By Ilan Fuchs, Ph.D.
Faculty Member, Legal Studies
Author’s note: This is an informative article written for academic discussion that does not constitute, nor is intended to provide, legal guidance. Readers should contact an attorney with respect to any legal questions they may have pertaining to the following topic.
As an attorney and as a teacher, I like to show my clients and students how legal principles make their way into everyday life. That is specifically the case when it comes to constitutional concepts.
In my BUSN311 class, “Law and Ethics in the Business Environment,” we discuss basic concepts such as contracts, torts and intellectual property law. In addition, we also discuss relevant legal cases, including ones about religious freedom. One recent U.S. Supreme Court case dealt with the boundaries of freedom of religion in the business world: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.
This case and a similar one, State of Washington v. Arlene’s Flowers, both involve small business owners who refused to serve clients who wanted to hire their services for a same-sex wedding. The refusal to provide service was contrary to the sincerely held religious beliefs of the owners of those businesses.
For the Masterpiece Cakeshop decision, the U.S. Supreme Court voided the decision of the Colorado Civil Rights Commission, choosing to focus on the Commission’s negative attitude toward the religious beliefs held by Jack Phillips, the owner of Masterpiece Cakeshop. The Court noted that one of the Commission’s members had a negative bias against religion. As Vox noted, “In the Court’s view, this was open hostility to Phillips’s religious beliefs — and that kind of hostility from a government body violates Phillips’s constitutional rights.”
The Court’s Decisions Have Not Resolved Whether Business Owners Can Use Their Religion to Deny Service to Potential Customers
However, the Masterpiece Cakeshop decision did not deal with the core question of equality versus freedom of religion. On July 2, 2021, the U.S. Supreme Court also refused to hear the Arlene’s Flowers case, continuing the decade-long legacy of uncertainty when it comes to LGBTQ rights.
So we are still left with an unanswered question: Can business owners invoke the Free Exercise Clause of the First Amendment to deny service for a same-sex wedding?
Related link: Studying Religion Connects You to the World
A New York Case May Test the Supreme Court Once Again
The question of business owners using their religion to deny service to certain customers might return to the Supreme Court relatively soon in a case called “EMILEE CARPENTER, LLC, et al., Plaintiffs, v. LETITIA JAMES, et al., Defendants.”
The case involves Emilee Carpenter, a photographer based in western New York, who refused an offer to photograph a same-sex wedding due to her religion. New York State fined her, stating that her religious objections are not relevant since the religious actions taking place in the event are directed to the couple, not other people.
Law and Crime noted that U.S. District Court Judge Frank P. Geraci Jr. dismissed Carpenter’s case and quoted Geraci’s reasoning: “Insofar as those activities are not services that Plaintiff is hired to provide, the laws would not compel Plaintiff to participate in any religious exercises at same-sex weddings just because she chooses to actively and religiously participate in them when she photographs opposite-sex weddings…The religious activities occurring at a wedding, whether for a same-sex couple or an opposite-sex couple, are directed at the couple, the friends, the family, and any other invitees in attendance. They are not directed at the caterer, the florist, or the photographer.”
Geraci also found that New York state laws forbidding discrimination are neutral towards religion and are not geared towards limiting religious practice. Geraci noted that even though there is “compelled speech” – i.e., asking Carpenter to create an artistic product commemorating the same-sex wedding – this action is constitutional. The compelled speech is business speech, an outcome of a service offered to the public.
New York’s public accommodation laws apply only to those businesses that choose to “provide services to the public” and are “open to all comers.” These standards come from a 1996 New York case, MATTER OF Cahill v. Rosa.
Geraci also noted that “there is a tight fit between the kinds of businesses regulated – those that, like Plaintiff’s – provide their goods or services to the public – and New York’s interest –ensuring that businesses that provide goods or services to the public do not discriminate on the basis of sexual orientation. The laws are not intended to regulate issues of conscience or belief… To sharpen the distinction between public-facing businesses and other endeavors, the laws expressly exclude all “distinctly private” accommodations from regulation.
“Given the existence of that exemption, the Court is not convinced by Plaintiff’s assertion that the Accommodation clause “condition[s] [her] ability to participate in the wedding industry and to create wedding photography promoting [opposite-sex marriage] . . . on the requirement that [she] also create wedding photography promoting [same-sex marriage].”
Carpenter’s Case Could Go to the US Supreme Court and Set a Legal Precedent
Carpenter’s case has garnered significant attention, and dozens of organizations and states have sent in amicus curias briefs to the U.S. District Court. If the decision on Carpenter’s case is challenged on appeal, it has a very good chance of making its way to the U.S. Supreme Court.
So what lessons should we take from this case regarding the exercise of freedom of religion by business owners? Going into business means taking risks once you start up your business. There can be unforeseen events, and this case is a great example.
Even a small business like Carpenter’s can become the epicenter of a constitutional drama that is likely to create a precedent that will go down in legal history. My best advice for business owners, however, is to consult an attorney before making decisions. Things that might seem inconsequential can have long-term effects, so it is worthwhile getting an attorney to review your contracts, the warranties on your website, or the way you incorporate and file your taxes. Don’t confuse your skills at using search engines with a legal license to practice law.