In a post last week, I discussed how some believe Tennessee’s version of the Religious Freedom Restoration Act (“RFRA”) [1] could allow Tennessee businesses to refuse service to same-sex couples despite a recent ruling that Tennessee must recognize same-sex marriages under Obergefell v. Hodges [2].
I also mentioned a pending Colorado Court of Appeals case [3] testing whether a baker could refuse to serve same-sex couples for religious reasons. The Colorado court decided that case on August 13, 2015, ruling the baker could not deny services based on a customer’s sexual orientation despite his religious convictions. A copy of the opinion is here.
The tension between the right to religious expression and non-discrimination in a progressively inclusive society was captured in the court’s summary of the case:
This case juxtaposes the rights of complainants, Charlie Craig and David Mullins, under Colorado’s public accommodations law to obtain a wedding cake to celebrate their same-sex marriage against the rights of respondents, Masterpiece Cakeshop, Inc., and its owner, Jack C. Phillips, who contend that requiring them to provide such a wedding cake violates their constitutional rights to freedom of speech and the free exercise of religion.
The court held Colorado’s Anti-Discrimination Act [4] prohibited the baker and other “places of public accommodation” from discriminating against customers based on their sexual orientation. The baker claimed he was not discriminating based on the couple’s sexual orientation, but that he was expressing his religious beliefs concerning the couple’s conduct. The court rejected that argument saying the anti-discrimination law protects conduct that is inextricably tied to sexual orientation. Otherwise, the law would protect same-sex couples against discrimination, but only to the extent they do not display their same-sex orientation in public.
Unlike Colorado, Tennessee does not have an anti-discrimination law prohibiting a business from refusing service to same-sex couples. But, a Tennessee business’s ability to do so under the RFRA has not been tested yet. That issue is right around the corner, along with the ability of county clerks to refuse marriage licenses to same-sex couples for the same reason. [5]
In the meantime, at least one Tennessee business has expressed a sentiment similar to the Colorado baker after the Obergefell decision was announced. An East Tennessee hardware store recently posted the following sign,
which it later replaced with this sign [6].
[1] T.C.A. § 4-1-407.
[2] 135 S.Ct. 2584 (2015).
[3] Craig, et al. v. Masterpiece Cakeshop, Inc., et al., Colorado Court of Appeals No. 14CA1351.
[4] C.R.S. §§24-34-301 – 804.
[5] http://www.knoxnews.com/news/nation-and-world/clerks-office-defies-order-no-samesex-marriage-licenses_35496187_
http://www.wbir.com/story/news/2015/07/28/state-rep-asks-county-clerks-to-ignore-scotus-ruling-on-gay-marriage/30772805/
http://wjhl.com/2015/07/22/sen-rusty-crowe-suggests-clerks-shouldnt-have-to-issue-same-sex-marriage-licenses/
[6] http://www.usatoday.com/story/news/nation-now/2015/07/01/tennessee-hardware-store-no-gays-allowed-sign/29552615/
