The New York State Division of Human Rights ruled on August 8 in McCarthy v. Liberty Ridge Farm, Case Nos. 10157952 & 10157963, that a rural wedding venue violated the state’s Human Rights Law by its policy against same-sex weddings. Commissioner Helen Diane Foster formally adopted a recommended decision by Administrative Law Judge Migdalia Pares, awarding the complainants $1,500 each in compensatory damages and fining Liberty Ridge Farm $10,000 for its violation of the law.
The complainants, Melisa McCarthy and Jennifer McCarthy, decided to get married in October 2011, after New York’s Marriage Equality Law had gone into effect. Because Jennifer had proposed to Melisa while they were apple picking at an orchard in the Albany area, they decided to continue this “rustic” theme for their wedding by finding a “wedding barn” in the area. Their on-line search yielded Liberty Ridge Farm as their first choice. The website offered the Farm as a wedding venue for hire with pricing packages, catering services, and photographs of wedding ceremonies. They tried to contact Liberty Ridge by email and then left a phone message. In September 2012, Cynthia Gifford, a co-owner of the facility, returned their phone call and left a voice message, prompting Melissa to call Gifford.
The telephone conversation took place in September 2013, with Jennifer listening in on the conversation. Melissa and Gifford discussed renting the Gifford Barn at Liberty Ridge Farm (LRF) to hold a wedding between June and August 2013, and Gifford invited Melissa to visit to check out the facilities. When Melisa then referred to her fiancé as “she,” the tone of the conversation changed. Gifford stated that there was “a little bit of a problem” because “we do not hold same sex marriages here at the barn.” When Melissa challenged the legality of that policy, Gifford responded that “we are a private business.” When Melissa asked why they had the policy, Gifford said, “It’s a decision that my husband and I have made that that’s not what we wanted to have on the farm.” In response to the subsequent discrimination claim that Melissa and Jennifer filed, the Giffords contended that they have a “specific religious belief regarding marriage” and a “policy” against having such marriages at their barn.
ALJ Pares had first to determine whether Liberty Ridge qualified for an exemption from the state Human Rights Law’s prohibition of sexual orientation discrimination in public accommodations, by virtue of its alleged “private business” status. The Act exempts “any institution, club or place of public accommodation which proves that it is in its nature distinctly private.” This is sometimes referred to as the “private club” exemption, enacted to accommodate private membership organizations that are generally not open to the public at large. The Giffords claimed that their family-owned operation would qualify, but Pares concluded that the facts did not support their contention. Liberty Ridge is not a membership organization, it advertises its services on-line as being generally available, and as of 2012 it had hosted at least 35 wedding receptions. These wedding parties involved couples who were not personally known to the Giffords before they were contacted about renting the facilities, so they were purely business transactions. Pares concluded that LRF is a public accommodation, and rejected the Giffords’ argument that because they live on the third floor of the wedding barn it is their private home rather than a public accommodation. The evidence showed that the first floor is a public events space, not a private living space, and the second floor apartment was normally rented out to the wedding party as a bridal suite. Despite the small scale of the operation and family owners, operating as a limited liability corporation (LLC), it clearly qualified as a public accommodation under the Human Rights Act.
Furthermore, the Giffords did not deny that they had adopted a policy against holding same-sex weddings in their facility, based on their personal religious beliefs. They argued that they had not actually discriminated against Melissa and Jennifer because of their sexual orientation, but Pares concluded that the refusal to make the facility available for their wedding constituted discrimination in violation of the law. “It is unlawful discrimination to deny a benefit to a member of a protected class based on being a member of that protected class,” she wrote. “Here, the policy to not allow same-sex marriage ceremonies of LRF is a denial of access to a place of public accommodation.”
Judge Pares also rejected the Giffords’ argument that they could not be held personally liable, since they were doing business as corporation, but Pares found that the New York Human Rights Law “extends liability for discriminatory acts in a place of public accommodation to agents and owners of same. Even using Respondents’ own logic that the Giffords are ‘agents’ of LRF LLC, and acted as agents when applying a discriminatory policy to Complainants, they are nonetheless individually liable. The Giffords themselves committed unlawful discrimination against a same-sex couple.”
Pares concluded that “an award of $1,500 to each aggrieved Complainant for mental anguish each suffered as a result of Respondents’ unlawfully discriminatory conduct is warranted.” She also concluded that a civil fine of $10,000, payable to the state, was warranted in light of the circumstances.
In an article reporting on the decision published on August 15, the Albany Times Union quoted the Giffords’ attorney, Jim Trainor, who said they were considering an appeal to the courts, and Trainor expressed surprise that the opinion did not consider the Supreme Court’s recent Hobby Lobby decision, which held that a family-controlled corporation could deny coverage of contraception to employees because of the owners’ religious beliefs. Hobby Lobby was based on an interpretation of a federal statute, the Religious Freedom Restoration Act, which restricts the federal government from burdening religious beliefs without showing a compelling governmental interest, and requires that the government policy impose the least restrictive alternative on religious objectors. That decision has no application to state laws.
Although many states have passed their own versions of the Religious Freedom Restoration Act in response to a U.S. Supreme Court decision, Employment Division v. Smith, which held that individuals could not claim a constitutional religious exemption from compliance with neutral laws of general application, New York has not done so, having rejected such a proposed statute in 1997. Thus, any 1st Amendment claim by the Giffords would be futile under Employment Division v. Smith, since the N.Y. Human Rights Act is a religiously-neutral law of general application. Religious organizations in New York are deemed “distinctly private” for purposes of the public accommodations law, and are thus statutorily exempt from complying, but businesses in New York do not enjoy a statutory exemption based on their owners’ religious beliefs. Unless the New York courts were to construe the state constitution’s guarantee of individual religious liberty more broadly than the U.S. Supreme Court has construed the federal 1st Amendment, there seems slight chance that this decision would be reversed by the state courts based on the Giffords’ religious objections, and there appears to be no basis for U.S. Supreme Court review, unless that Court is interested in overruling Employment Division v. Smith, an opinion that was written by Justice Antonin Scalia. Having decided to enter the commercial sphere by advertising and providing a wedding venue for hire with catering in their barn, they have to play by the rules governing the commercial sphere, including the Human Rights Law.