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Illinois GLBT Couples, Discrimination And The Law

Gay Rights In Illinois

Gay Rights In Illinois

In Illinois, businesses that are open to the public cannot refuse service on the basis of sexual orientation. This law is found in Illinois’ Human Rights Act which provides, in pertinent part:  It is unlawful to “[d]eny or refuse to another the full and equal enjoyment of the facilities, goods, and services of any public place of accommodation.” A place of public accommodation is broadly defined to include a wide class of businesses. This provision of the IHRA became law in 1995 when sexual orientation became a “protected class” and discrimination because of sexual orientation in employment, services, and other areas enumerated in the IHRA became law. This law is currently being tested in the companion cases of Mark Wathen v. Timber Creek Bed & Breakfast and Todd Wathen v. Timber Creek Bed & Breakfast.  

In early 2011, shortly after the passage of Illinois’ Civil Union law, Mark and Todd Wathen filed charges of discrimination with the Illinois Department of Human against two bed and breakfast inns that refused to host their civil union ceremony. The Wathens first contacted and engaged my law firm shortly after their shocking experiences with the two inns. As things heated up and after the IDHR made findings of substantial evidence that the inns had likely violated the law, the ACLU agreed to enter the case as co-counsel. Currently, we await a decision from the Illinois Commission on Human Rights.

In the last several years, a robust dialogue has erupted around sexual orientation discrimination in services and accommodations. The general storyline goes like this:

Same-sex couple plans to enter into a ceremony to celebrate a civil union, marriage or other recognition of their commitment to each other. Same-sex couple contacts a reception venue, photographer, wedding cake maker, and other similar type service providers to celebrate their wedding. Provider refuses to do business with same-sex couple because, according to business, their religious beliefs do not condone same-sex marriage and their participation in any aspect of a celebration thereof is an affront to their religious beliefs in violation of the US Constitution regardless of local law.

The storyline above has played out in other cases across the country. In Colorado, the Masterpiece Cakeshop refused to create a cake for a same-sex couple who wanted to celebrate their wedding. The cake shop argued that making a cake to celebrate a same-sex wedding was akin to sanctioning same-sex marriage and thus violated its right to free expression and practice of religion. Because Colorado law prohibits service discrimination on the basis of sexual orientation, Administrative Law Judge Robert N. Spence “At first blush, it may seem reasonable that a private business should be able to refuse service to anyone it chooses,” Spence wrote. “This view, however, fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are.”

In a New Mexico case, Elane Photography refused to photograph a lesbian couple’s commitment ceremony. Elane Photography was found to have violated New Mexico’s law prohibiting discrimination in services because of sexual orientation.

Interestingly, the State of Oregon is considering a ballot initiative that will allow businesses to opt out of complying with laws that prohibit discrimination because of sexual orientation in the provision of services to the public. The new law, if passed will allow florists, cake makers and others to refuse to participate in same-sex weddings on religious grounds. Other states are considering similar backlash legislation.

But how far will these backlash laws go? Will they begin to allow photographers to refuse to photograph an interracial couple or a Muslim wedding celebration on the grounds of sincerely held religious beliefs? Can a limousine company deny service to a gay wedding party? Time will tell but we can only hope we do not turn the hands of time backwards when discrimination and segregation of unpopular classes of people were allowed.

The genesis of America’s public accommodations discrimination laws started during the Reconstruction Era following the Civil War. Specifically, the Civil Rights Act of 1875 prohibited discrimination in services and places of public accommodations on the basis of race and color. The CRA of 1875 was challenged in a series of cases before the US Supreme Court and ultimately struck down as an unconstitutional extension of legislative power. In other words, the US Supreme Court struck down equal access to services and enjoyment of facilities for African Americans. This mindset of government-sanctioned racism, however, did not stand the test of time.

With a vastly changing social climate toward race relations, Congress enacted the Civil Rights Act of 1964 which provides: All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, sex or national origin. The CRA of 1964 has withstood legal scrutiny and is the law of the land today. However, there is no federal law prohibiting discrimination because of sexual orientation in public accommodations/services.

In Illinois, if you believe you have been refused service or access to a place of public accommodation because of your sexual orientation, you have 180 days from the date of the refusal to file a charge of discrimination with the Illinois Department of Human Rights. Specific information about filing a charge can be found at IDHR’s website http://www2.illinois.gov/dhr/FilingaCharge/Pages/Public_Accommodations.aspx.

DISCLAIMER: NOTHING IN THIS BLOG POST IS MEANT TO SERVE AS LEGAL ADVICE, BUT RATHER, IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. DUE TO THE CHANGING NATURE OF THE LAW, ALL INFORMATION CONTAINED HEREIN IS SUBJECT TO CHANGE.

 


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