A Lesson In Discrimination Law

Howard Friedman has found a terrific set of twinned cases that makes extraordinarily clear the reason why some of the scare advertisements used in favor of Proposition 8 — “If we have gay marriage, churches are going to be sued” — found purchase with the public, and why the churches could defend themselves from the litigation cheaply and easily, giving lie to the scare.

Normally, “twinned cases” are hard to find. To get them, you need to have fact patterns in the two cases that are completely identical but for one difference, and that one difference has to be dispositive. By “dispositive,” I mean that a single difference in fact produces a different result. To get there, with identical facts, you would look for two plaintiffs suing the same defendant for the same thing. That’s what Prof. Friedman has found.

Now, they aren’t two lawsuits pursued to judgment, unfortunately, so they aren’t binding authority — but they do provide a good insight into how discrimination cases work. What we’ve got are two findings after investigation into administrative charges of discrimination.

So the first lesson is that someone who claims to be the victim of discrimination cannot immediately walk into court and file a successful lawsuit. They must present their charge to a state or federal agency for investigation first, and that agency has to investigate and decide if there’s any merit. So there’s a “screen” on cases like these.

Now, to the cases themselves. In Bernstein v. Ocean Grove Camp Meeting Association, a lesbian couple wanted to perform a civil union ceremony at a beachside facility owned and operated by a Lutheran faith organization (it appears to not be a church per se, but it affiliates and identifies with Lutheran Christianity). The New Jersey agency investigating the complaint found probable cause to permit the charge of discrimination proceed. But, in Moore v. Ocean Grove Camp Meeting Association, another lesbian couple wanted to perform their civil union ceremony at the exact same facility. In that case, no probable cause was found. Both case results were announced on the same day — yesterday.

Same facts, same defendant, same facility, decided on the same day, but different results.

What was the difference? In Bernstein, the investigation found that the religious organization that owned the facility rented it out to pretty much anyone who asked to use it, and paid a usage fee. It was used by the Lutheran churches that were members of the organization without fee and with priority for use, but if it wasn’t being used at that time, a Catholic group or a Baptist group or a non-religious youth group could use it too. It was rented out for weddings, awards ceremonies, social events, and a whole bunch of other things. This made it a “public accommodation” under the New Jersey law, and therefore subject to the anti-discrimination laws.

After Ms. Bernstein and her partner applied and started causing a stink, the organization changed its policy for use of the facility. Instead of making the facility available to anyone, its use was restricted to only the churches that were the members of the organization. They stopped holding weddings there altogether. So in the Moore case, the facts showed that the facility was private, not public. Since it had become a truly private facility, it was not a “public accommodation” and therefore beyond the scope of the anti-discrimination laws.

So there is the second lesson about the law of discrimination. You are subject to the requirements of non-discrimination only if you are engaged in something called a “public accommodation.” So if you don’t want same-sex wedding ceremonies in your church, don’t rent your church out to people who are not members of your church’s congregation.

That’s both the scare and the lie behind the anti-SSM propaganda. When the church stops being a church and starts being a banquet hall, then yes, it is vulnerable to a discrimination lawsuit because it’s not acting like a church anymore. The message to churches that are opposed to same sex marriages is “stay true to your faith and the law will be on your side.”

Now, there is a third lesson. In the Bernstein case, the Lutheran organization invoked two Constitutional rights — freedom of expressive association, and the free exercise right. Freedom of expressive association is discussed with the relatively recent case of Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc. (1995) 515 U.S. 557. In Hurley, a group of war veterans authorized by the City of Boston to administer and run a St. Patrick’s Day parade denied a homosexual advocacy group’s application to march in the parade. The Supreme Court said that was okay, because the organizers of the event were entitled to express themselves under the First Amendment by showing what groups they would associate with and thus by extension, what groups they would not associate with. Including the gay group would alter the message of the parade. The gay group had ample opportunity to hold its own parade and otherwise express itself.

So why didn’t Hurley apply to the Bernstein scenario? Because the owning organization was not using its beachside facility as a place of worship — they were making it available to the general public, including those who did not worship as they did. The facility did not exist to issue a message or a statement to the world — it was open to the public:

All members of the public are invited to travel through the pavilion, whether to rest, eat ice cream, engage in private conversation or to pray. Until it stopped allowing couples to have wedding ceremonies performed there, the Pavilion was leased to couples of all faiths – or of no religious faith – and no regard was given to whether the person performing the ceremony did so by religious or secular authority. * * * [T]he Boardwalk Pavilion is not a place that is inherently dedicated to religious worship.
opinion, pages 10 & 11.

Once you understand that, it’s easy to see why the claim of free exercise doesn’t apply, too. This was not a place where a particular religion was being practiced in a particular way. Yes, it happened to be owned by groups that practiced a particular religion in a particular way and they did sometimes use it for that purpose. But they also made it available to people who practiced different religions in different ways. It was not a house of worship — it was space for rent.

And once the facility did become dedicated to strictly religious use, the rules changed. So, Ms. Moore and her partner were out of luck — you can’t just walk into someone else’s church and tell them what to believe and how to act, because a church is not a public accommodation. When you are dealing with the general public, you are engaged in commercial activity and your business is subject to regulation as such. But when you get out of the business of selling a service to the general public, your Constitutional rights are back in play because you’re not engaged in commerce.

That’s the third lesson — commercial activity does not enjoy the same level of Constitutional protection as expressive activity. The right in question for commercial activity is your right to own and use property, and the only restriction on the government’s ability to regulate that right is that your property cannot be completely taken away from you without some kind of compensation. That does not mean that your use of the property cannot be regulated to a reasonable degree — you might own land, but you are subject to zoning laws, for instance, so you can’t demolish your own house and open up a pit mine in the middle of a residential neighborhood.

Now, a strong libertarian would object to that conclusion. If I can’t engage in pit-mining on “my” property, and I have to ask my neighbors or my city for permission before I do something like that, then I don’t really “own” the land. But we do not live in a strongly libertarian society; we live in a moderately libertarian one. No right is absolute, all rights are checked and balanced against the rights of others. Your neighbors didn’t buy their houses so they could live next to an open-pit mining operation. Your conversion of your house to a pit mine will cause danger to the stability of your neighbors’ houses, and it will detract from their property values, and even if you pay them money for those things to compensate them, it’s not the same thing as getting what they bought when they moved in.

You can invoke your rights, I can invoke my rights, but at some point, those rights will conflict and when they do, someone has to balance them and decide whose rights prevail. This is the fundamental problem of living in a free society — eventually, people exercising their freedoms are going to have conflicts. That’s why we need a government with sufficient power to sort these things out. That government has to include some kind of body that makes laws trying to prioritize rights in advance (we call it a “legislature”) and it has to include some kind of body that decides particular cases (we call those “courts”).

In the case of discrimination law, the third lesson here is that when you stop exercising one kind of right (religion) and start exercising another (property), you have moved from one set of rules into another, which is why the cases turn out differently.

UPDATE: Another post linking here provides an excellent and deeper factual background to the cases than I do above. Thanks also to Popehat for a nice link and warm words.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Hello,I strongly feel there should be zero discrimination existing. However I also feel society should be informed about practices which could be dangerous and damaging to human beings. Well, that is the trouble many of us find with homosexuality. Yes people are allowed to engage in it. This does not make homosexuality a right thing or hide its’ dark problems. I wrote about this subject on my blog site, Curtis’ Expectations. You may visit there to offer your comments if you wish.Sincerely,Curtzhttp://cxpectations.blogspot.com

  2. So churches won’t be sued; they’ll just have unreasonable restrictions placed on how they can use their property, which may hurt them financially. Kind of like being sued would. Hardly a ringing endorsement for those who would like to see churches continue to refuse to be involved with same-sex marriages.I’m fine with same-sex marriage, but suing to force a church to do something they wanted to do with their own private property was despicable, and the fact that they won actually does vindicate, to some extent at least, the fears you’re trying ot allay.

  3. I disagree with your assumption that it is unreasonable for a church to comply with laws of general application when it is engaged in a business activity. When a church stops dispensing religious instruction and starts trying to raise money from the general public, it leaves the realm of the ecclesiastical and enters the world of business and it gets treated the same as any other business entity would.So if a church wants to run a banquet hall, wedding chapel, funeral home, or bingo parlor, then it gets to comply with all — yes, all — the laws that apply to banquet halls, wedding chapels, funeral homes, or bingo parlors, the same as anyone else. That’s not unreasonable in my book.

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