I wrote recently about the Hobby Lobby and Conestoga Wood Specialties case that is pending before the US Supreme Court that will test the limits of the Free Exercise of religion clause of the First Amendment and the reach of the Religious Freedom Restoration Act of 1993 that says that any government action that impinges on a person’s religious freedom must have ‘compelling interest’ and no other less restrictive choice of action to achieve its ends.
This particular case involves religious opposition to the requirement that health insurance plans under the Affordable Care Act cover birth control and related medical issues. At issue is whether a corporation is like a human being and entitled to religious rights, whether the owners’ religious beliefs pass through to the corporation, whether the ACA requirements impinge on those beliefs, and whether the government has a compelling interest in doing so and has no less restrictive option at its disposal.
This is a case with far–reaching implications. If the court rules in favor of the two companies, does that mean that a company owned by Scientologists can exclude psychiatric treatment in its health coverage for employees, or one owned by Jehovah’s Witnesses deny coverage for blood transfusions, or a company owned by Christians Scientists deny health care coverage altogether?
But there are other cases working their way through the system where RFRA and the Free Exercise clause are being used to deny services to members of the LGBT community, and three of them have centered around services provided to weddings. In these cases, we are not dealing with the rights of large corporations but small businesses (a photographer, a florist, and a baker) in which individuals who provide services not wanting to do so on occasions celebrating same-sex partnerships. The cases are in various stages of legal proceedings.
A same-sex couple planning weddings were denied service by a florist in the state of Washington, a case that I wrote about here. The ACLU has filed a complaint on behalf of the people denied service and you can see the complaint here. The case has not gone to trial as yet.
A judge in suburban Denver said that a baker who denied service for a same-sex wedding was wrong to do so and was ordered to provide the service or face a fine. The verdict may be appealed.
The case that has advanced the most is one involving a photographer in Albuquerque, New Mexico. In that case, in 2006 Elane Photographers turned down a request by a Vanessa Willock to photograph her commitment ceremony to her female partner, with the owner saying that she covered only ‘traditional weddings’. The New Mexico Human Rights Commissions found that because the company was a ‘public accommodation’ under state law, the company had violated the state’s sexual orientation antidiscrimination law.
In 2009, Elane appealed to a district court that upheld the Commission’s verdict. A New Mexico Court of Appeals then upheld the district court’s verdict in 2012. Elane appealed to the state supreme court but was rejected in a unanimous decision in August of this year. They are hoping that the US Supreme Court will hear their case.
The NM Supreme Court’s ruling made an important point that a business subject to public accommodation laws is not entitled to discriminate against a protected class of people.
Antidiscrimination laws have important purposes that go beyond expressing government values: they ensure that services are freely available in the market, and they protect individuals from humiliation and dignitary harm. (p. 11)
Elane Photography has misunderstood this issue. It believes that because it is a photography business, it cannot be subject to public accommodation laws. The reality is that because it is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work. If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography’s choice of whom to photograph or not. The difference in the present case is that the photographs that are allegedly compelled by the NMHRA are photographs that Elane Photography produces for hire in the ordinary course of its business as a public accommodation. This determination has no relation to the artistic merit of photographs produced by Elane Photography. (p. 13)
The court rejected the argument that by providing these services, the photographer would be viewed as endorsing same-sex marriage and is thus being forced to express a particular point of view.
All these cases involve interesting applications of the right to free expression of religion and the Religious Freedom Restoration Act of 1993. New Mexico also has a state version of RFRA.
In actual practice, these particular cases may not be significant. After all, if word gets around (and it will) that people who provide personal services are hostile to a particular community (LGBT or people of color or any other category), then it seems likely that members of those communities will not patronize those businesses. Why would you risk having your wedding ruined by hiring a florist or photographer or baker who might sabotage the event by providing inferior service that barely meets the absolute minimum required to pass muster under the law? So I doubt that there will be many requests for services from those companies. But the cases are still important because of their broader implications.
Some libertarian groups like the Cato Institute have opposed the New Mexico court decision, saying that it violates people’s right to freedom of association and the freedom to make contracts, and that people who run private businesses should have the right to choose whom they want to serve.
But if bakers and florists and photographers who offer their services to the public can discriminate in this way, what about plumbers and carpenters? Can the neighborhood convenience store put up a ‘No gays’ sign? Or the local Target? The idea that businesses that advertise their services to everyone constitute a ‘public accommodation’ that must abide by antidiscrimination laws seems reasonable. That is how discrimination eventually disappears over time, because the everyday signs of it disappear and people get used to it.
As the judge in the Denver bakery case said, “At first blush, it may seem reasonable that a private business should be able to refuse service to anyone it chooses… This view, however, fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are.”