One caveat to the observations both Chip and Doug have made about the situation in the 29 states that have not extended their public accommodations laws to prohibit discrimination on the basis of sexual orientation. While one would not expect claims against wedding vendors to arise under state law in those jurisdictions, cases could be brought under municipal ordinances in many cities within those states. As a result, with same-sex marriage recognition now being required in several red states, it is easy to imagine a renewed push for exemption legislation at the state level that would insulate vendors from such municipal ordinances. I had not accounted for this dynamic in the earlier version of my own vendor-exemption piece, but I do in the current version (which is available at http://ssrn.com/abstract=2400100, but which will now need to be further updated to account for the events of the past week ...).
- Jim On Thu, Oct 9, 2014 at 6:16 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > The federal law of nondiscrimination in public accommodations covers > hotels and restaurants (which may be wedding vendors), but it does not > outlaw discrimination based on LGBT status, or even discrimination based on > sex (it is limited to race, color, religion, and national origin). > > I believe that only 21 states and DC have public accommodations laws that > cover discrimination based on LGBT status. So the questions raised in > Michael Peabody's post will come up, at least in the short run, only under > state law, and only in a minority of states. Wedding vendors in the other > 29 states can lawfully discriminate against same sex weddings (unless their > state courts hold this to be a form of sex discrimination -- possible, but > not so likely in the short run), but they will invite boycotts and terrible > publicity for themselves if they do so discriminate. The market will have > its own say on this claim of religious liberty. > > On Thu, Oct 9, 2014 at 8:12 PM, Steven Jamar <stevenja...@gmail.com> > wrote: > >> Don’t some public accomodations laws reach vendors — even though >> employment discrimination laws don’t? I don’t know that the federal law >> does, but surely some states’ laws do. >> >> >> On Oct 9, 2014, at 6:01 PM, Michael Peabody <peabody...@gmail.com> wrote: >> >> > Greetings, >> > >> > Please forgive me if this has been addressed before, but I have been >> > wondering if the Supreme Court could be working to protect both the >> > emerging right of same-sex couples to marry and the rights of wedding >> > vendors who oppose same-sex marriage on religious grounds. On one >> > hand, this week the SCOTUS decided not to hear the cases coming up >> > from the Circuits (covering some 30 states or so), but on the other >> > hand, earlier this year the Court ruled in Hobby Lobby that the rights >> > of businesses who refuse to provide contraception on religious grounds >> > could be protected under RFRA. >> > >> > Granted, RFRA is a federal statute, but many who oppose RFRA argue >> > that it is duplicative of existing state and federal rights anyway. So >> > for the sake of argument, I'm going to assume that a Federal right to >> > same-sex marriage is established and that discrimination against >> > same-sex couples is actionable under something like Title VII. Now >> > let's say that a wedding vendor (somebody who takes pictures or sings >> > songs at weddings) believes that same-sex marriage is against his or >> > her beliefs. Under the Hobby Lobby rationale, I think we could argue >> > that the vendor that refuses to participate in the ceremony (i.e. >> > "making the day special") might be protected. Certainly direct >> > participation in a ceremony (or direct support service) is much less >> > attenuated than a woman's right to >> > >> government-mandated-company-paid-insurance-policy's-coverage-of-contraceptives-the-knowledge-of-use-of-which-is-confidential-per-HIPAA. >> > >> > 1. Could it be that the right to marry is protected, as is the right >> > of businesses refrain from participation in such ceremonies on >> > religious grounds under RFRA (or its state analogues)? >> > >> > 2. Could it also be that the imposition of the government into a >> > dispute regarding a vendor's refusal to participate in a wedding (a >> > religious sacrament to the vendor regardless of the profit motive or >> > intent of the couple), and where the government requires a business to >> > perform the service or be forced to close, constitutes a violation of >> > the Establishment Clause? >> > >> > I'd be very interested in knowing your thoughts on this. >> > >> > Sincerely, >> > >> > Michael D. Peabody, Esq. >> > http://www.religiousliberty.tv >> >>
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