This post should not be construed as legal advice
If you run an agritourism operation, you have a lot of legal issues to consider. What happens if someone is injured while on your farm? What happens if someone gets sick eating food from a concession area? The list can go on and on. Something that may not be on a lot of your minds is how marriage equality laws and anti-discrimination laws impact your agritourism operation, especially if you operate as a venue for weddings. These can have a huge impact on your farm.
In Gifford v. McCarthy, the New York Appellate Division upheld damages and a civil fine assessed against the Giffords for refusing to rent the wedding facility on their farm for McCarthy’s same-sex wedding.
The background is pretty straightforward. The Giffords operate a 100-acre farm in New York that harvests and sells crops to the public and rents a portion of the farm to the public as a venue for weddings, receptions, and other events. The Giffords’ farm is not a private club, non-profit, or religious entity (this will be important later on).
McCarthy contacted the Giffords in 2011 about using the Giffords’ farm as a venue for her and her fiancée’s same-sex wedding. The Giffords said this would be a problem because the farm did not hold same-sex weddings.
McCarthy filed a complaint with the appropriate state agency claiming the Giffords’ engaged in unlawful discriminatory practices based on sexual orientation. After an investigation and a public hearing, the agency awarded McCarthy $1,500 and a civil fine of $10,000 imposed on the Giffords. The Giffords appealed.
The Giffords on appeal argued that the state anti-discrimination law did not apply to their farm and that the ruling violated their state and federal constitutional rights to free speech, free exercise of religion, and freedom of expressive association. With the state law claims, the court quickly found that the farm was a place of public accommodation. Public places of accommodation are those places that deal in goods and services with the public and offers food for consumption on the premises. In New York, this has been broadly defined, and the court agrees the farm falls under this.
The Giffords had also committed discrimination on the basis of sexual orientation according to the court. The discrimination was determined by the Giffords’ unwillingness for McCarthy to use the venue for her wedding. The court rejected the Giffords’ defense that the denial to use the venue was based on their religious beliefs. Finally, the fact that the Giffords were willing to allow McCarthy to host the wedding reception on the farm but not the wedding ceremony did not void the finding of discrimination.
Looking at the constitutional claims, the court disagreed with the Giffords that the law violated the free exercise of religion clauses of the state and federal constitutions. Previous rulings of the U.S. Supreme Court have found that when a law is generally applicable and not intended to regulate religious conduct or beliefs, the law does not violate the First Amendment. For example, many religions claim a right to utilize certain illegal drugs as a part of their worship services. The Supreme Court has allowed the prosecution of those church members who violate state drug laws because the drug laws apply to everyone and are not intended to regulate religion. The court here finds the anti-discrimination law to be one applying to everyone and not intended to regulate religion.
The court also found that the anti-discrimination law did not compel speech by the Giffords. The First Amendment does not allow governments to require citizens to say certain things. In other words, you have the right to refrain from speaking. The anti-discrimination law did not require the Giffords to endorse or promote same-sex marriages and they were free to express their views on the issue. They are simply required to offer the same opportunities to use the venue to same-sex couples as they would to other couples. Finally, the court quickly found the law does not violate expressive association because the farm was not involved in expressive association but only offering services to the public for money. For example, if a club did not allow members of the other gender, state anti-discrimination laws could not be used to force the group to open its membership. Groups are allowed to keep their memberships selective if the excluded members presence would affect the group’s ability to advocate a particular point of view. The outcome in this case may have been different if the farm had been a private club, non-profit, or religious entity intended to convey a specific message.
Why Should You Care?
Maryland has a similar anti-discrimination law that limits discrimination against someone based on sexual orientation, sex, race, color, creed, national origin, marital status, gender identity, or disability. The law prevents discrimination by owners of places of public accommodation and like New York’s, this is very broad in interpretation. The law could potentially reach an agritourism operation that allows weddings. Although the decision is out of New York, however, there is no guarantee a similar outcome would occur in Maryland. With that said, farms hosting weddings or any other service need to consider anti-discrimination laws and be open to all customers.
I realize some of you may have religious concerns hosting certain events on your farm and feel like your religious beliefs should trump discrimination laws, but the New York court ruling shows that will not necessarily be the case. As the New York decision points out, laws that apply to everyone and not intended to regulate religion do not violate your First Amendment rights.
Maryland does have exceptions to this anti-discrimination law and excludes private clubs -- facilities not open to the public. Many farms will not meet this requirement. Although it is possible, a farm could meet the definition of private club; to determine that, talk to an attorney.
The takeaway point from Gifford is that you need to consider the impact of anti-discrimination laws as your run your agritourism operations. Agritourism operations can bring in additional capital to the farm, but do open you up to additional laws and regulations. You should consider talking with an attorney to develop plans to stay in compliance with all those laws and regulations.
Gifford v. McCarthy, 2016 N.Y. Slip Op. 00230, 2016 WL 155543 (N.Y. App. Div. Jan. 14, 2016).
Discrimination in Places of Public Accommodation, Md. Code Ann., State Gov’t, §§ 20-301 through 20-306 (West. 2016).