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Posts Tagged ‘religious objections to same-sex marriage’

Federal Court Bars Enforcement of Louisville Public Accommodations Ordinance Against A Wedding Photographer Who Opposes Marriage Equality

Posted on: August 16th, 2020 by Art Leonard No Comments

Justin Walker, recently confirmed by the Senate to be a judge of the U.S. Court of Appeals for the District of Columbia Circuit, completed some unfinished business on his docket as a U.S. District Judge in Louisville, Kentucky, by issuing an order on August 14 barring the Louisville Metro Human Relations Commission from enforcing the sexual orientation provision of the city’s public accommodation ordinance against a wedding photographer who does not want to photograph same-sex weddings and wants to be able to announce and explain her opposition on her website.  Chelsey Nelson Photography LLC v. Louisville/Jefferson County Metro Gov’t, 2020 U.S. Dist. LEXIS 146246 (W.D. Ky, Aug. 14, 2020).

In 1999, Louisville became the first municipality in Kentucky to ban anti-gay discrimination.  Among other things, the ordinance prohibits businesses from denying goods or services because of the sexual orientation of a patron, or to communicate to the public that it will refuse such services or treat people as unwelcome because of their sexual orientation.  The Commission concedes in this case that a photographer’s refusal to photograph same-sex weddings would violate the ordinance, and has not “disavowed” any intention to prosecute such an action.

Chelsey Nelson is a photographer whose business includes weddings.  Although she has not been asked to photograph any same-sex weddings, she claims that her religious beliefs would compel her to refuse such business, and she would like to avoid such confrontations by being able to advertise on her website that she will not provide such service.  Represented by Alliance Defending Freedom, the anti-gay litigation group, she filed a lawsuit seeking a court order that she is not required to comply with the ordinance and can publish her views without fear of liability.  She claims that the existence of the ordinance has chilled her ability to exercise her constitutional freedom of speech and free exercise of religion rights under the First Amendment by deterring her from using her website to communicate this message.

Judge Walker is a family friend and protégé of Senator Mitch McConnell, who recommended his appointment to President Trump and has shepherded his nomination through two rounds of Senate confirmation votes.  Walker is a leader of the conservative Federalist Society branch in Louisville, where he worked as a lawyer and law professor before taking the bench.  Thus, his decision to deny the city’s motion to dismiss the case in large part, as well as his decision to grant in part Nelson’s motion for preliminary relief pending an ultimate trial of the merits (presumably before a different district judge as Walker leaves for Washington), is not surprising.

What may be surprising, however, is some of the gay-friendly language that permeates his decision.  Assuming the sincerity of what he has written, the youthful Walker (born 1982) is part of a generation of young conservatives who have generally accepted gay rights.  He begins his decision praising the activists who campaigned for many years to get the Louisville ordinance passed, and comments that our society is “better” for prohibiting anti-gay discrimination.

Finding that the plaintiff has a good chance of prevailing on the merits of her claim is a prerequisite for ordering preliminary injunctive relief against enforcement of a law that, on its face, is not unconstitutional.  Walker premises his conclusion that Nelson meets this test by reference to the Supreme Court’s unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, in which the Court held that the organizers of the Boston St. Patrick’s Day parade were not required to allow a gay Irish-American group to march under their own banner if the parade organizers did not want to include a gay rights message in their parade.  The Massachusetts Supreme Judicial Court had ruled by 4-3 that Massachusetts’ public accommodations law, which prohibited sexual orientation discrimination, required the parade organizers to let the gay group march.

In reversing, the Supreme Court found that the parade was an expressive activity protected by the First Amendment’s freedom of speech provision.  The Court held that forcing the organizers to include the gay group would be unconstitutional compelled speech, imposing the gay group’s message on the parade organizer’s expressive activity.

In this case, Judge Walker embraced the analogy to requiring a photographer to take pictures she did not want to take as compelled speech, and that the provision making it unlawful for her to publicize her refusal to photograph same-sex weddings was a content-based restriction on her speech.  Because her speech was motivated by her religious beliefs, the constitutional problem was compounded, in Judge Walker’s view.  And he noted that the Supreme Court has found that government-compelled speech and punishment of religious expression impose irreparable injury, another test for preliminary relief.

Court decisions on this issue are divided.  In 2013, New Mexico’s Supreme Court found that a wedding photographer violated the state’s public accommodation law by refusing to photograph a same-sex commitment ceremony, and the Supreme Court of the United States denied a petition to review that case.

But more recently the 8th Circuit Court of Appeals ruled in favor of a videographer who did not want to film same-sex weddings, and the Arizona Supreme Court ruled that a custom stationer did not have to create invitations for a same-sex wedding, both relying on First Amendment free speech rights.  What the more recent cases have in common is that they are part of a broader litigation strategy by Alliance Defending Freedom and other conservative litigation groups, which having lost the battle against marriage equality, seek to establish broad constitutional exemptions for religious opponents of marriage equality from having to comply with anti-discrimination laws.  These are “affirmative litigation” cases brought to challenge the application of the law.  They do not involve actual denials of service to particular individuals, unlike the famous Masterpiece Cakeshop case, or similar cases in other jurisdictions where same-sex couples have filed discrimination claims after being denied goods or services.

The municipal defendants in this case could seek to appeal the grant of injunctive relief to the 6th Circuit Court of Appeals (in Cincinnati), or could decided to await a final ruling on the merits before instituting an appeal.  At this point, local media coverage of the case has undoubtedly solved Chelsey Nelson’s problem of communicating her stance to the public, so it seems unlikely that any same-sex couples planning their weddings in Louisville are going to approach her for service.  The injunction specifically protects her from being investigated by the Louisville Commission, but does not prevent the Commission from enforcing the ordinance against any other business that is actually violating the anti-discrimination ban, so there is no pressing urgency for an appeal.

Alliance Defending Freedom Asks Supreme Court to Revisit Religious Exemption Issue

Posted on: October 1st, 2019 by Art Leonard No Comments

Alliance Defending Freedom (ADF), a religious freedom litigation group, is asking the Supreme Court to take a second look at Arlene’s Flowers v. State of Washington, No. 19-333 (Docketed September 12, 2019), in which the Washington Supreme Court held that a florist who refused to provide her usual custom floral design and installation wedding services for a same-sex couple had violated the state’s anti-discrimination law, and did not have a valid 1st Amendment defense.  The Washington court’s original decision was vacated by the Court in June 2018 for reconsideration in light of the Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), but the Washington Supreme Court reiterated its earlier holding, 441 P.3d 1203 (Wash. 2019), finding that the record of proceedings in the Superior Court and the Supreme Court in the earlier litigation showed no evidence of hostility to religion and thus was not affected by the Supreme Court’s ruling in Masterpiece.

The Petition proposes two questions for review:  1. Whether the State violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and 2. Whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.

In the first question, the Petitioner asks the Court to take up the underlying constitutional issues in Masterpiece Cakeshop, which the Court evaded in its opinion, and to resolve them once and for all, pointing to litigation from around the country in which small businesses had declined to provide goods or services for same-sex weddings, based on the religious beliefs of the proprietors, and had been hauled into state human rights commissions or courts on charges of violating anti-discrimination laws.  There have been mixed results in these cases.  Beginning with a recalcitrant wedding photographer in New Mexico and continuing with cases involving bakers, florists, commercial wedding venues, stationers and videographers, administrative agencies and courts consistently ruled against allowing religious belief exemptions from generally-applicable anti-discrimination laws covering sexual orientation.  However, more recently, there has begun what may be a pendulum swing in the opposite direction, sparked in part by persistent appeals by ADF from adverse administrative and trial court rulings in affirmative litigation seeking declaratory judgments to establish religious exemptions.

In Masterpiece, the Court found several grounds taken together upon which to reverse the Colorado Court of Appeals’ ruling against the baker, most notably characterizing some public comments by Colorado commissioners that the Court found to evidence open hostility to the baker’s religious views.  The Court also noted an inconsistency in the Colorado Commission’s dismissal of complaints against bakers by a religious provocateur who sought to order cakes decorated to disparage same-sex marriages and was turned down.  The Court also noted that at the time the couple approach the baker, same-sex marriage was not yet legal in Colorado, so the baker could have believed he had no obligation to make such a cake.  While reasserting the general principle that businesses do not enjoy a religious freedom exemption from complying with public accommodation anti-discrimination laws, the Court observed that litigations raising religion freedom claims are entitled to a “neutral” forum to decide their cases, not one evidencing hostility to their religious views.

In Arlene’s Flowers, ADF had filed a statement with the Court after Masterpiece suggesting that evidence of hostility could be found in that case, and the Washington Supreme Court took the remand as a charge to scour the record for signs of such, which it did not find.  The Washington court read Masterpiece to be focused solely on the hostility or non-neutrality of the forum deciding the case.  That case did not involve a hearing before an administrative agency, as the first decision was by the trial court.

In its second proposed question, ADF argues that this was error by the Washington Supreme Court, contending that while the Masterpiece ruling was based on open hostility by commissioners, it could not properly be read to impose a ban on governmental hostility only on government actors performing the function of adjudicating cases.  ADF argues that the Attorney General of Washington evinced hostility and discrimination against religion by seizing upon news reports to come down hard on the florist, threatening litigation if she did not certify that in future should would provide her services to same-sex couples for weddings, making public comments criticizing religious objection to providing such services, and failing to bring similar action based on news reports about a coffee-shop owner expelling “Christians” from his establishment “based on religious views they expressed on a public street.”  ADF also criticized as “unprecedented” the Attorney General’s action in suing under the state’s Consumer Protection Law as well as the anti-discrimination law.

The Petition’s statement of facts is artfully written to suggest a saintly woman who loves gay people and happily sells them flowers for a variety of occasions, but just balks at providing custom weddings services based on her sincerely-held religious beliefs.  It argues that there is no evidence in the record of hostility toward gay people by the florist, emphasizing the long relationship she had selling floral goods to the men whom she turned down for wedding-related services, and maintaining that she had not turned down their business because they were gay but rather due to her religious objections to their wedding, and trying to draw that distinction as requiring dismissal of the discrimination complaint entirely.

The Petition argues that the Washington  Supreme Court took too narrow a view of the Supreme Court’s doctrine concerning the obligation of the government to refrain from hostility towards religion, pointing to cases where the Court had found legislatures as well as adjudicators to have violated the 1st Amendment, and argued that executives, such as the Attorney General, were no less bound by the First Amendment.  The Petition builds on a recent ruling by the 8th Circuit in the videographer case reported last month, Telescope Media Group v. Lucero, 2019 WL 3979621 (Aug. 23, 2019), and seeks to position the Petitioner, a florist, in the same category of First Amendment expression.  In effect, the Petition asks the Court to hold that any business that engages in creative expression for hire cannot be compelled to provide its services for an activity of which it disapproves on religious grounds.

Without making it a central part of the argument, the Petition notes several instances in which various members of the Court have suggested a need to reconsider its long-standing precedent in Employment Division v. Smith, 494 U.S. 872 (1990), intimating that this is the ideal case to do so.  That was the case that reversed decades of 1st Amendment free exercise precedents to hold that religious objectors do not enjoy a privilege to refuse to comply with religiously-neutral state laws of general application that incidentally may burden their free exercise of religion.  Employment Division prompted Congress to pass the Religious Freedom Restoration Act, applying the pre-Employment Division caselaw to the interpretation of federal statutes, and leading many states to pass similar laws.  A ruing overruling Employment Division and reinstating prior would law would, in effect, constitutionalize the Religious Freedom Restoration Act, making it more difficult in many cases for LGBTQ people suffering discrimination to vindicate their rights through legislative action, since the state and federal legislatures cannot overturn a Supreme Court constitutional ruling.

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.