Faith-Based Homeless Shelter Denied Injunction Against Alaska City's Anti-Discrimination Laws

In Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, Dec. 20, 2021), an Alaska federal district court refused to grant injunctive relief to a faith-based homeless shelter for women that objected to Anchorage's newly revised public accommodation and housing anti-discrimination laws. The shelter refuses to house transgender women. The court concluded that the faith-based shelter failed to show a credible threat of enforcement of either the public accommodation or the housing sections of the new law. The city takes the position that the provisions do not apply to the shelter and disclaims any intent to prosecute. However the court held that the shelter does have standing to sue for damages for the nearly 3-month period before the city disclaimed any intent to prosecute under the housing provisions. Anchorage Daily News reports on the decision. 

Christian Wedding Photographer Loses Suit Against NY Public Accommodation Law

In Emilee Carpenter, LLC v. James, (WD NY, Dec. 13, 2021), a New York federal district court refused to enjoin the application of New York's public accommodation law to a Christian wedding photographer who refuses on religious grounds to photograph same-sex weddings. The court rejected plaintiff's Free Speech and Free Exercise claims, saying in part:

New York has a compelling interest in ensuring that individuals, without regard to sexual orientation, have “equal access to publicly available goods and services.”...

The crux of Plaintiff’s claims is that her photography is the product of her unique artistic style and vision. Thus, an exemption for Plaintiff’s unique, nonfungible services would necessarily undermine, not serve, the State’s purpose, as it would “relegate [same-sex couples] to an inferior market” than that enjoyed by the public at large....

Settlement Agreement Reached In Arleen's Flowers LGBT Discrimination Case

ADF announced yesterday that a settlement agreement (full text) has been reached in the long-running Arleen's Flowers litigation. In the case, the Washington state Supreme Court held that a florist shop's refusal to provide flowers for a same-sex wedding constitutes sexual orientation discrimination under the Washington Law Against Discrimination, and that enforcement of the law does not violate the constitutional rights of the floral shop owner. In July, the U.S. Supreme Court denied review (see prior posting). According to ADF:

A settlement agreement ... ends a lawsuit brought against floral artist Barronelle Stutzman nearly a decade ago without forcing her to act against her religious beliefs or to pay potentially ruinous attorneys’ fees.... Stutzman has chosen to retire so her beloved employees can run her business, Arlene’s Flowers. She will withdraw a pending petition for rehearing at the U.S. Supreme Court and make a payment of only $5,000 to the two men who sued her.

Stutzman, 77 and a great-grandmother, explained that she is at peace because the settlement allows her to finally retire with her conscience intact, and she knows that the legal effort to protect the artistic freedoms of creative professionals will continue in cases like 303 Creative v. Elenis, which the U.S. Supreme Court could decide to hear soon.

Tri-City Herald reports on the settlement.

Certiorari Denied In Catholic Hospital's Free Exercise Claim

The U.S. Supreme Court today denied review in Dignity Health v. Minton, (Docket No. 19-1135, certiorari denied 11/1/2021) (Order List.) Justices Thomas, Alito and Gorsuch would have granted review. In the case, a California state appellate court (full text of opinion) held that California's Unruh Civil Rights Act allows a suit against a Catholic hospital for unequal access by a transgender man whose doctor was not permitted to perform a hysterectomy on him at the hospital. The hospital argued that performing the procedure would violate its long-held religious beliefs.

Supreme Court Review Sought By Christian Wedding Website Designer

A petition for certiorari (full text) was filed today with the U.S. Supreme Court in 303 Creative LLC v. Elenis, (Sup. Ct., filed 9/24/2021). In the case, the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for Christian religious reasons refuses to create websites that celebrate same-sex marriages. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Alaska Homeless Shelter Challenges City's Public Accommodation Law

Last week, an Anchorage, Alaska women's homeless shelter filed suit in an Alaska federal district court contending that the city's recently amended public accommodation law that requires it to house transgender women violates the shelter's 1st and 14th Amendment rights.  The law prohibits discrimination on the basis of sex or gender identity. The complaint (full text) in Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, filed 6/30/2021), says in part:

Defendants insist Hope Center’s religious beliefs— specifically, its beliefs about sexuality and gender—are discriminatory and deserving of punishment. In Defendants’ view, providing charitable shelter exclusively to vulnerable women is unlawful sex and gender-identity discrimination....

Because of its religious beliefs and desire to create a safe and secure environment, Hope Center allows only biological women to stay overnight at the shelter....

No Hope Center policy prohibits biological women who identify as men from accessing the shelter....

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

Baker Violated Public Accommodation Law In Refusing To Sell Gender Transition Cake

Scardina v. Masterpiece Cakeshop, Inc., (CO Dist. Ct., June 15, 2021), is the latest installment in lawsuits against the owner of a Lakewood, Colorado bakery who refuses to furnish cakes that violate his religious beliefs.  Here, a transgender woman sought to order a birthday cake with a pink interior and blue exterior to reflect her transition from male to female. According to the court:

Mr. Phillips ... claims his religious beliefs prevent him from creating a custom cake celebrating a transition from male to female because expressing that message—that such a transition is possible and should be celebrated—would violate his religious convictions.... He and his wife believe that God designed people male and female, that a person’s gender is biologically determined, and that gender does not change based on an individual’s perception or feelings.....  

The court concluded that defendants violated the Colorado Anti-Discrimination Act, and that the law does not infringe defendants' free speech or free exercise rights:

Defendants denied Ms. Scardina goods and services because of her transgender status. Defendants admit that they were willing to make the requested cake until Ms. Scardina identified that she chose the colors to reflect and celebrate her identity as a transgender female....

The Court concludes that a reasonable observer of the requested cake would not attribute any message to Defendants and would not understand the cake to convey the message claimed by Defendants, i.e., endorsement of a gender transition. Therefore, Defendants have failed to carry their burden to show that providing the requested cake constituted any type of symbolic or expressive speech protected by the First Amendment.....

A press release from ADF says that the decision will be appealed.

Christian Wedding Photographer Sues Over NY Public Accommodation Law

Suit was filed this week in a New York federal district court challenging on 1st Amendment grounds the application of New York's public accommodation law to a Christian wedding photographer.  Among other things, the law broadly prohibits sexual orientation discrimination.  The complaint (full text) in Emilee Carpenter, LLC v. James, (WD NY, filed 4/6/2021), alleges in part:

[T]he Accommodations Clause ... makes it unlawful for Emilee to treat photography requests for same-sex engagements and weddings different from photography requests for opposite-sex weddings—whether by responding to the former more slowly, by always referring the former to another photographer, or by offering any part of her services to the latter but not the former, such as posting wedding photographs or blogs for opposite-sex weddings on her website but not posting wedding photographs or blogs for same-sex weddings.

... In short, the Accommodations Clause forces Emilee to celebrate same-sex engagements or weddings and would require her to promote messages that violate her religious beliefs or require her to participate in religious ceremonies that violate her religious beliefs, something she cannot do....

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

Colorado Bakery, In Court Again, Loses Attempt to Dismiss Transgender Discrimination Claim

 In Scardina v. Masterpiece Cakeshop, Inc.,(CO Dist. Ct., March 4, 2021), a Colorado state trial court dismissed Colorado Consumer Protection Act claims against a bakery that has been the subject of extensive litigation over its refusal to design wedding cakes for same-sex weddings. In the current case, plaintiffs claimed that the bakery engaged in misleading advertising indicating that they would sell birthday cakes to LGBT individuals. The court dismissed the claim because "the most salient materials Plaintiff allegedly relied on are not advertisements," but were news articles and op-eds. However the court refused to dismiss plaintiff's Colorado Anti-Discrimination Act claim that she was discriminated against because of her transgender status when plaintiff refused to make a blue and pink cake celebrating her gender transition. The court said in part:

Whether making Plaintiff’s requested cake is inherently expressive, and thus protected speech, depends on whether Defendants would thereby convey their own particularized message, and whether the likelihood is great that a reasonable observer would both understand the message and attribute that message to Defendants.... The Court cannot conclude, based on the current record, that the act of making a pink cake with blue frosting, at Plaintiff’s request, would convey a celebratory message about gender transitions likely to be understood by reasonable observers. Further, to the extent the public infers such a message, that message is far more likely to be attributed to Plaintiff, who requested the cake’s simple design. Therefore, if Defendants violated CADA here, they have not shown that their freedom of speech would be violated by holding them liable.

Recent Virginia Anti-Discrimination Statutes Challenged

 Two lawsuits filed this week challenge two recently enacted Virginia statutes-- SB 868 prohibiting discrimination in public accommodations and employment, and HB 1429 that prohibits discrimination against transgender individuals in health insurance policies.

The complaint (full text) in Calvary Road Baptist Church v. Herring, (VA Cir. Ct., filed 9/28/2020) was filed by churches, Christian schools and pregnancy centers and alleges that the laws require plaintiffs to hire employees, provide insurance coverage and offer services that violate their religious beliefs on marriage, sexuality and gender.

The complaint (full text) in Updegrove v. Herring, (ED VA, filed 9/28/2020) was filed by a photographer who will "not provide wedding photography that celebrates any marriage not between one man and one woman, such as same-sex, polygamous, or open engagements or marriages, because [he] believes that God created marriage to be an exclusive union between one man and one woman."

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

Religious Education Companies Face No Threat Under Indiana Cities' Anti-Discrimination Law

 In Indiana Family Institute, Inc. v. City of Carmel, (IN App., Sept. 10, 2020), an Indiana state appellate court dismissed a suit brought by two companies offering religion-based education programs against four Indiana cities. Plaintiffs claim that their exclusion of same-sex married couples from their events would subject them to various penalties under the cities' non-discrimination ordinances, and that protections in Indiana's RFRA are not broad enough to cover them. The court however found that the companies face no threat of injury, saying in part:

The Companies do not require event attendees to share the same religious beliefs, and the Companies’ own designated evidence demonstrates that they have permitted “many gay people” to attend their programs....

Although the Companies claim that their rights to hold events in the Cites are chilled because of the ordinances’ failure to exempt their activities from enforcement, none of the Companies have been the subject of a complaint or investigation; nor have they been threatened with sanctions or penalties.... 

[T]he Companies have failed to show how the ordinances subjected them to an imminent threat of harm or that they faced a credible threat of prosecution.

Wedding Photographer Successfully Challenges Anti-Discrimination Ordinance

 In Chelsey Nelson Photography LLC v. Louisville/ Jefferson County Metro Government, (WD KY, Aug. 14, 2020), a Kentucky federal district court held that a wedding photographer is likely to succeed in her Free Speech challenge to Louisville, Kentucky's Fairness Ordinance. That law prohibits a business from denying services to an individual based on the person's sexual orientation, and from advertising that it will engage in such discrimination.  Holding that plaintiff's wedding photography is speech, the court said in part:

Nelson is a photographer, editor, and blogger. She takes engagement and wedding photos with artistic skill....

Nelson is also a Christian. Her faith shapes everything she does, including how she operates her photography studio. She believes that marriage is between one man and one woman. For that reason, she would decline to photograph a same-sex wedding, and she would decline to edit photos from a same-sex wedding. She wants to explain these views on her website....

 Louisville can’t ban expression just because it finds the expression offensive.

To be clear, most applications of anti-discrimination laws — including Louisville’s Fairness Ordinance — are constitutional. Today’s ruling is not a license to discriminate. Nor does it allow for the “serious stigma” that results from a sign in the window announcing that an owner won’t serve gay and lesbian customers.... Marriott cannot refuse a room to a same-sex couple.  McDonald’s cannot deny a man dinner simply because he is gay. Neither an empty hotel room, nor a Big Mac, is speech.

ADF issued a press release announcing the decision.

Wedding Services Company Challenges Public Accommodation Non-Discrimination Ordinance

A Christian minister, Kristi Stokes, the owner of Covenant Weddings LLC, filed suit in an Ohio federal district court this week challenging the constitutionality of Cuyahoga County, Ohio's public accommodation ordinance (full text) which which makes it illegal for any public accommodation to

discriminate against, or treat differently any person except for reasons applicable alike to all persons regardless of race, color, religion, military status, national origin, disability, age, ancestry, sex, sexual orientation, or gender identity or expression...

The complaint (full text) in Covenant Weddings LLC v. Cuyahoga County, (ND OH, filed 7/22/2020) alleges in part:

The County ... cannot rescind religious liberty and free speech by relabelling them discrimination....

Through Covenant Weddings, Kristi personally officiates and writes custom homilies, vows, and prayers for weddings...

The Accommodations Clause forces Kristi to provide her wedding services for same-sex wedding ceremonies or for wedding ceremonies where a marrying individual identifies as the opposite sex and would require Kristi to proclaim messages and to participate in religious ceremonies that violate her religious beliefs, which she cannot do.... 

This undercuts Kristi’s message (expressed elsewhere in her social media accounts and wedding services) celebrating marriage between one man and one woman; harms Kristi’s reputation among her past and prospective clients; undermines her editorial control over what services she offers to the public; and adversely affects Kristi’s ability to share biblical truths about marriage with others....

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

Suit Challenges Virginia's Ban On LGBT Discrimination In Public Accommodations

Suit was filed on Tuesday in a Virginia federal district court by a wedding photographer challenging the Virginia Values Act which  prohibits businesses from discriminating on the basis of sexual orientation. The complaint (full text) in Chris Herring Photography, LLC v. Herring, (ED VA, filed 6/30/2020) alleges in part:

Virginia interprets this law to force Chris to do more than serve LGBT clients (which Chris already does). Virginia instead requires Chris to promote content he disagrees with—to create and convey photographs and blogs celebrating same-sex weddings because he does so for weddings between a man and a woman. The law even makes it illegal for Chris to hold a policy of photographing and blogging about weddings only between a man and woman or to post internet statements explaining his religious reasons for only creating this wedding content.

ADF issued a press release announcing filing of the lawsuit.

Israeli Court Awards Damages To LGBT Group that Was Refused Service

In a case reminiscent of many pending in the United States, a Magistrate's Court in the Israeli city of Beersheba has awarded damages equivalent to $14,000 plus attorneys' fees in a suit against Rainbow Color, a shop that refused to print posters for a gay rights organization at Ben Gurion University. Times of Israel yesterday reported in part:

“We do not deal with abomination materials. We are Jews!” the shop had said in response to the chapter’s request for an estimate on the posters.

Aguda argued that Rainbow Color had violated the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law Act passed by the Knesset in 2000.

Rainbow Color claimed that its owners, who are religious, are barred from providing assistance to offenders of religious law. In its defense, the owners added the rulings of two Orthodox rabbis who wrote that according to Jewish law the publication of such posters is prohibited.

However the judge ruled:

When their beliefs conflict with a necessity of providing service to all in a public space, the last value holds superior.

Justice Department Sides With Wedding Photographer In District Court Case

The Department of Justice announced yesterday that it has filed a Statement of Interest (full text) in Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 2/27/20).  As previously reported, in the case the owner of a wedding photography business seeks a preliminary injunction to prevent enforcement of Louisville's public accommodation ordinance against her. Plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. DOJ sides with the photographer, arguing in part:

Most commercial transactions will not involve requiring an unwilling speaker to participate in someone else’s expressive activity. But where public accommodations laws do intrude on expression in this way, they are subject to heightened scrutiny....

Photography—and particularly the bespoke wedding photography in which Ms. Nelson engages—is inherently expressive.... By ... compelling her to engage in expression promoting and celebrating a ceremony in violation of her conscience, Defendants infringe upon the fundamental “principle of autonomy to control one’s own speech.”

... That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny....  The Supreme Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.

Suit Filed Against Pharmacies That Refused To Fill Emergency Contraceptive Prescription

A suit was filed earlier this week in a Minnesota state trial court against two pharmacies and an individual pharmacist by a woman who was turned down at both pharmacies when she attempted to full a prescription  for ella-- a morning-after emergency contraceptive. The suit contends that defendants discriminated against plaintiff on the basis of sex, in violation of the Minnesota Human Rights Act. The Act defines "sex" as including pregnancy, childbirth, and related conditions. The complaint (full text) in Anderson v. Grand St. Paul CVS, LLC,(MN Dist. Ct., filed 12/9/2019) sets out the facts of plaintiff's discrimination claim:

[Anderson] had her doctor send [her prescription] to the McGregor Thrifty White pharmacy. She acted quickly because any delay in obtaining emergency contraception increases the risk of pregnancy. The pharmacist on duty told her that he would be unable to fill her prescription because of his “beliefs.” He also warned her against trying Shopko, another pharmacy in the surrounding area. The pharmacist did not provide Anderson with any information about how she could get her prescription filled.

Anderson next tried a CVS pharmacy in Aitkin, Minnesota, a town roughly 20 miles away. The CVS pharmacist also indicated that she could not fill the prescription. The pharmacist then claimed that she called a pharmacist at the Walgreens in Brainerd Minnesota, who told her that they could not fill the prescription either. Anderson later confirmed with that Walgreens pharmacist that they did speak with a pharmacist from CVS, but that they had told the CVS pharmacist that Walgreens could fill the prescription.

Though Anderson finally found a pharmacy that was willing to fill her prescription, it was over fifty miles from her home. Meanwhile, a massive snowstorm was headed to central Minnesota.  Given the increased risk of pregnancy from any delay in taking emergency contraception, Anderson drove over 100 miles round trip in the snowstorm in order to fill her prescription....

 NBC News reports on the lawsuit. [Thanks to Tom Rutledge for the lead.]

Wedding Photographer Sues Over City's Public Accommodation Ordinance

Suit was filed in a Kentucky federal district court this week raising a pre-enforcement challenge to the application of Louisville, Kentucky's public accommodation ordinance to plaintiff's wedding photography business. The complaint (full text) in Chelsea Nelson Photography LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 11/19/2019) says that plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. The complaint alleges that enforcement of the ordinance against plaintiff would violate her free speech, free exercise and due process rights. ADF issued a press release announcing the filing of the lawsuit.

Organization Lacks Standing To Claim Sexual Orientation Discrimination By Christian Business Owners

In Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals, (KY Sup. Ct., Oct. 31, 2019), The Kentucky Supreme Court dismissed on standing grounds a suit against a small business whose Christian owners refused on religious grounds to print T-shirts for a Pride Festival. The court held that because the discrimination complaint was filed only by a gay-rights organization, plaintiff lacks statutory standing:

[B]ecause an “individual” did not file the claim, but rather an organization did, we would have to determine whether the organization is a member of the protected class, which we find impossible to ascertain. No end user may have been denied the service who is a member of the protected class, or perhaps one was. If so, then the determination would have to follow whether the reason for denial of service constitutes discrimination under the ordinance, and then whether the local government was attempting to compel expression, had infringed on religious liberty, or had failed to carry its burden under KRS 446.350. But without an individual, as required by Section 2-32(2)(a), this analysis cannot be conducted.

Justice Buckingham filed a concurring opinion, arguing that the Human Rights Commission had unconstitutionally attempted to compel the business to express ideas with which it disagreed. [Thanks to Tom Rutledge for the lead.]

SPLC's "Hate Group" Designation For Christian Ministry For LGBT Views Is Protected By 1st Amendment

In Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., (MD AL, Sept. 19, 2019), an Alabama federal district court, in an interesting 141-page opinion, dismissed claims by a Christian television ministry against the Southern Poverty Law Center and Amazon's charitable program. As summarized by the court:

The lawsuit is based largely on Coral Ridge’s allegations that, because of its religious opposition to homosexual conduct, SPLC has designated it as a “hate group” and that, because of this designation, Amazon and AmazonSmile have excluded it from receiving donations through the AmazonSmile charitable-giving program.

Coral Ridge has three claims against SPLC: a state claim that its “hate group” designation is defamatory and federal claims for false association and false advertising under the Lanham Act, 15 U.S.C. § 1125. Coral Ridge has a single claim against the Amazon defendants: a federal claim that they excluded it from the AmazonSmile charitable-giving program based on religion, in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq.

The ministry conceded that it was a "public figure" for purposes of its defamation claim Engaging in a lengthy discussion of the meaning of "hate group", the court rejected the ministry's claim because "An alleged defamatory statement is generally not provable as false when it labels the plaintiff with a term that has an imprecise and debatable meaning." The court went on to say that even if there were a commonly understood definition of "hate group",  the defamation claim should still be dismissed:

To find actual malice just because SPLC publicized a meaning of “hate group” that conflicted with the common understanding of the term would severely undermine debate and free speech about a matter of public concern. This is because, even if the term had achieved a commonly understood meaning, that meaning would not be fixed forever, but rather could evolve through public debate. To sanction a speaker for promoting a genuinely held dissenting view of the meaning of “hate group” would be akin to punishing a speaker for advocating new conceptions of terms like “terrorist,” “extremist,” “sexist,” “racist,” “radical

The court rejected the ministry's Lanham Act claims, finding that they are subject to the same heightened First Amendment standards, not the lower commercial speech standards.

The court also rejected the ministry's claim that Amazon violated the public accommodation provision of the 1964 Civil Rights Act in excluding it from its charitable giving program, saying in part:

Even if it were assumed that the Amazon defendants are places of public accommodation subject to Title II, seeking to receive donations through the AmazonSmile program does not qualify as a service, privilege, or advantage, etc. protected by the statute’s anti-discrimination prohibition. This is because the Amazon defendants limit the ability to receive such donations exclusively to 26 U.S.C. § 501(c)(3) organizations and therefore do not make that ability open to the public. Moreover, an alternative ground for dismissing the claim is that Coral Ridge has not plausibly alleged that the Amazon defendants discriminated against it based on religion.

The court concluded its opinion:

The court should not be understood as even suggesting that Coral Ridge is or is not a “hate group.” It has merely held that SPLC’s labeling of the group as such is protected by the First Amendment....  

SPLC issued a press release announcing the decision.