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62-CV-10-5585 Sosna v. County of Ramsey

Gay marriage faces small-business backlash

The rise of gay marriage has opened a new front in the U.S. culture wars, pitting small-business owners with religious objections against customers seeking to shop without fear of discrimination.

In Colorado, a baker says he’d close his business before decorating a cake for a same-sex wedding. In Washington state, a florist is refusing to provide flowers for a longtime customer’s marriage ceremony. In Iowa, a husband and wife who host weddings in a converted church say only opposite-sex couples are welcome.

The debate is raging in storefronts, courtrooms, state legislatures and even the White House. The U.S. Supreme Court added fuel last month when it backed corporate religious rights and let Hobby Lobby Stores Inc. withhold some government-mandated contraceptive coverage from employees.

“The result of Hobby Lobby is political war,” said Marci Hamilton, a religious-freedom expert who teaches at Yeshiva University’s Benjamin N. Cardozo Law School. Evangelical groups advocating religious rights are “energized and mobilized. Their problem — and I think they know it — is that they have now energized and mobilized the silent majority as to both contraception and discrimination.”

At stake is how the country will reconcile deep-seated disagreements over competing rights to religious exercise, free speech and equal treatment.

On one side are people who say a refusal to do business with gay couples should be every bit as illegal as racial discrimination. On the other are those who argue that business owners shouldn’t be forced to violate their consciences as the price of pursuing their profession.

Most challenges fail

So far, religious-liberty advocates have found little success, at least when pressing their arguments before civil-rights agencies and judges. The New Mexico Human Rights Commission concluded that a wedding photographer, Elaine Huguenin, violated a state anti-discrimination law by refusing to take pictures of a same-sex couple’s commitment ceremony.

The Supreme Court in April turned away the photographer’s appeal without a hearing. Huguenin has since stopped taking wedding photographs, said Jeremy Tedesco, a lawyer with the Alliance Defending Freedom, which represented her.

“Her faith has excluded her from an entire area of business that’s actually quite important for photographers,” Tedesco said.

Similarly, the Colorado Civil Rights Commission ruled that Jack Phillips, a Denver-area baker, had to make wedding cakes for same-sex couples. Two men filed a complaint against Phillips after he refused to make a cake for them. Phillips is appealing.

“The Bible teaches that marriage is defined as one man and one woman,” Phillips said in an email. “Promoting any other relationship as a marriage, or participating in any event that says marriage is something it isn’t, would be a sinful act for me.”

Alliance Defending Freedom also represents the Washington florist, Barronelle Stutzman, who is being sued by the state under its anti-discrimination law. The group, based in Scottsdale, Arizona, also opposes abortion and backs a greater role for student-led religious expression in public schools.

Another advocacy group, the Becket Fund for Religious Liberty, is pressing the case of Betty and Richard Odgaard, Mennonites who say they shouldn’t be forced to hold same-sex weddings in their Gortz Haus Gallery in Grimes, Iowa.

Multilayered legal debate

Those disputes are taking place against a multilayered backdrop of state and federal laws and constitutional provisions.

Colorado and New Mexico are among 21 states, plus the District of Columbia, that bar businesses from discriminating on the basis of sexual orientation, according to the Human Rights Campaign, which advocates for gay rights.

An overlapping group of 19 states, plus the District of Columbia, have laws designed to protect religious freedom, with an additional eight offering similar protections under their state constitutions, according to the Alliance Defense Fund.

State laws have become a central focus, with religious-liberties advocates pushing for stronger protections around the country. In February, Arizona Gov. Jan Brewer vetoed a religious-freedom bill in the face of nationwide protests that included tourists canceling reservations, companies threatening to relocate, and the National Football League considering moving the 2015 Super Bowl from Phoenix.

A law took effect in Mississippi on July 1, promising to protect the “exercise of religion.” Opponents say the measure is a thinly veiled move to let business owners refuse to deal with gay people.

The law triggered a reaction among some Mississippi business owners, led by Mitchell Moore, a Jackson baker who said he is happy to sell to anyone who wants to be a customer.

Moore and a friend who owns a hair salon began distributing rainbow-colored stickers with the slogan, “If you’re buying, we’re selling.” Moore said more than 1,000 businesses around the state now display the stickers.

“I’m a Christian, but my religious beliefs don’t have anything to do with me making cake for a wedding,” Moore said in a telephone interview.

The New York City Human Rights Commission recently began distributing similar stickers.

In the Hobby Lobby case, the Supreme Court ruled that the federal Religious Freedom Restoration Act

protects closely held corporations as well as individuals. The majority said companies with religious objections can opt out of a requirement to include contraceptive coverage in employee health plans.

Dissenting Justice Ruth Bader Ginsburg said the court’s reasoning might let companies evade anti-discrimination laws on religious grounds. She pointed to the New Mexico photography case, asking “Would RFRA require exemptions in cases of this ilk?”

Although Justice Samuel Alito’s majority opinion said racial-bias laws wouldn’t be affected, he made no similar promises about bans on discrimination based on gender and sexual orientation.

Because RFRA applies only to the federal government, the Hobby Lobby decision didn’t directly affect the ability of states or cities to override the religious views of businesses.

Ripple effect

Even so, the high court’s reasoning “will have a ripple effect” on state courts interpreting their own, similarly worded laws, Hamilton said.

The Senate this week turned back a Democratic proposal that would have reversed the Hobby Lobby decision and required companies to provide birth-control coverage regardless of their religious views.

At the White House, a planned executive order would bar federal contractors from discriminating against gay and transgender workers. Advocates on both sides of the issue are lobbying President Barack Obama’s administration over the scope of the order’s religious exemption.

Other percolating issues include whether companies must provide benefits to same-sex spouses and whether religious schools can fire employees for marrying a person of the same gender.

The subject eventually may return to a Supreme Court, whose precedents point in opposite directions, embracing gay rights even while expanding religion and speech freedoms. The court could decide as soon as next year whether same-sex marriage is a constitutional right.

Ultimately, the issue may come down to the strength of the parallel with racial bias. Louise Melling, deputy legal director of the American Civil Liberties Union, said religious groups voiced similar objections to the 1964 Civil Rights Act, which banned businesses from discriminating on the basis of race. Lawmakers and the Supreme Court rejected those arguments.

Allowing religious exemptions for sexual-orientation discrimination would mean creating a “second tier or second class of anti-discrimination laws,” Melling said.

“Religious liberty is the right to hold your beliefs, but religious liberty has never meant you have the right to impose your beliefs on others,” she said.

Tedesco said the objectors aren’t refusing to deal with gay people — only to participate in activities that offend their religious beliefs.

“Objections based on race are a lot different from objections based on sexual behavior and morality,” he said. “The Bible is clear about sexual morality. It’s clear about marriage being between a man and a woman.”

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