Religious Freedom

Federal court rejects claim for religious or speech exemption from state public accommodations law for wedding photographer

/ Antidiscrimination Law, Consumer Protection, Free Speech, Religious Freedom, Sexual Orientation

A federal judge for the Western District of New York has ruled that the state public accommodations statute can be applied to a wedding photographer who refused to provide services for same-sex couples. Carpenter v. James, 2021 WL 5879090 (W.D.N.Y. 2021). On the speech claim, the court assumed that the law compelled speech on the part of the photographer but held that the law only affected speech incidentally in connection with regulation of economic activity and that the law was narrowly tailored to achieve its purposes. The court also held that the provision of photography services did not require the photographer to participate in a religious ceremony. Note that an Eighth Circuit decision disagrees. Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019).

A third case granting a wedding provider a free speech exemption from an antidiscrimination law

/ Antidiscrimination Law, Religious Freedom, Sexual Orientation

For the third time, a court has held that a public accommodations law cannot be enforced against a service provider who objects, for religious reasons, to same sex marriage. Chelsey Nelson Photography, LLC v. Louisville/Jefferson County Metro Gov’t, 2020 U.S. Dist. LEXIS 146246 (W.D. Ky. 2020). The other two times were: Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019); Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019). Cases going the other way and finding it constitutional to enforce public accommodations laws to service providers who oppose same-sex marriage include: Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)’ State v. Arlene’s Flowers, Inc., 441 P.3d 1203 (Wash. 2019). The judge in the Chelsey Nelson case found a free speech violation because “photography is art,” “art is speech,” and the “government can’t compel speech when it violates the speaker’s religious or political principles.” In …

A third case granting a wedding provider a free speech exemption from an antidiscrimination law Read More »

Both sexual orientation and gender identity discrimination are forms of sex discrimination

/ Antidiscrimination Law, Gender Identity, Religious Freedom, Sexual Orientation

Although decided under Title VII (employment discrimination) rather than the Fair Housing Act, the Supreme Court’s 5-4 ruling in Bostock v. Clayton County, 140 S.Ct. 1731 (2020) that both sexual orientation and gender identity discrimination are forms of sex discrimination is quite likely to be extended to the housing context. Justice Gorsuch’s majority opinion focused on a textual reading of the statute and the so-called comparative or but for theory to the effect that an employer who fires a man for being attracted to other men but would not do so if he were a woman has necessarily discriminated against that men just because of his sex. It does not matter if his motives were related to his views of homosexuality or same-sex marriage or religion or anything else. While this argument is likely to extend to claims under the Fair Housing Act, 42 USC §3601 et seq., it will not …

Both sexual orientation and gender identity discrimination are forms of sex discrimination Read More »

Shop owner has constitutional right to refuse to print gay pride T-shirts

/ Antidiscrimination Law, Religious Freedom, Sexual Orientation

An appellate state court in Kentucky has held that the first amendment gives a shop owner the right to refuse to print gay pride T-shirts for an organization espousing views the shop owner does not hold. Lexington Fayette Urban County Human Rights Comm’n v. Hands On Originals, 2017 WL 2211381 (Ky. Ct. App. 2017), aff’d, Lexington-Fayette Urban County Human Rights Comm’n v. Hands On Originals, 2019 WL 5677638 (Ky. 2019), The Kentucky Supreme Court affirmed, explaining that the public accommodations law protects individuals alone and confers no rights on organizations.

Eighth Circuit holds that videographers have First Amendment free speech right to refuse to provide services at same-sex weddings

/ Antidiscrimination Law, Consumer Protection, Free Speech, Religious Freedom, Sexual Orientation

In Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019), the Eighth Circuit held that Minnesota could not enforce its public accommodations law against a company that refused to provide video services for same-sex weddings. The process of producing a video, the court said, constitutes “speech” and would be posted on the company’s website. The company sought to produce wedding videos of opposite-sex couples to “affect public attitudes and behavior” by “depict[ing] marriage as a divinely ordained covenant” that exists “between a man and a woman.” To forced them to produce videos for same-sex couples constitutes compelled speech that violates the Constitution’s protection for freedom of speech. The court emphasized the creative work that would go into editing; the company was not simply videotaping the wedding but retained “ultimate editorial judgment and control.” The court accepted the company’s assertion that if it provided its services for same-sex couples, this would “compel …

Eighth Circuit holds that videographers have First Amendment free speech right to refuse to provide services at same-sex weddings Read More »

State constitutional and statutory right in Arizona to refuse to create custom wedding invitations for same-sex couples

/ Antidiscrimination Law, Consumer Protection, Religious Freedom, Sexual Orientation

In a 4-3 decision, the Arizona Supreme Court has interpreted its constitution, Ariz. Const. art. 2, §6, and its Free Exercise of Religion Act, Ariz. Rev. Stat. § 41-1493.01, to give a public accommodation the right to refuse service to same-sex couples who seek custom wedding invitations. Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019). Arizona has no state statute that prohibits discrimination on the basis of sexual orientation in public accommodations, but several cities, like Phoenix, have such local laws. This case involved a public accommodation that refused to produce a custom-designed wedding invitation for a same-sex couple. While Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S.Ct. 1719 (2018) had suggested that public accommodation laws could be enforced despite religious objections by the public accommodation owner, although it did not reach the free speech issue in that case and decided the religious liberty claim on …

State constitutional and statutory right in Arizona to refuse to create custom wedding invitations for same-sex couples Read More »

Federal court allows public accommodation to refuse to create custom videos of same-sex weddings

/ Antidiscrimination Law, Consumer Protection, Free Speech, Gender Identity, Religious Freedom, Sexual Orientation

In a 2 to 1 vote, the Eight Circuit has held that the First Amendment prohibits a state from enforcing its public accommodations law if it requires videographers to create custom videotapes of same-sex weddings even though they provide this service to opposite-sex weddings. Telescope Media Group v. Lucero, 2019 U.S. App. LEXIS 25320 (8th Cir. 2019). Because the videos will be edited and posted on the videographer’s website, the majority accepted the defendant’s argument that they would convey a message of support for same-sex marriage contrary to the views of the regulated entity. Judges David Stras and Bobby Shepherd found this to be “compelled speech” that violates the business’s constitutionally-protected right to freedom of speech. Dissenting judge Jane Kelly found no compelled speech, just a statutory duty to provide the same services to both same-sex and opposite sex couples.

Bed & breakfast owner held to have no religious freedom right to refuse to provide lodging to a lesbian couple protected by state public accommodations law

/ Antidiscrimination Law, Religious Freedom

In a case decided several months before the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights Comm’n, 138 S.Ct. 1719 (2018), the Hawaiʻi Supreme Court held that there is no constitutional right to an exemption from a public accommodation law that prohibits discrimination on the basis of sexual orientation, even if the accommodation is a small bed and breakfast business. Cervelli v. Aloha Bed & Breakfast,415 P.3d 919 (Haw. Ct. App. 2018). Nor did the law violate the owner’s rights to privacy or intimate association.

Supreme Court to decide whether discrimination on the basis of sexual orientation and gender identity are forms of “sex” discrimination under federal laws

/ Antidiscrimination Law, Fair Housing Act, Religious Freedom

The Supreme Court accepted certiorari in three cases (Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC) and will determine whether federal employment discrimination laws that ban “sex” discrimination cover discrimination based on sexual orientation and/or gender identity. The rulings in these cases are very likely to apply to the Fair Housing Act. Zarda v. Altitude Express, Inc.,883 F.3d 100 (2d Cir. 2018), cert. granted sub. nom Altitude Express, Inc., v. Zarda, 2019 WL 1756678 (U.S. 2019), held that discrimination based on sexual orientation is a form of sex discrimination both because it is either the sex of the employee or that their potential or actual partners that defines sexual orientation. Bostock v. Clayton County Bd. of Commissioners,723 Fed. Appx. 964 (11th Cir. 2018), cert. granted, 2019 WL 1756677 (U.S. 2019) came to the opposite conclusion. EEOC v. R.G. & G.R. Harris Funeral …

Supreme Court to decide whether discrimination on the basis of sexual orientation and gender identity are forms of “sex” discrimination under federal laws Read More »

Religious exemption to public accommodation laws rejected by Supreme Court while those laws cannot be administered in a way that demonstrates hostility to religion or that unfairly discriminates among religious beliefs

/ Antidiscrimination Law, Consumer Protection, Free Speech, Legal Theory, Religious Freedom, Sexual Orientation

This blog entry has a long title because the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd., v. Colo. Civil Rights Comm’n, 2018 U.S. LEXIS 3386, 2018 WL 2465172 (U.S. 2018) is complicated and cannot be summarized quickly. While the baker won the case (the Supreme Court reversed the state court order to him to pay civil rights damages to the plaintiff couple for refusing to sell them a “wedding cake”), he won it on such narrow grounds that the decision is likely to wind up supporting the power to states to enforce civil rights law without regard to the religious objections of business owners. The Supreme Court ruled in favor of the baker on narrow grounds in a 7-2 decision with four judges concurring. The two dissenting judges were Ginsburg and Sotomayor. Three concurring opinions were written by Kagan (joined by Breyer) and Gorsuch (joined by Alito) and Thomas (joined by Gorsuch). …

Religious exemption to public accommodation laws rejected by Supreme Court while those laws cannot be administered in a way that demonstrates hostility to religion or that unfairly discriminates among religious beliefs Read More »

Scroll to Top