the bar after those messages were received, and so nobody had actually been turned away or denied services. They argued that if the entire case turned on the phone messages, then it was an unconstitutional penalty for speech.

The Court of Appeals ultimately found these arguments totally lacking in merit, agreeing with BOLI that the phone messages constituted “an actual denial of service.” Wrote Judge Douglas L. Tookey for the court, “As we understand it, that statement including a finding that, through the voicemails, Penner was not just stating his opinion, but was actually informing the T-Girls that they would not be served if they came to the P Club on Friday nights. That finding is supported by substantial evidence.” Thus, the club and its owner were not being held liable for their speech, itself, but for the “forbidden effect” of the speech, a denial of services by a public accommodation. “When Penner left the voicemails for Lynn,” wrote Tookey, “he was verbally barring her and the T-Girls from the P Club on Friday nights.” Thus, he concluded, the fact that none of the T-Girls returned to the club was “immaterial” to the case.

The court did not pay any attention to Penner’s asserted justification in his voicemails that the Club’s attendance on Friday nights had fallen off after the T-Girls began meeting there. Such a defense has long since been rejected in public accommodations cases dating back to the 1960s when the federal civil rights laws prohibited places of public accommodation from discrimination because of race. If an owner could justify denying service to a class of people on the ground that other people would stop patronizing the business, laws banning discrimination by places of public accommodation would be toothless at best.

After the publicity surrounding this case, Penner changed the name of the bar to Twilight Room Annex. In a 2012 interview, he said that he is neither homophobic nor anti-transgender, but that other customers had complained about the T-Girls and business had declined after they started coming to the bar on Friday nights. After OBLI’s judgment became final, according to a September 23 report in the Oregonian, Penner’s bank accounts were seized to satisfy the judgment, Penner laid off five employees, and the Twilight Room Annex closed.