Key point 13-02.1. In the Smith case (1990) the Supreme Court ruled that a neutral law of general applicability is presumably valid and need not be supported by a compelling government interest to be consistent with the First Amendment, even if it interferes with the exercise of religion.
Key point 13-02.2. Congress enacted the Religious Freedom Restoration Act to prevent the government from enacting any law or adopting any practice that substantially burdens the free exercise of religion unless the law or practice is supported by a compelling government interest. The compelling government interest requirement applies to any law, including neutral laws of general applicability. The objective of the Act was to repudiate the Supreme Court's decision in the Smith case (1990) in which the Court ruled that neutral laws of general applicability that burden the free exercise of religion do not need to be supported by a compelling government interest in order to satisfy the First Amendment. In 1997, the Supreme Court ruled that the Act was unconstitutional. However, other courts have limited this ruling to state and local legislation, and have concluded that the Act continues to apply to federal laws.
A New York court ruled that a married couple that owned a farm that was open to the public for weddings and other special events violated a state law banning discrimination based on sexual orientation by places of public accommodation when they refused, on religious grounds, to let a same-sex couple marry at the farm.
A married couple owns a 100-acre farm. The farm was registered under state law as a limited liability corporation, but it is not a nonprofit or religious entity. In addition to harvesting and selling various crops to the public, the owners rent portions of the farm to the public as a venue for, among other things, wedding ceremonies and receptions. It hosts both religious and secular wedding ceremonies on the farm. When providing a venue site, the couple offers several wedding-related event services, including transportation of guests within the premises, a light beverage station, decoration and setup services, flower arrangements, and event coordination. Such services are provided primarily by the couple themselves.
In October 2011, two women (the "plaintiffs") became engaged to be married. A year later, one of the plaintiffs spoke with the owners about using the farm as a venue for her wedding ceremony and reception. During the conversation, the plaintiff used the female pronoun to refer to her fiancée, thus indicating that she was engaged to a woman. The owners promptly interjected that there was "a problem" and that the farm did "not hold same-sex marriages." In response to the plaintiff's query as to the reason for not allowing same-sex marriages, the owners explained that "it's a decision that [we] have made that that's not what we wanted to have on the farm."
The plaintiffs thereafter filed complaints with the State Division of Human Rights (SDHR) alleging that the owners engaged in unlawful discriminatory practices based on sexual orientation. After an investigation, SDHR determined that it had jurisdiction over the matters and that probable cause existed to support the complaints. Following a public hearing, an Administrative Law Judge (hereinafter ALJ) found that the farm is a place of public accommodation within the meaning of the Human Rights Law and that the owners illegally discriminated against the plaintiffs on the basis of their sexual orientation. The ALJ recommended that the plaintiffs each be awarded $1,500 in compensatory damages for the emotional injuries they suffered as a result of the discrimination, that a civil fine and penalty in the amount of $10,000 be imposed upon the owners, and that the owners cease and desist from engaging in discriminatory practices and establish anti-discrimination training and procedures at the farm.
Place of public accommodation
The court said New York's law was enacted "to assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life" by "eliminating and preventing discrimination in employment, in places of public accommodation, resort or amusement, in educational institutions, in public services, in housing accommodations, in commercial space and in credit transactions."
To accomplish these goals, the Human Rights Law declares it an "unlawful discriminatory practice" for any "owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the … sexual orientation … of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof."
The owners challenged SDHR's determination that they violated the Human Rights Law on two distinct grounds.
First, they asserted they are not subject to the Human Rights Law because the farm's wedding facilities do not constitute a "place of public accommodation" within the meaning of the statute.
Second, the owners claimed that, even if they are a place of public accommodation, they did not engage in unlawful discrimination on the basis of sexual orientation.
These two grounds are addressed separately. The court rejected both defenses. In rejecting the owners' claim that the farm was not a place of public accommodation, the court observed:
The New York Human Rights Law defines "place of public accommodation, resort or amusement" inclusively … and sets forth an extensive list of examples of places within the statute … . Over the years, the statutory definition has been expanded repeatedly, providing a clear indication that the legislature used the phrase place of public accommodation in the broad sense of providing conveniences and services to the public and that it intended that the definition of place of accommodation should be interpreted liberally … .
Here [the farm's] wedding facilities fall comfortably within the broad definition of "place of public accommodation." It is undisputed that the owners open the farm to the public as a venue for wedding ceremonies and receptions and offer several wedding-related event services in connection therewith. Indeed, the only wedding-related service that [it] does not provide is an officiant for the wedding ceremony. The couples who contract to wed at the facilities are members of the general public who, like the [plaintiffs] may be attracted to the farm by its broadly disseminated advertisements and website. The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as the owners contend, remove the facilities from the reach of the Human Rights Law; the critical factor is that the facilities are made available to the public at large … . Thus, SDHR properly determined that the owners were subject to the Human Rights Law.
The owners' second argument was that they did not engage in prohibited discrimination on the basis of sexual orientation. Rather, they insisted that their refusal to host a same-sex marriage was based on their religious beliefs. The court responded that "attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected," and that "the act of entering into a same-sex marriage is conduct that is inextricably tied to sexual orientation and, for purposes of the Human Rights Law, we hold that there is no basis for distinguishing between discrimination based on sexual orientation and discrimination based on someone's conduct of publicly committing to a person of the same sex."
Religious freedom
The owners claimed that they had "a sincere religious belief that marriage is between one man and one woman under God," and so the SDHR's determination "unconstitutionally compelled them to host and participate in what they consider to be a sacred event that violates their religious beliefs and to implement anti-discrimination training and procedures that will necessarily endeavor to alter their religiously-motivated views and practices." The court disagreed, noting that the United States Supreme Court has ruled that "the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability." Employment Division v. Smith, 494 U.S. 872 (1990). Therefore, "a generally applicable and otherwise valid enactment, which is not intended to regulate religious conduct or beliefs but which may incidentally burden the free exercise of religion, is not deemed to violate the First Amendment." Matter of New York State Employment Relations Board v. Christ the King Regional High School, 660 N.Y.S.2d 359 (N.Y. App. 1997).
The court noted that the Human Rights Law does not "target religious beliefs," nor is its objective "to infringe upon or restrict practices because of their religious motivation." Rather, the Human Rights Law "generally forbids all discrimination against a protected class in places of public accommodation regardless of the motivation."
The court concluded:
While we recognize that the burden placed on the owners' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, they 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 owners' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination … . Discriminatory denial of equal access to goods, services and other advantages made available to the public not only "deprives persons of their individual dignity," but also "denies society the benefits of wide participation in political, economic, and cultural life." Balancing these competing interests, we conclude that the owners failed to show that SDHR's determination constituted an unreasonable interference with their religious freedom.
What This Means For Churches:
This case illustrates the impact of the nondiscrimination provisions in state and local public accommodation laws. Consider the following:
1. State and local laws.
- 21 states have enacted legislation that explicitly bans discrimination based on sexual orientation by places of public accommodation.
- 44 states have enacted legislation that explicitly bans discrimination based on sex by places of public accommodation. In some of these states, "sex discrimination" is interpreted broadly to include discrimination based on sexual orientation and gender identity.
- Some 200 cities have enacted legislation that explicitly bans discrimination based on sexual orientation and gender identity by places of public accommodation. Many of these cities are in states that have not banned these forms of discrimination.
2. Most states have enacted laws exempting churches from the nondiscrimination provisions of public accommodation laws, though these exemptions vary from state to state. In addition, church exemptions usually include conditions. For example, the exemption may not apply to a church that rents its facility to the general public, or that invites the public onto its premises for nonreligious functions.
Note that the New York public accommodations law implicated in this case contains this exemption for religious organizations: "For the purposes of this section
… a religious corporation incorporated under the education law or the religious corporations law shall be deemed to be in its nature distinctly private." This exemption did not benefit the farm or its owners since, as the court noted, the farm was not a nonprofit or religious corporation.
3. In the Hobby Lobby case in 2014, the United States Supreme Court ruled that the Religious Freedom Restoration Act (RFRA) did not permit the US Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violated the sincerely held religious beliefs of the companies' owners. Burwell v. Hobby Lobby Stores, Inc., 1134 S.Ct. 2751 (2014). The Court concluded that regulations imposing this obligation violated RFRA, which prohibits the federal government from taking any action that (1) substantially burdens the exercise of religion, (2) unless that action constitutes the least restrictive means of serving a compelling government interest. In holding that the HHS mandate was unlawful, the Court rejected HHS's argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as closely held corporations.
RFRA was violated in the Hobby Lobby case because the challenged HHS regulations substantially burdened the exercise of religion. The owners of the businesses had religious objections to abortion, and according to their religious beliefs, four of the contraceptive methods mandated by HHS regulations under the Affordable Care Act are abortifacients. If the owners complied with the HHS mandate, they believed they would be facilitating abortions, and if they did not comply, they would pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. The Court concluded: "If these consequences do not amount to a substantial burden, it is hard to see what would."
Under RFRA, a government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and must also constitute the least restrictive means of serving that interest. The Court concluded that the mandate plainly failed that test since "there are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives."
Note that RFRA only applies to actions by the federal government. In 1997, the United States Supreme Court ruled that RFRA does not apply to state or local laws that burden religious freedom. To illustrate, in 2015, a federal appeals court ruled that a Washington law requiring pharmacists to dispense prescriptions was constitutional, even if doing so, as in the case of abortifacients, violated their religious beliefs. Stormans v. Wiesman, 794 F.3d 1064 (9th Cir. 2015). The court relied on the Supreme Court's decision in the Smith case in 1990 (see above) in which the Court ruled that neutral laws of general applicability are constitutional even if they impose a burden on religious belief. The court concluded that Washington's pharmacists law was a neutral law of general applicability since it did not single out religious organization for less favorable treatment.
The Hobby Lobby case, and RFRA, may provide a defense to the application of federal laws to small business owners if the law substantially burdens their exercise of religion and the government has other options of furthering its interests that are less restrictive of religious freedom. Twenty-one states have enacted their own version of RFRA, and these laws may provide some protection of religious liberty. However, rulings by the Supreme Court raise some doubt regarding the effectiveness of these laws. In the Matter of Gifford, 23 N.Y.S.3d 422 (N.Y. App. 2016).
