- The Washington Times - Sunday, June 28, 2015

When Melisa Erwin called the Giffords about using their upstate New York property for a same-sex wedding ceremony, she apparently knew in advance that they would refuse. For one thing, she and her fiancee recorded the conversation.

Even so, an administrative judge with the New York State Division of Human Rights ordered the Giffords to pay $3,000 to Ms. Erwin and Jennifer McCarthy for “mental pain and suffering,” in addition to $10,000 for violating the state’s human rights ordinance.

In a brief filed Thursday, attorneys for Cynthia and Robert Gifford argue that the state’s ruling violates the First Amendment, but they also criticize the same-sex couple for what they describe as an “orchestrated set-up.”

“The evidence, however, indicates that Respondents were aware of the Giffords’ beliefs and chose specifically to call and record Mrs. Gifford for the purposes of documenting the Giffords’ policy,” said the brief filed by attorneys with Alliance Defending Freedom.

“Such an orchestrated set-up can hardly form the basis for ‘mental anguish’ and suffering,” said the brief, which was submitted to the New York Supreme Court.

The argument illustrates a common complaint among Christian business owners: They are deliberately sought out by gay couples even though most photographers, bakers and florists would be happy to provide services for same-sex weddings.

“The gay community is constantly attacking the church as if the church were singling them out. However, it is the other way around; the gay community is singling out the church,” Patricia L. Dickson said in a Nov. 2 article in American Thinker. “How else do you explain gay couples running straight to Christian business owners as soon as their state lifts the ban on same-sex marriage?”

Gay couples differ on the matter. Some say they would avoid such businesses, and others appear to seek them out in an effort to combat discrimination.

An attorney for the Giffords said it’s clear that some cases are “driven by activism.”

“I think in many of these cases, they know or at least suspect that these are folks with religious objections,” said Alliance Defending Freedom senior counsel Byron Babione. “We think that’s the case here, and we think that’s an uncontested fact.”

He argued that the decision of Ms. McCarthy and Ms. Erwin, who took the McCarthy name when they married, to contact and record the Giffords knowing they would object to hosting the ceremony is relevant because “it’s important for the court to understand the context.”

Attorneys with the New York Civil Liberties Union representing the McCarthys did not immediately return a call for comment, but Melisa McCarthy said during last year’s administrative hearing that she felt “shell-shocked” and “horrible” after speaking with Mrs. Gifford, according to the judge’s ruling.

Jennifer McCarthy said the rejection was “heartbreaking” and made her “very upset.” The ruling also said the women “were so upset that they stopped looking for wedding venues for several months.”

The order said that it took the women two to three months before they began looking for farm venues again. They married in August 2013 at the Olde Tater Barn in Central Bridge, New York.

“No one should have the happiest time of their life marred by discrimination,” Jennifer McCarthy said in an Aug. 14 statement after the judge’s order. “We hope this decision will protect all New Yorkers from having to go through the hurt that we experienced.”

The Giffords were found guilty of “sexual orientation discrimination” in July after they declined to “host and coordinate a same-sex ceremony” in 2012 on their Liberty Ridge Farm in Schaghticoke, New York, the brief said.

The administrative judge ruled that their property was a “public accommodation,” noting that the Giffords operate a farmer’s market, a fall festival, berry-picking and a fall corn maze in addition to a wedding venue.

The brief counters that the weddings take place in a fenced-off area adjacent to or on the first floor of their private home, and that “the wedding area is accessible only when the Giffords enter into a contract with someone who wants to hold their wedding ceremony there.”

Although the Giffords object to hosting a same-sex ceremony based on their Christian beliefs, gay couples are welcome to reserve the farm for post-vow receptions, birthday parties and any other events.

“The Giffords serve everyone, including individuals who identify as gay and lesbian,” the brief says. “In fact, the Giffords will gladly host myriad events, including wedding receptions, for same-sex couples. It is only same-sex wedding ceremonies that the Giffords cannot host or participate in. The State thus acts unreasonably in punishing the Giffords for declining to participate in this narrow category of events.”

In 2011, New York Gov. Andrew Cuomo signed a law declaring same-sex couples eligible to marry.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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