The civil unions bill signed into law last week includes no religious exemption.
Those calling for an exemption predict lawsuits if some accommodation isn’t made for religious objections to same-sex unions.
In other states that recognize civil unions or full marriage rights for same-sex couples, lawsuits have been filed against bakeries, photographers and venues that refused on religious grounds to provide their services for ceremonies.
Lawsuits also have been filed against religious-based adoption agencies that refuse to place children with same-sex couples and against religious-based hospitals that refuse to recognize a patient’s same-sex partner.
These lawsuits present a clash in which both sides argue their civil liberties have been violated. So how would they fare in Colorado?
Colorado law prohibits virtually all business that offer goods and services to the public from denying services to people based on their sexual orientation. On the other hand, the First Amendment guarantees religious freedom.
One local civil rights attorney says it’s a slam-dunk. The constitution is no shield against discrimination, said Mari Newman of Denver law firm Killmer, Lane & Newman.
In the 1960s, businesses made religious arguments to justify refusing service to black people or mixed-race couples. The courts rejected these arguments and for the same reason Newman believes courts today will reject religious-based objections to serving or recognizing same-sex couples.
These couples will likely have to turn to state law, not federal, for recourse, however. The federal Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex or national origin, but not sexual orientation.
And with regard to business-customer relationships, the federal law only prohibits discrimination in places of public accommodation, such as restaurants, hotels and theaters. Other businesses are free to refuse service for any reason, even if it’s discriminatory, said Troy Rackham, an attorney in the Denver office of Fennemore Craig, who defends businesses against civil rights claims.
Colorado’s anti-discrimination law is much broader. It includes sexual orientation, and it defines places of public accommodation as any business providing goods or services to the public. Only churches, synagogues and mosques are excluded.
Rackham acknowledged that under state law, a business that refuses service to a same-sex couple on religious grounds faces an uphill legal battle. The presumption will be that its action was discriminatory. The only defense it can raise is the First Amendment’s right to free exercise of religion.
The First Amendment is a powerful shield, but it’s not enough for the business owner to simply say that he refused service because he’s a Christian or a Jew or a Muslim. He’ll need to demonstrate that opposition to homosexuality is a fundamental tenet of his religion, Rackham said.
The business owner would have to prove that being forced to serve same-sex couple places an unconstitutional burden on his religious freedom, permitting discrimination that is otherwise illegal under state law.
Newman is certain this defense will fail. “These arguments of religious freedom have been used throughout history as an excuse for discrimination,” she said. “It was illegal then, and it’s illegal now.”
Religious-based hospitals and adoption agencies may have an even harder time mounting a defense because so many of them receive government funding or contracts. This would, for example, include payments through Medicare and Medicaid. With these public funds comes a requirement that they follow the same rules as the government, and that means no discrimination, period, Newman said.
During the committee hearings on the bill, some people expressed concerns that some adoption agencies may close their doors if forced to place children with same-sex couples over their religious objections.
Rackham agreed it’s a tougher case where public funding is involved. It may turn on how much public finding the business receives and whether it’s enough that the business should be treated as a state actor.
Catholic hospitals have had success in refusing abortion services even though they take government money, Rackham said.
But there’s a big difference between refusing to provide a service to anyone and discriminating against just a certain class of people, Newman argued.
The civil unions bill specifically grants partners the right to make medical decisions for each other. Rackham said religious-based hospitals may have a particularly hard time fighting this provision because hospitals are large organizations and not everyone who works there subscribes to the particular religion. This makes it even harder to show that the hospital as an entity is being deprived of its religious freedom.
It will likely take some lawsuit to sort out all these issues once the bill is signed into law. In the meantime, all eyes are on the U.S. Supreme Court, which could change the legal landscape when it hears challenges this week to California's ban on same-sex marriage and to the federal Defense of Marriage Act. Its rulings in those cases are expected in June.