B&B takes discrimination case to Illinois Supreme Court

CHICAGO — A Christian bed-and-breakfast west of Paxton is asking the Illinois Supreme Court to reverse the Illinois Human Rights Commission’s finding that the B&B discriminated against a same-sex couple six years ago, along with the $80,000 in penalties the commission imposed against it.

Chicago attorney Jason Craddock filed a petition with the Supreme Court last week, asking the court to reverse the commission’s decision “on both liability and damages” or instead order a state appellate court to reinstate the case.

Craddock’s recent filing in the state’s highest court followed unsuccessful efforts to have the commission’s ruling reversed through the Fourth District of the Illinois Appellate Court. The appeals court dismissed the B&B’s appeal earlier this year, then in August denied the B&B’s request to have the dismissal reversed.

“We are hopeful that the Supreme Court will choose to allow this matter to be decided on the merits,” Craddock said.

Craddock filed the petition on behalf of Jim Walder, co-owner of the TimberCreek Bed-and-Breakfast west of Paxton, who is facing penalties that include paying $30,000 to Todd and Mark Wathen for their emotional distress and paying the Wathens’ attorneys $50,000 in fees.

The Wathens, who live in Tuscola, are being represented by a slew of Chicago attorneys, including those from the American Civil Liberties Union of Illinois. ACLU spokesman Ed Yohnka said last week he expects the Supreme Court to uphold the commission’s findings.

“We are confident that this matter already has been correctly decided,” Yohnka said. “Our clients were injured as the Human Rights Commission found.”

The penalties against the B&B were imposed in 2016 by a three-member panel of the Human Rights Commission, as recommended by an administrative law judge appointed by the commission. The judge and panel both found that Walder violated the civil rights of the Wathens by refusing to host their civil-union ceremony at his B&B in 2011, and then sending them a series of emails citing Biblical verses and denouncing homosexuality as “wrong and unnatural.”

Besides fines, the Human Rights Commission’s sanctions include the B&B ceasing and desisting from violating the Human Rights Act (IHRA) and the B&B offering the Wathens access to the facility, within one year, for an event celebrating their civil union.

‘Civil unions are not weddings’
In Craddock’s filing with the Supreme Court, he argues that there was no discrimination on the basis of sexual orientation because the B&B merely declined to offer a service — the hosting of civil union ceremonies — that “it never offered in the first place,” whether for same-sex couples or heterosexual couples.  Craddock argues that although the B&B does host weddings, civil unions are not weddings — and should not be considered as such. Because the B&B does not host civil union ceremonies, the Wathens lacked standing to sue Walder through the Human Rights Commission, Craddock argues.

“Appellant is not required by the IHRA to offer a new category of services (i.e., civil union ceremonies) for those who choose not to enter into marriage as it was prescribed legally in Illinois,” Craddock argues. “An analogy would be if someone sued McDonald’s restaurants for not selling food items desired by a particular ethnic group ... or suing Baskin Robbins for not selling a particular flavor of ice cream that members of a certain group like.

“The IHRA does not require businesses to offer categories of service they do not already offer merely because it would be able to do so. Such a rule would give government the authority to dictate what products and services businesses must offer, which is a frightening and unconstitutional prospect. The commission is punishing (Walder) for not offering civil union ceremonies, and tagging on his comments about homosexuality to make it appear like it is discrimination.

“The commission’s argument that civil unions were the equivalent of marriage similarly defies the expressed intent of the Illinois Legislature and the rules of statutory construction, as well as logic and common sense. If the Legislature intended civil unions to be no different than marriage, they would not have found it necessary to pass a civil unions statute. The fact that twice in recent years the Illinois Legislature had failed to pass legislation legalizing same-sex marriage reflects that it intended a distinction between civil unions and marriage at the time of the events in question.

“The bottom line is that a civil union was not and is not a marriage, and it is not discriminatory for an establishment such as (Walder’s B&B) to allow one type of ceremony (i.e., weddings) on its premises and not another (i.e., civil unions).”

‘Not place of public accommodation’
Craddock also argues that the B&B should not be considered a place of “public accommodation with respect to performing weddings.” Only places of public accommodation are subject to the IHRA.

“(Walder’s B&B) has never disputed that the motel portion of its business is a place of public accommodation, but wedding chapels are not listed as places of public accommodation in the IHRA, and thus the wedding chapel part of (the B&B) facility is not a place of public accommodation,” Craddock said.

Emails are ‘irrelevant’
Craddock also argues that Walder’s comments to the Wathens through email — which the commission claimed constituted “direct proof” of discrimination — are “irrelevant to the ultimate issue, which is whether (the B&B’s) failure to include civil unions among its category of services for both heterosexual and homosexual couples constitutes unlawful discrimination on the basis of sexual orientation.”

During a November 2015 public hearing held by the commission to consider damages to be awarded to the Wathens, Walder said he did not intend to come across as “hateful, bigoted or homophobic” by denying them the opportunity to hold their civil-union ceremony there. A Christian, Walder said he simply did not want to compromise his religious views. He said he sent the emails to the Wathens merely to explain, not to be hateful.

Constitutional protections?
Craddock noted that Walder’s decision not to host civil union ceremonies was motivated by his “religious convictions to refrain from furthering, promoting or commemorating a message that conflicted” with his religious and moral beliefs regarding marriage, and “not from any sort of unlawful discriminatory animus.” If he were forced to host civil union ceremonies at his B&B, it would mean “conveying a message of approval” contrary to his religious beliefs.

“Both the United States Constitution and the Illinois Constitution protect the right to freedom of expression against state coercion,” Craddock said.

“(The) appellant is associated with, and thus implicitly endorses, the messages conveyed in every event or ceremony it holds on its premises,” Craddock continued. “Thus, to require (the) appellant to use its premises to host civil union commitment ceremonies is, in essence, to compel (the) appellant to use its expressive First Amendment rights to convey (and thus implicitly endorse) the message that two individuals in love can enter into a relationship that mimics marriage but is not really marriage (which would yield fornication, or sex outside of the bond of marriage), which violates the Bible in several places.

“These bedrock constitutional principles undergird the well-established rule against compelled expression, which prohibits the government, including the commission, from compelling a private actor to express or affirm a message contrary to his or her beliefs.”

Craddock said Walder’s rights to free exercise of religion are also being violated if he were required to host civil union ceremonies.

“The commission has ruled, in effect, that in order for private business owners to comply with Illinois law, they must attend religious services advocating ideas that violate their personal religious beliefs or suffer formal punishment from the commission,” Craddock said. “But this harsh and egregious rule violates the Free Exercise Clause. The ‘exercise of religion’ protected by the First Amendment includes the ‘abstention from physical acts’ such as ‘assembling with others for a worship service.’”

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