Do Public Accommodations Laws Violate Free Speech and Free Exercise Rights?

[chickenranch]

You know, @chickenranch, you are so unusual in doing reading on the topic at hand. High-five to you!

Well, I came here hoping for something more thoughtful than what I can get on Facebook, plus anonymous, so if someone's going to make the effort to meet me half way, I have to do my part

 

[Nous]

Well, I came here hoping for something more thoughtful than what I can get on Facebook, plus anonymous, so if someone's going to make the effort to meet me half way, I have to do my part

At least you get the anonymous thing here. I'm very protective about my privacy online. I like to be able to say whatever I want without necessarily being identified as the person who said it.

 

[Milton Platt]

Phillips' Free Exercise claim is presumably made somewhat simpler by the fact that Colorado has no RFRA, and City of Boerne v. Flores establishes that the federal RFRA does not apply to states. Colorado's public accommodations law is unquestionably a valid and neutral law of general applicability (though Phillips makes confused claims otherwise), therefore the infamous Employment Division v. Smith controls, requiring only a rational relationship to a legitimate governmental interest in order for such a law to pass muster in a Free Exercise challenge. CADA is a valid law: the Court has consistently held that such public accommodations laws “are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments.” Hurley. There is ample reason to believe that lesbian, gay and bisexual persons are the target of discrimination. CADA is a neutral law of general applicability: CADA does not single out any particular religion upon which to impose burdens; CADA doesn't reach beyond normal commercial services to regulate any religious practice or religiously motivated conduct while exempting the same when performed as a secular activity. Indeed, in § 24-34-601(1), CADA specifically exempts “places principally used for religious purposes,” indicating the legislature's intent to comply with the Free Exercise Clause. Such exemptions undermine the argument that the law is an attempt to suppress religious exercise.

On the other hand, if the case goes sideways and the Court decides, contrary to precedent, that CADA substantially burdens a religious exercise and must therefore pass strict scrutiny--where the state must show there is a compelling governmental interest in the challenged law, and the law is narrowly tailored and is the least restrictive means for achieving its purpose--it would seem that CADA should still survive. In the public accommodations cases, the Court has repeatedly affirmed that “eliminating discrimination and assuring its citizens equal access to publicly available goods and services . . . plainly serves compelling state interests of the highest order.” Roberts v. US Jaycees. In pertaining to only entities open to the public, and exempting “places principally used for religious purposes,” CADA is narrowly tailored; and it's difficult to imagine a less restrictive way to achieve the desired goal than outlawing discrimination in the offerings of public goods and services. CADA fulfills the demands of strict scrutiny stipulated in the case law.

Granted, some people adamantly disapprove of same-sex couples having equal marriage rights as different-sex have and exercising that right; such people often refer to this disapproval as motivated by their religion. Indeed, some people, such as Phillips, evidently consider it an exercise of their religion to discriminate against same-sex couples who are or plan to get married (I am unaware of any religious doctrine or scripture that requires adherents to discriminate in their business practices against same-sex couples--for some reason, business-owners who seek to do so are uninterested in discriminating against criminals or those who break their marriage vows). But business-owners in the South made the same claims in defense of their refusal to serve Africa Americans, in violation of the public accommodations provision the Civil Rights Act of 1964. As the COA quoted from the federal district court of South Carolina in Newman v. Piggie Park Enterprises:

Undoubtedly defendant . . . has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This Court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishment upon the ground that to do so would violate his sacred religious beliefs.​

Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 941 (D.S.C. 1966)

So, are Jack Phillips' claims that the Colorado public accommodations law violates his Free Speech and Free Exercise rights truly different than those of the proprietors of Piggie Park Enterprise? Are there in fact speech and/or religious exercise rights that are violated when a business is compelled to bake and sell a wedding cake to a same-sex couple but which are not violated by a business being compelled to serve African Americans in a restaurant? If so, in what Court decision can one find the upholding of such rights? What's the difference between prohibiting public accommodations to discriminate on the basis of sexual orientation as opposed to race? What if an interacial couple walked into a wedding cake bakery and the disapproving owner claimed he had Free Speech and Free Exercise rights to refuse them service? Where is the precedent that champions such rights?

There is another thread on this same subject, but without all the background. Thanks for that!!! You're going to make the rest of us lazy.

My own two cents is that I don't see how this violates his right to believe same sex marriage is wrong. It does not say he must show up at the wedding and celebrate it. The law is not stating that he must change his beliefs or change his religious practices. It does not say he must perform, or personally like same sex marriages. It says he must treat all people with equal respect and dignity. He is trying to project his dogma onto people who do not share his beliefs. Or perhaps in this case, he is simply a bigot and Christianity is his cover. I suspect there are plenty of commandments in the Bible he routinely ignores.

 

[Nous]

There is another thread on this same subject, but without all the background. Thanks for that!!! You're going to make the rest of us lazy.

Thank you. (I really can't stop myself from making arguments.)

My own two cents is that I don't see how this violates his right to believe same sex marriage is wrong. It does not say he must show up at the wedding and celebrate it. The law is not stating that he must change his beliefs or change his religious practices. It does not say he must perform, or personally like same sex marriages. It says he must treat all people with equal respect and dignity. He is trying to project his dogma onto people who do not share his beliefs. Or perhaps in this case, he is simply a bigot and Christianity is his cover. I suspect there are plenty of commandments in the Bible he routinely ignores.

All true. As the Colorado Court of Appeals noted, Phillips is free to maintain his beliefs and express his views on the right of same-sex marriage. But he can't advertize that he will violate the law by refusing service on any of the bases prohibited by CADA. As the COA further noted, for businesses to provide their goods and services in compliance with CADA does not affect any religious exercise.