By Joel Stashenko, From New York Law Journal

ALBANY – A couple who were fined by the state for refusing to rent out their banquet facilities for gay weddings is being asked to compromise their constitutional right to oppose same-sex marriage for religious reasons, a lawyer argued before the Appellate Division, Third Department.

J. Caleb Dalton told the panel that the dignity of one’s conviction is a “two-way street,” and that Cynthia and Robert Gifford have rights that are protected by the Constitution and the courts.

The couple is fighting a $10,000 sanction imposed by the state Division of Human Rights for violating the rights of a same-sex couple, Melisa Erwin and Jennifer McCarthy, when the Giffords said the couple could not rent out their Liberty Ridge Farm in Rensselaer County for their wedding.

The state also ordered the Giffords to pay Erwin and McCarthy $1,500 each in restitution for refusing them access to their farm, and to undergo anti-discrimination “training” which the Giffords likened in their court papers in Gifford v. Erwin, 520410, to “re-education” (NYLJ, Aug. 18, 2014).

Dalton told the court the Giffords regard the state as decreeing that they not only accept same-sex marriage in theory, but also are being required to participate in the wedding ceremonies.

Cynthia Gifford takes pride in offering services to brides that include assisting them in virtually every element of the wedding ceremony except in the actual solemnization of their marriage, Dalton said.

He said the close involvement of the couple in the preparations and executions of the weddings performed on their property means that “part of their core values are represented here. It’s part of who they are.”

“You cannot force an entity to facilitate a message with which they disagree,” Dalton said.

The Giffords said in their brief that they hold conservative Christian religious views.

Dalton said Boy Scouts of America v. Dale, 530 U.S. 640 (2000), presented a roughly analogous situation to the Giffords’ where they are being made by a government entity to endorse a viewpoint with which they disagree.

“When you force an entity to endorse a message that they disagree with, the fundamental liberties reserved to individuals and corporations under the First Amendment are violated,” Dalton said.

Attorneys for the state and the New York Civil Liberties Union countered that the Giffords are no different than doctors, owners of beauty salons, travel agents, doctor’s offices or scores of other businesses where the anti-discrimination provisions of state Human Rights Law and the state constitution have been found to apply.

“[The Giffords’ farm] is a public accommodation, and what happened here is discrimination,” NYCLU attorney Mariko Hirose argued.

She said the Giffords are free to hold personal religious beliefs that may be contrary to a provision of the human rights’ laws or the Constitution, “but in order to have a functioning society, businesses that enter a public marketplace are required to follow a neutral law” about which customers they serve and which they do not.

She said Erwin and McCarthy, who married after being refused the use of Liberty Ridge Farm, were “heartbroken” by the Giffords’ refusal to let them wed there.

Jennifer McCarthy told Hirose, the lawyer recounted to the judges Monday, “I felt that my wedding was not good enough to celebrate.”

Hirose argued that the “dignity harm” that was done to Erwin and McCarthy was a significant element of the damage the Human Rights Division found, and has been recognized in other cases where people have been discriminated against because of their religion, gender, sexual orientation or other personal characteristics.

Michael Swirsky, an attorney for the Human Rights division, also argued that the manner in which the Giffords offered their farm and banquet facilities to the public was the issue which is of concern to the state, not the fact the couple personally does not believe in same-sex marriages.

“We are not asking the Giffords or Liberty Ridge to change their position on marriage to a person of the same sex,” Swirsky told the judges. “We are not asking them to endorse a message they disagree with. We are asking them to follow the law and rent their space on an equal basis on which they rent to other parties.”

“Or they could choose not to host any marriage ceremonies at all, correct?” Presiding Justice Karen Peters asked.

“That is correct,” Swirsky responded. “They could choose not to provide any marriage ceremonies at all. But if they do, they have to provide them on an equal basis.”

Dalton appeared on behalf of the Scottsdale, Arizona-based Alliance Defending Freedom, which is representing the Giffords along with James Trainor, partner at Cutler, Trainor & Cutler in Malta.

Erwin and McCarthy did not attend the hearing. Their attorneys said they have since moved out of the Albany area.

In addition to Peters, the panel was comprised of Justices Eugene Devine, William McCarthy, John Egan Jr. and Christine Clark.

The Giffords attended the arguments. Cynthia Gifford said the Liberty Ridge Farm stopped taking contracts for marriage ceremonies after it was punished by the human rights division.

“Its bad enough when the government tells you what you can’t say,” she said in an interview Monday. “But when the government tells you what to say and punishes you when you don’t, it’s very frightening. All Americans should be very concerned about this.”

Trainor said the Giffords have gay employees and in the past have rented out their facilities for birthday parties and other events involving gay participants.

The court generally hands down a written ruling within six weeks of hearing oral arguments in cases.

IMAGES:

Cynthia Gifford, joined by her husband Robert Gifford, left, and their attorney James Trainor speaks with reporters after oral arguments in Gifford v. Erwin on Monday. Tim Roske

Miriko Hirose of the New York Civil Liberties Union, representing the gay couple who sought to be married at Liberty Ridge Farm, and Caleb Dalton, counsel to the owners of the farm, argue at the Third Department Monday.

For more on this story go to: http://www.newyorklawjournal.com/id=1202743218842/Facility-Fights-Sanction-for-Barring-Gay-Wedding#ixzz3t0PLtIXv