In a post-Obergefell world, civil unions sound like antiques, but they are still relevant to at least one discrimination complaint that was resolved this week. According to the Illinois Human Rights Commission, Timber Creek Bed and Breakfast violated state nondiscrimination law when, back in 2011, it refused to host a civil union ceremony for Todd and Mark Wathen, a same-sex couple.
After Illinois approved same-sex civil unions in 2011, the Wathens reached out to Timber Creek to see if it would host a civil union ceremony after the law took effect later that year. The website advertised that “Timber Creek is serious about hosting your wedding and reception,” and that “we offer complete autonomy in selecting vendors.”
In his first response to the Wathens, James Walder, who co-owns the B&B; with his wife Elizabeth, explained, “No. We only do weddings.” When Todd wrote back to confirm that he and his partner would be refused service, Walder clarified:
Todd, Civil unions and legal marriage are not the same thing, nor do they have the same legal status. We will never host same-sex civil unions. We will never host same-sex weddings even if they become legal in Illinois. We believe homosexuality is wrong and unnatural based on what the Bible says about it. If that is discrimination I guess we unfortunately discriminate.
Walder later added, “The Bible does not state opinions, but facts. It contains the highest laws pertinent to man. It trumps Illinois law, United State law, and Global law should there very be any. Please read John 3:16.”
A few weeks later, Timber Creek’s website had been updated to say, “We do not host civil unions” and “Civil Unions: not available at Timber Creek.” It had also changed from an “upscale sophisticated country Bed & Breakfast” to an “upscale Christian country Bed & Breakfast.”
The Wathens filed a complaint alleging that Walder had violated the Illinois Human Rights Act, which protects against discrimination based on sexual orientation in public accommodations, specifically identifying “an inn, hotel, motel, or other place of lodging” as a venue that is not permitted to discriminate.
Administrative Law Judge Michael R. Robinson found that the Wathens had provided adequate evidence of unlawful discrimination, that they are “aggrieved by the denial of the full and equal enjoyment of the facilities and services of a place of public accommodation.”
Todd Wathen said that they are “thrilled by the decision,” because “it was so hurtful to be turned away in this fashion when planning our civil union ceremony. Our hope is that as a result of this decision no other couple will be discriminated against by a facility, florist, baker or other business just because of who they are.”
Timber Creek offered two defenses for its discrimination. First, it alleged that the Wathens had never actually put in a request to use the facility, having only asked if it would be hosting civil unions when they became legal. Robinson was unmoved by this argument, noting that Timber Creek’s actions triggered a “futile gesture” violation. Given the owners’ response that they would “never” host such a ceremony, they had established a “known and consistently enforced discriminatory policy” that “renders it futile for an aggrieved party to apply.”
The Walders also claimed a violation under Illinois’ Religious Freedom Restoration Act (RFRA), which prohibits the government from burdening an individual’s religious beliefs. Robinson was skeptical that such a claim had any merit because the law only applies to a government action, whereas this was a case between two private parties.
Still, he noted that Timber Creek had not established a violation of RFRA because “it failed to factually support any claim that forcing it to host same-sex civil union ceremonies would cause a substantial burden on its exercise of religion.” The Walders claimed that hosting the ceremony would “glorify and endorse homosexual conduct and same-sex relationships in violation of Biblical teachings condemning such conduct and relationships,” but they could not explain exactly how that would be the case “if all they would be doing is supplying the tables, chairs, tablecloths, rental space, tents, electricity, garbage removal, and free parking in order to accommodate such a ceremony.”
Given the “complete autonomy” couples supposedly have over vendors, “it is not all that clear that the Walders or any of their like-minded employees would be required to even be present at such a ceremony.” The claim also does not square with the fact that they admitted that they will, in fact, rent a room to two individuals of the same sex, because they do not act as “sex police” over guests. In both cases, Robinson wrote, all that Timber Creek is required to do “is to provide a space for its same-sex guests to conduct an activity.”
The parties will meet later this month to discuss what damages should be awarded. Timber Creek could appeal, which would bump the case up to state court, where they could attempt a more significant challenge to the Human Rights Act under RFRA.