By Daniel Reynolds
Originally published on Advocate.com January 08 2014 5:00 AM ET
A couple in California, where their upcoming marriage will be legal, say they were denied service by a caterer because they're gay.
On November 26, Kama Kaina contacted Janet Zimmerman Catering with a request to cater his wedding to his longtime partner, Mathew Rivera. Zimmerman, who had been recommended by the couple's planned venue in Big Bear, Calif., initially agreed. But several hours later, she sent an email expressing a change of heart because of her "Christian beliefs."
"Thank you for contacting me in regards to your upcoming wedding," Zimmerman wrote to Kaina, according to an email forwarded to The Advocate. "I really appreciate that you were honest with me and gave me a heads up that this would be a same sex marriage. I hope that you will also appreciate when I am honest with you when I say that catering your wedding would comprise [sic] my Christian beliefs and I will be unable to accept this job. I am sure that you will be able to find someone who will better suit your needs."
Zimmerman's catering business operates online primarily via Facebook, and she did not respond to repeated requests for comment from The Advocate made over several days.
What might come as a surprise to Californians is that although Proposition 8 is gone, this sort of discrimination could still be legal. In California, public accommodations and business establishments such as bars, restaurants, and retail stores are prohibited from discriminating against gay, lesbian, and bisexual people under the Unruh Civil Rights Act. However, sexual orientation is not one of the protected characteristics listed under the state’s Business and Professions Code section 125.6, which applies to individuals licensed to render services.
According to David Hakimfar, a West Hollywood attorney and founding member of Pride Legal, Zimmerman may have acted within her legal right to refuse services to the gay couple, particularly if a court classified her company as a service rather than as a business establishment. To determine this distinction, the court would consider several factors — including the number of paid employees and whether it has physical facilities — all of which are detailed within the legal case Harris vs. Mothers Against Drunk Driving.
"It’s important to make a decision on what kind of business you have," said Hakimfar. "Because actually, there will be some times when you will be able to discriminate, and there’s nothing we can do about it. The law does make a distinction."
"[However,] you can’t ask someone to leave your business based upon their sexual orientation, because, even though that’s a private business, the law recognizes it more as a public accommodation."
Hakimfar recommends that LGBT Californians who feel like they have been discriminated against file a complaint with the state’s Department of Fair Employment and Housing. Since laws regarding discrimination vary widely across states and municipalities, Hakimfar also advises a consultation with a local attorney.
Kaina and Rivera have so far decided not to pursue legal action. The two men, who met nearly four years ago when Rivera offered Kaina his chair at an airport in New Orleans, are still searching for a caterer for their June wedding.
Although Kaina, a line producer for Pivot TV's news program TakePart Live, was "completely shocked" by Zimmerman’s response, he is still hopeful that a company will help him celebrate. "I do believe that everything happens for a reason," Kaina said, "and that we will find the right caterer for our day."