Not too long ago, many retail shops proudly displayed a sign that stated, “No shirt, no shoes, no service.” It gave the impression that the right to refuse service was at the discretion of the management. That’s not really how it works today.
At the core of whether a business can refuse service is whether the refusal falls under the umbrella of discrimination.
Title II of the Civil Rights Act of 1964 (Civil Rights Act) prohibits discrimination in places of public accommodation based on a patron’s race, color, religion, or national origin. The key here is what defines an establishment as a public accommodation. In short, it applies to hotels and motels, movie theaters, concert halls, sports arenas or stadiums, and establishments that sell food for consumption on the premises.
The Americans with Disabilities Act of 1990 (ADA) expanded the scope of discrimination to include individuals with physical, mental or emotional impairments, while also expanding the definition of public accommodation to include a broader spectrum of privately owned establishments, including bakeries and a plethora of other privately owned establishments.
These laws were intended to assure fair and equal access to products and services for people of any race, color, religion, or national origin, and eventually expanded to include individuals with physical, mental, or emotional impairments. They were never intended to unfairly penalize shop owners or create an atmosphere that fostered reverse discrimination.
Using the cover of civil rights legislation, however, certain individuals are allowed encouraged to assert their “rights” at the expense of the rights of others.
For instance, The Masterpiece Cakeshop was sued because the owner, Jack Phillips, denied service to a gay couple on the basis of deeply held religious convictions concerning the support of same-sex marriage.
According to Colorado Revised Statutes Title 24 § 24-34-301, the same non-discrimination protections for places of public accommodation created by the Civil Rights Act and expanded by the ADA also extend to sexual orientation, meaning “an individual’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or another individual’s perception thereof.”
According to the Colorado Civil Rights Division’s interpretation of the Colorado Anti-Discrimination Act, the gay couple’s rights to service should have taken precedence over the rights of Jack Phillips, the owner of Masterpiece Cakes.
Thankfully, the Supreme Court decided (in a very close 7-2 ruling) that Jack Phillips’ religious rights should not be infringed. Justice Kennedy wrote the majority opinion, stating, in part:
The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.
The freedoms asserted here are both the freedom of speech and the free exercise of religion… Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality. ~ Supreme Court Justice Anthony Kennedy
The formal order (certiorari) given to the lower appellate court in Colorado stated, in part:
The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. See Obergefell v. Hodges, 576 U. S. ___, ___. While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion. To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell. Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case.
That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments.
The hypocrisy highlighted in the order bears repeating. Colorado’s Civil Rights Division condoned the denial of service at least three times when it favored the gay community, even while instant enforcement proceedings were pending against Jack Phillips for denying service to the gay community.
None of that matters to professional politicians like Nancy Pelosi, who published a scathing statement condemning the Supreme Court’s decision.
“The Masterpiece Cakeshop case is about the most fundamental right of all Americans: to be free from persecution and discrimination because of who they are or whom they love. While narrowly framed to apply to the decision-making process undertaken by the state commission, today’s wrongheaded decision fails to uphold equality in this case.
“Masterpiece Cakeshop is a commercial bakery open to the public, and such services clearly must be made available to the public on equal terms as determined by an independent review by the Colorado Court of Appeals which should have been upheld. No business or organization open to the public should hide their discriminatory practices behind the guise of religious liberty.” ~ Rep. Nancy Pelosi (D CA)
Notice the double standard upheld in Rep. Pelosi’s statement. The rights of some Americans need to be protected so individuals are free from persecution and discrimination because of who they love, but the rights of others are simply dismissed as a guise of religious liberty.
Jack Phillips was almost denied one of his most basic rights as a U.S. citizen, the free exercise of his religious rights.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… ~ 1st Amendment of the Constitution of the United States of America
It is the opinion of this writer that business owners should be allowed a certain measure of latitude regarding the enforcement of (or adherence to) anti-discrimination policies, especially when it comes to questions of religious expression. It is their financial risk and sweat equity that created these places of public accommodation, so the rights of the business owner need to be carefully weighed when determinations of discrimination are at stake.
The spirit of that carefully weighted balance between the rights of the patron versus the religious rights of the business owner is seen clearly in ADA § 12113 while considering the prohibition of employment qualification tests.
This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities…
Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.
According to the ADA, religious convictions do matter, and they are given precedence over otherwise discriminatory hiring practices. They aren’t simply a guise of religious liberty designed to flout the law.