3-12-14 Memorandum to Commission Opposing Ord. No. 95-14M E M O R A N D U M
TO: Atlantic Beach City Commission
FROM: Roger K. Gannam, Esq.1
RE: Summary and Legal Analysis in Opposition to
Atlantic Beach Proposed Ordinance No. 95-14
DATE: March 12, 2014
______________________________________________________________________________
Introduction
“Sexual orientation” and “gender identity” nondiscrimination laws are troublesome legal
measures that—among other things—threaten religious liberty, impose hard-to-determine
obligations on private organizations, expose private entities to unnecessary legal liability, and
lead directly to forced governmental recognition of same-sex relationships. As a result,
concerned legislators and citizens should oppose every attempt to enact these laws.
Atlantic Beach’s proposed Ordinance No. 95-14 (“Ordinance 95-14”) is exactly this kind
of bad law. The Ordinance creates new nondiscrimination law based on “sexual orientation” and
“gender identity or expression,” labeling as “discrimination” decisions based on these new,
infinitely subjective categories. Ordinance 95-14 is probably the most radical and open-ended
ordinance ever to be thrust upon the City of Atlantic Beach by organized outside forces.
As illustrated in the Real Stories section below, which is followed by a detailed Legal
Analysis, Atlantic Beach citizens and City Commissioners should be alarmed by Ordinance
95-14 for the following reasons:
• Ordinance 95-14 will cause more discrimination than it prevents.
o Discrimination on basis of race, color, religion, sex, national origin, disability, age
or marital status is already illegal under state and federal law covering every
resident of Atlantic Beach. Only “sexual orientation” and “gender identity or
expression” are added by 95-14.
o The constitutional freedoms of speech, religion, and conscience of law-abiding
business owners and other individuals will be trampled by the Ordinance.
o There is no evidence of a discrimination problem justifying the burdening of
citizens’ religious and moral convictions with this kind of heavy-handed law.
1 Roger K. Gannam, Esq. is a partner in the Jacksonville, Florida law firm Lindell & Farson, P.A. In addition to
his business law practice, Mr. Gannam represents individuals and organizations in religious liberty matters, and
advises public bodies and officials on free speech, religious liberty, and other constitutional matters. See attached
professional biography.
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o Business owners will be required to police and silence the free speech of
employees and customers to avoid being sued.
• Ordinance 95-14 does more harm to businesses and business owners than it helps.
o Business owners will be subjected to more lawsuits and increasing government
intrusion into their business decisions, with no exception for small businesses.
o Businesses and non-profits alike will incur burdensome legal expenses to attempt
compliance with undefinable standards, and to accommodate atypical and
constantly shifting modes of “expression” and “behavior.”
o The Ordinance grants any person who claims discrimination based on sexual
orientation or gender identity or expression—no matter how slight—the new right
to immediately sue an employer or business, and even an individual citizen.
• Ordinance 95-14 will assault the modesty of individuals and families.
o The Ordinance reaches to any nursery or preschool, including possibly religious
nurseries and preschools that most citizens would expect to be exempt.
o Affected businesses and institutions are powerless to enforce reasonable dress
codes requiring professional attire if an employee or customer claims that
immodest or revealing attire is a matter of their “gender identity or expression.”
o Almost all private businesses and organizations are subjugated to this law, and
will be forced to accept in their facilities every unusual or offensive behavior
presented as “gender identity or expression.”
Real Stories
“Sexual orientation” and “gender identity” nondiscrimination laws like Ordinance 95-14
are increasingly wielded to unjustifiably burden the freedom of speech, religion, and conscience
that should rightly be enjoyed by all Americans. Stories of the real harms suffered by law-
abiding citizens illustrate the menace that modern nondiscrimination laws pose to freedom and
liberty.
Jonathan and Elaine Huguenin – Elane Photography
Elane Photography v. Willock 2
In New Mexico, Elaine and Jonathan Huguenin operate a company called Elane
Photography, which specializes in wedding photography. Elaine, an artist with a degree in
photography, is the lead photographer for the company, and she employs a photojournalistic
style in her work, using her pictures to tell stories for her clients.
2 New Mexico Supreme Court Decision: http://www.adfmedia.org/files/ElanePhotoNMSCopinion.pdf; Petition
for Certiorari: http://www.adfmedia.org/files/ElanePhotoCertPetition.pdf; Resource Page:
http://www.adfmedia.org/News/PRDetail/5537.
2
In going about their work, both Elaine and Jonathan are ever-mindful about the messages
communicated through the photographs Elaine creates. Company policy ensures that they will
never tell a story or convey a message contrary to their belief system. As believing Christians,
Elaine and Jonathan believe the Bible’s teaching that marriage is the union of one man and one
woman.
In September 2006, Vanessa Willock asked Elaine to create pictures of her same-sex
commitment ceremony. Elaine believed that the pictures she would create at the event would tell
a story of marriage at odds with her religious convictions and what she believes to be God’s plan
for marriage. As a result, she politely declined.
Ms. Willock readily found another photographer eager to help her celebrate her day, and
that photographer charged less money than Elaine does to tell the story of the ceremony. But,
unfortunately, this was not enough for Ms. Willock. Unwilling that the Huguenins be free to
conduct themselves consistently with their religious beliefs, Ms. Willock sued the company
under the New Mexico Human Rights Act, alleging unlawful discrimination on the basis of
sexual orientation.
Interestingly, Elaine would have gladly provided other types of photography services to a
customer who identified as homosexual. For instance, she would have happily taken a portrait of
such a customer, or filmed a graduation ceremony. But what Ms. Willock and her partner wanted
Elaine to do was to participate in, and promote, their homosexual marriage. She was being asked
to video-record the entire ceremony and edit and splice it together to tell the ‘love story’ of their
wedding. She would have to pose the couple intimately, gazing romantically and lovingly into
one another’s eyes, while holding hands and kissing. She would have to create the memory of
their wedding, portraying it as a joyous event, when Elaine believed it was sinful and saddened
God. She was not being asked to merely take a photograph of a person who identifies as
homosexual, something she gladly would have done. She was being asked to participate in, and
use her talents to create speech that actually promoted, something that she believed was sinful.
This was far different than, say, serving someone at a lunch counter. And so Elaine declined to
participate. Elaine said “no.”
The New Mexico Human Rights Commission used the Act to punish Elaine and Jonathan
for declining to photograph Ms. Willock’s ceremony, and ordered them to pay nearly $7,000 in
attorneys’ fees to Ms. Willock’s attorney. The New Mexico Supreme Court upheld the decision,
ruling that the Huguenin’s religious rights, guaranteed by the Constitution, must yield to the
state’s antidiscrimination law. One of the judges wrote that, while he understood that all the
Huguenins wanted was to be let alone to live their lives according to their faith, they must
surrender their right to freely exercise their religion as “the price of citizenship.”
Attorneys with Alliance Defending Freedom have asked the U.S. Supreme Court to
review the case.
The human toll this struggle continues to take on the Huguenins is real and palpable,
resulting in, among other things, hateful phone calls, personal threats against them (such as a
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threat to burn down their house with them and their family still in it), and years of litigation angst
that (upon every thought of the case) leaves Elaine’s stomach in knots. And but for the pro-bono
services of Alliance Defending Freedom, a benefit not available to all business owners, the
financial costs of defending themselves in court for more than six years would have been
catastrophic to the Huguenins, both personally and professionally.
Even if Elaine and Jonathan eventually prevail in this case, it is tragic and regrettable that
the imperatives of the nondiscrimination regime have forced them to spend almost a quarter of
their young lives—all while trying to make a living and raise a family—to vindicate rights that
were given pride of place in our nation’s founding and still-governing documents. And yet the
courts ruled against them, ruling that their rights to act according to their faith and be faithful to
their understanding of what God wants them to do are not as important as the state
antidiscrimination law.
Jim and Mary O’Reilly – The Wildflower Inn
Katherine Baker and Ming-Lien Linsley, and
Vermont Human Rights Commission v. Wildflower Inn 3
In the bucolic Vermont countryside, Jim and Mary O’Reilly operate the Wildflower Inn,
a family owned bed-and-breakfast. For many years operating in a State that legally recognizes
same-sex unions, the O’Reillys, a committed Catholic family, had an established business
practice when approached by anyone asking the inn to host an event celebrating a same-sex
marriage or civil union. When presented with such a request, Jim would honestly disclose his
deeply held religious conviction that marriage is the union of one man and one woman, while
nevertheless maintaining that the inn will host ceremonies or receptions for same-sex unions
because that is what the State’s nondiscrimination law requires. Jim would disclose this
information about his religious convictions because he felt compelled to be honest with potential
customers. This practice was approved by the Vermont Human Rights Commission in 2005,
which concluded that there were “no reasonable grounds to believe that Wildflower illegally
discriminated” merely by Jim’s communicating his beliefs to a potential customer who inquired
about celebrating a civil union on the property.
In 2011 the ACLU teamed up with the Human Rights Commission, the same entity that
had blessed the O’Reillys’ conduct just six years before, in a lawsuit against Wildflower. The
lawsuit began when a former Wildflower employee falsely claimed that the inn would not allow
a same-sex wedding reception. But the ACLU and the government did not merely challenge
Wildflower’s alleged unwillingness to host a same-sex reception; they directly attacked the
O’Reillys’ approved practice of honestly disclosing their religious beliefs about marriage to
potential customers.
The O’Reillys’ expression of their religious beliefs came at great cost. The real-world
implications of a protracted legal battle with the government and the ACLU (and the prospect of
paying the government’s and the ACLU’s attorneys’ fees) threatened to bankrupt the O’Reillys
and shutter the business they had worked so hard to build. Although the Commission agreed that
the O’Reillys acted in good-faith reliance on its 2005 ruling, the government and the ACLU
3 Media page: http://www.adfmedia.org/News/PRDetail/7601.
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demanded that the O’Reillys pay $10,000 to the Commission as a civil penalty and $20,000 to a
charitable trust set up by the ACLU’s clients. Forced with the prospect of potentially losing their
business, the O’Reillys relented and agreed to these terms in August 2012.
This case was not about access to services—the ACLU’s clients were easily able to find a
venue for their reception, and the Wildflower’s business practice did not deny services to
anyone, but merely disclosed the O’Reillys’ relevant religious convictions. What the government
and the ACLU really objected to was the O’Reillys’ mere mention of their views about
marriage—views that conflict with the prevailing political orthodoxy in Vermont. For this, the
government and ACLU insisted that the O’Reillys be punished. This case demonstrates the threat
that nondiscrimination laws present to religious freedom—that those who disagree with the
government’s views about issues implicating a statutorily protected classification must pay
dearly for the exercise of their constitutional rights.
Blaine Adamson and Hands On Originals
Baker, for Gay and Lesbian Services Organization v. Hands On Originals 4
Blaine Adamson is the managing owner of Hands On Originals, a printing company in
Lexington, Kentucky that specializes in producing promotional materials. Blaine is a believing,
practicing Christians who strives to live consistently with Biblical commands. He believes that
God commands obedience in all areas of his life, and he does not distinguish between conduct in
his personal life and his actions as a business owner. As a result, he strives to avoid using his
company to design, print, or produce materials that convey messages or promote events or
organizations that conflict with his sincerely held religious convictions.
Hands On Originals has served customers that Blaine knew identified as homosexual, and
it has employed (and currently employees) persons who identify as homosexual. But Blaine does
not want to produce printed materials that promote homosexual behavior. Doing so conflicts with
his sincerely held religious beliefs about sex and sexuality.
In March 2012, the Gay and Lesbian Services Organization (“GLSO”), an advocacy
organization that promotes same-sex relationships and homosexual conduct, asked Blaine and his
company to print promotional shirts for the Lexington Pride Festival, which, like GLSO,
celebrates same-sex relationships and homosexual conduct. Blaine politely declined the request
because he knew that the content of those shirts and the event that they would promote would
communicate messages clearly at odds with his religious beliefs.
Blaine nevertheless did offer to connect GLSO with another company that would print
the shirts for the same price that Hands On Originals would have charged. Yet this courtesy was
not enough for the GLSO and its members. They believed that Blaine and his business should be
punished for his objection to their messages. As a result, the GLSO filed a discrimination
4 Complaint alleging discrimination: http://www.adfmedia.org/files/HOOcomplaint.pdf; Response of Hands On
Originals: http://www.adfmedia.org/files/HOOresponse.pdf; Determination of Probable Cause:
http://www.adfmedia.org/files/HOOdetermination.pdf; resource page:
http://www.adfmedia.org/News/PRDetail/5454.
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complaint with the Lexington-Fayette Urban County Human Rights Commission, alleging that
Hands On Originals unlawfully discriminated on the basis of sexual orientation.
As with the previously discussed cases, this discrimination complaint has nothing to do
with ensuring access to services. GLSO could get its shirts printed, but still decided to persecute
Hands On Originals for disagreeing with its message. Indeed, soon after filing its
nondiscrimination complaint, GLSO filled its shirt order with little trouble when another
company offered to print the shirts for free. Nevertheless GLSO continues—to this day—to
press its claim against Blaine and his company by not dismissing its complaint.
To add injury to insult, upon filing its discrimination complaint, GLSO and its allies
began a public campaign against Hands On Originals in the community, which included, among
other things, a page on the group’s website and a “Boycott Hands On Originals” Facebook page.
As a result of the public pressure created by GLSO, some of Hands On Originals’ large
customers—such as the University of Kentucky, the Fayette County Public School System, and
the Kentucky Blood Center—have publicly stated that they are placing a hold on further business
with Blaine and his company, resulting in a significant loss of business for Hands On Originals.
This unfortunate and unwarranted development has jeopardized the livelihood of Blaine’s many
employees and the future of his company.
In November 2012, the Commission found probable cause to believe that Hands On
Originals violated the local nondiscrimination ordinance. By simply striving to conduct himself
consistently with his faith, Blaine now faces a legal struggle that threatens to approximate in time
and pain the one already endured by the Huguenins in New Mexico. The travails of Hands On
Originals illustrates that living in accordance with one’s religious belief is an increasingly
expensive right to exercise in these times.
The Ocean Grove Camp Meeting Association
Bernstein v. Ocean Grove Camp Meeting Association 5
The Ocean Grove Camp Meeting Association was founded in 1869 by a small band of
Methodist clergymen on the New Jersey shore. It is a religious association that provides a venue
for religious services, including Sunday services, Bible studies, camp meetings, revival
gatherings, gospel music programs, religious educational seminars, and other religious events.
Upon its incorporation, the Association pledged that it would use its facilities for God’s glory
and would abstain from using them in any way “inconsistent with the doctrines, discipline, or
usages of the Methodist Episcopal Church.”
As part of its outreach programs to the community, the Association makes regular use of
its privately owned, open-air Boardwalk Pavilion overlooking the Atlantic Ocean. Each day
throughout the summer, the Association hosts overtly and exclusively religious events in the
Boardwalk Pavilion, events ranging from Bible studies to worship services and revival meetings.
All events held in the Boardwalk Pavilion are consistent with the religious beliefs and doctrines
of the Association.
5 Media page: http://www.adfmedia.org/News/PRDetail/7717.
6
In 1997, the Association began operating a wedding ministry in many of its private places
of worship, including the Boardwalk Pavilion. Because this ministry was a means of Christian
outreach to the community, the Association permitted members of the public to have their
weddings in the Boardwalk Pavilion.
In March 2007, Harriet Bernstein asked the Association if she could use the Pavilion for a
civil-union ceremony with her same-sex partner, Luisa Paster. The Association sincerely
believes, based on its interpretation of the Holy Bible and its reading of the Methodist Book of
Discipline, that marriage is the uniting of one man and one woman. The Association also
believes that homosexual behavior is incompatible with Christian teaching, and thus it does not
condone that practice. Naturally, then, the Association denied the couple’s request because the
proposed use of the facility violated the Association’s sincerely held religious beliefs.
In June 2007, the couple filed a discrimination complaint with the New Jersey Division
on Civil Rights, alleging that the Association’s denial of their request amounted to unlawful
discrimination under the New Jersey Law Against Discrimination. As is all too common, the
Division agreed, concluding in October 2012 that the Association had violated the State’s
nondiscrimination law, despite the fact that the Pavilion was a place of religious worship used by
a religious organization.
The complaining couple neither suffered nor sought any monetary damages. Nor were
they left without a suitable venue for their event, as evidenced by the fact that they held their
civil-union ceremony on September 30, 2007, on a fishing pier in Ocean Grove. This case, then,
like the others discussed, was not about a lack of access to services or facilities.
Instead, the couple filed their complaint to compel a religious organization to act in a
manner that would violate core tenets of its religious faith. Regrettably, the government
permitted the couple to use the nondiscrimination laws to prevent the Association from operating
its programs and activities consonant with its religious faith.
Don and Phyllis Young – Aloha Bed & Breakfast
Cervelli v. Aloha Bed & Breakfast 6
Phyllis Young is a Christian with sincerely held religious beliefs, which are shaped by
both the Bible and her Church’s teaching. She resides with her husband in their family home in
Honolulu, HI. It has 1,926 square feet and 10 ½ rooms—4 bedrooms, 2 ½ bathrooms, a family
room, dining room, living room, and kitchen. The Youngs have owned this house for 35 years. It
is their family home, where they raised their children and are visited by their grandchildren.
Phyllis sometimes rents a room, or two or three, of her family home, where she resides.
Because of her sincerely held religious beliefs, she does not allow unmarried opposite-sex
couples or same-sex couples to rent a room with a single bed together. Phyllis believes that
sexual intercourse is only proper in opposite-sex marriage, and so it is immoral for opposite-sex,
unmarried couples or same-sex couples to engage in sexual behavior. She would not even allow
her adult daughter to share a room with her live-in boyfriend when they visited. This might seem
6 Media page: http://www.alliancealert.org/tag/zz-cervelli-v-aloha-bed-breakfast/.
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old-fashioned to some. But Phyllis believes what the Bible and the Catholic Church teach about
sexual morality.
Phyllis calls her rental business “Aloha Bed & Breakfast.” But Aloha has no checking
account. All payments for rooms in Aloha are made payable to Phyllis. Unlike hotels, Aloha has
no employees. There is no clerk, or office into which members of the public enter. In fact, people
may not enter Phyllis’s home without her permission. She generally keeps her door locked, just
like other homeowners. No one has ever even knocked on her door and asked to stay in Aloha.
“Aloha” is not even listed in the phone book. The residence’s listing is under the name of Don
and Phyllis Young. When someone phones, Mrs. Young answers with some variation of, “Hello,
this is Phyllis.”
At any given time, Mrs. Young will rent between one and three rooms in her home. She
gives her guests a key that opens all doors to her home. Guests use Mrs. Young’s personal
washing machine and dryer. She, her husband, and her guests all share the living space of the
house, including the family room, bathrooms and kitchen. The Youngs and their guests “rub
shoulders” in the house. For instance, sometimes they find themselves relaxing in the family
room at the same time. Mrs. Young stores some of her personal belongings in the closet of each
room she rents to her guests. She also allows guests to use her personal computer, located in her
own bedroom. Because of the intimate living arrangements Mrs. Young shares with her guests,
she is selective in determining who she will welcome into her home. And she will not allow
couples to stay in Aloha if allowing them to do so would violate her sincerely held religious
convictions.
Diane Cervelli and Taeko Bufford, a couple who identify as “lesbian,” asked to rent a
room with a single bed in Mrs. Young’s home. Mrs. Young declined because allowing a same-
sex couple to share a room with only one bed in her home violates her sincerely held religious
beliefs. Ms. Cervellie and Ms. Bufford complained to the Civil Rights Commission, which found
probable cause that Mrs. Young had violated the state nondiscrimination law, which prohibits
discrimination on the basis of sexual orientation.
Mrs. Young’s attorneys, which includes attorneys from Alliance Defending Freedom,
appealed that decision to the state trial court. On April 15, 2013, the trial court judge found that
Mrs. Young had engaged in unlawful discrimination when she declined to rent a room—in her
own home!—to a same-sex couple. The case has been appealed to the Hawaii intermediate Court
of Appeals.
The trial court’s ill-considered ruling, if permitted to stand, will prevent Phyllis and
others from choosing the people they rent rooms to in their own homes. If Phyllis does not have
this freedom, she will be forced to stop renting her property. This will likely prevent Phyllis and
her husband from meeting their monthly mortgage obligations, thus forcing them to give up the
home in which they raised their children.
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Julea Ward
Ward v. Wilbanks 7
Julea Ward was enrolled as a student in a graduate counseling program at Eastern
Michigan University (“EMU”). As part of a practicum course, Julea was assigned a potential
client seeking assistance for a same-sex relationship. Julea knew that she could not affirm the
client’s relationship without violating her religious beliefs about extramarital sexual
relationships, so she asked her supervisor how to handle the matter. Consistent with ethical and
professional standards regarding counselor referrals, Julea’s supervisor advised her to refer the
potential client to a different counselor. Julea followed that advice. The client was not in the least
negatively impacted, and indeed never knew of the referral.
Shortly thereafter EMU informed Julea that her referral of the potential client violated the
American Psychological Association’s nondiscrimination policy, which mirrors many
nondiscrimination laws enacted across the country. EMU also told Julea that the only way she
could stay in the counseling program would be if she agreed to undergo a “remediation”
program, the purpose of which was to help her “see the error of her ways” and change her “belief
system” as it related to providing counseling for same-sex relationships. Julea was unwilling to
violate or change her religious beliefs as a condition of getting her degree, and therefore she
refused “remediation.”
At a subsequent disciplinary hearing, EMU faculty denigrated Julea’s Christian views
and asked several uncomfortably intrusive questions about her religious beliefs. Among other
things, one EMU faculty member asked Julea whether she viewed her “brand” of Christianity as
superior to that of other Christians, and another engaged Julea in a “theological bout” designed to
show her the error of her religious thinking. Following this hearing, in March 2009, EMU
formally expelled Julea from the program, basing its decision on the APA’s nondiscrimination
policy. At that time, Julea had been enrolled in the counseling program for three years and was
only 13 quarter hours away from graduation.
Julea filed suit against EMU officials. After the trial court dismissed her claims, Julea
won a unanimous victory from the Sixth Circuit Court of Appeals. When ruling in Julea’s favor,
that court noted that “[t]olerance is a two-way street,” for if it were otherwise, nondiscrimination
measures would “mandate[] orthodoxy, not anti-discrimination.”8
The abuse of religious liberty in the name of “tolerance” that the Sixth Circuit diagnosed
is the same abuse our clients regularly suffer, all over this country, and it is visited upon them by
the very nondiscrimination laws that, ironically enough, purport to protect the religious from
discrimination.
* * * * * * * * *
7 Sixth Circuit opinion: http://www.adfmedia.org/files/WardAppellateDecision.pdf; media page:
http://www.adfmedia.org/News/PRDetail/141. 8 Ward v. Polite, 667 F.3d 727, 735 (6th Cir. 2012).
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As the foregoing examples demonstrate, and as the following Legal Analysis will further
show, nondiscrimination laws have morphed from their noble and laudable origins of ensuring
access to essential goods and services into intrusively expansive measures of political imposition
that stifle the religious liberty and other constitutional rights of business owners, professionals,
religious entities and associations, educational institutions, membership organizations, students
and teachers, community groups, employers, employees and countless ordinary Americans.
Because recently codified protected classifications such as “sexual orientation” and “gender
identity” implicate significant moral issues for people of faith, nondiscrimination laws are among
the most significant threats to religious adherents’ rights to freely exercise their faith.
Regrettably, as many of the previously discussed cases illustrate, courts have been all too
unwilling to protect the faithful, and all too eager to placate those who have acquired a newly
protected status. As a result, religious adherents in the public square become endangered species
in a nation whose first freedom is religious liberty.
Legal Analysis
I. Supreme Court precedent shows that many applications of nondiscrimination laws
violate the First Amendment rights of organizations and individuals.
The United States Supreme Court has repeatedly recognized that certain applications of
nondiscrimination laws directly infringe on cherished First Amendment freedoms, such as
freedom of speech and association. In one case, for example, the Massachusetts Supreme
Judicial Court ruled that private individuals—the organizers of the St. Patrick’s Day Parade in
Boston—violated the prohibition against sexual orientation discrimination when they refused to
allow a group advocating homosexual behavior to interject its message into the parade.9 On
appeal, the United States Supreme Court overruled that decision, declaring that the state court’s
application of the sexual orientation nondiscrimination law violated the constitutional free-
speech rights of the parade organizers by compelling them to communicate an unwanted
message in favor of homosexual behavior.10
In another case, the New Jersey Supreme Court ruled that a private organization, the Boy
Scouts of America, violated the State’s sexual orientation nondiscrimination law when it denied
a scout-leader position to an outspoken homosexual.11 Yet the United States Supreme Court
disagreed, ruling that New Jersey’s application of its sexual orientation nondiscrimination law
infringed the constitutional free-association rights of the Boy Scouts to join together with those
individuals who believe in, and seek to promote, the organization’s core values.12 These cases
tangibly demonstrate the constitutional concerns that are needlessly created by unnecessarily
expansive nondiscrimination laws.
The United States Supreme Court is not alone in acknowledging the constitutional
violations that often result from modern nondiscrimination laws. Many legal scholars have noted
that the expansion of nondiscrimination laws has emerged as a “serious threat” to constitutional
9 Irish-Am. Gay, Lesbian and Bisexual Grp. of Boston v. City of Boston, 636 N.E.2d 1293 (Mass. 1994). 10 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995). 11 Dale v. Boy Scouts of Am., 734 A.2d 1196 (N.J. 1999).
12 Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
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rights and our nation’s timeless civil liberties.13 What is more, the danger of these laws is not
simply the denial of constitutional freedoms promised to all; the threat includes the chilling
effect that these laws inflict on citizens who are unaware of their constitutional rights, unsure of
the extent of their constitutional rights, or unwilling to endure the hardships and costs associated
with vindicating those constitutional rights in courts. As one legal analyst has acknowledged:
“[T]he fear of litigation [under these nondiscrimination laws]—fear not only of actually losing a
lawsuit, but also fear of being vindicated only after a protracted, expensive legal battle—is
having a profound chilling effect on the exercise of [constitutional] liberties in workplaces,
universities, membership organizations, and churches throughout the United States.”14
II. Nondiscrimination laws have had a widespread and pernicious impact on the
religious liberty of individuals and organizations.
The direct conflict between sexual orientation nondiscrimination laws and religious
liberty is plain to see.15 On the one hand, most of the major religions in our nation—such as
Christianity, Judaism, Mormonism, and Islam—hold certain precepts and convictions about
sexual behavior, including the official belief that homosexual conduct is immoral.16 On the other
hand, these nondiscrimination laws prohibit any religious person who holds these beliefs about
homosexual behavior from acting upon their moral convictions. It is no wonder, then, that when
these two hands meet, a power struggle ensues, and, troublingly, when the force of law is behind
the sexual orientation nondiscrimination side of the struggle, religious liberty is pummeled under
its weight. Yet in light of our nation’s overriding and enduring commitment to religious liberty,
concerned citizens should reject an outcome that subverts religious freedom and thus oppose
these laws.
13 David E. Bernstein, You Can’t Say That!: The Growing Threat to Civil Liberties from Antidiscrimination
Laws 8 (Cato Inst. 2003); see also Eugene Volokh, Same-Sex Marriage and Slippery Slopes, 33 Hofstra L. Rev.
1155, 1200 (2005) (“[T]he broadening of antidiscrimination law . . . creates substantial . . . costs to private actors’
freedom from government restraint”). 14 David E. Bernstein, You Can’t Say That!: The Growing Threat to Civil Liberties from Antidiscrimination
Laws 8 (Cato Inst. 2003); see also Eugene Volokh, Same-Sex Marriage and Slippery Slopes, 33 Hofstra L. Rev.
1155, 1200 (2005) (“[T]he broadening of antidiscrimination law . . . creates substantial . . . litigation avoidance
costs[] and costs to private actors’ freedom from government restraint”).
15 Michael W. McConnell, The Problem of Singling Out Religion, 50 DePaul L. Rev. 1, 43-44 (2000) (noting
that legal issues involving sexual orientation “feature a seemingly irreconcilable clash between those who believe
that homosexual conduct is immoral and those who believe that it is a natural and morally unobjectionable
manifestation of human sexuality”). 16 Joseph Card. Ratzinger, Considerations Regarding Proposals to Give Legal Recognition to Unions between
Homosexual Persons, Congregation for the Doctrine of the Faith, June 3, 2003, available at
http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20030731_homosexual-
unions_en.html (last visited Jan. 14, 2010) (“Sacred Scripture condemns homosexual acts as a serious depravity . . .
(cf. Rom 1:24-27; 1 Cor 6:10; 1 Tim 1:10). This judgment of Scripture . . . does attest to the fact that homosexual
acts are intrinsically disordered.”) (internal quotation marks omitted); The Book of Discipline of the United
Methodist Church ¶161(G) (2004) (“The United Methodist Church does not condone the practice of homosexuality
and consider[s] this practice incompatible with Christian teaching.”).
11
A. Religious liberty and freedom of conscience are paramount in our nation’s
history and the legal regime designed by our Founders.
Our nation’s legal traditions—including the Constitution itself—affirm the importance
and preeminence of religious liberty.17 James Madison, the drafter of the Bill of Rights,
recognized that the duty to follow the dictates of one’s conscience concerning religion is
“precedent, both in order of time and in degree of obligation, to the claims of Civil Society” and
civil law.18 Madison thus stated: “Religion . . . must be left to the conviction and conscience of
every man; and it is the right of every man to exercise it as these may dictate. This right is in its
nature an unalienable right.”19 Put differently by Joseph Story, one of our nation’s earliest and
most prominent Supreme Court justices: “The rights of conscience are . . . beyond the just reach
of any human power. They . . . [must] not be encroached upon by human authority” such as civil
law.20
Realizing the value and significance of religious liberty, our nation’s Founders included
robust protection for the free exercise of religion in the Bill of Rights.21 By doing so, they
confirmed that religious liberty was a “fundamental maxim[] of free Government,” which should
(and eventually would) “become incorporated with the national sentiment.”22 And by selecting
the phrase “free exercise” of religion for inclusion in the Constitution, the Founders showed that
religious freedom does not only include a religious adherent’s right to hold his or her beliefs or
opinions; it also guards his or her religiously motivated conduct against government punishment
or coercion.23
This is essential because, as constitutional scholar Alan Brownstein has argued, “religion
is one of the most self-defining and transformative decisions of human existence . . . [and] . . .
[a]lmost any other individual decision pales in comparison to the serious commitment to
religious faith.”24 Government officials should therefore refrain from burdening their
17 See Douglas Laycock, Religious Liberty As Liberty, 7 J. Contemp. Legal Issues 313, 314, 322, 337, 347
(1996) (“Secular intellectuals skeptical of religious liberty may argue that other strong personal commitments should
have been protected as well. But they were not, for the sufficient reason that other strong personal commitments had
not produced the same history. The protected liberty is religious liberty, and although the word ‘religion’ must be
construed in light of continuing developments in beliefs about religion, we cannot rewrite the Constitution to say
that religious liberty should not receive special protection . . .”).
18 James Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in The Sacred
Rights of Conscience 309, 309 (Dreisback & Hall eds., 2009).
19 James Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in The Sacred
Rights of Conscience 309, 309 (Dreisback & Hall eds., 2009); see also Va. Const. art. 1, § 16 (“[R]eligion
. . . can be dictated only by reason and conviction, not by force or violence; and therefore, all men are equally
entitled to the free exercise of religion, according to the dictates of conscience[.]”). 20 Joseph Story, Commentaries on the Constitution of the United States § 1870 (1833). 21 U.S. Const. amend. I.
22 Letter from James Madison to Thomas Jefferson (Oct 17, 1788), reprinted in The Sacred Rights of
Conscience 413, 414 (Dreisback & Hall eds., 2009).
23 Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv.
L. Rev. 1409, 1488-90 (May 1990). “As defined by dictionaries at the time of the framing, the word ‘exercise’
strongly connoted action.” Id. at 1489.
24 Alan E. Brownstein, The Right Not to Be John Garvey, 83 Cornell L. Rev. 767, 807 (1998); see also John H.
Garvey, An Anti-Liberal Argument for Religious Freedom, 7 J. Contemp. Legal Issues 275, 275, 278, 286-87 (1996)
(“[W]e protect freedom of religion as a constitutional right . . . because religion is important. . . . The bill of rights
12
constituents’ religious exercise, an inviolable and intensely personal right, through the passage
and application of nondiscrimination laws.
As a matter of political theory, such officials lack legitimate authority to enact laws
intruding upon this inalienable right. Iindeed, James Madison declared that politicians “who are
guilty” of encroaching on religious liberty “exceed the commission from which they derive their
authority.”25 Public officials, moreover, should respect religious liberty for pragmatic reasons
too: as George Washington stated, the “[p]olitician, equally with the pious man[,] ought to
respect and cherish” religion (and the free exercise thereof) because it is an “indispensable
support[]” that “lead[s] to political prosperity.”26
Society, therefore, should be wary of any measures, nondiscrimination laws being a
prime example, that by design or application threaten principles of religious liberty.
B. Nondiscrimination laws are a demonstrated threat to religious liberty.
These laws threaten to inflict widespread and pervasive harm on religious liberty,
affecting—among others— business owners, professionals, religious entities, educational
institutions, membership organizations, community groups, employers, and employees. This
threat to religious freedom is no mere speculation. To the contrary, the subversion of religion has
been amply demonstrated throughout recent history.
1. Religious liberty for business owners, service providers, and helping
professionals.
Nondiscrimination laws infringe the religious freedom of many business owners,27
including companies that engage in expression or are involved with event services. These
protects the free exercise of religion. It says nothing about free love, free trade, or excise taxes on tobacco. . . . Of
course the government often causes great harm to unbelievers as well. A religious pacifist fears for his salvation
when he is drafted, but the average Marine also suffers at the thought of leaving his family and going into combat.
From a religious point of view, though, the cases are not comparable. The harm threatening the believer is more
serious (loss of heavenly comforts, not domestic ones) and more lasting (eternal, not temporary). That is what
justifies restricting this special kind of freedom to religious claimants alone.”); Laycock, Religious Liberty As
Liberty, supra, at 317 (“[B]eliefs about religion are often of extraordinary importance to the individual—important
enough to die for, to suffer for, to rebel for, to emigrate for, to fight to control the government for. This is why
governmental efforts to impose religious uniformity had been such bloody failures.”).
25 James Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in The Sacred
Rights of Conscience 309, 309 (Dreisback & Hall eds., 2009).
26 George Washington’s Farewell Address (Sept. 19, 1796), reprinted in The Sacred Rights of Conscience 468,
468 (Dreisback & Hall eds., 2009). 27 People of faith who operate for-profit businesses are religious actors entitled to legal protection. See generally
Mark L. Rienzi, God and the Profits: Is There Religious Liberty for Money-Makers?, 21 Geo. Mason L. Rev.
(forthcoming fall 2013), available at Social Science Research Network http://papers.ssrn.com/sol3/Delivery.
cfm/SSRN_ID2244611_code290226.pdf?abstractid=2229632&mirid=1 (last visited April 18, 2013) (“Denying
religious liberty rights in the profit-making context requires treating religion as a special and disfavored activity at
every turn. Businesses would have to be deemed able to act on subjective motivations about ethics, the environment
and other non-financial beliefs, but unable to act on beliefs about religion. . . . There is no principled or permissible
reason to treat religious exercise in this specially disfavored manner. Doing so turns religious liberty law on its head,
singling out religious exercise for special burdens rather than special protections. The government has no such
13
businesses include—to name but a few—publishers, printers, marketers, publicists, newspapers,
photographers, musicians, authors, event-venue rentals, bed-and-breakfast establishments,
banquet halls, florists, and bakeries. If these business owners, compelled by their religious
beliefs, decline to express a message (or decline to contribute their services or property to an
event that expresses a message) that violates their convictions, they face lawsuits under
prevailing nondiscrimination laws—to wit:
• As discussed above, a New Mexico state appellate court found that Jonathan and Elaine
Huguenin of Elane Photography engaged in sexual-orientation discrimination when they
refused for religious reasons to photograph a same-sex couple’s commitment ceremony,
and the court upheld an order requiring the company to pay nearly $7,000 to the same-sex
couple.28
• As discussed above, the ACLU and the Vermont Human Rights Commission challenged
Jim and Mary O’Reillys’ practice of disclosing their religious beliefs about marriage to
people who asked their bed-and-breakfast to host an event celebrating a same-sex union.
To save their business, the O’Reillys agreed to pay $30,000.29
• An Illinois same-sex couple filed discrimination complaints against two family-owned
bed-and-breakfasts when the owners of those establishments, for religious reasons,
declined to host the couple’s civil-union ceremony.30
In addition to affecting businesses engaged in expression or event services,
nondiscrimination laws also stifle the religious liberty of business owners whose work implicates
family structures or romantic relationships. Some examples of these include:
• Landlords and bed-and-breakfast owners who believe that they would violate their
religious beliefs if they allow unmarried couples to cohabit on their property 31
power to discriminate against acts on the basis of the religious motivation behind those acts.”); Thomas C. Berg,
What Same-Sex-Marriage and Religious-Liberty Claims Have in Common, 5 Nw. J. L. & Soc. Pol'y 206, 217-18
(2010) (“[Religious adherents] cannot live out the all-encompassing commitment of belief simply in private
worship. . . . Nor can committed religious believers easily leave their faith behind when they enter the economic
marketplace. As Eugene Volokh has argued, ‘people spend more of their waking hours [in the workplace] than
anywhere else except (possibly) their homes’; to block religious moral precepts and influences from operating in this
arena ‘ignores the reality of people’s social and political lives.’ I have discussed elsewhere how government must be
careful not to act on the premise, explicit or implicit, that ‘religion should not be part of business affairs.’”);
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1120 (9th Cir. 2009) (finding that a family-owned for-profit corporation
“has standing to assert the free exercise rights of its owners”). 28 Elane Photography, LLC v. Willock, 284 P.3d 428, 433, 445 (N.M. Ct. App. 2012).
29 Ros Krasny, Lesbian brides win settlement from Vermont inn, Reuters.com (Aug. 24, 2012, 9:33AM EDT),
http://www reuters.com/article/2012/08/24/uk-usa-lesbians-vermont-idUSLNE87N00I20120824.
30 Terry Hillig, Men say Alton inn won’t host their civil union ceremony, Stltoday.com (Feb. 23, 2011, 12:15
PM), http://www.stltoday.com/news/local/metro/article 14f7eef0-3f7a-11e0-bb53-0017a4a78c22 html.
31 See State by Cooper v. French, 460 N.W.2d 2 (Minn. 1990) (analyzing a marital-status-discrimination claim
against a landlord who refused to rent to unmarried couples because of a religious conviction against allowing
unmarried cohabitation in the property); Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994) (same);
McCready v. Hoffius, Case Nos. 94-69473-CH, 94-69472-CH, Opinion and Order (Mich. Cir. Ct. Dec. 6, 2000)
(same).
14
• Private adoption-placement agencies whose owners’ religious beliefs dictate their
business practice of placing children only in homes with both a mother and a father 32
• Dating or couples-matching services whose owners’ religious worldview instructs them
only to facilitate opposite-sex relationships 33
• Any business owner that, for religious reasons, offers a “family” membership only to
married couples 34
Nondiscrimination laws, moreover, threaten the religious liberty of individuals in the
helping professions, including doctors, lawyers, counselors, psychologists, and social workers.
Consider the following examples:
• A state court found that physicians whose religious beliefs forbid them from providing an
elective fertility procedure for an unmarried woman in a same-sex relationship violated
the State’s nondiscrimination law.35
• Government officials have declared that licensed counselors and counseling students
engage in sexual-orientation discrimination when their religious convictions prohibit
them from providing counseling that affirms same-sex relationships.36
32 Butler v. Adoption Media, LLC, 486 F. Supp. 2d 1022, 1056-57 (N.D. Cal. 2007) (refusing to dismiss a
sexual-orientation-discrimination claim against the largest online adoption website in the United States because the
website’s owners had a religiously based policy against placing children with unmarried couples); see also Robin
Fretwell Wilson, Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context, in Same-Sex
Marriage and Religious Liberty: Emerging Conflicts 77, 78-79 (Laycock et al. eds., 2008) (“In 2004, Adoption.com,
the largest Internet adoption site in the United States, refused to post the profile of a same-sex couple seeking to
adopt. . . . The couple sued, claiming the refusal violated California’s nondiscrimination law . . . . The parties
subsequently settled the private litigation between them. That settlement required in part that Adoption.com and its
sister organizations[] would not post profiles of California residents . . . . Put to the choice to make its services
available to all or none, Adoption.com chose to leave the California market.”); Robin Fretwell Wilson, A Matter of
Conviction: Moral Clashes Over Same-Sex Adoption, 22 BYU J. Pub. L. 475 (2008) (describing in detail the
Adoption.com case and other clashes between religious liberty and same-sex adoption).
33 Jill Serjeant, eHarmony sued in California for excluding gays, Reuters (May 31, 2007 7:10 PM EDT),
http://www reuters.com/article/idUSN3122132120070531?feedType=RSS&rpc=22 (describing a “lawsuit alleging
discrimination based on sexual orientation” that was filed against the online dating website, eHarmony—a company
founded and owned by an evangelical Christian—because it provided couples-matching services only to “men
seeking women” and “women seeking men”).
34 Professor’s complaint sparks change in YMCA policy definition of family, Drake University News (Aug. 7,
2007), http://192.84.11.21/news/archive/index.php?article=1941 (mentioning the Des Moines Human Rights
Commission’s decision declaring that an athletic club with a religiously based founding engaged in
sexualorientation discrimination by not extending its “family” membership to include cohabiting same-sex couples).
35 N. Coast Women’s Care Med. Grp., Inc. v. San Diego Cnty. Super. Ct., 189 P.3d 959 (Cal. 2008).
36 Ward v. Polite, 667 F.3d 727, 732 (6th Cir. 2012) (ruling against a public university that dismissed a
counseling student because, according to the university, her religious need to refer prospective clients who sought
counseling affirming their same-sex relationships amounted to discrimination based on sexual orientation); Marc D.
Stern, Same-Sex Marriage and the Churches, in Same-Sex Marriage and Religious Liberty: Emerging Conflicts 1,
24 (Laycock et al. eds., 2008) (“How will providers . . . deal with same-sex couples who come for marriage
counseling? . . . Would a refusal [to provide such counseling] violate public accommodation [nondiscrimination]
laws? Probably.”).
15
These business owners and professionals—most of whom operate their businesses or
carry out their professions as an extension of their moral or religious beliefs 37—are faced with an
unjust choice: either violate their religious precepts and retain their livelihood, or adhere to their
convictions and forfeit their right to participate in the marketplace. Given the importance and
centrality of religious faith to these individuals, many of them are unwilling to violate their
conscience, and thus will choose the latter option. But presenting people of faith with a choice
between their convictions and their profession runs directly counter to the First Amendment,
which was adopted to prevent historical violations of religious freedom that mirror those
occurring today with increasing frequency.38
2. Religious liberty for religious organizations and community groups.
The religious liberty threats posed by nondiscrimination laws are not confined to
businesses and professionals, but extend as well to religious and community organizations that
maintain principles about sexual conduct and morality. Such entities include organizations
providing charitable or public-assistance services. Here are some examples:
• These laws have forced charitable adoption organizations to close because they could not
adhere to their religious convictions against intentionally depriving children of a mother
or a father by placing them with a same-sex couple.39
37 Berg, supra, at 227 (“Small businesses that provide personal services tend to be direct embodiments of the
owner’s identity. The small landlord may feel direct responsibility for providing the space for intimate conduct to
which she objects; the wedding photographer may feel direct responsibility for using her artistic skills to present in a
positive light a marriage to which she objects.”).
38 See Douglas Laycock, Afterword to Same-Sex Marriage and Religious Liberty: Emerging Conflicts, supra, at
189, 201 (“The English Test Acts and penal laws long excluded Catholics from a range of occupations, including . . .
solicitors, barristers, notaries, school teachers, and most businesses with more th[a]n two apprentices. These
occupational exclusions are one of the core historic violations of religious liberty, and of course this history was
familiar to the American Founders. In light of this history, it is simply untenable to say . . . that exclusion from an
occupation is not a cognizable burden on religious liberty.”). 39 Colleen Theresa Rutledge, Caught in the Crossfire: How Catholic Charities of Boston was Victim to the
Clash between Gay Rights and Religious Freedom, 15 Duke J. Gender L. & Pol’y 297, 299 (2008) (“Massachusetts
law prohibits discrimination based on sexual orientation . . . . Pursuant to this, Massachusetts Department of Social
Services regulations forbid discrimination based on sexual orientation as a condition of licensing. Catholic Charities
faced a Hobson’s choice: either comply with [the] law and place children with gay couples or lose their license and
end their ministry to needy children. Stated another way, either violate their clear Church doctrine, or ignore their
religious vocation. Either way they must sacrifice a religious commitment.”); Patricia Wen, They Cared for the
Children: Amid Shifting Social Winds, Catholic Charities Prepares to End Its 103 Years of Finding Homes for
Foster Children and Evolving Families, Boston Globe, June 25, 2006, at A1 (explaining how Massachusetts
threatened to revoke the adoption license of Catholic Charities for refusing on religious grounds to place foster
children with same-sex couples); Jonathan Petre, Church pulls out of Catholic agencies over ‘gay equality’ adoption
law, Daily Mail Online (May 24, 2008, 11:03 PM), http://www.dailymail.co.uk/news/article-1021721/church-
pullscatholic-agencies-gay-equality-adoption-law html (recounting how the Catholic Church severed its
connection—and thus its funding—from three of its top adoption agencies, and noting the Church’s statement that
“its agencies cannot remain both Catholic and conform with the Sexual Orientation Regulations”).
16
• These laws can be used to prohibit religiously affiliated homeless shelters or other
charitable housing facilities from, in accordance with their religious tenets, forbidding
same-sex or unmarried couples from sharing a room or bed.
• These laws have compelled religiously affiliated hospitals to provide elective
gendermutilating surgeries even though such procedures conflict with the organization’s
religious precepts.40
Nondiscrimination laws affect not only charitable organizations, but also religious
educational institutions. Those institutions have been affected in the following ways:
• A New York court found that a private, religiously affiliated university—due to the
enactment of a sexual-orientation-nondiscrimination law—may no longer be allowed
to prohibit, as required by its religious tenets, unmarried couples from living together
in university housing.41
• Students in California alleged that a private, religiously affiliated high school
violated the State’s nondiscrimination law when it expelled them for their
involvement in an extramarital sexual relationship.42
• A District of Columbia court ruled that a sexual-orientation-nondiscrimination law
requires a private, religiously affiliated university to give tangible benefits to a student
organization that engaged in advocacy against the religious tenets of the university.43
Furthermore, nondiscrimination laws threaten religious organizations that, as a means of
ministering to and interacting with the community, have opened their premises to the public.
Ironically, the more a religious organization seeks to serve the broader community, the more it
exposes itself to the pernicious effects of these laws. A quintessential example of this is
illustrated by the Ocean Grove Camp Meeting Association case discussed in the Real Stories
40 Catholic hospital to allow transgender surgery after being sued, Catholic News Agency (Mar. 4, 2008, 4:19
AM), http://www.catholicnewsagency.com/news/catholic hospital to allow transgender surgery after being sued/
(recounting that a man sued a Catholic hospital in California under the State’s nondiscrimination law for refusing to
perform a breast-implant surgery on him after his sex-change operation, and stating that the hospital later agreed to
perform the surgery even though “Catholic teaching prohibits the accommodation of sex-change operations”).
41 Levin v. Yeshiva Univ., 754 N.E.2d 1099 (N.Y. 2001) (finding that a same-sex couple’s complaint against a
private university’s policy that prevented the couple from living together in university housing stated a sufficient
claim of sexual-orientation discrimination).
42 Doe v. Californian Lutheran High School Ass’n, 88 Cal. Rptr. 3d 475 (Cal. Ct. App. 2009) (rejecting the
students’ claims because the school was not included within the reach of the nondiscrimination law, but expressing
no opinion about whether the expulsion constituted sexual-orientation discrimination); see also Across the USA
News from every state, USA Today, Jan. 14, 2011, at A8, available at http://usatoday30.usatoday.com/
printedition/news/20110114/states14 st.art.htm (“The Roman Catholic Boston Archdiocese, which came under fire
last year when a priest said a lesbian couple’s child could not attend a parish school, has issued a new admissions
policy that does not ‘discriminate against or exclude any categories of students.’”). 43 Gay Rights Coal. of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 21-30 (D.C. 1987)
(finding that the university must give “tangible benefits” to the homosexual-advocacy group, but holding that the
university need not give the group its official “endorsement”).
17
above.44 Yet community-minded organizations should be subject to intrusive nondiscrimination
laws simply because they serve the community and perform acts of kindness.45
3. Religious liberty in the workplace.
Nondiscrimination laws, because of the obligations they impose, also infringe the
religious liberty of employers and their employees. Some employers have legitimate reasons for
considering an employee’s or applicant’s sexual behavior when making certain employment
decisions. These situations include, for example, a religious or morally grounded school, group,
or organization when it is hiring for teaching, leadership, or other role-model positions (e.g.,
principal, teacher, or leader). But nondiscrimination laws, as currently constituted, often forbid
these entities from adhering to their moral and religious convictions by forcing them to hire, or
prohibiting them from removing, a person whose conduct conflicts with these groups’ beliefs
about human sexuality.46
Additionally, nondiscrimination laws often force religiously motivated employers to
extend the same employment benefits to their employees’ same-sex partner that they give to
married spouses of the opposite sex.47 Yet these employers might reasonably believe that
affording benefits based on a same-sex relationship encourages or supports their employees’
decisions to engage in such relationships, and that, by supporting relationships they believe to be
immoral, they are violating their religious beliefs. Despite the clear and pressing religious
conflict, the mandates embodied in nondiscrimination laws sweep aside any conscience objection
as illegitimate. But all Americans, including job creators and providers, should be free to live
according to their faith.
The religious-liberty infringements inflicted by nondiscrimination laws are not limited to
employers; they also extend to employees. Nondiscrimination laws, after all, require employers
to prevent their employees or customers from engaging in conduct that other employees might
view as unlawful discrimination,48 prompting most employers to adopt policies prohibiting the
44 Bernstein v. Ocean Grove Camp Meeting Ass’n, DCR Docket No. PN34XB-03008, Findings, Determination,
and Order, New Jersey Division on Civil Rights at 15 (Oct. 22, 2012).
45 In addition, the religious liberty of another category of groups—membership organizations—is also
negatively affected by nondiscrimination laws. As previously mentioned, these laws have already been used by state
courts to force organizations, despite their moral convictions about human sexuality, to accept leaders who openly
contravene the group’s moral values. See Dale v. Boy Scouts of Am., 734 A.2d 1196 (N.J. 1999), rev’d, Boy Scouts
of Am. v. Dale, 530 U.S. 640 (2000).
46 Jonathan Petre, School cannot sack head in “gay marriage,” The Telegraph (Aug. 13, 2007, 12:01 AM),
http://www.telegraph.co.uk/news/uknews/1560153/School-cannot-sack-head-in-gay-marriage html (recounting a
Catholic primary school’s legal determination, after enactment of a sexual-orientation-nondiscrimination law, that it
could not remove a headmaster who was openly involved in a same-sex relationship—conduct that was contrary to
the religious teachings of the school).
47 Martinez v. Cnty. of Monroe, 50 A.D.3d 189, 193 (N.Y. App. Div. 2008) (finding that an employer “violated
Executive Law § 296(1)(a), which forbids an employer from discriminating against an employee . . . because of
[her] sexual orientation,” by refusing to recognize the employee’s same-sex relationship or provide benefits to her
same-sex partner).
48 Stern, Same-Sex Marriage and the Churches, supra, at 50 (“[E]mployers have a two-sided obligation with
regard to harassment. The employer may not itself engage in harassment and it may not allow employees or
18
categories of discrimination codified in the governing nondiscrimination laws.49 These policies,
regardless of whether employers intend them to, significantly affect religious liberty in the
workplace.
Sexual-orientation-nondiscrimination policies, for instance, affect religiously motivated
employees whose work—like counselors, doctors, lawyers, or psychologists—requires them to
interact with issues that implicate family structures, romantic relationships, or sexual conduct.
These policies force employees either to engage in conduct that affirms same-sex relationships or
to face punishment for refusing to violate their religious tenets. The real-life story of what
happened to a licensed counselor in Georgia demonstrates this far-reaching threat to religious
liberty.
Like many people of faith, the Georgia counselor holds religious beliefs about human
sexuality, and those beliefs instruct her how to use her skills as a counselor.50 At work one day,
due to her religious convictions, she politely referred a prospective client seeking same-sex-
relationship counseling to a colleague, who within minutes provided the referred client with the
counseling she sought.51 The client testified that the counseling she received as a result of the
referral was “exemplary.”
But then, that same day, after admittedly receiving “exemplary” counseling, the client
complained to the counselor’s employer, citing a sexual-orientation-nondiscrimination policy,
arguing that she should have never been referred, and threatening to file a complaint.52 Although
the counselor’s actions complied with her profession’s ethical obligations and the client received
“exemplary” counseling, the employer took swift action against the counselor, suspending her
within days and terminating her soon thereafter.53
Similar blunting of religious liberty undoubtedly occurs with employees whose jobs—
like newspaper reporters or photographers—require them to create expression. Religiously
motivated employees who are unable to create job-related expression conveying messages about
human sexuality that they deem objectionable are likely to face punishment or suspension under
their employer’s nondiscrimination policy, even though federal law requiring employers to
accommodate the religious conflicts of their employees forbids such unnecessary sanctions.54
customers to create an intolerable environment for an employee based on one of the prohibited bases of
discrimination.”).
49 Id. at 51 (“[M]ost employers, wary of the expense of defending a harassment lawsuit, are likely to enact their
own rules”).
50 Walden v. Centers for Disease Control & Prevention, 669 F.3d 1277, 1280 (11th Cir. 2012).
51 Walden, 669 F.3d at 1280-81.
52 Walden, 669 F.3d at 1281; Walden v. Centers for Disease Control and Prevention, Case No. 1:08-CV-2278-
JEC-WEJ, Magistrate Judge’s Final Report and Recommendation, Doc. No. 111, at 40-41 (N.D. Ga. Nov. 20,
2009).
53 Walden, 669 F.3d at 1280-82. 54 Indeed, sexual-orientation-nondiscrimination laws inevitably generate conflicts between their prohibition of
sexual-orientation discrimination and an employer’s obligation under federal law to provide a reasonable
accommodation for its employees’ religious needs and practices. See Trans World Airlines, Inc. v. Hardison, 432
U.S. 63, 74 (1977); 42 U.S.C. § 2000e-2(a); 42 U.S.C. § 2000e(j). Consider the example of the Georgia counselor
discussed above. On the one hand, the employer has a policy prohibiting sexual-orientation discrimination, which
weighs against allowing the counselor to refer clients seeking same-sex-relationship counseling. But on the other
19
The threat to religious liberty in the workplace extends even beyond punishing employees
for refusing to engage in conduct forbidden by their religious conviction; it also includes
suppressing the expression and ostracizing the views of religious employees.55 A few examples
illustrate this point.
The City of Oakland, California, for instance, despite generally allowing its employees to
advertise their political views and activities on a bulletin board, prohibited religious employees
from posting a flier advertising their discussion group—a flier that included the statement that
“[m]arriage is the foundation of the natural family and sustains family values”—because, the
City claimed, the flier’s statement about marriage promoted harassment based on sexual
orientation.56
Additionally, experience has shown that many employers try to promote compliance with
these laws by implementing “diversity” or “sensitivity” training about sexual orientation,57 and
these programs, unfortunately, often disparage religious adherents’ views, effectively
marginalizing and shunning those employees and their deeply held beliefs.58 Tragically, the
champions of so-called “diversity” typically do not tolerate a diversity of views.
C. Nondiscrimination laws cause public and private discrimination against
individuals and organizations that express or adhere to their religious views
concerning homosexual behavior.
Nondiscrimination laws, in addition to inflicting the immediate harm to religious liberty
discussed above, threaten religious freedom in other ways. Experience has shown, for instance,
that sexual-orientation-nondiscrimination laws lead to additional government discrimination
against individuals and organizations that hold sincere religious beliefs concerning human
sexuality. These laws brand individuals and organizations as “discriminatory” simply for abiding
by their religious precepts concerning sexual morality. Here are some examples of government-
hand, the employer has an obligation under federal law to “make reasonable accommodations, short of undue
hardship, for the religious practices of [its] employees and prospective employees.” Trans World Airlines, Inc., 432
55 Stern, Same-Sex Marriage and the Churches, at 51 ([M]ost employers . . . are likely to enact their own rules
on impermissible speech in the workplace. These are likely to suppress any speech that some other protected
class of employee finds hurtful[.]”). 56 George F. Will, Speech Police, Riding High in Oakland, Washington Post (June 24, 2007),
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/22/AR2007062201704.html.
57 Diversity Training on Sexual Orientation and Gender Identity, Human Rights Campaign, available at
http://www.hrc.org/resources/entry/diversity-training-on-sexual-orientation-and-gender-identity-issues (last visited
April 19, 2013) (noting that “more than half of the Fortune 500 provide some form of diversity training that includes
sexual orientation” and “most of all the employers that prohibit discrimination based on gender identity have some
form of related diversity training”). 58 Altman v. Minn. Dep’t of Corr., 251 F.3d 1199, 1201 (8th Cir. 2001) (“[Employees] reviewed the training
materials for the gays-and-lesbians-in-the-workplace program and concluded the training would be, in the words of
their complaint, ‘state-sponsored indoctrination designed to sanction, condone, promote, and otherwise approve
behavior and a style of life [that the employees] believe to be immoral, sinful, perverse, and contrary to the
teachings of the Bible.”); David M. Kaplan, Can Diversity Training Discriminate? Backlash to Lesbian, Gay, and
Bisexual Diversity Initiatives, 18(1) Employee Responsibilities and Rights Journal 61 (2006) (noting that employers
that implement diversity training on the topic of sexual orientation often face “backlash [that] is not without some
merit . . . based on sincere religious beliefs”).
20
sanctioned discrimination, which is ironically made possible by laws that purport to prevent such
intolerance:
• Government entities have refused to contract with individuals and organizations that
conduct themselves in accordance with their religious or moral beliefs concerning human
sexuality.59
• Government entities have withheld benefits from individuals and organizations that
refuse to abandon their religiously or morally grounded policies and practices concerning
human sexuality.60
• Government entities have prevented religious individuals with moral convictions about
human sexuality from becoming foster parents, thereby depriving needy children of well-
qualified caregivers.61
• Government entities have revoked licenses from organizations that refuse to act contrary
to their religious convictions concerning human sexuality; this withholding of licenses
has forced these organizations to shut down their operations.62
59 Cradle of Liberty Council, Inc. v. City of Philadelphia, Case No. 08-2429, 2008 WL 4399025 (E.D. Pa. Sept.
25, 2008) (upholding the City of Philadelphia’s decision to terminate a property arrangement that had lasted over 70
years between the City and the Boy Scouts because that organization’s refusal to allow leaders or members who
openly engage in homosexual behavior was, in the City’s words, “directly contrary to the principles of equal access
and opportunity enshrined in Philadelphia [nondiscrimination] law”). 60 Evans v. City of Berkeley, 38 Cal.4th 1 (Cal. 2006) (upholding the City of Berkeley’s decision to revoke the
Sea Scouts’ free use of boat berths at the public marina, a benefit that had been afforded for 60 years, because the
“city attorney conclud[ed] that continuation of the free berth subsidy to the Sea Scouts would violate . . . the
Berkeley Municipal Code, which prohibit[ed] discrimination based on sexual orientation”); Boy Scouts of Am. v.
Wyman, 335 F.3d 80 (2d Cir. 2003) (upholding the State of Connecticut’s decision to stop allowing state employees
to direct their workplace-charitable contributions to the Boy Scouts, a benefit that the organization received for over
30 years, because the State determined that directing contributions to an organization, like the Boy Scouts, that
refused to allow leaders or members who openly engage in homosexual behavior would violate the State’s sexual-
orientation nondiscrimination law); see also Marc D. Stern, Same-Sex Marriage and the Churches, in Same-Sex
Marriage and Religious Liberty: Emerging Conflicts 1, 19-22 (Laycock et al. eds., 2008) (noting that many state
regulators condition government licenses on nondiscrimination requirements). 61 Foster Parents defeated by the new Inquisition, The Telegraph, Feb. 28, 2011, available at
http://www.telegraph.co.uk/comment/telegraph-view/8353180/Foster-parents-defeated-by-the-new-Inquisition.html
(last visited July 7, 2011) (“Eunice and Owen Johns are a God-fearing Christian couple, married almost 40 years,
who offered a secure and loving family home to foster children aged between five and 10. But [the courts] denied
[them] the opportunity to do so any longer because they are unwilling to promote a homosexual lifestyle to a
child.”); R (Johns) v. Derby City Council, [2011] EWHC 375 (Admin) (copy of the approved judgment available at
http://www.christianconcern.com/sites/default/files/docs/Johns_Approved_Judgment.doc).
62 Colleen Theresa Rutledge, Caught in the Crossfire: How Catholic Charities of Boston was Victim to the
Clash between Gay Rights and Religious Freedom, 15 Duke J. Gender L. & Pol’y 297, 299 (Aug. 2008)
(“Massachusetts law prohibits discrimination based on sexual orientation . . . . Pursuant to this, Massachusetts
Department of Social Services regulations forbid discrimination based on sexual orientation as a condition of
licensing. Catholic Charities faced a Hobson’s choice: either comply with [the] law and place children with gay
couples or lose their license and end their ministry to needy children. Stated another way, either violate their clear
Church doctrine, or ignore their religious vocation. Either way they must sacrifice a religious commitment.”);
Patricia Wen, They Cared for the Children: Amid Shifting Social Winds, Catholic Charities Prepares to End Its 103
Years of Finding Homes for Foster Children and Evolving Families, Boston Globe, June 25, 2006, at A1 (explaining
how Massachusetts threatened to revoke the adoption license of Catholic Charities for refusing on religious grounds
to place foster children with same-sex couples).
21
• Government entities have withdrawn tax benefits from organizations that insist on
operating consistently with their religious and moral beliefs concerning human
sexuality.63
• Legal scholars have noted that, in a legal regime dominated by sexual orientation
nondiscrimination laws, religious organizations that abide by their teachings concerning
homosexual behavior might lose their tax-exempt status.64
Furthermore, nondiscrimination laws, perhaps unintentionally, but no less perniciously, 65also engender public and private discrimination against individuals and organizations that
express (or conduct themselves consistently with) their religious precepts about human sexuality.
By branding them as “discriminatory,” these laws encourage public and private contempt against
those individuals and organizations and the expression of their views and beliefs. Undoubtedly
over time, those individuals and organizations will stop communicating their religious beliefs for
fear that they might be viewed or treated with scorn by their neighbors and colleagues. This
government-induced ostracizing of core religious beliefs and expression is deeply unsettling.
Nondiscrimination laws thus present an ironic twist: while purporting to discourage
discrimination, they actually encourage discrimination against the religious community. And
most troublesome of all, by enacting these laws, the government will be complicit in—and,
indeed, a direct cause of—this religious discrimination.66
63 Jill P. Capuzzo, Group Loses Tax Break Over Gay Union Issue, New York Times, Sept. 18, 2007, available
at http://www.nytimes.com/2007/09/18/nyregion/18grove.html (last visited Jan. 6, 2011) (reporting that the State of
New Jersey refused to recertify a portion of the Ocean Grove Camp Meeting Association’s property for the Green
Acres real-estate tax exemption, a tax exemption the Association had held for over 15 years, after learning that the
Association refused to host same-sex couples’ civil-union ceremonies on that portion of its property). 64 Douglas W. Kmiec, Same-Sex Marriage and the Coming Antidiscrimination Campaigns Against Religion, in
Same-Sex Marriage and Religious Liberty: Emerging Conflicts 103, 105 (Laycock et al. eds., 2008) (“The first step
[to revoke a religious organization’s tax exemption] would be to make a successful political case for government to
add sexual orientation to . . . nondiscrimination laws. . . . Were that advocacy effort successful, it could then be
argued that a religious organization that [maintains its religious beliefs regarding homosexual behavior] could be
denied its tax exemption.”); cf. Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (upholding the denial of a tax
exemption to a religious organization with a racially discriminatory policy because, among other things,
nondiscrimination laws showed a “national public policy” against such discrimination).
65 Jill P. Capuzzo, Group Loses Tax Break Over Gay Union Issue, New York Times (Sept. 18, 2007),
http://www nytimes.com/2007/09/18/nyregion/18grove html (reporting that the State of New Jersey refused to
recertify a portion of the Ocean Grove Camp Meeting Association’s property for the Green Acres real-estate tax
exemption, a tax exemption the Association had held for over 15 years, after learning that the Association refused to
host same-sex couples’ civil-union ceremonies on that portion of its property); see also Patrick McGreevy,
California lawmakers threaten to strip Scouts of tax exemption, Los Angeles Times (April 11, 2013),
http://articles.latimes.com/2013/apr/11/local/la-me-boy-scouts-20130411 (reporting that certain California
lawmakers are seeking to pressure the Boy Scouts into abandoning their morality-based membership policies by
threatening to withdraw tax exemptions from the organization). 66 In speaking of Plaintiff Vanessa Willock from the Elane Photography case, noted religious liberty and
conscience scholar Robert Vischer noted the following with respect to the tendency of nondiscrimination laws to
coopt state power: “We must remember, though, that Vanessa Willock has become a functional stand-in for the
state. It is one thing for Willock’s supporters to target the hearts, minds, and wallets of their fellow citizens through
advocacy, protests, and boycotts; it is quite another to bring state power down on the heads of those who have
aggrieved them. In the short term, the state can vindicate the conviction that gays and lesbians should enjoy the same
treatment as heterosexuals in their attempt to secure goods and services in the marketplace. In the long term, though,
even if we applaud a particular moral claim imposed by the state on dissenting consciences, each instance paves the
22
This is all the more remarkable when the strength of the competing interests are balanced
against each other. As one legal scholar has cogently stated in the context of sexual-orientation-
nondiscrimination laws:
Denials of service do affect gay couples by causing them
disturbance, hurt, and offense. While acknowledging that harm,
one must also acknowledge, I think, that the harm to the objector
from legal sanctions is greater and more concrete. In most cases,
the offended couple can go to the next entry in the phone book or
the Google result. The individual or organization held liable for
discrimination, by contrast, must either violate the tenets of her
(its) faith or else exit the social service, profession, or livelihood in
which she (it) has invested time, effort, and money. One simply
has not given the religious dissenter’s interest significant weight if
one finds that offense or disturbance from messages of disapproval
are sufficient to override it.67
Viewing the underlying question as one of human dignity, the scales still weigh decidedly
in favor of religious protection. Nondiscrimination laws attack the dignity of persons who affirm
traditional religious beliefs about sexual conduct, by (1) labeling as “discriminatory” their
closely held religious convictions—a core essence of their being, (2) outlawing their attempts to
live according to those beliefs, (3) and pushing them, their beliefs, and their actions to the outer
fringes of society. This dignitary harm to those citizens and their ability to live as they feel
compelled by their God far outweighs the isolated incidents of offense targeted by these laws.
It is therefore not correct to say, as supporters of these laws do, that a vote in favor of a
sexual orientation nondiscrimination law opposes discrimination, while a vote against such a
measure supports discrimination. As much as supporters of these laws wish it were so, such a
neat distinction cannot be drawn. A “yes” vote may purport to resist sexual orientation and
gender identity discrimination, but make no mistake, it approves discrimination of another
kind—far-reaching discrimination against people of faith. As shown above, these laws will
infringe upon religious liberty by elevating the demands of few over the religious-liberty
interests of many. Elected officials should refuse to impose this needless discrimination on their
religious citizens, choosing instead to promote our nation’s timeless commitment to religious
liberty by protecting the people’s freedom to live consistently with their faith.
Finally, these laws force the government to take sides in a profound moral debate and, for
that additional reason, should be rejected. These measures embody an official and unyielding
government stance on the moral questions surrounding homosexuality and homosexual
behavior—declaring that any citizen who acts consistently with his or her belief that a moral
distinction exists between heterosexual and homosexual conduct is evidencing irrational and
unlawful prejudice. But this “moral issue is not for the government to decide,” and thus the
way for an increasingly top-down approach to the common good.” Robert K. Vischer, Conscience and the Common
Good, 49 J. Catholic Legal Stud. 293, 306 (2011).
67 See Berg, supra, at 229.
23
government should refrain from imposing, as these laws do, “a penalty on practices associated
with or compelled by any of the various views of homosexuality” or “using its power to favor,
promote, or advance one [moral] position over the other.”68 In short, elected officials should
steer clear of the moral debate regarding homosexuality and refuse to impose the weight of the
law against individuals living consistently with their faith’s teachings about sexual morality.
III. Codifying the concept of gender identity radically transforms the law’s
understanding of maleness and femaleness, creates myriad problems for
organizations and individuals, and endorses the conduct caused by an established
mental disorder.
Federal law governing throughout the country currently forbids discrimination on the
basis of sex.69 Sex is determined by a person’s biology and anatomy;70 it is an objectively
verifiable characteristic that is familiar throughout the legal system. These nondiscrimination
laws, however, seek to supplement the existing legal regime with the novel concept of gender
identity. Gender identity, unlike sex, is determined by a person’s subjective “conception of
oneself” as “male, female, or intersex”;71 it is an internally conceived and objectively
unverifiable characteristic with no legal foundation. Placing gender identity in the law, as these
laws attempt to do, permits people to self-determine whether they will identify as male or female
in many social situations.72 Simply put, they radically change the law’s—and, in turn,
society’s—view of maleness and femaleness, by transforming a person’s status as male or female
from a reality determined by biology to a preference determined by internal reflection.
This section discusses two sets of issues raised by gender identity provisions. The first
involves the impact on affected businesses, organizations, and individuals. The second
highlights the deeply misguided nature of these measures, which, simply put, endorse and create
legal protection for mentally impaired conduct caused by an established psychiatric disorder.
68 Michael W. McConnell, The Problem of Singling Out Religion, 50 DePaul L. Rev. 1, 44 (2000).
69 42 U.S.C. § 2000e-2 (“It shall be an unlawful employment practice for an employer . . . to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex”).
70 Shuvo Ghosh, Sexuality, Gender Identity, eMedicine, available at
http://emedicine.medscape.com/article/917990-overview (last visited Jan. 10, 2011) (“Sex . . . is defined by the
gonads, or potential gonads, either phenotypically or genotypically.”). 71 Shuvo Ghosh, Sexuality, Gender Identity, eMedicine, available at
http://emedicine.medscape.com/article/917990-overview (last visited Jan. 10, 2011). 72 Taylor Flynn, Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for
Sex and Sexual Orientation Equality, 101 Colum. L. Rev. 392, 395-96 (2001) (noting that one goal of this recent
push for the law to embrace the concept of gender identity is to “encourag[e] courts and society to conclude that the
determination of one’s sex should rest with the individual and not the state”).
24
A. Gender identity nondiscrimination provisions impose absurd obligations on
businesses and other organizations, expose those entities to unnecessary
liability, and trample the rights, interest, and dignity of unsuspecting
citizens.
Not only do these laws enable people to self-determine their status as male or female—a
troublesome change that will have untold effects throughout law and society—73they mandate
that employers, businesses, organizations, and the government affirm those choices, regardless of
their effects on other citizens. Such radical measures impact many businesses and organizations,
impose absurd obligations on those entities, expose those entities to needless liability, and
trample the rights, interests, and dignity of unsuspecting citizens.
The reach of these gender identity provisions is sweeping. They impact all businesses,
organizations, and government agencies handling any matter that takes account of a person’s sex.
This includes not only schools, universities, and government offices that deal with public
records, but every organization that hires employees or maintains a public restroom. Indeed, this
broad scope impacts most organizations one way or another.
These laws, moreover, affect organizations in myriad ways, producing bizarre results.
Consider the following examples:
• Organizations must allow persons to access sex-segregated programs, activities, and
facilities in accordance with the sex they choose.74 This means that a school must allow
a biological male who professes a female identity to attend an all-girls school or
participate in an all-girls class or program.
• Organizations must allow persons to access bathrooms, showers, and locker-room
facilities in accordance with the sex they choose.75
73 Embracing the concept of gender identity in the law would not only allow all individuals to self-determine
whether they are male or female, it will also give them the right to “identify as any combination of gender identity
referents simultaneously or identify differently in different contexts or communities.” Laura K. Langley, Self-
Determination in a Gender Fundamentalist State: Toward Legal Liberation of Transgender Identities, 12 Tex. J.
C.L. & C.R. 101, 104 (2006). 74 Maine Human Rights Commission, Sexual Orientation in Schools and Colleges: Know Your Rights and
Responsibilities, available at http://www.foxnews.com/projects/pdf/2-08-2010_Draft_MHRC_Sexual_Orientation_
Guidance.pdf (last visited Jan. 11, 2011) (“In general, students . . . must be allowed access to gender-segregated
programs, activities, and facilities in accordance with their gender identity . . . , and they must be addressed by their
chosen names and pronouns.”).
75 U.S. Office of Personnel Management, Guidance Regarding the Employment of Transgender Individuals in
the Federal Workplace, available at http://www.opm.gov/diversity/Transgender/Guidance.asp (last visited June 1,
2011) (noting the following regarding “a non-discriminatory working environment to employees irrespective of their
gender identity”: “[O]nce [an employee] has begun living and working full-time in the gender that reflects his or her
gender identity, agencies should allow access to restrooms and (if provided to other employees) locker room
facilities consistent with his or her gender identity. While a reasonable temporary compromise may be appropriate
in some circumstances, transitioning employees should not be required to have undergone or to provide proof of any
particular medical procedure (including gender reassignment surgery) in order to have access to facilities designated
for use by a particular gender.”); Maine Human Rights Commission, Sexual Orientation in Schools and Colleges:
Know Your Rights and Responsibilities, available at http://www.foxnews.com/projects/pdf/2-08-
2010_Draft_MHRC_Sexual_Orientation_Guidance.pdf (last visited Jan. 11, 2011) (“[S]tudents must be allowed
access to the bathrooms that correspond with their gender identity”).
25
• Schools must allow students to participate in sex-segregated sports in accordance with the
sex they choose.76 This requires schools to allow, for instance, a biological female to
play on the boy’s wrestling team, or a biological male to join the girls’ basketball team.
• Employers, schools, and other organizations must allow employees, students, and patrons
to dress in accordance with the sex they choose.77 This means that employers will no
longer be allowed to maintain a reasonable dress code,78 which they are currently able to
do under federal law.79 It also means that schools must allow biological males who
profess a female identity to wear dresses, skirts, and earrings to class and other school
functions.80
• Employers, schools, and other organizations must refer to employees, students, and
patrons by the name and pronoun of the sex they choose.81 By way of example, this
requires an employer, when interacting with a long-time male employee who decides to
present himself as a woman, to use that person’s self-selected female name and female
pronouns.
76 Maine Human Rights Commission, Sexual Orientation in Schools and Colleges: Know Your Rights and
Responsibilities, available at http://www.foxnews.com/projects/pdf/2-08-2010_Draft_MHRC_Sexual_Orientation_
Guidance.pdf (last visited Jan. 11, 2011) (“[S]tudents must be permitted to participate in gender-segregated sports in
accordance with their gender identity”). 77 U.S. Office of Personnel Management, Guidance Regarding the Employment of Transgender Individuals in
the Federal Workplace, available at http://www.opm.gov/diversity/Transgender/Guidance.asp (last visited June 1,
2011) (“Once an employee has informed management that he or she is transitioning [to a different gender], the
employee will begin wearing the clothes associated with the gender to which the person is transitioning. Agency
dress codes should be applied to employees transitioning to a different gender in the same way that they are applied
to other employees of that gender. Dress codes should not be used to prevent a transgender employee from living
full-time in the role consistent with his or her gender identity.”).
78 The Employment Non-Discrimination Act of 2007: Hearing on H.R. 2015 Hearing Before the Subcomm. on
Health, Employment, Labor and Pensions, H. Comm. on Education and Labor, 110th Cong. 38 (2007) (statement of
Lawrence Z. Lorber, partner, Proskauer Rose, LLP, an attorney with more than 30 years of experience with labor
and employment law), available at http://frwebgate.access.gpo.gov/cgi-
bin/getdoc.cgi?dbname=110_house_hearings&docid=f:37637.pdf (last visited Jan. 26, 2011) (opposing a federal
gender identity nondiscrimination law and noting that “[i]t is simply unclear how a reasonable dress code can
coexist with the . . . indefinite classification of self-perceived gender identity”). 79 Jepperson v. Harrah’s Operating Company, Inc., 444 F.3d 1104 (9th Cir. 2006) (en banc) (upholding a sex-
specific dress code and grooming policy); Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385 (11th Cir. 1998)
(similar); Tavora v. New York Mercantile Exchange, 101 F.3d 907 (2d Cir. 1996) (similar); Carroll v. Talman
Federal Savings & Loan Assoc., 604 F.2d 1028 (7th Cir. 1980) (similar); Willingham v. Macon Telegraph Publ’g
Co., 507 F.2d 1084 (5th Cir. 1975) (similar); Dodge v. Giant Food, Inc., 488 F.2d 1333 (D.C. Cir. 1973) (similar);
Baker v. California Land Title Co., 507 F.2d 895 (9th Cir. 1974) (similar); Knott v. Missouri Pacific Ry. Co., 527
F.2d 1249 (8th Cir. 1975) (similar); Barker v. Taft Broad Co., 549 F.2d 400 (6th Cir. 1977) (similar); Earwood v.
Continental Southeastern Lines, Inc., 539 F.2d 1349 (4th Cir. 1976) (similar).
80 Maine Human Rights Commission, Sexual Orientation in Schools and Colleges: Know Your Rights and
Responsibilities, available at http://www.foxnews.com/projects/pdf/2-08-
2010_Draft_MHRC_Sexual_Orientation_Guidance.pdf (last visited Jan. 11, 2011) (“[S]tudents must be permitted to
dress in accordance with their gender identity”). 81 U.S. Office of Personnel Management, Guidance Regarding the Employment of Transgender Individuals in
the Federal Workplace, available at http://www.opm.gov/diversity/Transgender/Guidance.asp (last visited June 1,
2011) (“Managers, supervisors, and coworkers should use the name and pronouns appropriate to the employee's new
gender. Further, managers, supervisors, and coworkers should take care to use the correct name and pronouns in
employee records and in communications with others regarding the employee.”).
26
• Publicly accessible organizations and entities that maintain separate lodging facilities for
men and women—such as homeless shelters or drug-and-alcohol-rehabilitation centers—
must allow persons to lodge with the residents who share the sex that they choose.82 This
means that a women’s homeless shelter, for example, must allow a biological male who
professes a female identity to sleep in the women’s facilities.
These absurd—but real and demonstrated—scenarios highlight two practical problems
with these laws. First, they disregard the rights, interests, and dignity of the unsuspecting
citizens who are exposed to the individuals that profess a sex contrary to biological reality. This
includes (1) women and girls in restrooms, showers, and locker rooms when a biological male
who professes a female identity accesses those facilities, (2) boys on a wrestling or football team
when a biological female who professes a male identity wants to participate, (3) girls on a
basketball team that must compete against a biological male who professes a female identity, and
(4) women in a female-residence facility that must reside with a biological male who professes a
female identity. These nondiscrimination laws, in short, toss aside the rights, interests, and
dignity of all these individuals.
Second, these laws expose employers, businesses, organizations, schools, and
government agencies to unnecessary liability. By forcing these entities to allow biological males
access to women’s restrooms, showers, and residence facilities based solely on their self-
professions, these laws leave these organizations at the mercy of—with no reasonable means of
excluding—opportunistic perverts and predators seeking entry to these sensitive areas. This, in
turn, subjects those organizations to legal liability for violating their common-law duty of care to
coworkers, customers, and patrons.83 Moreover, third parties will be understandably offended
when they are forced to share a government-operated restroom, shower, locker room, or
residence facility with a person of the opposite biological sex—whether an opportunistic pervert
or an individual who is genuinely confused about his or her sex. Those offended third parties
can sue the government for violating their constitutional right to privacy.84 Indeed, courts have
held that a person’s right to privacy may be violated when a government’s conduct enables
members of the opposite sex to observe that person while he or she is undressing, using restroom
facilities, or showering.85 Similar legal claims might also exist against private businesses and
82 National Gay and Lesbian Task Force Policy Institute & National Coalition for the Homeless, Transitioning
Our Shelters: A Guide to Making Homeless Shelters Safe for Transgender People 31-33, 37-38 (2003), available at
http://www.thetaskforce.org/downloads/reports/reports/TransitioningOurShelters.pdf (last visited Jan. 12, 2011)
(noting that “[a] men’s shelter is [not] . . . appropriate for a [biological male who professes a female identity]”).
83 Restatement (Second) of Torts § 343 (1965) (noting that an organization that invites persons onto its premises
owes a duty, and “is subject to liability for physical harm,” to those invitees if certain conditions are satisfied).
84 Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982) (“There is a constitutional right to privacy.”). 85 Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982) (noting that a person’s constitutional right to
privacy is violated where a government policy or conduct allows a member of the opposite sex to view him or her
while “engag[ing] in personal activities, such as undressing, using toilet facilities, or showering”); see also Lee v.
Downs, 641 F.2d 1117, 1119-20 (4th Cir. 1981) (noting that men are “entitled to judicial protection of their right of
privacy denied by the presence of female[s] . . . in positions to observe the men while undressed or using toilets”);
York v. Story, 324 F.2d 450, 455 (9th Cir. 1963) (“We cannot conceive of a more basic subject of privacy than the
naked body. The desire to shield one’s unclothed figure from . . . strangers of the opposite sex[] is impelled by
elementary self-respect and personal dignity.”).
27
organizations—or the intruding individual of the opposite sex—for violating an employee’s,
customer’s, or other third party’s common-law right to privacy.86
B. Codifying the concept of gender identity endorses the mentally impaired
conduct of those suffering from an established psychiatric disorder.
These gender identity provisions, their proponents say, seek to benefit persons commonly
known as “transgender,” a category that includes biological males who subjectively identify as
women and biological females who subjectively identify as men.87 These individuals, as
supporters of these laws admit, suffer from a psychiatric disorder known as Gender Identity
Disorder (“GID”).88 GID is an established mental illness recognized by the American
Psychiatric Association in its Diagnostic and Statistical Manual of Mental Disorders;89 it causes
persons to experience “significant discomfort with the[ir] biological sex.”90
These undisputed facts expose the true nature of these gender identity provisions: they
create legal protection for a small group of citizens’ psychiatrically disordered conduct
concerning their identity as male or female; and they force employers, businesses, and other
entities to capitulate to those mentally impaired actions. Simply put, these laws place the
government’s stamp of approval on these individuals’ mentally impaired behavior,
communicating to society that this conduct is socially acceptable even though the medical
community has determined that it is psychiatrically disordered. Never before has our society
done this, and now is not the time for the government to start approving such misguided efforts.
People suffering from GID deserve better than a political preference for their
psychiatrically disordered behavior. They deserve society and the law to encourage them to
accept their biological sex, and through early administered psychotherapy, they are often able to
do that.91 Enacting these laws, however, has the opposite effect: by encouraging these
86 Restatement (Second) of Torts § 652(B) (1965) (“One who intentionally intrudes, physically or otherwise,
upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for
invasion of privacy.”). 87 Merriam-Webster Online Dictionary, available at http://www.merriam-webster.com/medical/ transgendered
(last visited Jan. 13, 2011) (“[A] person . . . who identifies with or expresses a gender identity that differs from the
one which corresponds to the person’s sex at birth.”). 88 Shannon Minter, Representing Transsexual Clients: Selected Legal Issues, National Center for Lesbian
Rights (2003), available at http://www.transgenderlaw.org/resources/translaw.htm (last visited Jan. 13, 2011)
(“Transsexualism is technically classified as a specific form of a broader psychiatric disorder termed ‘gender
identity disorder,’ also known as ‘gender dysphoria.’”).
89 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders IV (“DSM-IV”)
(1994). In its Diagnostic and Statistical Manual of Mental Disorders V (“DSM -5”) (2013), the Association revised
the label of its diagnosis of GID to “gender dysphoria.” 90 Gender Identity Disorder, MedlinePlus, available at http://www.nlm.nih.gov/medlineplus/ency/
article/001527.htm (last visited Jan. 13, 2011). 91 Gender Identity Disorder, Encyclopedia of Mental Disorders, available at
http://www.minddisorders.com/Flu-Inv/Gender identity-disorder.html (last visited Jan. 13, 2011) (“One common
form of treatment for gender identity disorder is psychotherapy. The earlier the intervention, the greater likelihood
of success. . . . The initial aim of treatment is to help individuals function in their biologic sex roles to the greatest
degree possible.”); Gender Identity Disorder, AtHealth, available at http://www.athealth.com/Consumer/disorders/
GenderIden.html (last visited Jan. 13, 2011) (similar).
28
individuals to persist in their mentally impaired state, living as if they were a member of the
opposite sex, these laws in the end will inflict more harm on these individuals than it prevents.92
Finally, even if these laws were proper solutions to the plight of those struggling with
GID, which, as discussed above, they most certainly are not, the application of those measures is
not limited to people truly suffering with that disorder. Instead, these laws apply to all people,
enabling them to profess whichever male or female identity they prefer and requiring employers,
businesses, and other organizations to accept and affirm those choices. This broad reach thus
allows anyone to use these legal provisions as tools for great mischief.
In sum, these laws seek to introduce a radical concept into the law: the notion that people
can self-determine whether they will identify as a male or female in many social settings.
Codifying that novel idea, as shown above, has many dangerous side-effects, and thus these laws
should be rejected.
IV. These laws significantly depart from traditional nondiscrimination laws by
codifying statutory classifications that are vaguely defined, subjectively determined,
and changeable; they thus create legal difficulties and spawn costly and difficult-to-
defend litigation for employers and businesses.
Nondiscrimination laws traditionally include well-defined, objectively determined, and
unchangeable statutory classifications, such as race, sex, and national origin.93 But the
92 Supporters of these gender identity laws might argue that in extreme cases of GID, where psychotherapy has
seemingly failed, the medical community will allow patients, at their request, to dress and present themselves as
their non-biological-sex, receive hormone treatments, and ultimately undergo sex-reassignment surgery. For this
reason, supporters might argue, these laws should be passed. But there are a number of flaws with this argument.
First, society generally does not enact legislation—not to mention far-reaching legislation with troublesome side-
effects—simply to account for extreme cases of a rare psychiatric disorder. Second, these laws normalize the
measures taken by those experiencing extreme cases of GID, but the ideal—and often effective—treatment for that
disorder is psychotherapy that enables patients to accept their biological sex. See Gender Identity Disorder,
Encyclopedia of Mental Disorders, available at http://www.minddisorders.com/Flu-Inv/Gender identity-
disorder.html (last visited Jan. 13, 2011) (“One common form of treatment for gender identity disorder is
psychotherapy. The earlier the intervention, the greater likelihood of success. . . . The initial aim of treatment is to
help individuals function in their biologic sex roles to the greatest degree possible.”). Of course, it is far better for
someone suffering from GID to learn through psychotherapy to live with their biological sex, rather than to alter—
and, in the process, significantly damage—their body to conform to their impaired mental impressions (i.e., receive
hormone treatments or undergo sex-reassignment surgery), particularly because identity problems often remain after
these physical alterations. See Gender Identity Disorder, New York Times Health Guide, available at
http://health.nytimes.com/health/guides/disease/gender identity-disorder/overview.html (last visited Jan. 13, 2011)
(“Sex reassignment through surgery and hormonal therapy is an option, but identity problems may continue after
this treatment.”); Gender Identity Disorder, MedlinePlus, available at http://www.nlm.nih.gov/medlineplus/ency/
article/001527.htm (last visited Jan. 13, 2011) (same). But these laws, by approving these individuals’ decisions to
select the male or female identity of their choice, endorse the extreme and physically destructive approach. Thus,
even considering its supporters’ arguments, these gender identity provisions nevertheless remain an irresponsible
and misguided response to the misfortunes of those dealing with GID. 93 Traditional nondiscrimination laws also include religion as a protected classification. While some might
argue that religion is not objectively determined or unchangeable, legislatures nevertheless have consistently
included religion in nondiscrimination laws because of (1) religious liberty’s protection in the constitutions of the
federal government and the various States of our country and (2) our nation’s deeply imbedded, historical respect for
its citizens’ religious convictions.
29
nondiscrimination laws under consideration are of a different nature: by including sexual
orientation and gender identity, they codify vaguely defined, subjectively determined, and
changeable statutory classifications. Yet the absence of clear definitions, objective
determinations, and immutable classifications creates a legal regime that is unfair for employers
and businesses.
A. Sexual orientation and gender identity are vaguely defined, subjectively
determined, and malleable classifications.
Sexual orientation is a vaguely defined and unsettled concept. Even scholars who
regularly study sexual orientation cannot agree on a definition for it.94 Some researchers, for
example, believe that sexual orientation is determined by a person’s self-identification; some
think that it is established by sexual behavior; and others believe that it is dictated by mere
sexual attraction.95 Thus, “[t]here is currently no scientific or popular consensus on the exact
constellation of experiences that definitively ‘qualify’ an individual as lesbian, gay, or
bisexual.”96 If scientists who study this topic cannot agree on a definition, then it is surely
unreasonable to expect employers and businesses—which face the burden of abiding by the law
94 Todd A. Salzman & Michael G. Lawler, The Sexual Person 150 (2008) (“The meaning of the phrase ‘sexual
orientation’ is complex and not universally agreed upon.”); Gail S. Bernstein, Defining Sexual Orientation, Selfhelp
Magazine, May 28, 1998, available at http://www.selfhelpmagazine.com/article/sexual_orientation (last visited Jan.
7, 2011) (“Much of the confusion about sexual orientation occurs because there is no single agreed upon definition
of the term.”); Ilan H. Meyer & Patrick A. Wilson, Sampling Lesbian, Gay, and Bisexual Populations, 56 Journal of
Counseling Psychology 23, 23 (2009) (“[H]ere lies the first problem for researchers of LGB populations: The
population’s definition is elusive.”). 95 Laura Dean, et al., Lesbian, Gay, Bisexual, and Transgender Health: Findings and Concerns, 4 Journal of
the Gay and Lesbian Medical Association 102, 136 (2000) (“[T]here is still no general consensus on the definitions
of the[] terms [heterosexual, homosexual, or bisexual], although each includes components of at least one of three
dimensions: (1) sexual orientation identity, (2) sexual behavior, and/or (3) sexual attraction . . . . For example, one
study might define sexual orientation as a form of identity . . . , while another defines it as gender choice in sexual
partners, and yet another as the gender of those to whom one is sexually attracted”); Ilan H. Meyer & Patrick A.
Wilson, Sampling Lesbian, Gay, and Bisexual Populations, 56 Journal of Counseling Psychology 23, 24 (2009)
(“[D]efinitions of sexual [orientation] vary: Several populations may be defined. Researchers have distinguished
among sexual identity, sexual behavior, and attraction . . . . Even within each of these categories, varied groups can
be defined.”). 96 Lisa M. Diamond and Ritch C. Savin-Williams, Gender and Sexual Identity, in Handbook of Applied
Developmental Science Vol. 1 at 102 (Richard M. Lerner et al. eds., 2002). Compounding this definitional problem
is scholars’ recognition that sexual orientation is not divided into clear compartments; instead, sexual orientation, in
the words of the American Psychological Association, “ranges along a continuum, from exclusive attraction to the
other sex to exclusive attraction to the same sex.” American Psychological Association, Answers to Your Questions
for a Better Understanding of Sexual Orientation and Homosexuality 1 (2008), available at
http://www.apa.org/topics/sexuality/sorientation.pdf (last visited Jan. 10, 2011). Put differently, “no sharp line
distinguishes homosexuality and heterosexuality.” Declaration of Dr. Robert Galatzer-Levy in Support of City and
County of San Francisco’s Constitutional Challenge to Marriage Statutes, In re Marriage Cases, Case No. 429-539,
at ¶ 10 (Cal. Super. Ct. Sept. 1, 2004) (on file with the author and the Superior Court of the State of California,
County of San Francisco). Thus, “the concept of sexual orientation is not as straightforward as everyday
conversations, media accounts, and political slogans would imply. Rather the topic is fraught with vagaries, the
terminology is ambiguous and ill-defined, and the apparently exclusive and stable categories commonly employed
actually disguise complex dimensionality and fluidity.” Janis S. Bohan, Psychology and Sexual Orientation Coming
to Terms 13 (1996).
30
and defending against lawsuits—to assess and accommodate the sexual orientation of their
employees and patrons.97
Neither is sexual orientation an objectively verifiable classification.98 This means that a
business or employer cannot discern a person’s sexual orientation by objective means (e.g., by
looking at the person or by checking his or her identification or work documentation). An
employer or business thus cannot determine an employee’s or customer’s sexual orientation
without asking invasive and inappropriate questions.
Nor is sexual orientation an immutable classification. The leading scientific and
professional organizations recognize that no credible scientific studies indicate that a person’s
desire to engage in homosexual behavior is biologically determined.99 In fact, the vast weight of
scientific literature—including articles published in widely respected journals such as the Journal
of Sex Research, the Journal of Clinical Psychology, and Developmental Psychology—
concludes that homosexual behavior does not result from a biological trait, but from behavioral
phases and/or social influences.100 Scholars have thus acknowledged (and experience has
97 This definitional ambiguity is significant because the “overlap” between a person’s professed “sexual
identity, sexual behavior, and attraction”—the three conflicting methods for defining sexual orientation—is “not
great”: “only among 15% of women and 24% of men do the three categories overlap[.]” Ilan H. Meyer & Patrick
A. Wilson, Sampling Lesbian, Gay, and Bisexual Populations, 56 Journal of Counseling Psychology 23, 24 (2009)
(discussing Edward O. Laumann et al., The Social Organization of Sexuality: Sexual Practices in the United States
299 (1994)). 98 M.V. Lee Badgett, Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men 47 (2001)
(“Sexual orientation is not an observable characteristic of an individual, as sex and race usually are”); Deposition
Transcript of Gregory M. Herek, Perry v. Schwarzenegger, Case No. 09-CV-2292, at 92 (N.D. Cal. Nov. 6, 2009)
(on file with the author and the United States District Court for the Northern District of California) (“[A person’s]
sexual orientation is not readily apparent to other people just by looking at them”).
99 American Psychiatric Association, Sexual Orientation, available at http://www.healthyminds.org/More-Info-
For/GayLesbianBisexuals.aspx (last visited Jan. 10, 2011) (“[T]here are no replicated scientific studies supporting
any specific biological etiology for homosexuality.”); Council for Responsible Genetics, Brief on Sexual Orientation
and Genetic Determinism (May 2006), available at http://www.councilforresponsiblegenetics.org/
ViewPage.aspx?pageId=66 (last visited Jan. 10, 2011) (“[C]onclusive proof of a link between [people’s sexual
orientation] and their genes has yet to be found.”); American Psychological Association, Answers to Your Questions
for a Better Understanding of Sexual Orientation and Homosexuality 2 (2008), available at
http://www.apa.org/topics/sexuality/sorientation.pdf (last visited Jan. 10, 2011) (“Although much research has
examined the possible genetic . . . influences on sexual orientation, no findings have emerged that permit scientists
to conclude that sexual orientation is determined by [that] particular factor”). 100 Linda D. Garnets & Letitia Anne Peplau, A New Look at Women’s Sexuality & Sexual Orientation, UCLA
Center for the Study of Women Update, at 4 (Dec. 2006) (“Women’s sexual orientation is shaped by such social and
cultural factors as women’s education, social status and power, economic opportunities, and attitudes about
women’s role.”); Letitia Anne Peplau, et al., The Development of Sexual Orientation in Women, in 10 Annual
Review of Sex Research 70, 87 (R.C. Rosen ed., 1999) (“[T]he impact of biological factors in determining women’s
sexual orientation appears to be weak or nonexistent.”); see also Richard C. Friedman and Jennifer I. Downey,
Sexual Orientation and Psychoanalysis: Sexual Science and Clinical Practice 39 (2002); Letitia Anne Peplau &
Linda D. Garnets, A New Paradigm for Understanding Women’s Sexuality and Sexual Orientation, 56 Journal of
Social Issues 329, 332 (2000); Rosemary C. Veniegas & Terri D. Conley, Biological Research on Women’s Sexual
Orientations: Evaluating the Scientific Evidence, 56 Journal of Social Issues 267, 277 (2000); J.M. Bailey, et al.,
Genetic and Environmental Influences on Sexual Orientation and its Correlates in an Australian Twin Sample,
78(3) Journal of Personality and Social Psychology 524-536, 533 (2000); Scott L. Hershberger, Biological Factors
in the Development of Sexual Orientation, in Lesbian, Gay, and Bisexual Identities and Youth: Psychological
Perspectives 27, 40 (Anthony R. D’Augelli & Charlotte J. Patterson eds., 2001); J.M. Bailey, et al., Heritable
31
shown) that a person’s professed “sexual orientation is not static” and that he or she may change
it multiple times throughout the course of a lifetime.101 Indeed, research supports these
conclusions,102 including one study published by the American Psychological Association in
2008, which found that 67% of women changed their professed sexual orientation at least once
during a ten-year period and 36% changed it two times or more.103 Another study shows that
90% of women and 80% of men who have engaged in any homosexual behavior as adults have
also engaged in sexual activity with persons of the opposite sex.104 Thus, despite popular
political perception, it is plain that sexual orientation is not biologically based and immutable,
but instead is a changeable and nebulous concept.
Moreover, gender identity, like sexual orientation, is also vaguely defined, subjectively
determined, and malleable. Gender identity is generally defined as “a personal conception of
oneself as male or female” or “intersex.”105 The notion of a person’s gender identity sharply
contrasts with the well-established and long-recognized legal classification of a person’s sex.
Factors Influence Sexual Orientation in Women, 50 Archives of General Psychiatry 217 (1993); J.M. Bailey & R.C.
Pillard, A Genetic Study of Male Sexual Orientation, 48 Archives of General Psychiatry 1089 (1991); Janet R.
Jakobsen & Ann Pelligrini, Love the Sin: Sexual Regulation and the Limits of Religious Tolerance 96 (2004);
Joseph P. Stokes, et al., Predictors of Movement Toward Homosexuality: A Longitudinal Study of Bisexual Men, 43
Journal of Sex Research 304, 305 (1997); Roy F. Baumeister, Gender Differences in Erotic Plasticity: The Female
Sex Drive as Socially Flexible and Responsive, 126 Psychological Bulletin 347 (2000); Lisa M. Diamond & Ritch C.
Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 Journal
of Social Issues 297 (2000); Karen L. Bridges & James M. Croteau, Once-Married Lesbians: Facilitating Changing
Life Patterns, 73 Journal of Counseling and Development 134, 135 (1994) (describing C. Charbonneau and P.S.
Lander, Redefining Sexuality: Women Becoming Lesbian in Mid-Life, Lesbians at Mid-Life, at 35 (B. Sang et al.
eds., 1991)); Lisa M. Diamond, Development of Sexual Orientation Among Adolescent and Young Adult Women, 34
Development Psychology 1085 (1998); Susan Rosenbluth, Is Sexual Orientation a Matter of Choice?, 21
Psychology of Women Quarterly 595, 605-07 (1997); Sari H. Dworkin, Treating the Bisexual Client, 57 Journal of
Clinical Psychology 671 (2001); Lisa M. Diamond, Was It a Phase? Young Women’s Relinquishment of
Lesbian/Bisexual Identities Over a 5-Year Period, 84 Journal of Personality and Social Psychology 352 (2003).
101 Michael R. Kauth & Seth C. Kalichman, Sexual Orientation and Devleopment: An Interactive Approach, in
The Psychology of Sexual Orientation, Behavior, and Identity 82 (Louis Diamant & Richard D. McAnulty eds.,
1995) (“[S]exual orientation is not static and may vary throughout the course of a lifetime.”); Linda D. Garnets &
Letitia Anne Peplau, A New Look at Women’s Sexuality & Sexual Orientation, UCLA Center for the Study of
Women Update, at 5 (Dec. 2006) (“Women’s sexuality tends to be fluid, malleable, shaped by life experiences, and
capable of change over time. . . . [M]ultiple changes in sexual orientation are possible . . . [due] to a wide range of
social, cognitive, and environmental influences. Women who have had exclusively heterosexual experiences may
develop an attraction to other women and vice versa”); Letitia Anne Peplau & Linda D. Garnets, A New Paradigm
for Understanding Women’s Sexuality and Sexual Orientation, 56 Journal of Social Issues 329, 333 (2000)
(“[W]omen’s identification as lesbian, bisexual, or heterosexual and women’s actual behavior can vary over time.”);
John C. Gonsiorek, et al., Definition and measurement of sexual orientation, 25 Suicide and Life-Threatening
Behavior 40 (1995) (“[M]any lesbian women . . . perceive choice as an important element in their sexual
orientations.”).
102 Gary J. Gates, et al., Marriage, Registration and Dissolution by Same-Sex Couples in the U.S. 10 (July
2008), available at http://www.law.ucla.edu/williamsinstitute/publications/Couples%20Marr%20Regis%20Diss.pdf
(last visited Jan. 10, 2011) (concluding that 20% of men and 29% of women in same-sex domestic partnerships in
California had previously been married to a person of the opposite sex). 103 Lisa M. Diamond, Female bisexuality from adolescence to adulthood: Results from a 10-year longitudinal
study, 44 Developmental Psychology 5, 9 (2008). 104 Edward O. Laumann et al., The Social Organization of Sexuality: Sexual Practices in the United States 311
(1994). 105 Shuvo Ghosh, Sexuality, Gender Identity, eMedicine, available at http://emedicine.medscape.com/
article/917990-overview (last visited Jan. 10, 2011).
32
Sex, on the one hand, is determined by a person’s biology and anatomy;106 it is thus clearly
defined and objectively determined. Gender identity, in contrast, is determined by “one’s own
identification as male, female, or intersex”;107 it is therefore an ambiguous classification,
determined by a person’s subjective self-identification, and subject to unstable shifts at the whim
of each person’s internal feelings and perceptions.108 Ordinance 95-14’s conception of “gender
identity or expression” goes even further, essentially obliterating any boundaries to the identity,
appearance, expression, or behavior for which a person can claim protection.
B. Codifying sexual orientation and gender identity creates a legal regime that
is unfair for employers and businesses, that results in difficult-to-defend
lawsuits, that will increase entities’ litigation costs, and that will harm
businesses.
Enacting these laws creates compliance difficulties for employers and businesses. As an
employment lawyer with over 30 years of experience told Congress regarding a similar
nondiscrimination law proposed at the federal level, “[e]mployers have to know what they are
dealing with in order to comply with the law.”109 But the vague definitions, subjective
determinations, and variability inherent in the concepts of sexual orientation and gender identity
make it impossible for employers even to assess their circumstances, much less to determine
what the law requires of them in each situation potentially invoking these nebulous concepts.
Imposing this burden on employers and businesses to deal with their employees’ and patrons’
subjective considerations about sex and sexuality places those entities in an “extraordinarily
difficult position.”110
A skeptic unfamiliar with nondiscrimination laws might think that compliance with these
laws is straightforward: merely refrain from firing an employee or refusing services to a patron
106 Shuvo Ghosh, Sexuality, Gender Identity, eMedicine, available at http://emedicine.medscape.com/
article/917990-overview (last visited Jan. 10, 2011) (“Sex . . . is defined by the gonads, or potential gonads, either
phenotypically or genotypically.”). 107 Shuvo Ghosh, Sexuality, Gender Identity, eMedicine, available at http://emedicine.medscape.com/
article/917990-overview (last visited Jan. 10, 2011).
108 The Employment Non-Discrimination Act of 2007: Hearing on H.R. 2015 Hearing Before the Subcomm. on
Health, Employment, Labor and Pensions, H. Comm. on Education and Labor, 110th Cong. 46 (2007) (statement of
Mark A. Fahleson, Rembolt Ludtke, LLP, and Adjunct Professor of Employment Law at the University of Nebraska
College of Law), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=
110_house_hearings&docid=f:37637.pdf (last visited Jan. 26, 2011) (noting that the concept of “gender identity” is
“exceptionally vague and problematic” for employers).
109 The Employment Non-Discrimination Act of 2007: Hearing on H.R. 2015 Hearing Before the Subcomm. on
Health, Employment, Labor and Pensions, H. Comm. on Education and Labor, 110th Cong. 34 (2007) (statement of
Lawrence Z. Lorber, partner, Proskauer Rose, LLP, an attorney with more than 30 years of experience with labor
and employment law), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=
110_house_hearings&docid=f:37637.pdf (last visited Jan. 26, 2011). 110 The Employment Non-Discrimination Act of 2007: Hearing on H.R. 2015 Hearing Before the Subcomm. on
Health, Employment, Labor and Pensions, H. Comm. on Education and Labor, 110th Cong. 34 (2007) (statement of
Lawrence Z. Lorber, partner, Proskauer Rose, LLP, an attorney with more than 30 years of experience with labor
and employment law), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=
110_house_hearings&docid=f:37637.pdf (last visited Jan. 26, 2011) (“[T]o put a burden on an employer to deal with
somebody’s innate personal consideration of their gender identity, without any reference to any specific action or
status, places that employer in an extraordinarily difficult position.”).
33
because of his or her sexual orientation or gender identity. But such a simplistic objection
ignores that (1) employers and businesses can unwittingly violate nondiscrimination laws—for
instance, disparate-impact claims allow employees or customers to argue that an entity, while not
intending to discriminate against anyone, engaged in conduct that has the incidental effect of
treating one class of individuals differently than another 111—and (2) employers and businesses
must take proactive measures to ensure compliance with the law. Thus, for employers and
businesses adequately to protect themselves from liability, they must be aware of their
employees’ and patrons’ (potentially varying) sexual orientations and gender identities. But as
discussed above, the nature of these statutory classifications makes that task impossible, absent
invasive and inappropriate questioning, thus placing an unreasonable and unfair burden on
employers and businesses.
Legally conscientious employers and businesses cannot be expected to navigate alone the
landmines raised by the “uncertainty and subjectivity” of these laws; thus, they will “be forced
[to] spend scarce resources seeking legal guidance.”112 These laws raise for all organizations a
host of difficult legal questions, which include: (1) whether all of the organization’s current
policies comply with these laws; (2) whether any of the organization’s current policies has the
incidental effect of affecting a person who professes to have a particular sexual orientation or
gender identity differently from a person who professes to have a different one; and (3) whether
the organization needs to enact any new policies to comply with these laws (e.g., policies relating
to employment benefits or bathroom use). These are complex legal questions involving a vague
and novel law; they do not have simple or definitive answers; and thus they will require
substantial legal research and analysis. Obtaining this intricate and time-consuming legal advice
will cost a significant amount of money. And worse yet, if the legal professionals determine that
the organization must implement policy changes, those too may require a substantial investment
111 Ricci v. DeStefano, 129 S. Ct. 2658, 2672 (2009) (noting that federal nondiscrimination law “prohibits both
intentional discrimination (known as ‘disparate treatment’) as well as . . . practices that are not intended to
discriminate but in fact have a disproportionately adverse effect on [a protected class] (known as ‘disparate
impact’)”). A few examples demonstrate that an employer or business can violate these laws without harboring any
discriminatory intent. For example, a company that has a policy of photographing weddings—and thus, by
implication, will not photograph a same-sex commitment ceremony—might unwittingly violate a sexual-orientation
nondiscrimination law, even though it is not the owners’ intent to discriminate against people who identify as having
a particular sexual orientation. See Elane Photography, LLC v. Willock, Case. No. CV-2008-06632, Memorandum
Opinion and Order (N.M. Dist. Ct., Bernalillo County, Dec. 11, 2009). Similarly, an athletic club that has a policy
of giving its “family” memberships only to individuals who are married might violate a sexual-orientation
nondiscrimination law, even though the club does not intend to discriminate against people who identify as having a
particular sexual orientation. See Professor’s complaint sparks change in YMCA policy definition of family, Drake
University News, Aug. 7, 2007, available at https://www.drake.edu/news/archive/index.php?article=1941 (last
visited Jan. 6, 2011). 112 The Employment Non-Discrimination Act of 2007: Hearing on H.R. 2015 Hearing Before the Subcomm. on
Health, Employment, Labor and Pensions, H. Comm. on Education and Labor, 110th Cong. 47 (2007) (statement of
Mark A. Fahleson, Rembolt Ludtke, LLP, and Adjunct Professor of Employment Law at the University of Nebraska
College of Law), available at http://frwebgate.access.gpo.gov/cgi-
bin/getdoc.cgi?dbname=110_house_hearings&docid=f:37637.pdf (last visited Jan. 26, 2011) (noting that a similar
nondiscrimination law debated before Congress was packed with “uncertainty and subjectivity” and thus it would
have forced organizations to “spend scarce resources seeking legal guidance”).
34
of funds. The “difficult[y]” of “implement[ing]” measures like these laws has thus prompted
communitywide business organizations to oppose past efforts to enact similar laws.113
Even the best legal advice, however, cannot prevent organizations from facing litigation
under these laws—114litigation that, considering the vague, subjective, and changeable nature of
sexual orientation and gender identity, will be difficult to defend. There are many reasons why
this is true, but a few examples illustrate the point:
• Defending against these claims requires the defending entity to demonstrate what it and
its employees subjectively “perceived” about a person’s internally determined sexual
orientation and gender identity. That task is not only burdensome; its results are
inherently unreliable and thus subject to vigorous attack in the course of litigation.
• One of the primary defenses against a discrimination claim is that the complainant is not
a member of a “protected class.”115 But an employer or business cannot reasonably
assert that defense under these laws. Because a person’s sexual orientation and gender
identity are subjectively determined and changeable, the defending entity must accept,
and cannot reasonably refute, a plaintiff’s characterization of his or her sexual orientation
or gender identity.
• Complainants under these laws, even if their claims are baseless, will almost always
satisfy their initial case for discrimination (known as their prima-facie case).116 This
shifts the burden to the defending entity to prove that it had a legitimate reason for acting
as it did.117
• Once the burden shifts to the defending entity, the chances significantly increase that the
complainant’s case, even if ultimately lacking merit, will withstand summary judgment
and proceed to a jury trial.118 A jury trial, in turn, is far more burdensome and costly for
the defending entity.
113 The Greater Omaha Chamber of Commerce wrote a letter opposing a similar nondiscrimination law because
that measure would have “require[d] more regulations on Omaha businesses” and it was “ambiguous and therefore
difficult to implement.” Letter from David G. Brown, President and Chief Executive Officer of the Greater Omaha
Chamber of Commerce, to Ben Gray, Omaha City Councilman, at 3 (Oct. 25, 2010) (on file with the author). 114 Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From
Bad to Worse?, 3 Harv. L. & Pol’y Rev. 103, 103-04 (2009) (noting that employment-law cases account for a large
fraction of the cases filed in federal court). 115 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (noting that discrimination complainants must
show that they “belong[] to a . . . minority” group); Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261,
264 (6th Cir. 2010) (noting that discrimination complainants must show that they are “a member of a protected
class”).
116 A prima-facie case requires the complainant to show that (1) they are a member of a protected class, (2) they
are qualified to receive the job or the services, (3) they were denied the job or the services, and (4) the defending
entity provided that job or those services to someone from a different class. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir. 2010) (“To
state a prima facie case . . . a plaintiff must establish the four elements of the well-known McDonnell Douglas test:
1) that she was a member of a protected class; 2) that she was discharged; 3) that she was qualified for the position
held; and 4) that she was replaced by someone outside of the protected class”). 117 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (“The burden then must shift to the employer
to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”). 118 Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 452 (1st Cir. 2009) (“Evidence establishing a
prima facie case, in combination with evidence of pretext, can be sufficient to defeat summary judgment” and
35
• As one employment-law professor has noted, the “fact-specific and subjective standards”
inherent in these laws will make it “more difficult for [organizations] to have meritless
litigation . . . dismissed prior to incurring the cost of a full-blown trial.”119
These difficult-to-defend lawsuits will require substantial time and resources to combat,
and thus they will be very costly for employers and businesses.120 These increased legal costs, in
the end, “could prove” to be “insurmountable” for small businesses.121 These laws thus create a
legal regime that jeopardizes the fiscal welfare and future existence of law-abiding employers
and businesses. For this reason, they should be rejected.
V. The supporters of these laws have not shown a need for their enactment.
In light of the many problems created by these laws, one would assume that these
measures are aimed at a significant and demonstrated problem in our country. But that is simply
not true. Supporters have not introduced persuasive evidence showing a need for these laws; in
fact, the statistics demonstrate that the alleged discrimination targeted by these laws is isolated
and uncommon. Studies have shown that only 9% of self-identified homosexuals claim to have
ever lost employment because of a decision that they thought was related to their professed
sexual orientation.122 And in jurisdictions that have enacted these laws, less than 4% of the total
discrimination claims involve allegations of discrimination based on sexual orientation or gender
identity.123
Gender identity laws are particularly unwarranted. In 1989, the United States Supreme
Court found that employees can sue their employers under federal law for engaging in what is
known as “sex stereotyping,” which occurs when employers take adverse actions against
employees because they failed to conform to stereotypes associated with their biological sex.124
Since then, a long line of cases has allowed claims of sex stereotyping when a person suffering
require that a case proceed to a jury trial); White v. Baxter Healthcare Corp., 533 F.3d 381, 393 n.6 (6th Cir. 2008)
(“The question of whether the [organization’s] judgment was reasonable or was instead motivated by improper
considerations is for the jury to consider.”). 119 The Employment Non-Discrimination Act of 2007: Hearing on H.R. 2015 Hearing Before the Subcomm. on
Health, Employment, Labor and Pensions, H. Comm. on Education and Labor, 110th Cong. 47 (2007) (statement of
Mark A. Fahleson, Rembolt Ludtke, LLP, and Adjunct Professor of Employment Law at the University of Nebraska
College of Law), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname
=110_house_hearings&docid=f:37637.pdf (last visited Jan. 26, 2011). 120 Eugene Volokh, Same-Sex Marriage and Slippery Slopes, 33 Hofstra L. Rev. 1155, 1200 (2005) (“[T]he
broadening of antidiscrimination law . . . creates substantial litigation costs”).
121 The Employment Non-Discrimination Act of 2007: Hearing on H.R. 2015 Hearing Before the Subcomm. on
Health, Employment, Labor and Pensions, H. Comm. on Education and Labor, 110th Cong. 47 (2007) (statement of
Mark A. Fahleson, Rembolt Ludtke, LLP, and Adjunct Professor of Employment Law at the University of Nebraska
College of Law), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname
=110_house_hearings&docid=f:37637.pdf (last visited Jan. 26, 2011). 122 Jessica F. Morris & Kimberly F. Balsam, Lesbian and Bisexual Women’s Experiences of Victimization:
Mental Health, Revictimization, and Sexual Identity Development, 7(4) Journal of Lesbian Studies 67, 74 (2003)
(“Many fewer participants report loss of employment (9.2%)”). 123 Letter from David G. Brown, President and Chief Executive Officer of the Greater Omaha Chamber of
Commerce, to Ben Gray, Omaha City Councilman, at 3 (Oct. 25, 2010) (on file with the author). 124 Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989) (plurality); id. at 258-61 (White, J., concurring);
id. at 272-73 (O’Connor, J., concurring).
36
from GID—that is, a biological male who subjectively identifies as a woman or a biological
female who subjectively identifies as a man—alleges that he or she was subject to an adverse
employment action for failing to conform to sex stereotypes concerning how an individual of that
biological sex should look and behave.125 Those cases, regardless of whether they were correctly
decided, hold that persons suffering from GID can assert a sex-stereotyping claim under federal
law, and the availability of this cause of action significantly undercuts the need for enacting
gender identity provisions.
The supporters of these laws assume that the only way for citizens to treat each other
fairly and with respect is if they are bludgeoned with the heavy hand of the law. But nothing
could be further from the truth. Businesses and other organizations have significant interests in
upholding their reputation as just and decent entities and in fostering goodwill and trust among
their employees and patrons. In other words, within the free market there exist strong self-
interests that encourage entities to engage in fair play with their employees and customers. And
as others have remarked, it appears that “the free market . . . [is] already addressing” the issues
raised by these measures,126 thus further showing that these laws are not needed.
Conclusion
It was primarily people of faith who, precisely because of their convictions, have
tirelessly strived to end slavery, faithfully toiled in the civil-rights movement, and stalwartly
defended innocent life. It was the religious faithful who moved the State to act for the sake of
justice, and not the other way around.
That is why it is a tragedy to contemplate religious liberty’s demise at the hands of an
ephemeral and crabbed conception of civil rights, diversity, tolerance, dignity, or
nondiscrimination. It will be a profound tragedy if the recent expansions of nondiscrimination
laws continue to extirpate the religious liberty upon which many of the great moral and civil
rights crusades of our country have been founded.
The problems created by sexual orientation and gender identity nondiscrimination laws—
the infringement of First Amendment rights, crushing of religious liberty, and severe harm to
businesses and other organizations—heavily outweigh any government interests supporting these
unnecessary measures. Ordinance 95-14 creates all of these problems for Atlantic Beach.
Concerned citizens and elected officials should oppose Ordinance 95-14 and any similarly
attempted legal enactments.
125 Smith v. City of Salem, Ohio, 378 F.3d 566, 572, 575 (6th Cir. 2004); Kastl v. Maricopa County Cmty. Coll.
Dist., 325 F. App’x 492, 493 (9th Cir. 2009); Glenn v. Brumby, 724 F. Supp. 2d 1284, 1299-1300 (N.D. Ga. 2010);
Creed v. Family Express Corp., No. 3:06-CV-465RM, 2009 WL 35237 (N.D. Ind. Jan. 5, 2009); Schroer v.
Billington, 577 F. Supp. 2d 293, 308 (D. D.C. 2008); Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.
Supp. 2d 653, 667-68 (S.D. Tex. 2008). 126 The Employment Non-Discrimination Act of 2007: Hearing on H.R. 2015 Hearing Before the Subcomm. on
Health, Employment, Labor and Pensions, H. Comm. on Education and Labor, 110th Cong. 44 (2007) (statement of
Mark A. Fahleson, Rembolt Ludtke, LLP, and Adjunct Professor of Employment Law at the University of Nebraska
College of Law), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=
110_house_hearings&docid=f:37637.pdf (last visited Jan. 26, 2011).
37
Roger K. Gannam
Attorney at Law
Lindell & Farson, P.A.
12276 San Jose Boulevard, Suite 126
Jacksonville, Florida 32223
rgannam@lindellfarson.com
(904) 880-4000
Roger Gannam is a partner with Lindell & Farson, P.A., handling a broad range of business and
consumer litigation, as well as real estate and general business transactions. Mr. Gannam earned
his law degree, with honors, from the University of Florida Levin College of Law. Prior to law
school he earned a Bachelor of Business Administration in Finance from the University of North
Florida, with a minor in Political Science. During his undergraduate studies, Mr. Gannam
worked full time for AT&T Universal Card Services in Jacksonville, sharing in the company’s
Malcolm Baldridge National Quality Award for performance excellence.
Following law school, Mr. Gannam began his legal career with the international law firm
LeBoeuf, Lamb, Greene & MacRae, L.L.P., where he gained extensive experience in complex
commercial and class action litigation. He continued his career with the international firm
Smith, Gambrell & Russell, LLP, where he represented numerous businesses and individuals in
significant legal disputes. Since joining Lindell & Farson, Mr. Gannam has expanded his
business and consumer law practice, not only engaging in complex litigation but also advising
clients in company formation and in the purchase and sale of real estate and businesses.
In addition to his traditional law practice, Mr. Gannam represents individuals and organizations
in religious liberty matters, and advises public bodies and officials on free speech, religious
liberty, and other constitutional matters. In this arena, he works as an Allied Attorney of the
Alliance Defending Freedom (ADF), as Special Counsel to the Florida Family Policy Council,
and with the Christian Legal Society Center for Law and Religious Freedom, engaging in pro
bono religious liberty litigation in Jacksonville and throughout Florida.
Mr. Gannam attends Christian Family Chapel, and holds leadership or volunteer positions with a
number of community organizations, including the CHILD Cancer Fund, Christian Legal Society
of Jacksonville (past president), and the Jacksonville Alliance of Christian Voters. Mr.
Gannam’s interests include theology, running, and the Jacksonville Jaguars.