Sexual Orientation

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 …

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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 …

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Virginia prohibits sexual orientation and gender identity discrimination in housing and public accommodations

/ Antidiscrimination Law, Fair Housing Act, Sexual Orientation

By passage of the Virginia Values Act, Virginia joins 22 other states and the District of Columbia in prohibiting discrimination on the basis of sexual orientation and gender identity in public accommodations and housing (as well as employment). Va. Stat. §2.2-3904 and §36–96.3 (as amended by 2020 Va. H.B. 1663 (Feb. 27, 2020)).

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 …

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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 …

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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.

Washington Supreme Court reaffirms its finding of sexual orientation discrimination by florist

/ Antidiscrimination Law, Sexual Orientation

On remand in light of the Supreme Court ruling in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n,  the Washington Supreme Court unanimously reaffirmed its ruling in State v. Arelene’s Flowers, 389 P.3d 543 (Wash 2017), as modified by 2017 Wash. LEXIS 222 (Wash. 2017). Lambda Legal, A key victory reaffirming LGTBT rights in flower shop discrimination case, June 6, 2019. See also CNN Politics, Washington state Supreme Court ruling in Arlene’s Flowers case,  June 6, 2019. In its opinion in State of Washington v. Arlene’s Flowers, Inc., (Wash. 2019), the Washington Supreme Court found that the case was tainted by none of the antireligious views the Supreme Court had found in Masterpiece Cakeshop and that the opinion in that case had affirmed that states can prohibit sexual orientation discrimination in public accommodations and that owners of such establishments cannot evade them by citing religious convictions. The court also reaffirmed its initial ruling that the refusal to provide flowers for a wedding of a same-sex couple …

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Wedding planning website cannot refuse to serve same-sex couples

/ Antidiscrimination Law, Sexual Orientation

A Web-based graphic design company that intends to design custom websites for customers planning weddings sought to place a statement explaining the owner’s intent not to serve same-sex couples. A federal court has held that this violates the state’s public accommodations law because it constitutes discrimination on the basis of sexual orientation. 303 Creative LLC v. Elenis, 2019 WL 2161666 (D.Colo. 2019). Lorie Smith claimed she was not discriminating on the basis of sexual orientation but on the basis of her religous beliefs that do not recognize same sex marriage. The court rejected this argument and held that denying her the ability to post this statement did not violate her constitutionally-protected free speech rights since government power to prohibit discrimination necessarily includes the power to regulate speech that indicates an intent to engage in discrimination. The court also held that Employment Division v. Smith precluded her claim since the antidiscrimination law was a neutral law …

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