Three antidiscrimination cases

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.”


  1. Jockaira says

    At issue is whether a corporation is like a human being and entitled to religious rights,

    As long as a corporation vends to the public or to a government agency, it has legal and moral responsibility to conduct its affairs in a transparently public manner, excluding no prospective client for reasons of race, creed, national origin, political belief, physical disability, sexual orientation, condition of previous servitude, or any other condition not totally or partly in accord with the beliefs of the corporation, it officers, and/or employees.

    Speaking of employees, treating them like children who don’t know what is good for them is also verboten morally and legally.

    That’s just my opinion. IANASCJ (I am not a Supreme Court Judge), but if were, my ruling would be easy to make.

  2. StevoR : Free West Papua, free Tibet, let the Chagossians return! says

    “At issue is whether a corporation is like a human being and entitled to religious rights,”

    Well, the answer to that question is a flippin’ obvious, very clear NO! Right?

    S’gotta be, yeah?

    Corporations / people same diff there – NOT!!!

  3. StevoR : Free West Papua, free Tibet, let the Chagossians return! says

    Who tha’ flying flip thinks a corporation = a human individual being eh?

    Well, Mitt Rmoney aside.

  4. says

    For me, it boils down to one simple question:

    Employers are not permitted to dictate religious practice or participation, neither of which is life threatening. Why should employers be able to impose religion on employee health care, which CAN be life threatening?

    Theocrats are lying when they claim that this is “not invasive”. They are seeking an exemption to employment laws, one that allows them to be invasive and dictate religion to employees. If they aren’t allowed to dictate prayer in the workplace, why should they be allowed to dictate religion outside of it?

  5. dano says

    I thought the Photographer case was settled in that the company places the same verbiage on the back of all future pictures such “In God we trust” or something similar that the LGBT person would not like to read and that this is legal. The owner of the business would need to make sure this also fits is future business needs. Seemed like a viable option.

  6. Wylann says

    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.

    I know the horses have all left the barn on this particular issue, but I really wish the courts would back up a few steps, and put the onus on the complainants to show just how simply providing health insurance to someone else, affects their religious freedom.

  7. StevoR @#3 says

    StevoR @#3,

    The US Supreme court has long ruled that for some purposes, a corporation has the same rights as a person. The question has now become one of exactly which rights it possesses and how much.

  8. Mano Singham says

    Wylann @#6,

    The argument being made is that by being forced to support actions that violate their religious beliefs, they are being forced to express at least implicit support for a point of view that goes against their religious beliefs. This amounts to a forced expression of belief counter to their own. The New Mexico Supreme Court rejected that argument in the Elane case but the US Supreme Court may be more sympathetic to it.

  9. lanir says

    I would respectfully suggest that they don’t really believe the argument they’re making when they protest against providing healthcare they don’t believe in. If they did, the very same thing could be thrown right back in their faces when they find a weak link and get a religiously motivated law passed (the medically unnecessary ultrasound laws in some states come to mind but I’m sure there are other examples I’m not thinking of). I’m certain I would find it just as offensive to me to be subject to or be made party to the enforcement of those laws.

  10. Nightshade says

    If the provider of goods and services can be required to sell their products and services to a person they don’t desire to because of that person’s membership in a certain class,can a seeker of goods and services discriminate against a provider for belonging to a certain class?Can society with logical consistency interfere on one side of the provider/consumer relationship but not the other?

  11. Mano Singham says

    Nightshade @#10,

    If you are talking about a boycott by consumers of a particular company, that is allowed because individual consumers do not provide a ‘public accommodation’. So I can, and in fact do, not shop from certain stores or buy certain products because of their policies.

  12. ShowMetheData says

    I thought the employees health rights were based more on equal treatment between men & women than public accomodation.
    The Hobby Lobby would be hard pressed to say that giving birth control options to women would hurt their religious rights because the issue is more “does Hobby Lobby have standing to make choices for an employee’s health decisions.” Benefits are offered to all employees equally.

  13. Mano Singham says

    lanir @#9,

    The reverse case you suggest would not apply unless you had a religious reason for objecting to the policy.

  14. A Wandering Minstrel says

    left0ver1under #4
    You’ve put into words exactly what has been bothering me about these cases. Thank you.

  15. Nightshade says

    I’m not talking about boycotting a provider of goods and services because of certain policies ,beliefs etc.What I mean is, can society prevent a consumer for refusing to do business with a provider solely because of the provider’s membership in a particular race,religion or other “protected class”?I realize that in practice this would be difficult to regulate.I’m wondering if you believe ,as you apparently do, that society has a moral right even obligation to protect consumers against certain types of discrimination when engaged in commerce do you also believe that society has a moral right or obligation to protect providers from such discrimination.There is after all a “hurt caused to persons” who are denied the opportunity to engage in commerce simply because of who they are.If a person who is a member of Group A walks into a hotel to rent a room and upon seeing it is owned or managed by a person of Group B says” Is there a hotel around here managed by people like me”? Can the hotel bring suit against the consumer?Assume that there were not only numerous witnesses to this but that it was caught on tape and there is no question that discrimination occurred and why it occurred.

  16. Mano Singham says


    In respect to your question about A and B, I would think the answer is ‘no’. Businesses have no legal means of suing customers for not doing business with them, whatever the reason. So if a Scientologist sets up a business and no one patronizes it because of their beliefs, he would be out of luck.

    As to the broader question of whether, if corporations have some rights of personhood, they can sure for discrimination by consumers because the business owners are members of a protected class, that is an interesting question to which I don’t think there has been a definitive answer but I think the answer would be ‘no’.

  17. wtfwhateverd00d says

    The problem I have framing this as the free speech of corporations, and IANAL it may absolutely be the best way to frame it, is that how would it be different if Elane Photography was not a corporation, but merely a sole proprietorship or dba? Would that make a legal difference because there would be no corporate entity for opponents to attack as unworthy of free speech rights?

    I think the salient issue is not the form of the business and thus its free speech rights, but that a business is a public accommodation.

    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.

    Here is Jonathan Turley with mixed feelings toward the case who looks at the case on speech grounds and thus distinguishes between a photographer’s creative addition to his work and a plumber’s terribly important but much less creative work.

    I believe Eugene Volokh has expressed similar views.

    While Volokh is a libertarian and Turley has libertarian leanings, I don’t think it’s reasonable to dismiss these two great civil libertarians and free speech proponents as “oh, libertarians!” And I am not saying you do that at all, but it is a common dismissal for many liberals.

  18. BrainyOne says

    The case against the florists and the photographers also must bring into account the fact that there is not a valid business reason for the discrimination, it seems to me. Otherwise, female-only gyms could be sued for not allowing male members. They are open to the public for business, and are therefore public accommodations. The fact that men can easily find other gyms is not persuasive, as it could also be argued the same-sex couples could easily find other photographers, florists, and bakers.

Leave a Reply

Your email address will not be published. Required fields are marked *