More on the New York Wedding-Venue Discrimination Case

By Greg Lipper

Yesterday I wrote about a New York case in which a commercial wedding venue claims that it has a constitutional right to discriminate against same-sex couples, in violation of New York state law, when renting out its facility. New York Law Journal now has a report on the oral argument.

Lawyers for the wedding venue argued that merely by renting the facility for a same-sex couple to use for its wedding—on the same terms that the venue rents to other tenants—the venue's owners are being forced to "endorse a viewpoint with which they disagree" in violation of the First Amendment.

This is a remarkably expansive theory, in which commercial rental equals compelled speech. As we explained in a friend-of-the-court brief that we filed over the summer, if accepted this argument would imperil a range of laws prohibiting discrimination by landlords, hotels, and other public accommodations. And it would facilitate discrimination not only against same-sex couples, but also on the basis of race, ethnicity, religion, sex, and more.

As it turns out, the wedding venue's theory has already been rejected by the Supreme Court. In Rumsfeld v. FAIR, a group of universities challenged a federal law denying certain Defense Department funding to colleges that did not give military recruiters the same access to students as other job recruiters. The universities argued that they had a First Amendment right to bar military recruiters, given the universities' objection to the military's practice (later rescinded) of banning openly gay service members. In a unanimous opinion written by Chief Justice Roberts, the Supreme Court held that no free-speech interest was implicated by the rule that universities who bar military recruiters forfeit Defense Department research funding. The First Amendment wasn't at issue because the rule "regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say."

The same rationale applies to the wedding venue. It need not say (or refrain from saying) anything; it need only provide equal access to same-sex couples.

If anything, the wedding venue's argument is even weaker than the universities' argument in the recruiting case. Universities are all about the dissemination of ideas; the wedding venue in this case is a commercial entity that rents property for profit. For public accommodations like commercial wedding venues, the First Amendment does not erase the civil-rights laws.

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United.