The Right to Refuse Service and Its Implications on Society

Summary: A business owner has the right to refuse service as long as he or she does not infringe upon federal or state discrimination laws.

Background

Across the nation, businesses display and enforce their right to refuse service. Whether a customer is causing a nuisance or is dressed inappropriately, the business could withhold its services without legal repercussions. Many businesses make their right clear by posting signs with phrases like “We Reserve the Right to Refuse Service to Anyone.” While this statement does hold true in many cases, it depends on the reasoning behind refusing service. The Constitution, federal laws, and state laws protect certain groups of people from discrimination on the basis of being a member of that group in public accommodations, but not all groups are protected.

What Constitutes Illegal Discrimination

Since the Civil Rights Act of 1964, businesses cannot discriminate against any person on the basis of their race, sex, religion, color, or nationality. If a business breaks this rule, it can face legal consequences at the state and federal level.

After the act was signed into law, not all private businesses complied. The Heart of Atlanta Hotel refused to adapt and stop its discriminatory practices. The Georgia hotel continued to refuse black patrons. The hotel owner filed a lawsuit against the federal government, stating that it overstepped its constitutional authority. Eventually, the Supreme Court took the case and they ruled in the landmark decision Heart of Atlanta, Inc. v. United States that Title II of the Civil Rights Act was constitutional under the Commerce Clause. Therefore, Congress has the full authority to enforce anti-discrimination laws onto private businesses in all states.

In 1990, the Americans With Disabilities Act made discrimination against the disabled illegal at the federal level. States were mandated to comply with the act. This added disability to the list of protected categories that business owners could not use as reasoning to refuse service to a customer.

When a Business Can Refuse Service

If a private business wants to refuse service they must also be in compliance with state law. Different states have different laws regarding discrimination in public accommodations. For example, the laws in regards to discrimination vary greatly from New Jersey to Nevada. Under the New Jersey Law Against Discrimination, a business owner cannot discriminate against a potential customer due to marital and partnership status. On the other hand, Nevada does not include this under the Nevada Equal Rights Commission, which could allow a business owner in Nevada to legally discriminate against a customer’s relationship status.

Discrimination laws can vary greatly across the United States. In June 2018, White House Press Secretary Sarah Sanders was turned away when trying to dine at the Red Hen restaurant in Lexington, VA. Sanders was turned away by the restaurant due to her political affiliation with the current presidential administration. The Virginia Human Rights Act does not protect consumers from political affiliation discrimination. Therefore, the restaurant did not break any federal or state law when refusing to serve Sanders. Contrastingly, if a restaurant located in the District of Columbia were to deny Sander’s entry due to her political affiliation, the restaurant could face a civil rights lawsuit. The discrimination of political-affiliation is specifically forbidden in the DC Human Rights Act of 1977.

Discriminating Against Sexual Orientation

When Colorado resident and Masterpiece Cakeshop owner Jack Phillips refused to bake a wedding cake for a gay couple in July of 2012, the state ruled that his actions discriminated against sexual-orientation and that Phillips could not refuse service on the grounds of freedom of speech nor free exercise of religion. While Colorado has such a law that protects discrimination based off of sexual orientation, the federal government does not. Later in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court overturned the case, with Justice Anthony Kennedy citing that the state violated the First Amendment’s Free Exercise Clause. Focusing on the specific case and not the broader issues of discrimination in regards to sexual orientation, the court found a way around setting a judicial precedent on the matter.

In 2015, Barronelle Stutzman, owner of Arlene’s Flowers in Richland, WA, refused service to a gay couple citing that her religious beliefs prevented her from doing so. The State Supreme Court of Washington unanimously ruled against Stutzman, leading her to file a petition to the Supreme Court of the United States. The Supreme court later remanded the case back to the state since they had previously ruled on the Masterpiece Cakeshop case.

In twenty-two states, there is specific legislation that protects against discrimination on sexual orientation. The other twenty-eight states do not have this legislation, resulting in states where a business could turn down a customer on the basis of sexual orientation. The Supreme Court’s inability in establishing a ruling that states the legal relationship between religion and discrimination against sexuality leads to confusion in the courts and a country where LGBTQ individuals can be refused services solely depending on their physical location. Eventually, the court will be forced into making a decision as more and more controversial cases on the matter come to light.

Jacob Turobiner is a freshman from Calabasas, California, intending to major in Political Science.

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