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LGBT Public Accomodations Lawsuits (UPDATE)

In another thread a while back, I reported on a case out of New Mexico...Elane Photography v. Willock, in which Company was found guilty of violating the New Mexico Human Rights Act. The New Mexico Supreme Court affirmed the summary judgement and on top of that the United States Supreme Court refused to hear the case, denying Elane's Writ of Certiorari on the grounds that the case could not be argued on the merits...basically because there were none.

Two more cases have garnered more attention on this issue, but this goes beyond wedding cakes and flowers. A photographer could refuse to photograph a trans-girl because he doesn't "believe" in gender dysphoria. Clothing stores would be able to refuse crossdressers or persons it perceives as homosexual. The parade of horribles is endless which is why under Lee v. United States (1982) and Employment Division of Oregon v. Smith (1990) The Court held that neutral and generally applicable laws are not unconstitutional as applied. By operating as a business, one enters into commercial activity and accepts certain limits on the exercise of his beliefs. It was also held that those same neutral and generally applicable laws were the least restrictive means of accomplishing a compelling governmental interest.

Anyway, the first case is out of Colorado...Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The issue currently awaiting petition before the court: Whether applying Colorado's public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

All case documents are here, courtesy of SCOTUSBLOG:

Proceedings and Orders

Opinion Below, Colorado Supreme Court

Elane Photograhy v. Willock, out of New Mexico mentioned above


The second case is out of Washington, dealing with a flower shop's non-compliance with that state's anti-discrimination laws. NPR provides coverage in the link below:

Washington State Court Rules Florist Broke The Law By Refusing To Serve Gay Couple

Oral arguments (Video Link)

Washington Supreme Court, full opinion

Sonja Becker's picture

Another case out of Minnesota, the one regarding a Minnesota couple suing the state for the right to deny service to LGBT people despite the fact that they have no gay customers. Carl and Angel Larsen, who run a video production company, want to enter the wedding business while maintaining the right to refuse service to LGBT patrons.

Links to legal docs below, courtesy of PACERmonitor:

Telescope Media Group et al v. Lindsey et al


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Here's some relevant Supreme Court opinion, courtesy of the late Justice Antonin Scalia:


"...They contend that a religious motivation for engaging in legally prohibited action or for failing to take legally required action places the citizen beyond the reach of a law that is not specifically directed at his religious practice and that is conceivably constitutional as applied to others. We reject that interpretation. It no more prohibits the free exercise of religion to compel, for example, the payment of a general tax by those who believe support of organized government to be sinful then it abridges freedom of the press to compel payment of the tax as a condition to a newspaper staying in business. The respondent’s contention that our precedent requires a religious practice exemption to generally applicable laws is mistaken.

A long line of our decisions has held that an individual’s religious beliefs do not exclude him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate, for example, laws prohibiting polygamy, laws regulating the use of child labor, laws requiring individuals to perform military service, and laws compelling individuals to pay taxes.

The only decisions in which we have held that the First Amendment bars application of a neutral generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections such as freedom of speech or the right of parents to direct the education of their children.

We reject respondent’s argument that governmental actions burdening religion must be justified by a compelling governmental interest. The government’s ability to enforce its criminal laws like its ability to carry out other aspects of public policy cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual’s obligation to obey such a law, contingent upon the law’s coincidence with his religious beliefs except where the state’s interest is compelling permitting him by virtue of his beliefs to become a law unto himself, it contradicts both constitutional tradition and common sense. "


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UPDATE: The justices once again did not act on Masterpiece Cakeshop v. Colorado Civil Rights Commission, a challenge by Jack Phillips, a Colorado man who describes himself as a “cake artist” and owns a custom-cake business with his wife. Phillips and the business argue that the state’s public accommodations law violates the First Amendment when it requires him to express himself in a way that violates his sincerely held religious beliefs – here, by making custom wedding cakes to celebrate same-sex weddings. Nearly three years ago, the justices declined to review a similar decision by the New Mexico Supreme Court holding that a photography studio violated the state’s anti-discrimination laws when it refused to photograph a same-sex commitment ceremony. The owners of the studio argued that taking photographs of such ceremonies would violate their religious beliefs.


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Update on that case out of Oregon...Sweet Cakes by Melissa was fined by the Oregon Bureau of Labor and Industries for violating the state's anti-discrimination laws and though they ended up paying the civil fines and court costs, their appeal has finally made its way to the Oregon State Supreme Court.

-Frau B

The Oregon Court of Appeals listened to an appeal Thursday, Mar. 2, 2017, in Salem by the lawyer for Melissa and Aaron Klein, the Oregon bakers who were fined $135,000 for refusing to bake a cake for a same-sex wedding in 2013.

Is custom cake making art?

Does refusing to contribute to a same-sex wedding qualify as discrimination or free speech?

Was the religious freedom of the owners of Sweet Cake by Melissa violated by the government?

In Klein v. BOLI, attorneys representing the owners and the Bureau of Labor and Industries argued these questions and more before a three-judge panel of the Oregon Court of Appeals Thursday afternoon.

The oral arguments came four years after Aaron Klein told soon-to-be-wed couple Rachel and Laurel Bowman-Cryer his Gresham bakery that he co-owned with his wife Melissa did not make cakes for same-sex weddings. The bakers said the refusal was prompted by religious beliefs.

The state Bureau of Labor and Industries determined the refusal constituted unlawful discrimination and ordered the Kleins to pay $135,000 in damages to the Bowman-Cryers.

The Kleins balked at first, then paid the $135,000 and vowed to appeal the case. The money was placed in a government account until the end of appeals.

The shop front for Sweet Cakes by Melissa closed in 2013, but the couple continued to run the business out of their home until 2016, when it closed permanently.

During oral arguments Thursday, the Kleins' attorney Adam Gustafson said forcing someone to participate in a same-sex wedding violated their free speech and religious freedom.

The law cannot compel an architect to design a church, he said. The Kleins did not discriminate based on sexual orientation; rather, they chose not to participate in a same-sex wedding ceremony because they believe marriage should only exist between a man and a woman, Gustafson said.

Judge Joel DeVore asked whether it would be discrimination if a baker refused to make a cake for an interracial couple based on religious belief.

"Race is different from sexual orientation," Gustafson said, adding that laws barring interracial marriages were proxies for racial bias and white supremacy.

Presiding Judge Rebecca Duncan inquired whether a gas station owner whose religious beliefs held women shouldn't drive could refuse to serve a female driver.

Gustafson paused before saying that type of scenario would be an entirely different situation. He also argued that custom cake making is an art and should be fully protected by the First Amendment. The cakes the Kleins made had a sense of form, intent and expression. If art can include parades and paint splatters, why can't it include cakes, he said.

Duncan asked whether a person behind the counter making a sandwich could make the same argument.

Gustafson said it depended on the intent and effort behind the sandwich making.

The First Amendment also protects the right to be free from compelled speech. The state is required to extend an exemption for religious hardship to protect "decent and honorable" people like the Kleins, he said.

Carson Whitehead, Assistant Attorney General with the Oregon Department of Justice, represented BOLI. He argued the case turns on two simple facts: The Kleins refused to provide the exact same service for a same-sex couple that they would with a heterosexual couple, and the denial of services was based on sexual orientation.

Sexual orientation, intimacy, marriage and weddings are so deeply connected, it is impossible to separate them.

"It's hard for me to imagine that they could be teased apart," Whitehead said.

Klein denied the couple service before there was even a discussion of an inscription. Whitehead said this constituted a refusal of services, not compelled speech.

Duncan asked whether someone could be required to produce art, like a sculpture or portrait, for the wedding of a same-sex couple. Whitehead responded that issue would require more questions and is much more complicated than the one before the court.

"Cake baking isn't pure speech," Whitehead said, adding that cakes serve all kinds of functions for all kinds of reasons.

He also argued that the damages awarded to the couple were reasonable considering the emotional distress they experienced. The nature of the discrimination and its impact on the couple's sense of self were harmful, he said.

After the case, the Kleins gathered with their attorneys from the Washington, D.C.-based Boyden Gray & Associates outside the courthouse.

"I'm thankful we actually got to have our day in court," Aaron said. "Man's court is going to do what man's court is going to do. The honest truth is we just seek to serve the Lord."

Through tears, Melissa said she poured her heart and passion into each cake and designed each one to fit each couple perfectly.

"My faith is a big part of that," she said. "I was happy to serve this couple in the past for another event and would be happy to serve them again, but I couldn't participate in the ceremony that goes against what I believe."

She and her family want to live in a place that tolerates and accepts differences.

"America is a place where the government can't force you to violate your religious beliefs or tell you what to believe, but we feel like that is exactly what happened to us," she said. "We lost everything we loved and worked so hard to build."

In a statement, the Bowman-Cryers said the case was not simply about a wedding cake, their marriage or their wedding.

"This case is about answering one simple question: Is it okay for a business to refuse to serve people because of the business owner's religious beliefs? Would it be okay for a salon or grocery store to refuse to serve Christians? Or for a doctor to refuse to provide life-saving medical treatment to Muslims?" they said.

The couple said they moved to Oregon because the state stands strong for equality and they are proud to raise their daughters where people believe in dignity and respect.

"The stakes have never been higher, and the outcomes of this case could change the lives of every Oregonian," they said. "We support religious freedom as a fundamental value in America — but religious beliefs should not entitle anyone to discriminate, target or hurt others."

What's next?

Following the oral argument, the court took the case under its advisement. It will release its decision at a later, unspecified date.


Sonja Becker's picture

(UPDATE) http://www.scotusblog.com/2017/04/todays-orders-63/#more-255184

For the second week in a row, the Supreme Court did not add any new cases to its merits docket for next term. The dearth of new grants is likely attributable to the fact that Justice Neil Gorsuch – who did not participate at all in last week’s conference – only participated in a handful of the orders issued today.

Even if the court did not grant certiorari in any cases, however, today’s order list was nonetheless full of news. First, the justices did not act on one of the most closely watched cases on their current cert docket: Masterpiece Cakeshop v. Colorado Civil Rights Commission, the challenge by a Colorado “cake artist” with religious objections to creating a cake for a same-sex wedding. At this point, there is no way to know why the case has been relisted several times without any action from the justices, although two of the more likely possibilities are that one or more justices could be dissenting from the denial of review or that the justices are waiting for Gorsuch to weigh in.


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Re: Masterpiece Cakeshop, Ltd. vs. Colorado Civil Rights Commission has not been granted for Supreme Court review, though the cert petition is still pending. More news and orders as they come.

-Frau B


Supreme Court puts off review of case involving anti-gay marriage Christian baker
The case was not taken up by the Supreme Court yet

The US Supreme Court has put off making a decision on whether to hear a case involving a Christian baker who refused a same-sex wedding.

The court has held over the decision twelve previous times, and some are speculating that it may not rule in the case at all.

Masterpiece Cakeshop in 2015 joined a list of businesses ordered not to discriminate against same-sex couples.

It comes after the business was sued by couple Charlie Craig and David Mullins, who were told by owner Jack Phillips in 2012 that he wouldn’t make a cake for them.

The baker cited his religious beliefs in the refusal.

Despite that Colorado in 2012 did not recognise or allow same-sex marriages, but did prohibit discrimination based on sexual orientation.

The case went to the Supreme Court in September and has been listed for 14 conferences.

But the Supreme Court justices have so far only said that it would be relisted for the future.

The next Supreme Court conference is on Thursday.

But many are now speculating that one of the justices could be writing a dissent, denying review of the case.

Jordan Lorence, senior counsel at Alliance Defending Freedom, a law firm which is notoriously anti-LGBT, said it was a “great mystery” why the case has not been reviewed yet.

“They are purposefully holding it over for some reason that we don’t know,” Lorence said. “That is very, very unusual, but I think it points out the importance of these right of conscience cases.”

The Christian bakery in Oregon that waged a court battle against anti-discrimination rules was earlier this year trying to avoid paying legal costs – despite donors giving them several times the full amount.

The owners of Sweet Cakes by Melissa came to national attention when they claimed it would be “sinful” to bake a wedding cake for a gay couple, launching a legal battle against the state’s equality laws.

After losing the long-running court case last year, bakers Melissa and Aaron Klein were ordered to pay $135,000 in costs and damages .

More than $400,000 was raised online after the anti-gay American Family Association (AFA) rallied its supporters to donate to Sweet Cakes to cover the fine.

But despite the hefty donations, the bakers are apparently trying to avoid paying the costs.

The US Supreme Court also failed to take up a case involving a trans teenager who was forced to use the bathroom corresponding with his [gender at birth]”

In early March it was announced that the Supreme Court would not go ahead with a planned hearing on transgender rights, in light of the Trump administration’s removal of key protections.

The teen, Gavin Grimm, later found out that he would not get a ruling in the case before his graduation.


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Legal Battle over LGBT Rights Continues in Washington State with Florist Compelled by Court to Service Same-Sex Weddings
by Colin Holloway on June 3, 2017

A florist in Washington State has lost her legal challenge to a law requiring her to provide flowers to same-sex couples.
The Washington State Supreme Court ruled (SLIP OPINION HERE) that the state had a strong interest in protecting rights of the LGBT community by barring discriminatory practices carried out by local businesses which the florist’s legal argument against the law did not overcome. Although the case is unlikely to reach the US Supreme Court, it does represent a growing trend in American jurisprudence in which similar laws across the country are upheld by state courts.

Washington Florist Challenges Anti-Discrimination Law
The State of Washington has a law which prohibits “public accommodation(s)” from discrimination on the basis of sexual orientation, which means that businesses in the state cannot refuse service to customers because they are LGBT. Barronelle Stutzman, owner of Alrene’s Flowers and Gifts, came in conflict with the law when she refused to provide wedding flowers to Robert Ingersoll because his partner, Curt Freed, is a man.

Stutzman, who is a Southern Baptist, argued that her sincerely held religious beliefs include a belief that marriage is reserved for heterosexual couples, and as such she could not provide a floral arraignment to a ceremony she felt was a violation of her religious principles. Stutzman provided Ingersoll with a phone number of a florist who was willing to provide flowers to a same-sex marriage, but argued that her beliefs prevented her from doing more because providing services for the ceremony would be the same as endorsing marriage equality for same-sex couples.

Ingersoll and Freed testified that they were so distraught after Stutzman’s refusal that their wedding plans resulted in a more modest ceremony due to fear that other vendors would similarly discriminate and that the public attention brought about by their case would attract protestors. Ingersoll filed a lawsuit against Stutzman for her refusal to serve them, and the State filed an accompanying complaint for a violation of the Washington Law Against Discrimination (WLAD). Stutzman responded to the lawsuits by arguing that the law violated her state and federal constitutional right to free exercise and freedom of speech.

Washington Supreme Court Compels Florist to Serve Same-Sex Couple
The trial court ruled against Stutzman, finding that she violated the WLAD and that none of her state or federal constitutional rights were violated by the Washington law. Stutzman appealed the decision to the Washington Supreme Court, advancing the same state and federal constitutional arguments she did at the lower court level. Like the trial court, the Washington Supreme Court was unconvinced and held that the WLAD did not violate Stutzman’s right to free speech or right to free exercise of religion.

According to the Court, providing floral arrangements for weddings is not considered speech or expression to the standards of first amendment protection. While the Court acknowledged some artistry involved in producing flowers for weddings, it found that florists are not endorsing or making any message regarding same-sex union by providing flowers for a marriage, and therefore Stutzman was not being compelled to engage in any type of speech. Without being compelled to speak or engage in conduct which qualifies as protected speech, Stutzman’s first amendment rights were not violated.

While addressing Stutzman’s free exercise claim, the court dismissed her argument that the law was not generally applicable by pointing out that its few exemptions — put in place for religious organizations which would not officiate same-sex marriages — were not designed to apply broadly to all religious business owners. The Court also ruled that the law was neutral because it did not target one religion, and as such found that Washington’s “compelling interest in eradicating discrimination in public accommodations” outweighed any discomfort business owners like Stutzman felt over a conflict between the WLAD and their personal beliefs.

Ruling Represents a Growing Legal Trend
Washington is one of more than 20 states which prohibit discrimination based on sexual orientation, and legal challenges in several of these states – notably Colorado (baker could not refuse to make a cake for gay couple), New Mexico (wedding photographer could not refuse to work a same-sex marriage case), and Kentucky (t-shirt maker challenging law compelling them to provide shirts for gay pride parade) – have generally come down in favor of same-sex plaintiffs alleging unlawful discrimination.

Courts have consistently held that states have a rational interest in preventing discriminatory practices, and so far none of the defendants have demonstrated that providing services to a same-sex couple their violates their constitutional rights. Courts have ruled that a state law which forces business owners to serve gay clients neither compels speech nor inhibits the free exercise of religion, and as such the judicial trend is once again in favor of LGBT rights. Because much of the activity on this issue has been relegated to state courts, it is unlikely the Supreme Court will get involved any time soon. However, state laws specifically allowing discrimination against the LGBT community by business owners (such as one passed in Mississippi last year) may elevate the discussion to the federal level. As LGBT activists and anti-gay organizations continue to butt heads in legislative halls across the country, legal skirmishes over gay rights will continue with anti-discrimination laws looming as the next significant battleground.



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The Court granted arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which is about if a state can constitutionally enforce its civil rights law against a bakery whose owner refused, for religious reasons, to make a cake for a same-sex couple’s wedding party.

Re: Masterpiece Cakeshop, Ltd. vs. Colorado Civil Rights Commission

Jun 26 2017 Petition GRANTED.
Jul 12 2017 The time to file the joint appendix and petitioners' brief on the merits is extended to and including August 31, 2017.
Jul 12 2017 The time to file respondents' briefs on the merits is extended to and including October 23, 2017.


Site glitches and #adulting, away from reading shit on the internet. Commentary and/or updates as it comes.

-Frau B


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Oregon Court of Appeals upholds civil rights decision, $400,000 judgment against Portland bar that banned transgender customers

The Twilight Room Annex, formerly known as the Portsmouth Club, closed down after the state ordered its owner to pay $400,000 in punitive damages to a group of transgender women he banned from the club. The 11 complainants are still awaiting payment.


Source: http://www.oregonlive.com/business/index.ssf/2015/09/oregon_court_of_appeals_uphold.html

In a ruling based on a landmark civil rights law, the Oregon Court of Appeals on Wednesday upheld a $400,000 damages award against a North Portland bar that turned away a group of transgender patrons.

Bar owner Chris Penner had challenged a Bureau of Labor and Industries finding that he had illegally discriminated against Rose City T-Club members when he asked them to not come back to his establishment because he didn't want it known as a "tranny bar" or "gay bar."

Penner maintained that their presence was hurting the Twilight Room Annex, formerly known as the Portsmouth Club and widely referred to as the P Club.

The appellate court upheld the labor bureau's 2013 findings that Penner had denied the group equal accommodations on account of their sexual orientation in violation of the Oregon Equality Act of 2007. The court also dismissed Penner's argument that his free speech rights had been violated.

The complaint against Penner and his company, Blachana LLC, was the first brought by Labor Commissioner Brad Avakian under the Equality Act and the first to result in a damages award.

The law protects the rights of gays, lesbians, bisexual and transgender Oregonians in employment, housing and public places.

Avakian cited the same statute earlier this year in ordering the owners of a Gresham bakery to pay $135,000 in damages after they refused service to a lesbian couple who wanted to buy a cake for their same-sex wedding.

Though the act includes an exemption for religious organizations and schools, it does not allow private business owners to deny service and discriminate against potential customers.

In an interview Wednesday, Avakian praised the Court of Appeals ruling.

"Under the Oregon Equality Act, people have got the ability to enter public places and not be treated differently because of their sexual orientation. In this case at the P Club, I believe people were prevented from going into that bar because of their sexual orientation and so I filed a commissioner's complaint on behalf of all Oregonians. "

Penner declined to comment.

The case centers around two voicemails Penner left in June 2012 for a member of the Rose City T-Girls, asking the group not to come back to the P Club. The group had frequented the North Lombard Street bar every Friday night for two years. They brought anywhere from a dozen to 40 people -- some who crossdress, others who have fully transitioned to female -- into the club each week. But their presence drove other customers away and caused declining sales, Penner said.

The labor bureau's Civil Rights Division began investigating and found no evidence to support Penner's contention that the T-Girls disrupted business.

Instead, the bureau found substantial evidence of discrimination and tried to reach a settlement with Penner. When none was reached, Avakian took the case to a hearing.

Penner closed the Twilight Room Annex in and laid off five employees after his bank accounts were seized in connection with the $400,000 judgment. The state also imposed $3,000 in civil penalties on Blachana and $2,000 on Penner.

Since Jan. 1, 2008, when the Equality Act took effect, the state labor bureau has received 24 complaints, only a handful of which have advanced to a hearing or remain under investigation. The majority of cases were closed for lack of substantial evidence, withdrawn because of a settlement or taken to state or federal court.

In a 2012 interview with The Oregonian/OregonLive, Penner said he is neither homophobic nor anti-transgender people. He once hosted a weekly queer dance night in the space, and a gay pool team has practiced in the bar. But, he said, other customers complained that the T-Girls left the stall doors open and seats up in the women's restrooms. Business also had declined since the T-Girls started coming to the bar, he said.

In his appeal, Penner contended that he had not refused to provide service to anyone and that he had a constitutional right to express a desire that the T-Girls stop frequenting his business.

The court rejected the arguments, saying it agreed with Avakian that the voice messages were tantamount to denials of service.

Sue-Del McCulloch, an attorney for the T-Girls, said several of her clients called her Wednesday to say "what a long road and thank you for the support."

Asked whether the state sanctions were excessive, given the P Club's closure, McCulloch cited Penner's failure to address the denial of service issue other than to fight it.

"The club didn't have to be closed," she said. "I don't know that it was a business necessity. To the extent that it was, it was already headed in that direction. I don't believe it's fair to lay that at the feet of this case."

Brad Avakian is commissioner of the Oregon Bureau of Labor and Industries.
The state agency enforces civil rights and wage and hour laws.

Avakian said that while "it's never the goal to have a business shut down," he believed the damages were fair based on the evidence presented.

"He's got a responsibility to take care of his debts," he said of Penner. "Now that the Court of Appeals has ruled, I hope he does."

On a side note, this piece of shit also owes back wages to a group of employees who also sued him in civil court and won, but are still awaiting damages. He also once denied service to a woman with a service dog, who also filed a complaint and secured a judgement from the state Bureau of Labor and Industries.

What a fucking asshole, I'm glad his shithole of a bar is closed. Gay-bashing fucker totally deserves that and a whole lot more.

-Frau B


Sonja Becker's picture

QUEER VOICES 07/24/2017 02:40 pm ET
This Bridal Shop Is Under Fire (Again) For Turning Away A Lesbian Couple

W.W. Bridal Boutique’s co-owner said it was a matter of “personal convictions.”

***Since the link has embedded video and related links I can't reproduce here, I'll just post the source article.***
-Frau B

Source: http://www.huffingtonpost.com/entry/pennsylvania-bridal-shop-lesbian-brides_us_5976160ee4b00e4363e11237?utm_campaign=hp_fb_pages&utm_source=main_fb&utm_medium=facebook&ncid=fcbklnkushpmg00000063