Can a Business Refuse Service to Anyone?

A small Virginia restaurant named Red Hen found itself the subject of one of President Donald Trump’s Twitter jabs and faced an onslaught of scrutiny online after its owner asked White House Press Secretary Sarah Huckabee Sanders to leave. This raises questions about the legality of when, why or how a restaurant or private business can refuse service to a customer and under what circumstances it is legal or not.

Business owners have a bit of freedom in their decisions they make on whom they wish to serve. Certain rules and regulations are common among businesses. For example, “no shoes, no shirt, no service,”. Stores can even go as far as putting up political signs, ideological memorabilia, or religious passages. In the case of Red Hen, its owner, Stephanie Wilkinson, told the Washington Post the decision to ask Sanders to leave was over her work in the Trump administration and how it impacted her employees.

In other high-profile cases like Colorado’s Masterpiece Cakeshop owner’s refusal to design a wedding cake for a same-sex couple or a Walgreens pharmacist’s refusal to give a woman whose unborn child’s heart stopped beating a medication her doctor prescribed that would help end her pregnancy relate to moral reasons and religious convictions. The legality of each, has to do with the reasons involving the decision (whether they’re political, moral or discriminatory), and what anti-discriminatory laws in the given jurisdiction protect.

The Supreme Court did not say that Jack Phillips, owner of Masterpiece Cakeshop in Colorado, was legally justified in refusing service to David Mullins and Charlie Craig, who had requested a wedding cake for their reception. Instead, the Court ruled that the Colorado Civil Rights Commission, which determined Phillips violated state anti-discrimination laws, was impermissibly hostile to his claims of religious freedom. Therefore, the underlying decision against Phillips was vacated, without any ruling on whether, as a general matter, business owners are permitted to discriminate based on their religious beliefs.

A Tennessee hardware store was in the news following the Supreme Court decision in favor of a Colorado baker who refused service to a same-sex couple. Jeff Amyx, owner of Amyx Hardware & Roofing Supplies in Washburn, Tennessee originally put up a “No Gays Allowed” sign in his storefront window in 2015 in response to the Court’s ruling that bans on same-sex marriage were unconstitutional. The story of Amyx’s sign, and his and the store’s outspoken homophobia, was recirculated in the media in the wake of the Supreme Court decision.

Many of these cases hinge on what’s called public accommodations laws, which differ from state to state in their size and scope and prohibit discrimination on the grounds of race, gender, ethnicity or religion.

Most states have no public accommodations laws that prohibit discrimination based on political ideology. Therefore, no law prohibited Red Hen’s owner from asking Sanders to leave due to her actions as an official in the Trump administration.

Eugene Volokh, a law professor at the University of California, Los Angeles notes there are benefits and drawbacks to refusing to serve someone due to their political ideology. “Now, is that good because it allows people to exercise their conscience and send a symbolic message of this kind of refusal?” Volokh asked. “Or is it bad because it’s unfair to the targets or prospective clients? Or, for that matter is it bad for social cohesion that’s a matter of kind of ethics and a matter of political judgement and the like?”

While Amyx may, at least for now, be allowed to post a “No Gays Allowed” sign in his store (and another that reads: “We reserve the right to refuse service to anyone who would violate our rights of freedom of speech & freedom of religion”), that doesn’t mean that all business owners can deny service because of a customer’s sexual orientation or gender identity. There may be local, state, and perhaps federal laws that prohibit such discrimination.

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– Steve Jobs, Founder of Apple, Inc.