Academic

Sexual Orientation Discrimination in Public Accommodations

By Tony Infanti

Last week, the Minnesota Court of Appeals affirmed a trial court decision in Monson v. Rochester Athletic Club, 2009 Minn. App. LEXIS 1, that the Rochester Athletic Club (RAC) did not violate the Minnesota Human Rights Act’s prohibition against discrimination on the basis of sexual orientation when it refused to provide its services to a same-sex couple at the same discounted family membership rate that it charges married different-sex couples. The decision is, to say the least, rather disappointing.

The court ruled that RAC’s policy was not facially discriminatory because it treats all unmarried couples–both same-sex and different-sex–alike. To me, this seems an untenable position, notwithstanding the court’s citation of authority from other states to the same effect. How can you turn a blind eye to the fact that same-sex couples are legally barred from marrying in Minnesota? Same-sex couples and different-sex couples are not similarly situated for this purpose, so how can you really compare them and call their treatment equal? Unmarried different-sex couples can always choose to marry and get the discount, if that’s what they wish to do. Same-sex couples never get that same choice and, therefore, can never qualify for the family discount. The fact that the discrimination is incorporated by reference rather than stated on the face of RAC’s policy seems to me to be a completely indefensible distinction upon which to hang a decision concerning the application of a “human rights” act. In addition, the court, like many others, further refused to entertain a disparate impact theory for liability (i.e., that same-sex couples are disparately impacted by the policy because of their legal inability to marry).

Though I am outraged by this decision, I guess I shouldn’t be too surprised by it. I am sure that the couple did not separately argue that RAC’s actions constituted discrimination based on their marital status because the Minnesota Supreme Court has held that, for this purpose, the “marital status” protections of the Minnesota Human Rights Act cover only singles and married persons–and not unmarried couples–due “to the legislature’s policy of discouraging the practice of fornication and protecting the institution of marriage.” See State by Cooper v. French, 460 N.W.2d 2 (Minn. 1990). After all, why would we expect the state to demand that the owners of public accommodations treat same-sex couples any better than the state already does?

-Tony Infanti

Full post as published by Feminist Law Professors on January 11, 2009 (boomark / email).