Northern Ireland Appeals Court Upholds Anti-Gay Discrimination Finding Against Bakery

In a widely watched case, the Court of Appeal in Northern Ireland yesterday upheld the finding of a trial judge that a bakery had illegally discriminated on the basis of sexual orientation in the  provision of goods and services to the public when it refused an order for a cake for a private event marking the end of 'Northern Ireland Anti-homophobic Week' and the political momentum towards same-sex marriage legislation.  The cake was to feature a picture of 'Bert and Ernie' (the logo for QueerSpace) with the caption, "Support Gay Marriage."  In Lee v. McArthur, (NI CA, Oct. 24, 2016), the 3-judge panel rejected the religious freedom and compelled speech defenses advanced by Ashers Bakery.  The court rejected the notion that the cake forced the bakery to express approval for same-sex marriage, saying in part:

The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.

The court rejected broadly defendants' religious discrimination arguments, saying:

Anyone who applies a religious aspect or a political aspect to the provision of services may be caught by equality legislation, not because the legislation treats their religious belief or political opinion less favourably but because that person seeks to distinguish, on a basis that is prohibited, between those who will receive their service and those who will not....  In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflects their own political or religious belief in relation to sexual orientation.

The Guardian, reporting on the decision, says that the decision will be appealed to the UK's Supreme Court.

Suit By Web Designer Challenges LGBT Anti-Discrimination Law

Last week, Lorie Smith, the owner of a Colorado graphic and web design company, filed suit in federal district court challenging the constitutionality of Colorado's public accommodation anti-discrimination law.  The complaint (full text) in 303 Creative LLC v. Elenis, (D CO, filed 9/20/2016) alleges that the anti-discrimination provisions as they apply to plaintiffs violate various provisions of the 1st and 14th Amendments, including the free exercise clause.  The complaint alleges:

7. Colorado law makes it unlawful for Lorie and 303 Creative to publish, display, or mail any communication stating that they will not design, create, or publish websites celebrating same-sex marriages. See Colo. Rev. Stat. § 24-34-601(2)(a).

8. Colorado law also makes it unlawful for Lorie and 303 Creative to publish, display, or mail any communication indicating that a person’s patronage at 303 Creative is “unwelcome, objectionable, unacceptable, or undesirable” because of sexual orientation. See Colo. Rev. Stat. § 24-34-601(2)(a).

9. Therefore, Lorie and 303 Creative cannot explain on 303 Creative’s website their religious belief that God designed marriage as an institution between one man and one woman and why they cannot create wedding websites promoting and celebrating any other conception of marriage.

ADF issued a press release announcing the filing of the lawsuit.

Court Refuses To Bar Enforcement of Anti-Discrimination Law Against Wedding Invitation Designers

In Brush & Nib Studio LC v. City of Phoenix, (AZ Super. Ct., Sept. 19, 2016), an Arizona trial court refused to issue a preliminary injunction to prevent enforcement of Phoenix, Arizona's public accommodation anti-discrimination ordinance against a business that designs custom wedding invitations. Refusing to dismiss on ripeness grounds, the court held that the law does not violate plaintiffs' free speech or free exercise rights. Rejecting plaintiffs' compelled speech argument, the court said in part:

Here, there is nothing about custom wedding invitations made for same-sex couples that is expressive.... The printing of the names of a same-sex couple on an invitation or thank you note does not compel Plaintiffs to convey a government mandated message, such as an endorsement or pledge in favor of same-sex marriages, nor does it convey any message concerning same-sex marriage.... It is absurd to think that the fabricator of a wedding invitation for a same-sex couple has endorsed same-sex marriage merely by creating or printing that invitation. Moreover, there is nothing about the creative process itself, such as a flower or vine or the choice of a particular font or color, that conveys any pledge, endorsement, celebration, or other substantive mandated message by Plaintiffs in regard to same-sex marriage.

Responding to plaintiffs' free exercise challenge, the court said in part:

the sale of wedding invitations free of the names of same-sex couples clearly is not the exercise of religion, and certainly is not a burden on the free exercise of their religion. Nothing about the ordinance has prevented the Plaintiffs from participating in the customs of their religious beliefs or has burdened the practice of their religion in any way.

ADF which represented plaintiffs in the case issued a press release responding to the decision. The press release is accompanied by links to pleadings in the case and to the relevant city ordinances.

Cert. Petition Filed In Bakery's Refusal To Provide Cake For Same-Sex Wedding

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission, (cert filed 7/22/2016). In the case, a Colorado Court of Appeals held that a bakery owner's free exercise and free speech rights were not infringed when the Colorado Civil Rights Commission found that the refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law.  The Colorado Supreme Court denied review. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

NYC Human Rights Commission OKs Limited Women-Only Swimming Hours

As reported yesterday by dna info, the New York City Human Rights Commission has granted the city's Parks Department a limited exemption for gender anti-discrimination rules in order to accommodate religious objections to mixed gender swims at two of the city's pools.  Reserving a limited number of hours for women-only swimming to accommodate Hasidic Jewish women had become a controversial issue in recent weeks, with the New York Times last month editorializing against the practice. However now an HRC spokesman says:

Everyone in New York City should have an equal opportunity to enjoy recreation centers.  After weighing the Parks Department’s request for an exemption for limited women-only swimming hours at two Brooklyn pools and balancing the impact on the broader community, the Commission has granted a limited exemption. Maintaining limited women-only swim hours at these pools will allow all women to enjoy the pool without being asked to compromise their religious beliefs or affiliations and will have a minimal impact on other community members’ ability to access the pool.

The Parks Department though will substantially reduce the number of women-only swim hours to four hours per week.

Complaint Alleges Inn Owner Refused Interfaith Wedding Service

ACLU of Illinois reports on a complaint it filed last month with the Illinois Department of Human Rights charging Bernadine’s Stillman Inn in Galena, Illinois with religious discrimination. After reserving the Inn for their wedding, the Inn's owner Dave Anderson told Jonathan Webber and Alexandra Katzman, an interfaith couple, that he would only allow Christian wedding ceremonies to be performed in his chapel. The couple wanted a non-religious ceremony so that the family of Ms. Katzman, who is Jewish, would be comfortable.

Colorado Supreme Court Denies Review In Case of Baker Who Refused Wedding Cake For Gay Couple

According to yesterday's Denver Post, the Colorado Supreme Court has denied review in the widely watched case of  Craig v. Masterpiece Cakeshop, Inc. In the case, the state court of appeals affirmed a decision of the Colorado Civil Rights Commission that a bakery's refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law, and that the Commission's cease and desist order does not infringe the bakery owner's free exercise or free speech rights. (See prior posting.)

North Carolina Regulates Transgender Bathroom Use and Pre-Empts Local Anti-Discrimination Laws

In a hurriedly-called special session, the North Carolina General Assembly on Wednesday passed House Bill 2 (full text) regulating the use by transgender individuals of bathrooms and changing facilities in public schools and government offices.  The new law also pre-empts local employment and public accommodation anti-discrimination laws. Governor Pat McCrory signed the bill Wednesday night.

The new law requires any multiple occupancy bathroom or changing facility to be designated for and used only by individuals based on the biological sex that is stated on their birth certificate. However special accommodations, such as single occupancy bathrooms, may be made.  The law also declares that

the regulation of discriminatory practices in places of public accommodation is properly an issue of general, statewide concern, such that this Article and other applicable provisions of the General Statutes supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement pertaining to the regulation of discriminatory practices in places of public accommodation.

The law includes a similar declaration regarding local employment discrimination ordinances, but permits local government regulations governing their own employees that are not in conflict with state law.

As previously reported, the hurried passage of the law was designed to prevent a recently enacted Charlotte non-discrimination ordinance from going into effect on April 1. In his signing statement (full text), Gov. McCrory said in part:

The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte. This radical breach of trust and security under the false argument of equal access not only impacts the citizens of Charlotte but people who come to Charlotte to work, visit or play. This new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman's bathroom, shower or locker room.

NBC News reports that many of the state's largest employers are opposed to the new law.

Army Reservist Sues "Muslim Free" Gun Range

The ACLU of Oklahoma announced yesterday that it, along with the Oklahoma chapter of CAIR, has filed a religious discrimination suit against an Oktaha, Oklahoma gun range that advertises itself as a "Muslim Free Establishment."  The complaint (full text) in Fatihah v. Neal, (ED OK, filed 2/17/2016), contends that plaintiff, a member of the U.S. Army reserves, was denied access to the gun range because of his Muslim faith. News 9 reports on the lawsuit.

Challenge To Gun Store's "Muslim Free Zone" Dismissed For Lack of Imminent Injury

In CAIR Florida, Inc. v. Teotwawki Investments, LLC, (SD FL, Nov. 24, 2015), a Florida federal district court dismissed a religious discrimination suit brought by a Muslim advocacy organization against a gun store and firing range whose owner announced (through a YouTube video) that it was implementing a "Muslim Free Zone."  The suit alleged that the declaration by Florida Gun Supply violates Title II of the 1964 Civil Rights Act which prohibits discrimination in places of public accommodation. (See prior posting.) The court held however that the announcement -- which was seen on national television-- did not threaten imminent harm.  The court agreed with defendant's contention that:

[T]here are no facts demonstrating that Plaintiff was (or will be) unlawfully discriminated against. There are no facts demonstrating that Plaintiff has attempted to purchase a firearm from Defendant and was denied on the basis of its religion or has attempted to attend a gun safety class and was denied on the basis of its religion or attempted to do anything at Defendant’s retail gun store and was denied on the basis of religion. And there are no allegations that Plaintiff will attempt to do any such activities at Defendant’s retail gun store in the future and be unlawfully denied on the basis of religion. Thus, Plaintiff has not alleged facts to demonstrate actual present harm or a significant possibility of future harm as required by Article III.

American Freedom Law Center, which represented defendants, issued a press release announcing the decision. Its press release described the announcement by Florida Gun Supply as a "refusal to equip Islamic terrorists." WND reports on the decision.

Suit Charges Pet Store Chain With Discrimination Against Persians

Courthouse News Service reports on a discrimination lawsuit filed against Petco Animal Supplies Stores for refusing to sell goldfish to individuals of Persian descent who want to use the fish to celebrate Nowruz, the Persian New Year.  Nowruz  is a secular holiday with roots in Zoroastrianism.  It appears that Petco may have incorrectly believed that the fish would be killed as part of the celebration. The suit was filed in state court in Los Angeles on Aug. 28.

Texas Supreme Court Rules On Houston Equal Rights Referendum Ballot Language

In yet another ruling on the referendum calling for the repeal of Houston, Texas' controversial Equal Rights Ordinance, the Texas Supreme Court yesterday in In re Williams and Woodfill, (TX Sup. Ct., Aug. 19, 2015), ruled on proper ballot language. It held that the vote must be on whether or not to approve the Ordinance, not on whether or not to approve its repeal. The Court also held that the city did not abuse its discretion by referring in the ballot language to the "Houston Equal Rights Ordinance." Houston Chronicle reports on the decision. (See prior related posting.)

Court Upholds Order Against Bakery that Refused Wedding Cake For Same-Sex Couple

In Craig v. Masterpiece Cakeshop, Inc., (CO App., Aug. 13, 2015). a Colorado appellate court, in a 64-page opinion, affirmed the decision of the Colorado Civil Rights Commission (see prior posting) that a bakery's refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law, and that the Commission's cease and desist order does not infringe the bakery owner's free exercise or free speech rights. The court rejected the bakery's claim that its refusal to create the cake was "because of" its opposition to same-sex marriage, not because of its opposition to plaintiffs' sexual orientation. It held that because same-sex marriage is entered into only (or predominately) by gays, lesbians and bisexuals, the conduct cannot be divorced from status.

The court rejected defendants' argument that requiring them to create the wedding cake would amount to unconstitutionally compelled speech:

such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.

Finally the court concluded that the cease and desist order did not violate the Christian owner's free exercise rights under the state and federal constitutions because the Colorado Law Against Discrimination is a neutral law of general applicability. Colorado Springs Gazette reports on the decision.

Houston Pastors' Group Sues Mayor For Legal Fees and Damages In Fight Over Equal Rights Ordinance

Now that the Texas Supreme Court has ordered the city of Houston to place a referendum on the ballot that seeks to repeal Houston's Equal Rights Ordinance (HERO) (see prior posting), the Houston Area Pastors Council announced last week that it has filed a lawsuit in state court against Houston, Texas mayor Annise Parker to recover legal fees and damages it incurred in the litigation.  Much of the opposition to HERO came from pastors who objected to its protection of transgender rights, and the mayor created particular controversy by initially subpoenaing the pastors' sermons and other documents  relating to their support of the ordinance. (See prior posting.) Houston Chronicle and the Houston Memorial Examiner report on this latest lawsuit which accuses Mayor Parker with interfering with citizens' right to vote.

CAIR Files Suit Against Gun Store That Declared Itself a "Muslim-Free Zone"

CAIR Florida announced yesterday that it has filed suit in federal district court against a Florida gun store that earlier this month declared itself a "Muslim-free zone." The complaint (full text) in CAIR Florida, Inc. v. Teotwawki Investments, LLC (SD FL, filed 7/29/2015), alleges that the store, Florida Gun Supply, is a place of entertainment and of exhibition and is thus covered by the public accommodation provisions of the 1964 Civil Rights Act.  42 U.S.C. § 2000a bars discrimination on the basis of race, color, religion or national origin in places of public accommodation. According to USA Today, the gun store's attorney says that no Muslim is being discriminated against because of religion, and if anyone is being turned away it is because of public safety.

Meanwhile, as reported by ABC News, on Tuesday an honorably discharged Desert Storm veteran who later became a Muslim traveled from California to Florida to test the gun store's policy by signing up for one of its gun training classes. However he was told by ATF agents that the gun store was closed for the day.

Religious Discrimination Claim Moves Ahead Against Loan Company Denying Entry To Woman Wearing Hijab

In Ali v. Advance America Cash Advance Centers Inc., (ED MI, June 24, 2015), a Muslim woman brought a discrimination lawsuit against an Inkster, Michigan financial services outlet that refused her entry under its policy that customers must remove sunglasses and hats before entering.  Plaintiff, who wanted to purchase a money order, was wearing a hijab.  A Michigan federal district court held that plaintiff's complaint did not allege racial discrimination under 42 USC 1981, nor did it allege national origin discrimination under Michigan's Elliott-Larsen Civil Rights Act.  However it did allege religious discrimination under the Michigan statute. The court refused to grant defendants summary judgment on this claim, holding that there remains a factual question regarding reasons for the policy.  Defendants claimed that it is a safety policy designed to deter criminal behavior and advance employee safety.  The policy only applies in the company's branches that lack bullet-resistant glass. Plaintiff claims that this reason is pretextual.

U.S.-Based Sikh Group Sues Facebook Over Takedown of Its Page In India

The U.S. based advocacy group Sikhs for Justice (SFJ) this week filed a federal lawsuit against Facebook, Inc. complaining that Facebook has blocked access throughout the country of India to SFJ's Facebook page.  The complaint (full text) in Sikhs For Justice"SFJ", Inc. v. Facebook, Inc., (ND CA, filed 6/2/2015), contends that Facebook is subject to the public accommodation provisions of the federal 1964 Civil Rights Act and California's Unruh Civil Rights Act.  It alleges that Facebook collaborated with the government of India in retaliating against SFJ for its online campaign against  forced conversion of Christians, Muslims and Sikhs to Hinduism; support for a referendum in Punjab for an independent Sikh country; and amendment of the Indian constitution's provision that labels Sikhs as Hindus. The complaint alleges further:

Defendant willfully, intentionally, purposefully, knowingly, recklessly, and/or negligently deprived Plaintiff and its members in the entire India of the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of Defendant’s internet-based social networking service as a place of public accommodation, as defined in 42 USC Section 2000a.

... Defendant did so deprive Plaintiff and its members with discrimination and segregation on the ground of race, religion, ancestry, and national origin.

Times of India reports on the lawsuit.

Madison, Wisconsin Bars Discrimination Against Atheists, Agnostics, and Nonbelievers

As reported recently by AP, last month the city of Madison, Wisconsin enacted amendments (full text) to its Equal Opportunities Ordinance adding "nonreligion"  to the protected classes covered by its employment, housing and public accommodation anti-discrimination law (final action 3/31, enactment date 4/9). The ordinance defines "nonreligion" as "atheism, agnosticism, or other disbelief or lack of belief in the existence of God or gods."  Under the ordinance, non-profit religious organizations can still give preference to members of their own, or similar, denominations in hiring for instructional or policy-making positions, including hiring chaplains or counselors. According to a Freedom From Religion Foundation attorney, one of the reasons for enactment of the amendments is the recent increase in Madison of religiously-owned housing.

Georgia Company Refuses To Print Wedding Invitations For Same-Sex Couple

In the latest clash between business owners and same-sex couples, WXIA News reported yesterday that a suburban Atlanta printing business has refused to print wedding invitations for a same-sex couple. The owner of a Suwanee, Georgia Alpha Graphics franchise refused on religious grounds to print the invitations that Paige Beth says she wanted designed to look like a train ticket. The Alpha Graphics home office issued a statement apologizing, and emphasizing that the company does not condone discrimination on the basis of race, religion, nationality, ethnicity or sexual orientation.  Georgia's is one of 5 states that has no public accommodation law (except for disabled persons).

Proposed Order On Damages Issued Against Oregon Bakery That Refused Same-Sex-Wedding Cake

The Oregon Bureau of Labor and Industries announced last Friday that an Administrative Law Judge has issued a Proposed Order relating to damages to be paid by the owners of an Oregon bakery (Sweet Cakes by Melissa).  Aaron Klein, a co-owner of the bakery, was previously found to have violated the Oregon Equality Act by refusing on religious grounds to provide a wedding cake for a same-sex couple. (See prior posting.) The 111-page Proposed Findings, Conclusions, Opinion and Order issued April 21 (full text) proposes an award of compensatory damages for emotional suffering of $135,000, to be apportioned $75,000 to Rachel Bowman-Cryer and $60,000 to Laurel Bowman-Cryer (who was not present at the cake refusal).  The Administrative Law Judge ruled that these are damages caused by the cake refusal, and that the couple is not entitled to additional damages for emotional suffering caused by media and social media attention. The ALJ also proposes issuance of a cease-and-desist order against the bakery owners.

Both sides have ten days to file exceptions to the Proposed Order.  The Labor Commissioner will then issue the agency's final order, which is appealable to the Oregon Court of Appeals.

As reported by the Daily Signal, last Friday, supporters of the bakery owners set up a crowdfunding page on GoFundMe to help the bakers raise funds to pay any final damage award.  Within a day the page raised $109,000, but was taken down by GoFundMe as being in violation of its Terms and Conditions because it involves formal charges. The money already raised will still go to the bakery owners, Melissa and Aaron Klein.  A new fundraising page has been set up on Franklin Graham's Samaritan's Purse website.