A ‘troubling rise’ in business owners refusing gay couples, advocates say

Amy and Stephanie Mudd drove an hour from their home in Glasgow, Kentucky, to the city of Radcliff on April 3 to meet with an accountant at Aries Tax Service.

Mudd said her mother-in-law, who lives in the area, recommended the business because it offers a $55 flat fee to file taxes electronically.

When they got there, they saw a sign on the door that listed 10 things customers should have with them if they want the business to e-file their tax return. But the last item on the list stopped them from opening the door. It read, “Homosexual marriage not recognized.”

Stephanie Mudd said the first emotion she felt was anger that businesses can still turn away same-sex couples.

“It just kind of makes your heart fall into your stomach,” Amy Mudd said.

Aries Tax Service.

The couple took a photo of the sign and left.

“We wanted to bring attention to it, so that he knows that that’s not OK,” Amy Mudd said. “Nowadays, you’re providing a public service, and it’s federal taxes, and in the United States, it’s OK for us to be married.”

Kenneth Randall, owner of Aries Tax Service, said the issue “is a matter of personal conviction.”

“I put it to any reasonable person: ‘If you have a matter that’s a central conviction for you, are you willing to stand up for it?’” he said. “I am.”

He added that there are other tax preparers in the area that same-sex couples could use and that he’s protected by federal law.

There’s no federal law that explicitly allows people, based on their personal beliefs, to turn away same-sex couples or other classes of people, but there’s also no federal or Kentucky state law that protects LGBTQ people from discrimination in public accommodations, such as businesses.

Legal advocates say situations like the Mudds’ are on the rise as conservative religious organizations, such as the Alliance Defending Freedom, have been building campaigns and lawsuits for years to challenge civil rights laws.

“They want to get legal rulings that there are religious and free speech rights to violate these laws,” said Jennifer Pizer, law and policy director at Lambda Legal, a national LGBTQ legal organization. “We have seen a significant rise and a very troubling rise in these cases, and it’s not an accident.”

For years, same-sex couples have been turned away by business owners who don’t want to provide wedding-related services, citing their religious or moral beliefs. In 2018, the Supreme Court narrowly ruled in favor of Jack Phillips, a Christian baker who refused to make a cake for a gay couple’s wedding. The court ruled on a technicality — avoiding the issue of whether a business owner, due to their religious beliefs, could refuse to serve a same-sex couple.

Since then, religious denial-of-service cases have continued. In 2019, the Washington Supreme Court ruled against a florist who refused to provide services for a gay couple’s wedding. Last year, President Donald Trump’s Department of Justice backed a wedding photographer in Kentucky who sued the city of Louisville over its anti-discrimination ordinance that prohibited her from refusing to serve same-sex couples. That case is ongoing.

Earlier this month, the ADF filed a lawsuit in the U.S. District Court for the Western District of New York arguing that the state’s nondiscrimination law unconstitutionally prohibits wedding photographer Emilee Carpenter “from adopting an editorial policy consistent with her beliefs about marriage.”

The complaint says Carpenter “is already willing to work with clients no matter who they are, including those in the LGBT community” but that the state goes too far by requiring that she “celebrate” same-sex marriage in images on her website.

The ADF also argues that part of the state law limiting statements that certain customers are “unwelcome, objectionable or not accepted, desired, or solicited” interferes with Carpenter’s free speech, because it doesn’t allow her to express her views about same-sex marriage on her website.

Pizer said the New York case represents an area of law that is unsettled, specifically as it relates to people who work in artistic fields like photography.

For the most part, courts have upheld nondiscrimination laws, but in the instances they haven’t, they often rule on technicalities or rule that the laws violate the freedom of expression of creative professionals, Pizer said. For instance, in September 2019, the Arizona Supreme Court ruled that the state’s nondiscrimination law violated the free speech of two artists who create custom wedding invitations by compelling them to promote same-sex weddings.

Pizer said using free speech rights to justify discrimination “represents a dramatic shift from what the law has been for a long time.”

“Why would you think that a video of a couple’s wedding would be the message of the person holding the camera?” she said. “If the law changes in that way, then it’s hard to see where there’s a limiting principle, and it means that civil rights laws, at best, have a big hole in them and maybe, at worst, have very little effect at all.”

The free speech argument could also represent a potential challenge to the Equality Act, proposed federal legislation that would protect LGBTQ people in many areas. The measure passed the House in February but has not yet been voted on in the Senate.

Pizer said that, because Kenneth Randall is an accountant and not a creative professional, she doesn’t think an argument related to free speech would apply if there were a federal or state nondiscrimination law in Kentucky.

But Randall said he refuses to file taxes for same-sex couples because it would require him to express recognition of their marriage. Randall also sells insurance, and he said he has both sold insurance to and filed taxes for single gay people. But if a same-sex couple asked him to sell them insurance, he would only do it if he could put them down as single, he said.

“I don’t hate a particular individual. It’s a stand on a particular institution that I find wrong,” he said, adding that he’s been harassed and threatened since local news outlets published stories about his sign. “If people are willing to accept that, fine. If they are not willing to accept it, there’s plenty of other places to go for insurance.”

Pizer said the idea that people can receive services elsewhere “ignores a core purpose of civil rights laws.” She said the lunch
counter sit-ins held by Black college students in Greensboro, North Carolina, in 1960 to protest racial segregation weren’t about whether they could “get a sandwich.”

“It was about whether they were being treated the same as other people,” she said.

In the absence of a federal measure like the Equality Act or a statewide nondiscrimination law, the Mudds and couples like them don’t have any options for legal recourse, Pizer said, and businesses can — and do — continue to refuse to serve them.

In North Carolina, which also doesn’t have a statewide anti-discrimination law protecting LGBTQ people, at least two wedding venues made national news within the span of four months for refusing to host events for same-sex couples.

But the issue extends far past weddings. Some states, like Arkansas, have passed legislation that allows medical providers to refuse to serve LGBTQ people if it conflicts with their religious or moral beliefs. The Supreme Court will also soon decide a case that could allow private religious adoption agencies that receive federal funds to reject same-sex couples.

Pizer said growing acceptance of LGBTQ people has pressured some religious people “to stop doing types of discrimination that they’ve done for a long time.” That pressure has made them uncomfortable and it has made them feel victimized, in some cases, she said, and they’re fighting back.

“Being encouraged to treat everyone according to the golden rule is not being victimized and it’s not being excluded and it’s not being discriminated against,” she said. “When we’re operating in the public marketplace, being asked to stop discriminating is not to suffer discrimination yourself. It’s to be invited to play by the same rules that everybody else is expected to play by.”

As for the Mudds, they said they wouldn’t pursue legal action even if they could, but they wanted to make a statement about Randall’s choice to refuse same-sex couples.

“I understand that there’s freedom in this country, and that is what we were founded on,” Amy Mudd said. “And I understand that as a private practice, I guess he is allowed to do that … but to provide a service to the public and deny such a huge population is bad business.”

Stephanie Mudd added, “If we’re talking about morals, that’s quite the opposite of morals. People often hide behind their religion to justify their hate, and that is what is so frustrating.”

Follow NBC Out on TwitterFacebook & Instagram