A unanimous five-judge appeals panel has upheld a decision by the State Division of Human Rights (SDHR) that Liberty Ridge Farm LLC, an upstate business that rents facilities for wedding ceremonies, violated the state’s Human Rights Law in 2012 when it turned away a lesbian couple looking for a place to hold their wedding ceremony and reception. Justice Karen K. Peters wrote the January 14 opinion for the New York Appellate Division, Third Department, an Albany-based intermediate level court that hears appeals from state agency rulings.
Liberty Ridge Farm is a Rensselaer County working farm owned by Cynthia and Robert Gifford, a married couple who regularly rent out parts of the premises to the public for use as a wedding venue. According to Justice Peters’ opinion, when providing a wedding venue, Liberty Ridge offers a variety of services, involving decorations, transportation, beverages, and hiring of a caterer, and Cynthia Gifford acts as “event coordinator.”
Melisa McCarthy and Jennifer McCarthy became engaged in October 2011 and the following fall Melissa phoned Cynthia Gifford to ask about holding the couple’s wedding at Liberty Ridge. When Gifford realized from Melisa’s use of a female pronoun in referring to her fiancé that she was engaged to a woman, she immediately said that there was a “problem” because the farm did “not hold same-sex marriages.” Asked why, she explained, “It’s a decision that my husband and I have made that that’s not what we wanted to have on the farm.”
The McCarthys followed up by filing a discrimination complaint with the SDHR against the Giffords and their corporation, and found a different venue for their wedding.
New York Human Rights Law provides that places of public accommodation not discriminate in providing services based on sexual orientation. The Giffords responded by saying they did not believe their operation was a “public accommodation” subject to the law and that, in any event, they were not discriminating based on sexual orientation, but rather exercising their First Amendment rights of freedom of speech, association, and religious exercise. They do not inquire into the sexual orientation of potential customers, they insisted.
After a public hearing, an administrative law judge (ALJ) ruled that Liberty Ridge was a place of public accommodation and that the denial of the facility to a same-sex couple for use as a wedding venue violated the statute. That judge recommended that each of the McCarthys receive $1,500 to compensate for the emotional distress they suffered and that the Giffords pay a $10,000 fine to the agency. The ALJ also recommended that the petitioners be directed to “cease and desist” from violating the statute and establish anti-discrimination training and procedures at their business. The state human rights commissioner accepted the ALJ’s recommendations with minor changes, and the Giffords filed their appeal to the Appellate Division, raising both statutory and constitutional challenges.
Though this was a new issue for New York courts, the underlying question has been addressed elsewhere, with appellate rulings in New Mexico, Oregon, Colorado, and Washington State — each of which has a gay rights law —having rejected the idea that businesses can deny goods or services to same-sex couples in connection with commitment or wedding ceremonies. Justice Peters cited those cases — most prominently the Elane Photography case from New Mexico, which was denied review by the US Supreme Court on the constitutional questions.
On the Giffords’ statutory claims, the court easily dispensed with their argument that their farm is not a “public accommodation.” Incorporated as a for-profit business, Liberty Ridge advertises the availability of its facilities to the public, so their argument that it is just a privately-owned farm that rents out its barn occasionally for a wedding ceremony was not going to cut it.
“The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as petitioners contend, remove Liberty Ridge’s facilities from the reach of the Human Rights Law; the critical factor is that the facilities are made available to the public at large,” Peters wrote.
The court was equally dismissive of the Giffords’ argument they were not discriminating based on sexual orientation.
“As the record clearly reflects,” wrote Peters, “Cynthia Gifford displayed no unwillingness to allow the McCarthys to marry at the farm until Melisa McCarthy referred to her fiancé as a ‘she.’ Despite Cynthia Gifford’s clear rejection of the McCarthys as customers, petitioners nonetheless argue that, in advising Melisa McCarthy that ‘we do not hold same-sex marriages here at the farm,’ they did not deny services to the McCarthys ‘because of’ their sexual orientation.’ Instead, petitioners claim that the decision to do so was based solely upon the Giffords’ religious beliefs regarding same-sex marriage. Such attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected.”
Peters cited the US Supreme Court’s decision involving the refusal of the University of California Hastings Law School to recognize a chapter of the Christian Legal Society, which excluded gay students from membership, in which Justice Ruth Bader Ginsburg expressly rejected this kind of status /conduct distinction, as well as the famous Bob Jones University case, which upheld a denial of tax-exempt status to the school because of its policy forbidding interracial dating by students.
The court found that the “act of entering into a same-sex marriage is ‘conduct that is inextricably tied to sexual orientation,’” so there was no basis to distinguish this from on outright denial of services because of a potential customer’s sexual orientation.
The Giffords tried to bolster this defense by claiming that they would have been happy to host a wedding reception for the McCarthys, so long as the actual wedding ceremony was not held on their premises, but the court rejected this defense, pointing out that the statute “does not permit businesses to offer a ‘limited menu’ of goods or services to customers on the basis of a status that fits within one of the protected categories.”
The court then turned to the Giffords’ constitutional claims, and here rested its analysis on the proposition that neither the First Amendment to the US Constitution nor the analogous provision in the New York State Constitution allows people to violate general anti-discrimination laws based on their religious beliefs.
“While we recognize that the burden placed on the Giffords’ right to freely exercise their religion is not inconsequential,” wrote Peters, “it cannot be overlooked that SDHR’s determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords 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 Giffords’ interests in adhering to the tenets of their faith is New York’s long-recognized, substantial interest in eradicating discrimination. Balancing these competing interests, we conclude that petitioners failed to show that SDHR’s determination constituted an unreasonable interference with the Giffords’ religious freedom.”
The court similarly rejected the Giffords’ other First Amendment claims regarding freedom of association and religion.
The appeals panel also concluded that the remedy imposed by SDHR was “reasonably related to the wrongdoing, supported by evidence and comparable to the relief awarded in similar cases,” so there was no reason to change it.
The Giffords and their business are represented by Alliance Defending Freedom, an anti-gay religiously oriented litigation group that advocates the proposition that free exercise of religion, at least by Christians, should always trump other legal duties. They will undoubtedly seek review by the state’s highest bench, the Court of Appeals, but given the five-member unanimity in the Appellate Division and the consistency with rulings from other states, it seems unlikely that court will grant it. Given the US Supreme Court’s refusal to take up the New Mexico wedding photographer case, that route is also a likely dead end for the Giffords.
The McCarthys are represented by Mariko Hirose of the New York Civil Liberties Union and Rose A. Saxe of the American Civil Liberties Union. SDHR’s appellate attorney Michael Swirsky argued on behalf of the agency, and the NAACP Legal Defense Fund, Lambda Legal, the National Center for Lesbian Rights, and New York Attorney General Eric Schneiderman all weighed in as friends of the court on the McCarthys’ behalf.