Acting to protect the State’s ability to enforce its own laws ensuring equality for all New Jersey residents, Attorney General Gurbir S. Grewal has joined amicus briefs in two separate federal lawsuits involving discrimination against LGBT persons.
“We are committed to fighting discrimination and ensuring equal treatment regardless of race, sex, disability, or sexual orientation, and we will do everything in our power to protect the civil rights of all New Jersey residents,” said Attorney General Grewal. “By joining these amicus briefs we are simply ensuring that there is equal protection under the law for all.”
In one case, the amicus brief joined by Attorney General Grewal defends the constitutionality of a Minnesota law banning businesses from refusing equal service to gay and lesbian customers. The owners of a videography business who refuse to film same-sex weddings argue that Minnesota’s public accommodations law interferes with their constitutional right of free speech and free exercise of religion.
These arguments are identical to those made by the baker in Masterpiece Cakeshop v. Colorado Civil Rights Commission, currently pending before the U.S. Supreme Court. And they are similar to arguments made in a New Jersey case in 2007, when the state Division on Civil Rights found that the Ocean Grove Camp Meeting Association violated New Jersey’s Law Against Discrimination (LAD) by rejecting a same-sex couple’s request to use the Association’s Boardwalk Pavilion for a civil union ceremony.
“A ruling that allows business owners a ‘free speech’ or ‘free exercise’ right to discriminate against certain customers would make it difficult for New Jersey to enforce its own anti-discrimination laws and protect the rights of all New Jersey residents,” said Grewal.
The New Jersey LAD was enacted in 1945. It currently prohibits discrimination in employment and places of public accommodation based on race, gender, ethnicity, religion, sexual orientation and other protected characteristics.
The amicus brief joined by Attorney General Grewal in the Minnesota case – Telescope Media Group v. Lindsey – rejects the videographers’ view of the First Amendment as a “shield for discriminatory conduct” that, if allowed, would leave behind “a society separate and unequal by law.”
“Many Americans would face exclusion from a host of everyday businesses or, at the very least, the ever-present threat that any business owner could refuse to serve them when they walk in the door,” the brief emphasizes, “simply because of their sexual orientation, their race, religion or gender.” The amicus brief also explains that states have a compelling interest in addressing “the pervasive discrimination LGBT people have long suffered and continue to suffer today.”
In the other case – Horton v. Midwest Geriatric Management -- the amicus brief joined by Attorney General Grewal supports an Illinois man who had an offer of employment from Missouri-based Midwest Geriatric withdrawn after he disclosed that he was gay. The brief argues that sexual orientation discrimination is a form of sex discrimination barred by Title VII of the federal Civil Rights Act of 1964.
“New Jersey’s LAD explicitly prohibits employment discrimination on the basis of sexual orientation,” Attorney General Grewal explained. “But whether Title VII’s ban on sex discrimination also prohibits sexual orientation discrimination is of vital importance to New Jersey residents who work in Pennsylvania (where there is no comparable state statute) and to New Jersey residents who work for the federal government, for whom Title VII is their only protection.”
The multi-state amicus brief asserts that “significant harms” result from discrimination on the basis of sexual orientation. It explains that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII for three reasons:
Discrimination on the basis of sexual orientation necessarily considers an employee’s sex (here, MGM would not have discriminated against a would-be hire for being in a relationship with a man, had that individual been a woman.)
Discrimination on the basis of sexual orientation constitutes associational discrimination based on sex, similar to the way that anti-miscegenation laws constituted associational discrimination based on race.
Discrimination on the basis of sexual orientation is rooted in gender stereotypes of how “real” men and “real” women should look and behave, and who they should love.