Salem Radio Network News Friday, January 21, 2022

Columns Opinion

Accommodation: The New Coercion

By Brian Fahy & Garrett Fahy

In upstate New York, Robert and Cynthia Gifford were recently fined $13,000 for refusing to host a lesbian wedding on their private farm. They were also ordered to pay restitution to the lesbian couple, who held their wedding elsewhere.

In Oregon, Aaron and Melissa Klein were forced to shut down their bakery, Sweet Cakes by Melissa, after refusing, on religious grounds, to bake a cake for a lesbian wedding. State officials ruled that the Kleins violated the lesbian couple’s civil rights, and the Kleins now face staggering penalties.

In Washington State, florist Barronelle Stutzman faced two lawsuits over her refusal to provide flowers for a wedding for two gay men. The state’s attorney general brought a “consumer protection” lawsuit against Ms. Stutzman, seeking fines against her business. The gay couple then brought a private civil action seeking money damages.

Such developments are not confined to deep blue states, however. In Colorado, Jack Phillips, the owner of the Masterpiece Cakeshop, has endured legal hell after refusing to bake a cake for a gay couple. The couple filed a complaint with the Colorado Civil Rights Commission, which found for the gay men, then ordered Phillips to bake cakes for gay customers and forced his employees to submit to training on Colorado’s anti-discrimination laws.

Adding insult to non-existent injury, Phillips was further required to submit quarterly reports to the Commission to confirm that his shop did not turn away customers based on their sexual orientation. In the wake of this Stalin-esque treatment, Phillips ceased baking cakes altogether, and rightly refused to implement new training procedures.

In New Mexico, photographer Elaine Huguenin found herself on the losing end of a protracted legal battle after she refused to photograph a lesbian couple’s “commitment ceremony.” The couple filed a complaint and the state Supreme Court found that the business violated New Mexico’s Human Rights Act.

And in Kentucky last month, the head of a county human rights commission ruled that Hands on Originals, a T-shirt maker owned by a Christian, Blaine Adamson, violated a city “fairness ordinance” when it refused to print T-shirts for a gay pride event. Like in Colorado, the commission ordered company employees to attend “diversity training” and required the company to stop discriminating against people based on their sexual orientation. Curiously, the company had previously filled orders for homosexual customers and employed gay individuals.

Thus, in both red and blue states across the country, business owners of faith have found themselves on the losing end of a legal assault brought by the gay rights mafia, simply because they lived out their values in their business decisions. How did this happen?

In each case, the targeted business was found to be in violation of a city or state non-discrimination law, styled as a “public accommodation” law. Innocuous in name only, these laws forbid discrimination on the basis of the traditionally protected classifications – race, gender, age, disability – and also on the basis of sexual orientation (not a traditionally protected classification), even in states that have not recognized a right to same-sex marriage. Thus, by administrative or judicial fiat (and never by democratic vote), these political entities have imposed upon their citizens a constitutionally unsupported Hobson’s choice: uphold your religious beliefs and suffer, or operate your business according to government-approved values. Unfortunately but predictably, the law does too little to protect business owners of faith.

In its Hobby Lobby decision last term, the U.S. Supreme Court ruled 5-4 that regulations promulgated under Obamacare, which required businesses to provide certain types of contraceptive coverage, ran afoul of the federal Religious Freedom Restoration Act (“RFRA”). The ruling thus enables closely held corporations owned and operated by people of faith to refuse to provide abortion inducing contraceptives through their health insurance.

While encouraging, Hobby Lobby does not go far enough because its holding was based only on – and therefore limited to – the protections of the federal RFRA. It did not guarantee to all business owners the right to act out their religious beliefs in their businesses at the state and local level, as it did not address the kind of pernicious state and local policies that have enabled the grotesque results highlighted above.

State legislators have an opportunity to bridge the gap left by Hobby Lobby. After the recent midterm elections, the Republican Party now controls 68 of the country’s 98 legislative chambers, the most in its history, and holds both the governorship and both state houses in 23 states. Addressing the menace of unconstitutional public accommodation laws should be the first order of business. State legislators can do so by (1) exempting business owners of faith from compliance with sexual orientation provisions of public accommodation laws, (2) precluding administrative enforcement actions against such owners if the owners provide a good faith religious basis for non-compliance, and (3) barring private lawsuits under such accommodation laws against business owners.

The Supreme Court may resolve the constitutionality of gay marriage or gay marriage bans in its current term. Until that happens, however, there is no federal constitutional, fundamental right upon which these public accommodation laws may be based. The same absence of constitutional sanction exists in many states, which have not recognized sexual orientation as a protected classification. However, even in states that have amended their constitutions to recognize sexual orientation as a protected classification, such state laws must yield to overriding First Amendment religious freedoms. Religious freedom is a sacred, fundamental right as old as the Republic itself. As such, it should be given preference over any assertions of same-sex marriage rights, which have no constitutional or historical basis.

Absent such legislative or judicial relief, business owners of faith will continue to be harassed on account of their beliefs and will be forced to pay huge fines, shoulder tremendous legal bills, and in the worst cases, close their businesses to patrons of all beliefs and orientations, a result that benefits no one.

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