Wednesday, December 23, 2009

No Religious exemption for opponents of same sex marriage

Maggie must be pissed off and unfortunately ammunition for the opposition

In recent days courts in both England and the United States have ruled that individuals whose alleged strong religious convictions are opposed to legal recognition for same-sex partners are not thereby excused from complying with laws banning sexual orientation discrimination when it comes to doing their jobs. The cases arose in different contexts - government employment and private business - and invoked some different legal arguments, but in the end they boiled down to the same general principle: that a legislated policy of non-discrimination on the ground of sexual orientation trumps private rights of religious belief when it comes to the public sphere of business or government services.

In the U.K., the ruling came from the Court of Appeal (Civil Division), hearing an appeal from the Employment Appeal Tribunal in the case of Lillian Ladele, who was employed by the London Borough of Islington as a registrar of births, marriages and deaths, beginning in 2002. Ladele v. London Borough of Islington, [2009] EWCA Civ. 1357 (Dec. 15, 2009). When the U.K. enacted a law authorizing civil partnerships for same-sex couples, the local authorities determined that the registrars of births, marriages and deaths who served as civil officiants for weddings would also serve that role for the civil partnerships. Ms. Ladele, asserting her religious objection to having anything to do with legally uniting same-sex couples, argued that she should be exempted due to her religious belief. After all, she argued, under European Human Rights Law and English law, freedom of religious belief is protected.

Ms. Ladele's stand induced tension with her fellow registrars, especially some of whom were gay and complained formally that her refusal to perform such ceremonies was discriminatory. The complaints led to formal proceedings, and a ruling by an Employment Tribunal that the employer was guilty of discrimination on grounds of religious belief by requiring her to perform such ceremonies. The local authorities appealed to the Employment Appeal Tribunal, which set aside that determination, deciding rather that allowing Ms. Ladele to refuse services to same-sex couples would violate the overriding policy of non-discrimination. The position of the Appeal Tribunal, affirmed by the Court of Appeal, was that employees are free to believe what they like, but as civil servants they are obligated to carry out their lawful functions without discrimination on the basis of sexual orientation against members of the public entitled to access their services.

The court endorsed the Appeal Tribunal's determination that the Employment Tribunal's finding of discrimination against Ms. Ladele was "quite unsustainable." As the Appeal Tribunal had stated, Ms. Ladele's complaint "is not that she was treated differently from others; rather it was that she was not treated differently when she ought to have been," i.e., a failure to accommodate her religious beliefs. The court found that local officials were not motivated by Ladele's religious beliefs in taking action against her, but rather by her refusal to perform "her assigned civil partnership duties." Thus, it was not a case of direct discrimination, but rather "indirect discrimination" in the sense that requiring her to perform her duties would burden her religious belief as it was expressed through her refusal to perform an assigned job duty.

The crux of the decision may be found in the following quotation from the Court of Appeals' opinion, at paragraph 46: "Islington wished to ensure that all their registrars were designated to conduct, and did conduct, civil partnerships as they regarded this as consistent with their strong commitment to fighting discrimination, both externally, for the benefit of the residents of the borough, and internally in the sense of relations with and between their employees. I find it very hard to see how this could be challenged, either as being Islington's actual aim, in the light of the evidence, or as being a legitimate aim, in the light of Islington's Dignity for All policy, current legislation and mainstream thinking."

In other words, in the U.K., and in the borough of Islington, the commitment to non-discrimination on grounds of sexual orientation in government services is firmly established, what under U.S. law might be called a "compelling state interest," and would take priority over the individual religiously-based objections of public employees assigned on a routine basis to perform government services. This is confirmed in paragraph 55 of the opinion: "This appears to me to support the view that Ms. Ladele's proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override Islington's concern to ensure that all of its registrars manifest equal respect for the homosexual community as for the heterosexual community." The court found this view consistent with the U.K.'s treaty obligations under the European Convention as well as national and local law.

The court concluded that "it is simply unlawful for Ms. Ladele to refuse to perform civil partnerships. It is also hard to resist the conclusion that this means that Islington had no alternative but to insist on her performing such duties together with their other registrars." The court did note that some other local jurisdictions had taken a different path, refraining from assigning objecting officials from performing such ceremonies in order to avoid confrontations, and stated that they were free to do so, but that Islington was totally within its rights to impose a uniform job assignment on all its registrars since no such accommodation was required by the law.

The American ruling came out of the Second Judicial District Court in Bernalillo County, New Mexico, where a mom-and-pop photography business was hauled before the state's Human Rights Commission for refusing to provide their photography services to a lesbian couple for their commitment ceremony. Elane Photography, LLC v. Willock, CV-2008-06632 (Dec. 11, 2009). The Human Rights Commission found that New Mexico's prohibition of sexual orientation discrimination by "any public accommodation" had been violated by Elaine and Jon Huguenin, doing business as Elane Photography LLC, and that their business was not entitled to some sort of religious belief exemption from having to provide equal services without regard to sexual orientation of customers. Elane Photography filed suit against Vanessa Willock, who had filed the civil rights complaint, seeking an order setting aside the Commission's ruling.

The Huguenins argued strenuously on appeal that their business should not be considered a public accommodation, as they were just a mom-and-pop company operating out of their home, going to events when contracted to provide photography services, but the court found that they were advertising their services on the internet and in the yellow pages, and comfortably fit within the developing case law in New Mexico and around the country in meeting the requirements of a "public accommodation" as a business actively providing services to the public.

They also made the usual disengenuous argument that they were not discriminating based on sexual orientation. Indeed, they would be happy to photography a wedding between a gay man and a lesbian, for example, but they just held religious objections to any kind of formal ceremony linking two persons of the same sex in some sort of wedding. They said that, if anything, they were discriminating on the basis of marriage. As to this argument, wrote Judge Alan M. Malott, "The Court disagrees and finds that Plaintiff's policy discriminates, on its face, against gays and lesbians. It goes without saying that they are the only members of the public who are involved in same-sex marriages or commitment ceremonies. Just as with professional creativity, a sincerely held belief does not justify discrimination based upon sexual orientation under the NMHRA."

As to the religious discrimination claim, the plaintiffs argued that the state should not compel them to participate in a ceremony to which they held religious objections, but Judge Malott rejected the idea that requiring them to provide their professional photography services at such an event amounted to that. "This case is not an example of religious persecution," he wrote. "Plaintiff and its owner-operator is not being forced to participate in any ceremony or ritual; the only requirement is that she photograph the event. This is no different from the caterer or florist attending the ceremony in order to provide its commercial service; they attend it, not participate in it."

Plaintiffs complained that the NM Human Rights Act was not "neutral" with respect to religion because it exempted religious institutions from having to comply with the sexual orientation non-discrimination provision, but provided no such exemption for religious individuals. Consequently, they challenged the constitutionality of the act, arguing that New Mexico had no compelling interest sufficient to justify such an abridgement of religious freedom. Malott rejected this argument, finding that the act was perfectly neutral with respect to religion, and was not intended to discriminate on grounds of religion. But even if a compelling interest were needed to justify it, he found one: the state's desire to stamp out discrimination by businesses offering goods and services to the public.

Of course, the Alliance Defense Fund is representing Elane Photography, so this ruling will be appealed to the state appellate courts, and, one suspects that if the state appellate courts affirm Judge Malott, ADF will file a cert. petition to the US Supreme Court.

An interesting side point: in both cases, the discriminator claimed that a religious objection to same-sex marriage animated their refusal to provide a service, but ironically in neither case is same-sex marriage actually involved. Neither the U.K. nor New Mexico provides legally for same-sex marriages. The U.K. provides a "separate but equal" civil partnership status, and New Mexico provides NOTHING to private citizens. Vanessa Willock and her partner wanted to get professionally-done photographs of their private commitment ceremony, an event having no legal significance in New Mexico. So it strikes this observer that in both cases the claim of religious persecution of those opposed to same-sex marriage is being a bit misdirected.

On the other hand, religiously-inspired bigotry has traditionally been protected under American law and certainly under traditional British law -- where there is an established state church -- so the strong declarations by both courts that anti-discrimination policy takes priority over private religious objections by individuals and businesses shows how a sea change in law has occurred over recent decades. I'm not sure one would have expected rulings such as these a generation ago.... and remember that in recent memory the US Supreme Court has upheld the right of the Boy Scouts and the organizers of the St. Patrick's Day Parade in Boston to maintain anti-gay policies based on personal beliefs, for many religiously-inspired, opposed to homosexuality.

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