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Posts Tagged ‘religious objections to same-sex marriage’

Supreme Court May Decide Another Gay Wedding Cake Case

Posted on: October 26th, 2018 by Art Leonard No Comments

Melissa and Aaron Klein, proprietors of the now-defunct “Sweetcakes by Melissa” custom-cake business in Gresham, Oregon, filed a petition for certiorari on October 19, asking the U.S. Supreme Court to strike down the $135,000 penalty imposed by Oregon authorities for their refusal to make a wedding cake for Rachel Cryer and Laurel Bowman in January 2013. Klein v. Oregon Bureau of Labor and Industries, No. ____ , seeking review of Klein v. Oregon Bureau of Labor and Industries, 410 P.3d 1051, 289 Or. App. 507 (2017), rev. denied by Oregon Supreme Court, June 21, 2018.  The Kleins claim in their Petition that the Oregon ruling violates their constitutional rights of free exercise of religion and freedom of speech.

The Kleins also claim that they did not discriminate against the lesbian couple because of their sexual orientation, contrary to the finding of the Commission that was affirmed by the state appeals court. And, perhaps most consequentially, they asked the Supreme Court to consider whether to overrule Employment Division v. Smith, 494 U.S. 872, which holds that the Free Exercise Clause does not exempt people with religious objections from complying with state laws of general application that do not specifically target religious practices.

The Kleins ask the Court to revisit a controversy it confronted last year in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).  Both Oregon and Colorado forbid businesses in the state from discriminating against customers because of their sexual orientation.  In Masterpiece, baker Jack Phillips refused, initially on religious grounds, to make a wedding cake for a gay male couple, and Colorado officials found that he had violated the law, rejecting his First Amendment defense.  In his appeal of the Colorado Court of Appeals’ ruling affirming the Commission, Phillips asserted protection under both the Free Exercise and Free Speech Clauses of the First Amendment, claiming that the government may not compel a “cake artist” to express a message contrary to his religious beliefs, both as a matter of freedom not to speak and protection for religious freedom.

The Court did not rule directly on these questions in disposing of Phillips’ appeal, instead deciding that comments by some of the Colorado Civil Rights Commissioners, and the Commission’s rejection of some other discrimination claims filed by a provocateur who charged bakers with discriminating against him by refusing to make explicitly anti-gay cakes, showed that the state had not afforded an appropriately “neutral forum” to Phillips for consideration of his defense. On that basis, the Court reversed the state court and commission rulings and dismissed the case against Phillips.  However, in his opinion for the Court, Justice Anthony Kennedy reaffirmed that people and businesses do not enjoy a general free exercise right to refuse to comply with state laws of general application that do not specifically target religion.  Kennedy’s opinion avoided dealing with Phillips’ argument that as a “cake artist” he also had a valid free speech claim.  Two justices dissented, while others concurred in the result.

Justice Kennedy cited Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), to support the Free Exercise point.  In that case, a restaurant owner cited his religious beliefs to refuse to comply with Title II of the Civil Rights Act of 1964, which forbids businesses affecting commerce from refusing to serve customers because of their race.  The Supreme Court affirmed the 4th Circuit, which had reversed the district court’s refusal to enjoin the restaurant’s discriminatory policy.  Kennedy could have just as well cited Employment Division v. Smith, which the Colorado Commission’s Administrative Law Judge had cited in his Masterpiece ruling, but Piggie Park may have seemed more apposite, as it involved enforcement of a general anti-discrimination law over religious objections. Smith, by contrast, involved a Native American man who had consumed peyote in a religious ritual and subsequently flunked his employer’s drug test, suffering discharge and denial of unemployment benefits.  The Supreme Court rejected Smith’s religious freedom challenge to his disqualification for benefits, finding that the incidental burden this posed on his free exercise of religion did not excuse him from complying with his employer’s lawful policy against employee drug use or require that an exception be made to the state’s unemployment insurance law, which denies benefits to employees discharged “for cause.” In a concurring opinion in Masterpiece Cakeshop, Justice Neil Gorsuch (joined by Justice Clarence Thomas) described the Smith ruling as “controversial,” implying that it deserved reconsideration.

The Kleins have followed up on Gorsuch’s signal by asking the Court to reconsider Smith or, alternatively, to “reaffirm” some comments Justice Antonin Scalia made in his opinion for the 5-4 Court majority in Smith, suggesting that when somebody raises a free exercise of religion claim in a case that also implicates “other fundamental rights,” such as freedom of speech, the Court should apply “strict scrutiny” to the challenged state action in order to vindicate the other fundamental right.  The Klein’s Petition points out that lower federal courts are divided about whether to follow Scalia’s suggestion for handling so-called “hybrid rights” cases – a suggestion the Oregon Court of Appeals expressly rejected in the Kleins’ case — and urges the Court to resolve a split of lower court authority by taking this case.

The Klein’s Petition also argues that they did not discriminate against Cryer and Bowman because of their sexual orientation; they would refuse to make a cake for a same-sex wedding regardless of the sexual orientation of the customer who sought this service. They related that just a few years earlier, they had produced a wedding cake ordered by this very lesbian couple, to celebrate the marriage of Rachel’s mother to a man, and that it was because Rachel and Laurel “liked the Kleins’ work so much that they wanted to commission a custom cake from Sweetcakes for their own wedding.”  The Petition also notes that the women quickly found another baker to make their wedding cake, and that a celebrity chef even gave them a second custom-designed cake for free.

On the other hand, it was reported that when the Kleins posted about the discrimination claim on their Facebook.com page, showing the image of the actual discrimination charge with contact information for the lesbian couple, the women received nasty messages, including death threats, which contributed to the Oregon Bureau’s decision to assess substantial damages for emotional distress.

The Kleins devote a large part of their Petition to arguing that they are “cake artists” whose creations are expressive works, entitling them to the same vigorous constitutional free speech protection normally provided to artists in less digestible media. As such, they claim the Oregon court erred in failing to apply strict scrutiny to the Bureau’s decision against them, as the Supreme Court has repeatedly held that the First Amendment protects an individual’s refusal to speak a message with which they disagree, the prime example being the Court’s unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in which, overruling a 4-3 decision by the Massachusetts Supreme Judicial Court, the Court held that parade organizers had a right to exclude a group whose message they did not desire to include in their parade, which the Court deemed to be a “quintessential expressive association.”  Whether the Court is willing to deem baking a wedding cake the free speech equivalent of staging a parade with thousands of people on a state holiday is an interesting question.

If the Court grants the Petition, the most consequential issue could be the Kleins’ challenge to Employment Division v. Smith, in which the Court cast aside decades of First Amendment precedent to hold that general laws that place a heavy burden on somebody’s free exercise of religion must generally be obeyed nonetheless.  Under prior rulings, the government had the heavy burden of meeting the “compelling government interest” test in order to justify applying a general law that incidentally but substantially burdened somebody’s free exercise of religion.

Justice Gorsuch was correct in calling Smith a “controversial” decision. Congress was so incensed by Justice Scalia’s opinion (which drew dissents from liberal members of the Court) that a bipartisan coalition soon passed the first version of the Religious Freedom Restoration Act (RFRA), introduced by Chuck Schumer (House) and Ted Kennedy (Senate) and eagerly signed into law by Bill Clinton in 1993.  RFRA provided that any law imposing a substantial burden on somebody’s free exercise of religion could be challenged using the strict scrutiny standard.  The Supreme Court subsequently ruled that Congress did not have authority to overrule the Court’s constitutional ruling, but the Court later upheld a revised version of RFRA that applied only to federal laws that burden religious free exercise, holding that Congress could create a legislative exception to federal laws when they incidentally impose a substantial burden on religious exercise.  Federal RFRA provided the example for more than twenty states to pass their own versions, similarly restricting the application of their state and local laws.  State court decisions in several other states have interpreted their state constitutional religious freedom provisions to the same effect, rejecting the Supreme Court’s narrower interpretation of Free Exercise in Smith.

If the Supreme Court were to overrule Smith and restore the previous precedents, RFRA and its state counterparts would be rendered superfluous, as the First Amendment would once more restrict states from enforcing general laws that substantially burden a person or business’s free exercise of religion in the absence of a compelling state interest.  The impact on LGBT rights could be enormous, prompting new claims that application of anti-discrimination laws to people and businesses with religious objections to LGBT people violates the businesses’ constitutional rights – one of the claims the Kleins are pursuing in this case.

Oregon state officials have thirty days to file a response to the Petition, and Petitioners can file a Reply to the Response, which means that the Supreme Court’s file in the case will not be completed for consideration by the Court until at least early December and maybe longer if the Oregon Attorney General’s Office requests an extension of time to respond. But if the petition is granted in December, that would leave plenty of time for the Court to hear arguments and render a decision during its current term, which runs through the end of June.

New York Human Rights Agency Rules Against Discriminatory Wedding Venue

Posted on: August 15th, 2014 by Art Leonard No Comments

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.