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The ‘Human Rights’ Juggernaut

Does the First Amendment protect wedding ­photographers?

Sep 9, 2013, Vol. 19, No. 01 • By MARK HEMINGWAY
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Then last year, the Wildflower Inn’s wedding coordinator flatly turned down a request to host a wedding reception for a same-sex couple. The employee further encouraged the person making the request to call her at home so she could make arrangements for the same-sex couple through her own private wedding planning service. The employee later admitted she had lied to the same-sex couple when she told them she had discussed their request with the owners and that she alone was responsible for refusing their request. Because of this (now former) employee’s misconduct, the Wildflower Inn ended up reaching a settlement with the state Human Rights Commission under which the inn paid a civil penalty of $10,000 directly to the commission and $20,000 to a charitable trust controlled by the same-sex couple who had been denied services. 

Had the owners of the Wildflower Inn never publicly asserted their religious beliefs to begin with, it seems unlikely the state would have forced them into such a hefty settlement, given that their rogue employee admits the owners had no role in failing to accommodate the couple. In the end, “small businesses like ours cannot match the limitless resources of the government,” said Wildflower owner Jim O’Reilly in a statement.

Increasingly, state governments are using their considerable resources to go after business owners who don’t approve of gay marriage. Earlier this year, after a florist in Richland, Washington, refused to provide flowers for the wedding of a gay customer, the small-business owner was sued by no less than the state attorney general for allegedly violating the state’s consumer protection laws. And on August 14, it was announced that a bakery in Gresham, Oregon, is being investigated by the state Bureau of Labor and Industries civil rights division for declining to provide a wedding cake for a same-sex commitment ceremony. 

While there’s certainly an argument to be made that bakers and florists are expressive and artistic professionals, the First Amendment case is less obvious than it is with wedding photographers. “There are some businesses that I think do not have an expressive component—the only religious argument they can make is under a state religious freedom restoration act or the federal or state free exercise clause,” noted Lorence. “The cake thing is an intriguing argument. It depends on how they’re using the cake. If they call up and say, ‘We want to feed cake to our people,’ there’s nothing expressive there, just as if you called up a barbecue place and said we want pulled pork sandwiches. .  .  . But there’s a point in the reception where the married couple cut the cake and shove cake in their mouths. Then they’re using cake not to feed people, but for its symbolic communication that these two people are legally married.” 

By contrast, there’s little evidence that those enforcing discrimination and public accommodation laws are making even basic distinctions between free speech and free exercise of religion, which are protected, and basic services available to all under public accommodation laws. The Christian owner of Hands On Originals, a printer in Lexington, Kentucky, declined to produce T-shirts for a gay rights event last fall because he explicitly disagreed with the message he was asked to print. Lexington-Fayette Urban County Human Rights Commission is investigating him, even though he has gay employees and regularly serves gay customers. “We’ll work with anybody,” said Blaine Adamson, the owner of the press. “But if there’s a specific message that conflicts with my convictions, then I can’t promote that.”

State governments also have a lot of tools at their disposal to fine and otherwise make life difficult for businesses, and they’re not shy about using them. In response to the investigation of the bakery in Gresham, Oregon, labor commissioner Brad Avakian told the Oregonian, “The goal is never to shut down a business. The goal is to rehabilitate.” While Avakian was trying to be reassuring, the idea that the state would “rehabilitate” business owners with illegal opinions sounds more than a little ominous. 

For now, state governments continue to get away with pushing the envelope on public accommodation despite the First Amendment questions. That’s largely because of a little-noted 1986 Supreme Court decision, Ohio Civil Rights Commission v. Dayton Christian Schools, Inc. The court ruled that a legal doctrine known as the “Younger abstention” applied to state human rights complaints. Essentially, federal courts won’t interfere to remedy questions involving constitutional rights as long as there’s an ongoing state proceeding that addresses the question. 

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