Legal Expert: Local Discrimination Laws Offer 'Limited Protection'

Apr 3, 2015

Indiana’s controversial religious freedom law has renewed the debate over whether businesses can use faith to refuse service to gay and transgender customers.

A lesbian couple from Bexley is calling on their city to prohibit discrimination against gays after they say a company refused them service. WOSU looks at the case, local ordinances and whether the rules can be enforced.

We want to warn you this story contains language some may find offensive. 

Jenn Moffitt and Jerra Knicely say they didn’t expect their story to draw much attention. But it did. Dozens of people showed up to support them at a Bexley rally this week.

“Let’s be caring and loving, right? Because this is about love, even though I’m looking a little excited and angry,” Equality Ohio director Elyzabeth Holford told the crowd. “This is about love, caring, dignity, family.”

Jenn Moffitt said she was “shocked” when a videography company notified her and her fiancée it does not provide services for same-sex weddings.

“In 2015, that that still happens, and from a younger person from our generation to have that kind of antiquated view was very shocking and disturbing.”

Courtney Schmackers, the listed owner of the small company, Next Door Stories, did not respond to our requests for comment.

While the couple claims discrimination, it does not appear what the business did is illegal.

There are no federal or state civil rights protections for sexual orientation or gender identity. But cities sometimes create their own ordinances.

Columbus is one of about 25 Ohio cities to pass such laws.

Its discrimination code includes employment practices, fair housing and public accommodations. That means businesses – restaurants, hair salons, florists, for example – cannot deny service to anyone based on race, sex, color, religion, national origin, age, disability, military or familial status, as well as sexual orientation or gender identity.

Violation is a first degree misdemeanor. Conviction can result in up to 180 days in jail and a $1,000 fine.

The code excludes “benevolent” groups such as religious corporations. City councilman Zach Klein clarified.

“At no point is anyone, that I’ve heard of, saying that your church should recognize this and hold a marriage ceremony for me, or your church should accept me for this or that,” Klein said. “This has to do with public businesses, and that everyone in the public right of way and the public stream of commerce should be treated equally.”

Despite the code, some people still face prejudice.

OSU student Rachel Beeman, who is lesbian, walked into a gas station on Alum Creek Drive on a Sunday afternoon six weeks ago.

“My stepmom and I went into the gas station, and when we were in there [a worker] made some pretty derogatory comments, you know, ‘dike,’ which not coming from within the gay community is not welcome,” she said. “And he just made a comment about not being welcome in his store.”

Beeman did not file a complaint with the city. She said it takes time and energy.

“Not everyone wants to be a spokesperson or wants to fight out against that,” she said. “It’s easier just to brush it off. We just want to live our lives just like everybody else does.”

The owner of the gas station said he does not tolerate discrimination, and he said if Beeman’s allegations are true the worker will be fired.

The Columbus Community Commission handles discrimination complaints for the city. Director Napoleon Bell said most grievances regarding LGBT individuals involve employment, and not incidents like what’s alleged in Bexley.

Bell recalled a transgender Columbus woman filed a complaint about not being allowed to use the female restroom at a fast food restaurant. But he said the case did not proceed because the woman stopped communicating with the commission.

Both Bell and City Councilman Klein said they’re confident the city’s ordinance and commission findings would stand up to a lawsuit.

OSU Moritz College of Law professor Ruth Colker agreed. She compared Columbus’ discrimination code to the era prior to the 1964 Civil Rights Act.

“We had cities, we had states that had similar protections on the basis of race to protect people from discrimination,” Colker said. “And we often say in our country that we like local government to be the laboratory of experimentation…I think it’d be hard to find an example of a federal statute that wasn’t first tried on the local level.”

But the effectiveness of the ordinance can be debated. Colker said while the local law could impose penalties, she said it doesn’t necessarily mean a person gets back their job, for instance.

“And so, the irony these days, after this summer when we all expect the Supreme Court to allow same-sex marriage, the irony is that many people may find themselves able to get married,” she said. “But then also able to be fired when their employer finds out they were married. And if they only protection they have is a local ordinance, they still should be very worried because that’s really a very, very limited protection.”

For Rachel Beeman, she said the local ordinance protects against overt discrimination.

“As far as the smaller things go, it doesn’t really serve for us directly,” Beeman said.