Posted November 29, 2016 2:26 PM
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Men denied service get $30K award

By Andrew Maloney
Law Bulletin staff writer

SPRINGFIELD — A state civil rights panel has signed off on a ruling in favor of a gay couple who was turned away from a downstate bed-and-breakfast.

The Illinois Human Rights Commission has declined to review a finding that the Timber Creek Bed and Breakfast in east central Illinois violated state law by refusing to hold a civil union ceremony for Todd and Mark Wathen.

An administrative law judge previously ruled the refusal to host the couple was a violation under the state’s Human Rights Act, awarded them $30,000 for emotional distress and $52,000 for attorneys’ fees and costs, and said the inn was required to host a fete for the couple within a year.

A two-page order from the commission stated that the panel “declined further review” in the case and that the administrative law judge’s order and decision from March 22 “has become the [o]rder of the commission.”

Administrative Law Judge Michael R. Robinson had noted in his initial decision that Timber Creek owner James Walder could still ask an appellate court to review claims that forcing him to hold such a ceremony would violate his First Amendment rights.

Jason R. Craddock, a sole practitioner who represented the Paxton-based Timber Creek Bed & Breakfast, could not be reached for comment on whether he plans to exercise that option.

John Knight, of the Roger Baldwin Foundation of the Illinois ACLU which represents the Wathens, said in a statement today that the commission’s decision “sends a clear message” that denying gay couples the use of a public wedding venue based solely on their sexual orientation “is simply not permitted.”

“Business owners cannot pick and choose to follow laws simply because they personally disagree with same-sex couples’ decision to marry,” Knight said. “Fortunately, we have not seen many examples of this type of blatant discrimination since the same-sex couples have had the freedom to marry in Illinois.”

The couple was also represented by ACLU senior counsel Harvey M. Grossman, Betty Tsamis of Tsamis Law and Clay A. Tillack of Schiff Hardin LLP.

Tillack said this afternoon he was pleased the commission awarded damages and fees. But he said the most important part of the decision was the recognition the Wathens were wronged.

"In any case in which a company or an individual holds services out to the community, the Human Rights Act is very clear that the company or individual that’s offering those services cannot deny them to any particular group based on their sexual orientation, their race, their sex, et cetera," said Tillack, a partner at Schiff Hardin LLP and chair of the firm's LGBT sub-committee. "So in this case, our clients were denied access to the premises of the bed-and-breakfast solely because of their sexual orientation and the commission ruled that is not permissible."

The case began in February 2011 when the Wathens were seeking a place to hold a civil union ceremony once the state law granting such arrangements took effect in June of that year. One of the men found the website for Timber Creek, located in Paxton, 50 miles east of Bloomington, which billed itself as an “ideal” wedding location, and inquired about holding a civil union ceremony there.

Walder replied in an e-mail that the business would “only do weddings.” When asked in a follow-up e-mail if he was discriminating, Walder replied, “We believe homosexuality is wrong based on what the Bible says about it. If that is discrimination I guess we unfortunately discriminate.”

The Wathens filed their complaint in March of that year.

Section 5-102(A) of the Human Rights Act states that it is a civil rights violation to deny “the full and equal enjoyment of the facilities, goods, and services” on the basis of race, color, religion, sexual orientation and other categories at a “public place of accommodation” — defined as restaurants, theaters, parks and a broad collection of other types of businesses aimed at convenience and enjoyment.

Robinson found that, because the inn really only declined services to others if, for instance, they couldn’t afford them, that the inn qualified as a public place of accommodation under the law.

He also said the inn owners did not factually back up their defense under the Illinois Religious Freedom Restoration Act — which says that “the government may not substantially burden a person’s exercise of religion” unless it proves a narrowly tailored, compelling interest for doing so.

That defense should be resolved by an appellate court, Robinson wrote. But he added that Timber Creek did not explain how allowing a same-sex ceremony on its premises, especially when its employees were not required to be present at such an event, was “somehow a sub silencio endorsement of anything goes on during that event.”

That logic was spelled out in Robinson’s initial decision in the case on Sept. 15, 2015. His rationale on damages was spelled out in his March order, in which he also briefly contemplated the notion that the Wathens might be “testers” — activists less interested in justice for themselves than in creating legal precedents.

He noted the couple filed similar claims against Beall Mansion Bed and Breakfast in Alton on the same day they filed against Timber Creek. But he “quickly” dispensed with that idea because the Wathens seemed genuine in their testimony and ultimately followed through on their stated wishes to hold a ceremony.

The case is In the Matter of Todd Wathen and Mark Wathen, and Walder Vacuflo Inc., Charge Nos. 2011–SP–2488 and 2011-SP-2489 and ALS No. 11-0703(C).

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