Sunday Commentary II: When is Refusal to Provide Service Discrimination?

lgbt-flagMany establishments will post a sign: “We reserve the right to refuse service to anyone.” It is an intriguing question as to when an establishment can and cannot refuse service to others.

Probably not surprisingly the signs, while deemed legal, do not actually have any bearing on whether the restaurant or other entity may refuse service. As Legal Match puts it, “Simply put, restaurants that carry a ‘Right to Refuse Service’ sign are subject to the same laws as restaurants without one.”

The Civil Rights Act of 1964 “explicitly prohibits restaurants from refusing service to patrons on the basis of race, color, religion, or national origin.” That makes sense given that one of the key tenets of Jim Crow laws was that restaurants would either refuse service to people of color, mostly blacks, or force them to pick up their food around the back in the alleyway.

There is a history here. On February 1, 1960, four college students who were African-American, decided to protest the segregation of lunch counters by sitting down at a lunch counter at Woolworth’s in Greensboro, North Carolina, and politely asked for service. Their request was refused. When asked to leave, they remained in their seats.

Restaurants may refuse service for legitimate reasons: rowdy behavior, overfilled capacity, closing time, poor hygiene or improper attire. Legal Match writes, “In most cases, refusal of service is warranted where a customer’s presence in the restaurant detracts from the safety, welfare, and well-being of other patrons and the restaurant itself.”

The question then becomes, where does the line get drawn? Sexual orientation, for instance, is not included in the Civil Rights Act. And where does the line between exercising their own religion cross with the line of discrimination?

There was an interesting discussion of this in response to a letter to the editor in the LA Times earlier this week, where a Fullerton resident stated, “A Christian couple have the right serve ham at their wedding reception, but shouldn’t a kosher caterer have the right — on religious grounds — to decline their business?”

One person would respond, “There’s a difference between not offering a service to anyone and offering it to everyone except a certain group.” Instead, they argue, “the kosher caterer does not serve ham to anyone so it would not be discriminating against the Christian couple by refusing to serve ham at the couple’s wedding. If the couple wanted corned beef and the caterer would not serve them because they were Christian, Muslim or gay, then that would be discrimination.”

Another points out, “I doubt you’d find a kosher caterer selling ham. You also probably would not find an Indiana pizza restaurant selling prime rib (one, apparently, isn’t selling pizzas either) much less an Indiana shoe store selling sledge hammers.” They add, “The issue is not the demands of the customer, but the prejudices of the seller.”

Another points out, “Declining to serve ham is not the same as declining business.”

Here is where I think I stand on the issue: A pizza place cannot on religious grounds refuse to serve pizza to a same-sex couple.

The more gray area occurs with regards to whether a cake company can be compelled to write a message on their cake that is at odds with their beliefs. Is a cake company required to congratulate a same-sex couple for their wedding? Along the same lines, would a cake company be required to present an anti-gay message on their cake? Or a political message on their cake that is at odds with their own?

I can see arguments that go in either direction there. It is one thing for me to argue that white supremacists have the same rights to free speech as anyone, it is another thing for the government to compel a private company to facilitate that communication.

The Vanguard has a pretty open policy on submissions, however, you could argue that publishing a “white power” piece would harm our brand.

Moving to the other end of the fence, I would argue that Christian clergy or other wedding officials should not be compelled to conduct same-sex wedding ceremonies.

On the other hand, I think it seems a lot more questionable that a business owner could refuse a same-sex party access to their facility. After all, if they denied a black couple or an interracial couple access to their facility, they would face a lawsuit for violating the Civil Rights Act.

So, do you believe that a facility could refuse an interracial couple access to their facility for their wedding reception? I lean toward no and therefore I lean toward no on refusal of a gay couple.

One of the more interesting things we have seen in this debate is just how far the public has moved on this issue in an extremely short period of time. Remember, it was just 2008 – about six and a half years ago – that California approved Prop. 8.

At the time, I predicted that gay rights to marry were inevitable, but I believed it would probably take a decade or two. In a relatively short period of time we went from a state like California voting to ban same-sex marriage (with the same electorate that overwhelmingly elected Barack Obama), to a place where it is conceivable that gays in most places could have the right to marry if the Supreme Court rules as it may well rule next month.

Now states like Indiana that pass laws that seem to discriminate against gays become the pariah. Republicans are nervous that association with these laws could hurt them in critical swing states in 2016. It has been a massive sea change in a very short time and that is nothing short of remarkable.

In the end, I do not see why granting gays the same rights to marry as everyone else has any more religious implications than states allowing divorce to undermine religions that do not permit divorce. The separation of church and state is paramount to protecting the liberty not only of individuals who do not practice that religion, but also of the churches themselves.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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19 Comments

  1. Frankly

    David does a good job here framing the issues until the end where he falls on his ideological pillow.

    I think there is a pretty clear differentiation that we can adopt.

    Discrimination over who a person is should not be allowed.  I think this is pretty definitive, but will end up needing court rulings at times.  For example, do we know if someone is gay because it is who they are, or because it is it a choice they make?  I tend to think (from my own personal experience and relationships) that about 80% are born that way, and 20% choose it for one reason or another.   That ratio is strong enough in my opinion to make it a definitive rule that gays deserve protection. This point is mute because gays already get protection.

    But discrimination for what a person does should not be protected.  However, the refusal needs to have a legal, rational and protected basis.

    For example, a baker should not be able to refuse selling ready-made products to gays, but a cake artists should not be forced to make a custom cake with symbolism against his religious beliefs.  The wedding and the specification of the cake design are choices, not a representation of who a person is.   And those choices conflict with the choices of the cake maker for what he is willing to make.

    Religion seems to be the thing that throws a wrench in this.  In my view the test should be material harm.  For example, if one Christian cake artist refuses to make a cake that symbolizes a gay wedding, is that gay couple really materially harmed?

    I think a high percentage of cake artists would not have a problem making a cake for any wedding.  I think it would be easy in most cases for a gay couple to locate a cake maker willing to make a cake that symbolizes their gay wedding.    And since the options exist, the gay couple would not be materially harmed by the refusal from one or some cake makers.

    Do reasonable alternatives exist to mitigate material harm from rejection over choice?  I think that is a test we need to apply.  And for a cake maker in a small town where they are the only one… well then, better plan to make a cake for almost every choice and event if you don’t want to lose in court.

    1. tribeUSA

      Frankly–yes, some good distinctions here too.

      I like your “person is”/”person does” criteria, perhaps more sound that the “material harm” criteria, which is subject to a wider range of interpretation and may benefit lawyers more than anyone else.

      To those facing a small-town cake dilemna, order your cake from out-of-town; surely it is preferable to use your fork to eat cake than fork-over a lifetimes worth of cake money to a lawyer? Besides, by insisting on your cake, it might not wind up looking or tasting so good. So you may have your cake and eat it too, but not without some regrets. You can likely find another business to special-order from out of town.

      1. Barack Palin

        Besides, by insisting on your cake, it might not wind up looking or tasting so good.

        I thought about that too, it’s like sending food back at a restaurant which I never do.  Maybe that’s the next phase, “our cake didn’t taste as good as the cake you made for the straight couple”.

        1. Davis Progressive

          my experience with sending food back is that they go out of their way to make sure you are happy because they want to keep you as a customer.  it is strange to me that someone’s religious beliefs overwhelm their business sense.  don’t they want to sell cakes?  why discriminate?

        2. Barack Palin

          my experience with sending food back is that they go out of their way to make sure you are happy because they want to keep you as a customer.

          Do you really know what happens when you send your food back?  Are you in the kitchen when they “fix” it?  Have you ever seen the movie “Waiting”?  A little extra “salt and pepper”?

          You do as you wish, I never send my food back.

        3. TrueBlueDevil

          It’s pretty bad when a TV station has to set up a young person at a Christian pizza parlor with hypothetical “gotcha” questions.

          Beyond that, she said that had served gay customers, and would in the future, they just wouldn’t cater a gay wedding due to their religious beliefs.

          1. Don Shor

            Through this whole debacle, I’ve been wondering at the notion of gay couples have their weddings catered with pizzas.

        4. Barack Palin

          That Indiana pizza restaurant has received around a million dollars in donations since this all came down.  They’re doing just fine.  People realized what a hatchet job they had done on them and have made it right.

        5. Frankly

          Through this whole debacle, I’ve been wondering at the notion of gay couples have their weddings catered with pizzas.

          I’m glad someone else made this point.  That is certainly late night TV fodder.

          I assume they will also serve beer at the wedding?

        6. Davis Progressive

          “Do you really know what happens when you send your food back?”

          usually i get a new order and i like it.  they’d be risking an awful lot to do mischief.

        7. Davis Progressive

          “That Indiana pizza restaurant has received around a million dollars in donations since this all came down.  They’re doing just fine.  People realized what a hatchet job they had done on them and have made it right.”

          you mean a bunch of like-minded ideologues are pumping their money with their mouths are.

        8. Barack Palin

          they’d be risking an awful lot to do mischief.

          You would never know.

          you mean a bunch of like-minded ideologues are pumping their money with their mouths are.

          No, more like people saw that they were railroaded and felt sorry for them.  It needed up working out great for them, we should all be so lucky.

           

           

    1. Davis Progressive

      the world has changed in 20 years – a lot.  as the article points out, the world has changed a lot in just six from when california passed prop 8.  these days, that would have gone down by huge margins.

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