Heartbreak, Humiliation and a Death Certificate

“Heartbreak and humiliation” were the opening words of the current affairs show “The 7:30 Report” on the national public broadcaster, the ABC, on Thursday Friday 21, 2016. The story? The tragic accidental death of David Bulmer-Rizzi, one member of a UK same sex couple who were visiting the country.The tragedy was compounded, the report said, by the fact that the South Australian authorities were proposing to issue a death certificate which stated that the deceased was “never married”. But the couple had entered into a same sex marriage under UK law.

The grief of the survivor, Marco Bulmer-Rizzi, and the father of the deceased man, were evident in the show. To lose a loved one in such circumstances is a terrible thing. But as there has already been substantial press coverage of the case, being used for the purpose of supporting legal change in Australia, it seems worthwhile to clarify the purely legal situation. 

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Wedding Venue Owners Fined for Declining Same Sex Wedding

In the latest in what seems like a long series of religious freedom cases involving Christian small business owners in the “wedding industry”, a New York couple, the Giffords, have been fined $13,000 for declining to make their venue available for a same sex wedding ceremony, and a New York State appeal court has now upheld the verdict: see Gifford v McCarthy (NY Sup Ct Appellate Divn, 3rd Dept; 14 Jan 2016; matter no 520410) (the case is also referred to as Gifford v Erwin).

Facts of the case

The Giffords run Liberty Farm in Schaghticoke, Rensselaer County. A large barn has been used as a venue for weddings, where they provide all the services needed except a celebrant. As reported by the Gifford’s lawyers, Alliance Defending Freedom (ADF):

On Sept. 25, 2012, Melisa McCarthy called Cynthia, inquiring about the use of the farm for her upcoming same-sex ceremony. Because of her Christian faith’s teachings on marriage, Cynthia politely made it clear to McCarthy that she and her husband don’t host and coordinate same-sex ceremonies but left open the invitation to visit the farm to consider it as a potential reception site. Instead, McCarthy and her partner filed a complaint with the Division of Human Rights. After the agency ruled that the Giffords were guilty of “sexual orientation discrimination,” it fined them $10,000 plus $3,000 in damages and ordered them to implement re-education training classes designed to contradict the couple’s religious beliefs about marriage.

A New York statute, the Human Rights Law, declares it to be 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” (Executive Law § 296 [2] [a]).

Was the booking declined on the basis of sexual orientation?

The Giffords argued that they had not declined the booking “because of the sexual orientation” of the parties, but because as Christians they could not support the celebration of a same sex “marriage”, believing it to be contrary to God’s word in the Bible. In other words, their refusal was on the basis of the message of celebration that would be conveyed by the event, in which they would have to be intimately involved as hosts of the venue.

The ADF draw a helpful analogy to a different set of facts. As they note, the

law does not require the Giffords to coordinate or host every event that a person…requests. For example, if the infamous Westboro Baptist group asked the Giffords to host an event that would express their false message that God hates people in same-sex relationships, the Giffords would not be discriminating based on religion if they declined the event because they did not want to host expression that violates their belief that God loves everyone…. The statute does not require that they treat all messages equal.

Note that this case, like others of its nature, is not about a right to decline to provide services to gay people because of some form of unreasoned hatred. Instead, the question of whether a service provider whose work is essentially artistic and creative, should be required to use their skills to provide support for, and celebration of, a message that they find clashes with their deep religious commitments.

But the court rejected this argument. Peters PJ, with whom the other judges concurred, said (at pp 6-7):

Such attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected (see Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of the Law v Martinez, 561 US 661, 689 [2010]; Lawrence v Texas, 539 US 558, 575 [2003]; Bob Jones Univ. v United States, 461 US 574, 605 [1983]). 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” (Elane Photography, LLC v Willock, 309 P3d 53, 62 [Sup Ct NM 2013], cert denied ___ US ___, 134 S Ct 1787 [2014]; accord Craig v Masterpiece Cakeshop, Inc., ___ P3d ___, ___, 2015 WL 4760453, *6, 2015 Colo App LEXIS 1217, *15-18 [2015]). Accordingly, petitioners discriminated on the basis of sexual orientation when they refused to host the McCarthys’ wedding on the premises. (emphasis added)

Readers of past blog posts here will recall some of these cases. In a general post on the “wedding industry” cases I mentioned the Elane Photography decision cited above, which was one of the first where a State Supreme Court upheld a ruling that a Christian wedding business (there a photographer) was guilty of sexual orientation discrimination by declining to offer their services to a same sex wedding. In that post I mentioned the decision in State of Washington v Arlene’s Flowers Inc, Ingersoll & Freed v Arlene’s Flowers Inc (Ekstrom J, Nos 13-2-00871-5, 13-2-00953-3; 18 Feb 2015), involving a florist. The Masterpiece Cakeshop decision noted above involved refusal to create a wedding cake celebrating a same sex marriage, as did the decision in  Re Klein dba Sweetcakes by Melissa and anor (Commissioner of the Bureau of Labor and Industries, State of Oregon; Case Nos 44-14, 45-14; 21 April 2015) mentioned in this post. Outside the US, in Northern Ireland the Ashers Bakery case mentioned in this post is still before the courts- an appeal is to be heard from February 3.

A common theme in all these decisions is the view that a decision not to provide artistic and creative support for a same sex wedding must amount to discrimination against the persons involved on the basis of their sexual orientation. This is a view which I have suggested is wrong, and in a previous post about an Australian decision, “Sexual orientation and sexual behaviour: can they be distinguished?” I noted that there is at least one court ruling that supports my view. In Bunning v Centacare[2015] FCCA 280 (11 February 2015) the judge commented at para [39] that

sexual orientation”, as the term is used in s. 4 of the Sex Discrimination Act 1984 (Cth), covers only that which it expressly covers, i.e., the state of being. It does not cover behaviours.

I have also noted previously one US decision recognising the difference, in  Hands on Originals, Inc v Lexington-Fayette Urban County Human Rights Commission (Fayette Circuit Court, Civil Branch, 3rd Div, Ky; Civil Action No 14-CI-04474; James D Ishmael Jr, J; 27 April 2015), where a T-shirt printer escaped liability for declining to print a shirt with a message supporting “gay pride”.

The forthcoming Ashers Bakery case may provide the best opportunity for a superior court to clearly distinguish between support for a “message” and discrimination against a person themselves; the cake in that case was not going to be used at a wedding, but simply as a political statement, and may provide a good chance for the appeal court to stress the distinction between these things.

A religious freedom defence?

To return to the Gifford decision, having found the act of declining to offer their premises amounted to sexual orientation discrimination, the court went on to consider whether the Giffords, whose reason for not wanting to make the premises available related to their religious commitments about the nature of marriage, could rely on a defence based on religious freedom.

Unfortunately the discussion of this point followed the pattern familiar from most of the previous decisions. A claim that the discrimination law amounted to a breach of the Gifford’s “free exercise of religion” guaranteed by the First Amendment to the US Constitution, was rejected on the basis of the currently accepted Supreme Court orthodoxy of Employment Div., Dept. of Human Resources of Ore. v Smith, 494 US 872, 879 (1990), holding that:

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 (quoted at p 8 of Gifford)

The local New York version of “free exercise” was held to require a “balancing” of interests, and given the “strong” protection against discrimination under NY law, the court found that the interests of the Giffords were not strong enough. They retained the right to “believe” what they will! A generous concession, but not of course what religious freedom calls for. “SDHR’s determination does not require them to participate in the marriage of a same-sex couple”, Peters PJ said; though since their normal practice was to be heavily involved in all aspects of the ceremony and reception except for the actual celebration, her Honour does not quite explain how this was supposed to work.

A free speech defence?

The court also briefly addressed a “free speech” argument derived from the other limb of the First Amendment, the Giffords having argued that compelling them to host and organise a same sex wedding required them to impliedly assert their support for the institution. As the court summarised their point (at p 10):

petitioners maintain that wedding ceremonies are “inherently expressive event[s]” and that, by hosting a same-sex ceremony on the farm, the Giffords would effectively be communicating and endorsing messages about marriage that are antithetical to their religious views on the issue.

An argument I think that has a lot of weight. Clearly the very point of a wedding ceremony is the “celebration” (in the broad sense) of the relationship by the guests. But according to Peter PJ (at pp 10-11):

reasonable observers would not perceive the Giffords’ provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage…the conduct allegedly compelled is not sufficiently expressive so as to trigger First Amendment protections.

What “reasonable observers” would perceive does not seem to have been the subject of evidence; the court presumably takes “judicial notice” of the perceptions of “reasonable” members of the New York public in the relevant part of the State.

How might the matter be decided in Australia?

Interestingly there have been no reported cases of this sort arising in Australia yet. In theory such a case might be brought. There are laws at both State and Federal levels prohibiting sexual orientation discrimination in provision of services, and the balancing provisions explicitly recognising religious freedom interests are mostly confined to “religious organisations” such as churches and church schools, and do not directly extend to believers conducting a small business generally.

In fact there is one major Australian decision dealing with a somewhat related issue, the decision of the Victorian Court of Appeal in Christian Youth Camps Limited v Cobaw Community Health Services Limited [2014] VSCA 75 discussed here and in papers linked from that post. While that case involved the provision of camping services rather than wedding services, there are a number of similarities: the event in question was clearly conveying a message contrary to the religious beliefs of the business owner (the camp was avowedly about “normalising” homosexual activity), and the business owner was said (by the court) not to be a religious organisation. Sadly the same logic used in many of the US decisions noted above was adopted by the majority of the court: refusal of the booking on the basis of support for homosexuality was held to amount to discrimination against the persons involved. There was not even a plausible religious freedom argument involved, as in Australia the protection of s 116 of the Constitution only applies to Federal laws, not to State laws; and at the relevant time the Victorian Charter of Rights which includes at least a nominal religious freedom right was not in force.

Given the increased recognition in recent years of an implied “freedom of political speech” in the Commonwealth Constitution, it is possible that free speech arguments might be made. One could argue, for example, that the question of expressing support, or not, for the institution of same sex marriage is very much a hot “political” topic in Australia at the moment, and that a law which imposed expression of a particular view on the matter contravened the Constitutional prohibition on impairment of free speech on such matters. However, this is so far an untested area in Australia.

For reasons canvassed in my previous papers I believe the Cobaw decision was deeply flawed; unfortunately the High Court of Australia declined to consider its correctness when invited to do so. In my view if a “wedding industry” case were to arise in Australia the principles in Cobaw ought to be reconsidered, and the important value of religious freedom given much more weight than it has been so far, either in Australia or the United States.