Scott Forsyth, The Daily Record Newswire
Recognize the Alliance Defending Freedom? It is a conservative legal group that “advocates for your right to freely live out your faith.” It successfully represented Greece in the town’s appeal to open town board meetings with prayer. Town of Greece v. Galloway, 572 U.S. __ (2014).
What you may not know about the ADF is that it also came to the defense of the owners of Liberty Ridge Farm located outside Saratoga Springs. The State Division of Human Rights (SDHR) sanctioned them for refusing to rent out their wedding venue for a same-sex wedding.
Two days before Religious Freedom Day and four days before Martin Luther King Day, an appellate court affirmed the determination of the SDHR. Gifford v. McCarthy, 2016 WL 155543 (N.Y. App. Div. January 13, 2016). Naturally the ADF bemoaned the defeat as another example of a court trampling on the rights of “farmers.” Here are the facts.
Liberty Ridge does raise and sell crops. It also rents out a portion of the farm to the public as a venue for wedding ceremonies and receptions. A rental comes with all of the wedding-related services — transportation, flowers, food and wait staff. One of the owners serves as the “event coordinator.”
In 2012 Melissa McCarthy called the coordinator to inquire about using the farm for her wedding. During the course of the conversation she referred to her fiancée as a “she.” The coordinator injected there was “a problem.” She and her husband did not allow same-sex marriages at their venue. Asked why, she said “that’s not what we wanted to have.” She did not mention her objection was related to any religious belief.
McCarthy went elsewhere and got married. She and her spouse, with the assistance of the NYCLU, then filed a complaint with the SDHR. They alleged the owners of Liberty Farm engaged in unlawful discriminatory practices based on their sexual orientation. The Human Rights Law does make sexual orientation a protected status. Executive Law § 296.
Before the SDHR the owners revealed their objection to hosting the wedding was based on their religious belief marriage should only be between a man and a woman.
The SDHR sided with the couple and fined the owners $10,000. It also directed them to conduct anti-discrimination training at the farm.
The owners appealed, with the assistance of the ADF. They advanced several arguments, some based on the Human Rights Law and some based on the First Amendment. All of the arguments failed.
For starters, the court held the wedding facilities at Liberty Ridge fell “comfortably within the broad definition of ‘place of public accommodation’” within the meaning of the statute. The facilities were made available to the public and in fact used by the public. The owners advertised. That the ceremonies occurred on private property and pursuant to a contract did not change the character of the facilities as a place of public accommodation.
Turning to the reason for the denial of services, the court saw no basis for distinguishing between discrimination based on sexual orientation and discrimination based on someone committing to a person of the same sex. The latter conduct is “inextricably tied” to the protected status of sexual orientation. The owners unlawfully discriminated.
There remained the constitutional issues, under the Free Exercise Clause and the Free Speech Clause.
Under Supreme Court precedent, a state law, which is “a generally applicable and otherwise valid enactment (and) which is not intended to regulate religious conduct or beliefs” does not violate the First Amendment. This is true even if the law “incidentally burden(s) the free exercise of religion.” Employ. Div., Dept. Of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990). This test is not strict scrutiny.
The court observed the Human Rights Law did not target religious beliefs. The statute forbade discrimination of persons within certain classes regardless of the religious motivation of the actor.
While the burden placed on the owners’ right to exercise their religion was “not inconsequential,” the statute did not require them to participate in same-sex marriages. Weighing against their personal interest is the indignity the victim of discrimination suffers and the loss of social benefits that accrue from having a “wide participation in political, economic, and cultural life.”
Finally, the statute did not compel the owners to speak a message with which they did not agree. A reasonable observer would not perceive their provision of the wedding facilities for same-sex weddings as an endorsement of same-sex marriage. They simply must offer the same services to same-sex couples as they offer to other couples.
You may wonder why the owners of Liberty Farm lost when the owners of Hobby Lobby won. The religious beliefs of the latter precluded them from complying with a statute — the Affordable Care Act.
The answer lies in part in the identity of the government – state v. federal. Following the Smith decision Congress enacted the Religious Freedom Restoration Act. It restored strict scrutiny to the review of federal laws, but not state laws, that impact the exercise of religion. The owners of Hobby Law prevailed under the Act. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __ (2014).
Would have the owners of Liberty Farm fared better if the Religious Freedom Restoration Act applied to New York? We will not know. Justice Alito, the author of the decision in Hobby Lobby, suggested his analysis should not upset the application of federal anti-discrimination laws.
What we do know is Liberty Farm is no longer in the business of providing wedding services. I suppose that is one way for the owners to communicate their view that same-sex marriages are ungodly.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
