THE CASE

 

Joseph Malach is the owner of an events-decorating family business, with a store located in downtown Freetown, the capital of the State of Freeland. His family is originally from Israel and he is an observant Jew.

Joseph personally creates all the decorations he sells and usually sets up the decorations at the location of the event. He customizes his decorations with a wide variety of designs, depending on the occasion and his customers’ wishes (Mother's Day, graduations, retirement parties, and so forth). He is particularly famous for its talent in creating plant and flower sculptures, adapting them to the architectural features of the party locations chosen by his customers.

John and Mary White went to Joseph’s store, asking him to create special flower decorations for their son’s First Communion and to set up the decorations at St. Mary’s Church, where the celebration will take place.

In Joseph’s Jewish community, the rabbinic consensus, based on the Talmud, is that it is forbidden to enter a church for Jews, especially where (as with St. Mary’s) the church has a cemetery on its grounds. Accordingly, Joseph refused John and Mary’s request, and he told them that no other members of his family would be allowed to do the job.

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For the European version

Freeland is a Party of the European Convention on Human Rights.

John and Mary White have sued Joseph Malach alleging discrimination based on religious beliefs under Art. 3 of the Freeland Anti-discrimination in places of public accommodation act (ADPA) enacted in 2000, before Mr Malach started his family business.

The article provides that: “persons who, directly or indirectly, refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, religion, colour, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation, shall be fined with an administrative sanction”. “Place of public accommodation" means any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public.”

Mr Malach contended that his denial was justified, as it was in accordance with Article 9 of the European Convention of Human Rights, a text that Freeland entrenches within its constitutional text and that it interprets in accordance with the European Court of Human Rights’ case law. Nonetheless, Freeland’s Court rejected Joseph’s claims and it ordered him to pay a fine. After the exhaustion of available domestic remedies, Mr Malach applied to the European Court of Human Rights, arguing that Freeland’s prohibition on discrimination in places of public accommodation, as interpreted by Freedom’s Courts, violates Article 9 of the Convention.

 

For the U.S. version

Freeland is a state in the United States.
John and Mary White sued Joseph Malach in Freeland state court under the Freeland Human Rights Act (FHRA), according to which “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” “Place of public accommodation" is defined as “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public.” The FHRA also provides that violations are subject to fines up to $50,000 per occurrence.

Mr. Malach contended that his refusal to create the decorations for the Whites was justified under the First Amendment’s protections for freedom of speech and free exercise of religion. Nonetheless, the Freeland court rejected Mr. Malach’s claims, and he was assessed a fine of $50,000. That judgment was affirmed by the Freeland Supreme Court, and Mr. Malach appealed to the United States Supreme Court, which granted certiorari.

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