This mail bag question is a tough one about the conflict between two competing freedoms when dealing with public accommodation laws. Thanks for sending it in, I enjoyed thinking about it during an ice cream break at the office today. It was a fun distraction. (But not nearly as fun as calculating the 25 year investment returns of Chevron, the oil giant.) That was a great way to start the morning.
I love your posts about personal freedom. What do you think about the high profile case in Washington state? It seems you would be interested given your support of the Christian church and gay marriage since the two appear to conflict in this story that’s been everywhere the past week.
If you are unfamiliar with the case, here is a link. The short version is that a woman named Barronelle Stutzman owned a flower shop called Arlene’s Flowers and Gifts. She had several friends who bought from her for years. These friends, two men, decided to get married. They wanted to use their money to support Barronelle’s business given their friendly relationship.
Barronelle said she would refuse to sell them flowers for the wedding because of her “relationship with Jesus”. Not only did the couple sue her, but the Attorney General of the state sued her for a violation of state law. After that the ACLU sued her in a third lawsuit so she is now facing total financial ruin! Three lawsuits all because she wouldn’t sell flowers.
How do you balance personal freedoms with the laws that protect against non-discrimination? I would like you to think (or write) out loud because I enjoy following your approach to these things. If it is too much trouble, I understand. I know you’re not a lawyer but I want to hear your thoughts.
Thank you for the blog. Your writings are great.
There have been some conversations on the site in the past about the public accommodation laws in the United States. They are a tricky topic. You wanted me to write as I would if I were working the problem out for myself, so here goes.
[mainbodyad]As it stands now, and has for a very long time, you do not have the right to refuse service to anyone. Your business does not have the right to refuse service to anyone. This has been true for more than 70 years in the United States. I’m not sure what alternate universe people are living in where they put up a sign that somehow makes them believe they are exempt from this well-established rule.
These so-called public accommodation laws are meant to protect individual freedom and liberty. They are the only way a large market based system can operate efficiently in a non-homogenous, pluralistic society such as the United States, which is a global melting pot.
The public accommodation rules state that when you engage in a business, the business activity is only permitted if you enter the market place willing to sell your product or service to anyone that meets the equally applied standards (e.g., a restaurant requiring a suit and tie) and that is able and willing to pay. That’s it. It’s about an equal economic exchange. If they pay, they are treated just like any other customer.
To understand how these public accommodation laws protect you:
Scenario 1: Imagine you are a devout Christian traveling in Washington state. Your car breaks down and you come upon an inn in the middle of the night. You go to get a room but the owners are very conservative Muslims and do not want you staying under their roof if you refuse to say prayers with them. Under public accommodation laws, this is illegal. They are in the business of providing a place to sleep, in exchange for a set amount of money. They cannot refuse you as a customer. They cannot kick you out into the night. If they do, they are in violation of the law and you can sue them into oblivion. The state can also sue them, putting them out of business.
Scenario 2: Imagine your spouse leaves you. You didn’t want to get a divorce but were served with papers. You finally move on and get remarried. You go to an accountant who is a devout Catholic and believes your remarriage is a form of adultery. This accountant refuses to file your taxes as “Married” because it violates their definition of the sanctity of marriage. This is a violation of the public accommodation rules. The accountant is free to believe whatever he or she wants for his or her own personal life. They cannot require you to do the same. They are in the business of providing tax services, and you are able and willing to pay. If they turn you away, you can sue them into oblivion. The state can also sue them, putting them out of business.
Scenario 3: Imagine a Church owns a building that it rents out to the public. The Church business – in this case, a real estate operation – is subject to the public accommodation laws. The Church could not turn away a group of pagans that wanted to have a goat sacrifice in their hall if they rent the facility out to the general public instead of restricting it solely to members. Again, this is nothing new. If they turn the pagans away, they can be sued into oblivion. The state can also sue them, putting them out of business.
Scenario 4: Imagine you are a Southern Baptist. You believe the definition of marriage is between one man and one woman. You go to a restaurant where the owners disagree with you and they recognize your face from a local news story. The owners refuse to serve you food and demand you leave. This is a violation of the public accommodation laws. You can sue them into oblivion. The state can also sue them, putting them out of business.
Scenario 5: Imagine you own a bed and breakfast. You don’t want non-married couples sleeping in the same room. You do not have the right to enforce that policy. You are in the business of renting facilities. An attempt to stop a couple from sleeping together is a violation of the public accommodation laws. They could sue you into oblivion. The state could also sue you, putting you out of business.
Only someone completely ignorant of how the law works would think otherwise. It doesn’t matter that you own the property – if you want a business license, there are certain rules and regulations with which you must comply. No exceptions. Again, this is nothing new.
The exact same principle is at play in the Washington case. The state of Washington has very strong public accommodation laws. The florist is in the business of selling flowers. The customers have the ability to pay and want to buy flowers for an event (in this case, a wedding). The florist doesn’t agree with the particular wedding, so she refuses to sell flowers. Under public accommodation laws, this is illegal. It has nothing to do with gay marriage – it could have been an interfaith marriage, a remarriage, whatever.
Her business does not now, nor has it ever, had that right.
She is going to lose everything. There is no religious argument here. There is no strong 1st amendment challenge here that would exempt her. There is no free speech argument here. There is no right to assembly argument here. She is free to believe whatever she wants. She is free to participate or not participate in her own private life. However, her business cannot. It hasn’t been able to in her entire lifetime. She’s just now figuring it out because it’s the first time she’s tried to turn someone away. The only reason she’s shocked by it is because she apparently never given any thought to the laws.
Businesses must sell their products or services to all comers. Period. Otherwise, the entire economic system could grind to a halt and I’d be willing to bet it would take less than thirty days for restaurants in certain areas of the south to once again refuse to serve black Americans at the lunchcounter. You’d have non-Christians refusing to serve Christians in Detroit.
[mainbodyad]It would be a mess.
A horrible, awful mess.
This was settled in the 1960’s. Nothing has changed. The florist is going to lose. She’s going to lose badly. And she’s probably never going to recover because of her own stupidity. If she doesn’t like it, she needs to find another business. That is the way our market system operates. The irony is that it is for her own protection, so that people can’t discriminate against her. She apparently doesn’t realize this.
I can’t think of any intelligent way one could undo the public accommodation laws without unleashing a tremendous amount of collateral damage to personal freedoms. Imagine trying to get a cup of coffee and being grilled about whether you are pro-life or pro-choice before the waitress will serve you.