On the Case: Issue 7

Same-sex marriage and property rights compete in New York State

In this seventh edition of On the Case, Adjunct Professor Neville Rochow SC of the School of Law, Sydney discusses a recent United States' decision in which issues of religious freedom and discrimination have arisen in the context of same-sex marriage.¹

The Facts

Melisa McCarthy and Jennifer McCarthy are a same-sex couple living in the State of New York. Cynthia Gifford and Robert Gifford are a devout Catholic married couple who own and control a corporate entity, Liberty Ridge Farm LLC. The Giffords and Liberty Ridge Farm LLC own and control a farmland property in Albany. From 2012, the Giffords have used their farm property for various social functions including marriage ceremonies and wedding receptions. This activity supplemented the regular farming activities which were also conducted on their property. In October 2011, Jennifer proposed to Melisa while picking apples at an orchard in the Albany area. They found the Liberty Ridge Farm LLC website on the Internet. The Giffords' did not permit their property to be used for activities contrary to their religious beliefs and conscience including same-sex weddings and same-sex wedding receptions. The website did not state these policies.

In September 2012, Melisa McCarthy and Cynthia Gifford spoke by telephone while Jennifer listened in. In that conversation, there was discussion about renting the property for the purpose of holding a wedding between June and August 2013. During the conversation, Melisa was invited by Cynthia to visit the farm. While arranging a time, Melisa made reference to her fiancée as 'she' which prompted Cynthia to say that there was a problem because they did not hold same-sex marriages at the barn. When challenged by Melisa about the legality of that policy, Cynthia explained that they ran a private business and it was a decision of her husband and herself at which point the telephone conversation ended with Melisa saying that the policy was 'very disappointing' and that the McCarthys would not take up anymore of her time. The McCarthys, subsequently, made a complaint² variously describing the effect of the refusal upon them as 'shell-shocked', 'horrible', 'heart-breaking' and a blow to Jennifer McCarthy's 'coming out process'. In the ultimate result, the McCarthys found a nearby Albany farm at which to celebrate their nuptials.

The Arguments

The relevant legislation made it as offence "..for any person , being the owner…of any place of public accommodation…because of the …sexual orientation…or any person, directly or indirectly to refuse, withhold from or deny to such person any of the accommodations, advantages or privilege thereof…"³ A club, institution or place of accommodation which was "distinctively private"⁴ or which applied "selection criteria …in evaluating applicants for membership and in the conduct of its activities, so long as such selection criteria do not constitute discriminatory practices…"⁵ was exempt.

Decision

The Respondents argument that their farm was not "a place of public accommodation" was unsuccessful because the farm was run as a business for public hire.⁶ The Respondents argument that they held a "specific religious belief regarding marriage", namely that it should be between a man and a woman and that only allowing such couples to marry on their property was the application of permissible selection criteria, was also rejected.⁷ This policy was found to be an impermissible denial of access to a public place of accommodation.⁸

The Respondents were ordered to pay $3000 in damages to the Complainants ($1500 each) and to pay $10 000 by way of civil fine and penalty to the State of New York for having violated the relevant legislation. The Respondents were required additionally to undergo anti-discrimination training and cooperate with the division in any investigation into their compliance with directives made to them. The Respondents were also required to display a copy of the decision on their website.

Why This Case is Worth Knowing About?

This case is one the most recent in a line of cases in which business owners, who have been either required to trade contrary to their conscience and religious convictions or to pay a penalty⁹ despite conscientious or religious convictions. The case is important in an Australian context as similar issues arose under Victorian anti-discrimination legislation in a recent Victorian Court of Appeal decision.¹⁰ If the special leave sought in that case is granted, the High Court will have to decide both the content and ambit of religious organisation defences in cases where religious organisations are involved in trade and commerce but wish to reserve space for conscience to be obeyed. Moreover, the argument that sexuality is integral to identity will have to be considered against the point, that so too are matters of religious conviction and conscience.¹¹ To date, none of the authorities have addressed the fact that the alleged offence goes both ways.

¹New York State Division of Human Rights on the Complaint of Melisa McCarthy and Jennifer McCarthy (Complainant) v Liberty Ridge Farm LLC, Cynthia Gifford and Robert Gifford (Respondent) (Case numbers 10157952 and 10157963) (Liberty Farm)
² Under United States Constitution First Amendment; New York Executive Law (Human Rights Law) Article 15, (Section 296.2, 296.9, 296.27, Section 300) 
³ Human Rights Law 296.9(2)
⁴ Human Rights Law 296.9
⁵ Human Rights Law 296.9(2)
⁶ Liberty Farm 12
⁷ Liberty Farm 17
⁸ Liberty Farm 18
⁹ Regular readers of On The Case might recall that in this first edition of this publication, Professor Michael Quinlan, Dean of the School of Law, Sydney considered a decision of the Supreme Court of the State of New Mexico addressing the competition between religious freedom and anti-discrimination legislation in the context of same-sex marriage: Elane Photography LLC v Vanessa Willock, Supreme Court of the State of New Mexico, Docket No.33,687 see www.nd.edu.au/sydney/schools/law/on-the-case/on-the-case-issue-1.
See also Craig and Mullins v Masterpiece Cake Shop Inc & Anor, State of Colorado Administrative Court CR2013-008, 6 December 2013 and http://www.independent.co.uk/news/uk/home-news/northern-ireland-bakery-refuses-to-make-gay-bert-and-ernie-wedding-cake-9590745.html.
For discussion of recent events in Canada, see Benson, I T, "Law Deans, Legal Coercion and the Freedoms of Association and Religion in Canada"; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328945
¹⁰Christian Youth Camps Limited & Rowe v Cobaw Community Health Services Limited & Victorian Equal Opportunity and Human Rights Commission & The Attorney-General for the State of Victoria [2014] VSCA 75 (Cobaw)
¹¹ made in the dissenting reasons of Redlich JA in Cobaw, [2014] VSCA 75 at [560] – [561]; cf [57].