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N.Y. Appellate Division Finds Wedding Venue Unlawfully Excluded Same-Sex Couple

Posted on: January 15th, 2016 by Art Leonard No Comments

A unanimous five-judge bench of the New York Appellate Division, 3rd Department, an intermediate appellate court that hears appeals from state agency rulings in Albany, upheld a decision by the State Division of Human Rights (SDHR) that Liberty Ridge Farm LLC, an upstate business corporation that rents facilities for wedding ceremonies and other life-cycle events, violated the state’s Human Rights Law (HLR) in 2012 when the business turned away a lesbian couple looking for a place to hold their wedding ceremony and reception.  The court’s January 14 opinion was written by Justice Karen K. Peters.  Gifford v. McCarthy, 2016 N.Y. App. Div. LEXIS 238, 2016 WL 155543.

In June 2011 New York enacted its Marriage Equality Law, which went into effect the next month, providing that same-sex couples could marry and that their marriages would be treated the same under all provisions of New York law as different-sex marriages.  In October of 2011, Melisa McCarthy and Jennifer McCarthy became engaged, intending to marry during 2012.  In the fall of 2012, Melisa phoned Cynthia Gifford, co-owner of Liberty Ridge Farm, to ask about holding the wedding there.

Ms. Gifford and her husband Robert co-own the farm in Rensselaer County.  It is a working farm, but parts of the premises are regularly rented to the public for use as a wedding venue.  According to Justice Peters’ opinion, “When providing a venue site, Liberty Ridge offers several wedding-related services, including transportation of guests within the premises, a light beverage station, decoration and set-up services, flower arrangements and event coordination,” and Ms. Gifford serves as the “event coordinator.”  Liberty Ridge also contracts with a caterer to provide food and beverages for wedding receptions and “employs catering, kitchen and wait staff for that purpose.”

When Gifford figured out from Melisa’s use of a female pronoun to refer to her fiancé that she was engaged to a woman, she immediately said that there was a “problem” because the farm did “not hold same-sex marriages.”  When Melisa asked why not, Gifford responded that “it’s a decision that my husband and I have made that that’s not what we wanted to have on the farm.”  The McCarthys followed up by filing a discrimination complaint with the State Division of Human Rights against the Giffords and their corporation, and found a different venue for their wedding.

The HRL provides that places of public accommodation may not discriminate in their provision of services because of the sexual orientation of those seeking the services.   The Giffords responded to the charge of sexual orientation discrimination that they did not believe their operation was a “public accommodation” subject to the law and that they were not discriminating based on sexual orientation, but rather exercising their 1st Amendment rights of freedom of speech, association and religious exercise. They did not inquire into the sexual orientation of potential customers, they insisted.

A public hearing before an Administrative Law Judge (ALJ) led to a decision that Liberty Ridge Farm LLC was a place of public accommodation and that the denial of the facility to a same-sex couple for use as a wedding venue violated the statute.  Constitutional questions were necessarily reserved to the subsequent court proceeding.  The ALJ recommended that each of the McCarthys receive $1,500 to compensate for the emotional distress they suffered as a result of being discriminated against, and that the Giffords have to pay a fine to the agency of $10,000.  The ALJ also recommended that the petitioners be directed to “cease and desist” from violating the statute, and establish anti-discrimination training and procedures at their business. The Commissioner of Human Rights accepted the ALJ’s findings and recommendations with minor changes, and the Giffords filed their appeal to the Appellate Division, raising both statutory and constitutional challenges to the decision.

This case presented questions of first impression for New York, but the issues are not new for anyone who has been paying attention to similar cases that have arisen in other states.  To date, appellate rulings in New Mexico, Oregon, Colorado and Washington state have all rejected the idea that businesses can deny their services or goods to same-sex couples in connection with commitment or wedding ceremonies when state or local laws forbid sexual orientation discrimination by businesses.  Justice Peters cited those cases – most prominently the Elane Photography case from New Mexico, which was denied review by the U.S. Supreme Court on the constitutional questions – in reaching a ruling consistent with the decisions from other states.

Turning first to the statutory claims, the court easily dispensed with the Giffords’ argument that their farm is not a “public accommodation” under the statute.  They are incorporated as a for-profit business and they advertise the availability of their facilities to members of the public, so their argument that they are just a privately-owned farm that rents out its barn occasionally for a wedding ceremony was not going to cut it under the broad interpretation of the statute that the state courts have followed.  “The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as petitioners contend, remove Liberty Ridge’s facilities from the reach of the Human Rights Law,” wrote Justice Peters; “the critical factor is that the facilities are made available to the public at large.”

As to the argument that they were not discriminating based on sexual orientation, the court was equally dismissive.  “As the record clearly reflects,” wrote Justice Peters, “Cynthia Gifford displayed no unwillingness to allow the McCarthys to marry at the farm until Melisa McCarthy referred to her fiancé as a ‘she.’  Despite Cynthia Gifford’s clear rejection of the McCarthys as customers, petitioners nonetheless argue that, in advising Melisa McCarthy that ‘we do not hold same-sex marriages here at the farm,’ they did not deny services to the McCarthys ‘because of’ their sexual orientation.  Instead, petitioners claim that the decision to do so was based solely upon the Giffords’ religious beliefs regarding same-sex marriage.  Such attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected.”  Justice Peters cited the U.S. Supreme Court’s decision involving the refusal of University of California Hastings Law School to recognize a chapter of the Christian Legal Society, which excluded gay students from membership, in which Justice Ruth Bader Ginsburg expressly rejected this kind of status/conduct distinction, as well as the famous Bob Jones University case, which upheld a denial of tax exempt status to the school because of its policy forbidding interracial dating by students.

The court found that the “act of entering into a same-sex marriage is ‘conduct that is inextricably tied to sexual orientation,’” so there was no basis to distinguish this from on outright denial of services because of a potential customer’s sexual orientation.  The Giffords had tried to bolster this defense by claiming that they would have been happy to host a wedding reception for the McCarthys, so long as the actual wedding ceremony was not held on their premises, but the court rejected this defense, pointing out that the statute “does not permit businesses to offer a ‘limited menu’ of goods or services to customers on the basis of a status that fits within one of the protected categories.”

The court then turned to the Giffords’ constitutional claims, and here rested its analysis on the proposition that neither the federal First Amendment nor the analogous provision in New York State’s constitution allow people to violate general anti-discrimination laws based on their religious beliefs.  “While we recognize that the burden placed on the Giffords’ right to freely exercise their religion is not inconsequential,” wrote Peters, “it cannot be overlooked that SDHR’s determination does not require them to participate in the marriage of a same-sex couple.  Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so.  To be weighed against the Giffords’ interests in adhering to the tenets of their faith is New York’s long-recognized, substantial interest in eradicating discrimination.   Balancing these competing interests, we conclude that petitioners failed to show that SDHR’s determination constituted an unreasonable interference with the Giffords’ religious freedom.”

The court similarly rejected the Giffords’ other First Amendment claims.  “Here,” wrote Peters, “SDHR’s determination does not compel the Giffords to endorse, espouse or promote same-sex marriages, nor does it require them to recite or display any message at all.  The Giffords remain free to express whatever views they may have on the issue of same-sex marriage.  The determination simply requires them to abide by the law and offer the same goods and services to same-sex couples that they offer to other couples.”  The court rejected the Giffords’ assertion that holding same-sex marriages in their barn would broadcast to passersby their “support for same-sex marriage.”  The court doubted that anyone would think that a business providing a service in compliance with a law that requires them not to discriminate was making any kind of statement of the owners’ personal beliefs by providing the service.

The court also rejected the “expressive association” claim, finding that “there is nothing in this record to indicate that petitioners’ wedding business was ‘organized for specific expressive purposes’ rather than for the purpose of making a profit through service contracts with customers.”

The court also concluded that the remedy imposed by SDHR was “reasonably related to the wrongdoing, supported by evidence and comparable to the relief awarded in similar cases,” so there was no reason to change it.  The standard for judicial review of the agency’s remedy is “abuse of discretion,” and the court found that SDHR did not abuse its discretion by imposing the $3,000 damage award and the $10,000 fine.

The Giffords and their business are represented by Alliance Defending Freedom, an anti-gay religiously oriented litigation group that actively seeks to vindicate the proposition that free exercise of religion, at least by Christians, should always trump other legal duties.  They will undoubtedly try to get the state’s highest court, the Court of Appeals, to review this ruling, but that court does not have to take the case and is not likely to do so, given the unanimity of the five-member Appellate Division bench and the consistency with appellate rulings from other states involving wedding photographers, florists and bakeries.  Review by the U.S. Supreme Court is also unlikely, since it turned down the wedding photographer case from New Mexico and there is no division among the lower courts that have been ruling on these types of cases.

The McCarthys are represented by Mariko Hirose of the NY Civil Liberties Union and Rose A. Saxe of the ACLU.  SDHR’s appellate attorney Michael Swirsky argued on behalf of the agency in defense of its ruling, and a variety of civil rights and gay rights organizations weighed in as friends of the court, including the NAACP Legal Defense Fund, Lambda Legal and the National Center for Lesbian Rights, as well as New York Attorney General Eric Schneiderman.