Mail Bag: Competing Personal Freedoms and Public Accommodation Laws

Well said. That's about an eloquent an argument I've ever read, and the correlation at the end drives it home.

Very well put, and thorough too! So this comes with the threat of financial ruin, but I wonder what kind of settlement / public repentance would be accepted if she starts to cooperate...

Joshua, can you write a post on what your typical workday goes like? Is it akin to the guy in the movie "I love you, man"? Ignore that statement if you have not watched the movie. Thank you.

... time wise, it's actually almost exactly like that movie. I never really thought of it that way, but yeah. The details are different, but the freedom over my day is the same.

I'll try to write about it sometime. Most days, I wake up, go down a list I've prepared of the "big" things that I need to do - that will get me significantly closer to my own goals - as well as a list of the "maintenance" things I need to do - the stuff that has to be done to avoid negative consequences (e.g., call an electrician to repair a light, pay a bill, file a tax form).

Then, I look around and figure out what I want to do, what I want to read, what I want to research, or what I want to start. If I wanted to play Mortal Kombat for three hours in the middle of the day, I would. But then I might get an idea, get out of bed, and work from 2 in the morning until noon to launch something new.

The only exception to this is around tax day. I am booked by firm commitments because I have to sign off on things for the accountants. Otherwise, I have no set schedule the rest of the year except what I want to do to pursue my own interests.

Just thinking out loud, what if someone wants you to put something offensive (profanity, pornography, etc) on a lettermans jacket. Are you required to do it?

That business is located near Kansas City, Missouri, so it depends on the nature of the product and the specifics. If it were for a jacket, which by definition is meant to be worn in public, we would cite Missouri Revised Statues Chapter 573 Section 573.060, saying that the manufacture of such an item would be contributing to an unlawful act. As for profanity, profanity is protected speech. The Missouri Court of Appeals ruled twenty years ago that profanity cannot be restricted due to free speech, and there was recently a repeat of the case in North Carolina, so we'd make whatever they wanted because I can't think of a strong enough protection that would guard us against it.

The rule we've always followed is if it doesn't violate someone's trademark, and it doesn't promote or create an illegal act, we can't say no. Those are the rules. They've been the rules for longer than I've been alive.

I'm a pragmatist, anyway. Imagine I were a 65 year old lady living in Alabama. If I owned an apparel shop and were pro-life, and a group of pro-choice people wanted t-shirts, I can't deny them the t-shirts. (Again, I'm not sure what alternate world people are living in that they ever thought they had that right.) What I can do, however, is donate all of the profit from the sale to a pro-life group. If anything, it would be more effective than trying to turn them away because I would have actually hindered their cause.

I know this post is almost two years old. But I have to interject here. I don't believe pubic accommodation laws can dictate what kind of products a business can sell. Yes, they sell jackets. But as long as they would refuse to sell a specific type of jacket to anyone, they aren't in violation of the law. The general rule as I understand it is that a business doesn't have the right to choose the type of customer they serve. But they do have the right to choose what product of service they provide.

Doesn't public accommodation law only come into play if you're discriminating against very specifically named protected classes? Unless the law in Washington state specifically identifies homosexual as a protected class (which, given the involvement of the state's Attorney General, I'll assume it does), wouldn't you be using an improper legal theory (as I daresay you seem to be throughout this post, depending on the particulars of state law in a given jurisdiction)?

Also, I've gotta keep you honest, here. In this post:
https://www.joshuakennon.com/chick-fil-a-anti-gay/
you seemed to be just fine with King & Spalding when they chose to fire the US House of Representatives as a client because some of the partners of that firm disliked their client's political views. Isn't it intellectual dishonesty to say, in effect, "if you're homophobic, you have to accept all comers; if you're homophobic-phobic [one who has a fear of homophobes], then, well, of course that doesn't apply to you!"?

Now, admittedly, I doubt that homophobes are a protected class in any jurisdiction. But I'm more calling you out on the moral reasoning behind this post than your application of legal theory. Frankly, the King & Spalding incident happened in Georgia, where if anyone had the inclination, I think adding homophobes as a protected class might well pass.

And, more generally-speaking, wouldn't the world be better if a holocaust-surviving seamstress didn't have to knit flags for neo-nazis who walked into her shop? Or if the African-American dry cleaner didn't have to clean KKK robes? And on a related note: If this couple knew the political and religious views of their friend, mightn't she have a possible claim for intentional infliction of emotional distress, regardless of public accommodation?

Just curious to hear your thoughts, as they do tend to be insightful.

Great questions.

1. Your assumption is correct, the Washington state law explicitly protects sexual orientation. The list of classes that are protected by public accommodations can be found in §26 of RCW 49.60.040.

As for your hypothetical, in an alternate universe where wasn't on the books, I would wager the question in the next few years will come down to whether or not the Supreme Court ends up deciding that sexual orientation is a protected class deserving of heightened scrutiny and requiring a rational basis to exclude or the Obama administration tries to treat sexual orientation as a form of gender discrimination under Title IX (e.g., a lesbian couple is being discriminated against because of the gender of one of the parties, which is protected; thereby sidestepping sexual orientation entirely).

2. As I understand it, the King & Spalding case followed different logic because law firms, by their nature, are subject to different rules that have various ethical components. Yes, they are subject to public accommodation laws. However, attorneys are ethically required to be advocates for their clients and put their clients' best interest as top priority. If they cannot do that, they are to recuse themselves. When the attorney took the case, I believe without most of the rest of the firm agreeing or knowing, causing an internal civil war that led to mass resignation threats from staff and the firm's biggest customers threatening to walk out the door, the partners determined they could not meet that ethical burden and keep their firm intact so they had to ask a court to give them permission to withdrawal.

They couldn't just fire their client, they had to actually submit paperwork to a Federal court in Manhattan, explain the situation, make the request, and the court itself had to approve it. Their request included asking the court to give their former client more time to prepare an adequate lawsuit against the people they were trying to sue.

So, I would say there is no public accommodation problem when a Federal court grants you permission to withdrawal after looking at all relevant factors. I never would have taken the case in the first place because it should have been obvious that no well-respected, well-educated workforce is going to be able to deal with a conflict of interest that large, nor would the client have desired it. What kind of nutcase wants and attorney that doesn't believe in their cause? It is asking for defeat.

If it had been something like a gay attorney being forced to represent, by court appointment in a criminal trial, a man accused of killing a gay person in a hate crime, I think yes, the court could force the attorney to do that in circumstances (again, I'm not an attorney, but you can guarantee this is going to be the topic of conversation at my next lunch with friends who are, because now you have me curious). Common sense says the prosecutor would fight it on the grounds it would almost assure a get-a-free-retrial-on-appeal-due-to-a-conflict-of-interest.

It would be an interesting question. I might have to make a few phone calls and have some conversations with people who work in the federal court system on this sort of thing. They would be far more knowledgable than I am.

3. No. Because the minority of those situations is greatly outweighed by the far more common prejudice you are going to encounter as a practical matter. The KKK isn't going to want an African American dry cleaning their robes. We could, as a society, reverse the public accommodation laws but I think the collateral damage would be enormous relative to a relatively minor injustice once in awhile.

If I opened a bakery and someone wanted to come in and have me bake a cake to support the Communist Party of America, I'd tell them I'll bake their cake, and it will be the best damn cake they've ever eaten because my work is fantastic, but I am going to donate all of the profits to a pro-business PAC that will fight against the laws they are trying to put in place. That way, I'm in perfect compliance with the law but I will have created a paradox whether or not they want to use my services. (In other words: Your move.)

4. I sincerely doubt she could claim that them demanding what they are entitled to under the state public accommodation laws was a malicious act. It would be like claiming a black man who wanted to eat at a counter of a racist restaurant owner was somehow at fault for inflicting emotional duress by taking advantage of a right that he had under the law. I can't imagine anyone taking it seriously. You could try, I suppose. Again, I'm not an attorney so maybe there is some loophole that could be exploited but I can't imagine it not being thrown out and the party that brought it being responsible for both sets of legal costs.

Hey, being able to bring frivolous lawsuits is the primary benefit of living in a state without loser-pays statutes - it's the American way, damn it! As for the actual IIED claim - yes, I'd agree it's probably a bit tenuous in this instance, but it occurred to me as I was trying to play my own devil's advocate in the preceding examples in my original post, so I figured I'd throw it in, as I could imagine those particular scenarios might happen as an intimidation technique. That's why I specifically went with Intentional rather than Negligent Infliction of Emotional Distress, as I think negligence would be impossible to establish by virtue of someone attempting to exercise their rights under public accommodation laws.

When you do have those conversations, please, give a reply here and let me know what you learn - I'd be very interested, myself.

As for your legal reasoning, I still think you're implying a much broader view of the law than you'll be able to support.
"As it stands now, and has for a very long time, you do not have the right to refuse service to anyone."
That's just demonstrably untrue. Casinos do not have to serve card counters, as they are not a protected class in any jurisdiction. Airlines can charge fat people higher fares. Generally, a business can refuse service to any patron, so long as the basis for that decision is not reliant on something that discriminates against a protected class.

In the Washington case, the shop owner seems to be almost explicitly invoking her 1st Amendment rights under the free exercise clause. My understanding of employment law tends to be rudimentary, but an employer cannot force an employee to violate her religious beliefs, normally. If the plaintiffs are awarded specific performance, couldn't the shop owner sue her own business (assuming she's not a general partner of sole proprietor) under employment law to avoid having to fill the order? If it's me (and all I care about is winning), I fire every other employee, and decline the order on the grounds that there's no reasonable way for me to fill it at that point - hiring someone to fill one order constitutes an unreasonable burden, and even if I did, I can't legally even ask the applicants if they'd be able to service the order as part of the hiring process.

At best, you're claiming that public accommodation laws trump enumerated rights, which is easily enough shot down by taking a quick look at Article VI, Clause 2 of the US Constitution. At worst, you're claiming that a balancing test results in a neutering of the free exercise clause.

But I can't help noticing that you side-stepped the moral difference between the King & Spalding case vs the Washington case. While not perfect analogues, I think the K&S case is a perfect example of why public accommodation laws should be thrown out. Why not let the free market put the socially-irresponsible firms out of business? Laissez-faire! Why clog the court system with 3 lawsuits over 1 order when the plaintiffs could organize, picket and shame the shop into doing the right thing? The legal system should be the option of last resort, not the first reaction. Rally, demonstrate and show the shop owner exactly how much she stands to lose by turning away profitable accounts! I mean, the Montgomery bus boycotts remain an epic symbol of the civil rights movement. Businesses that do not respect their customers wont' be able to sustain themselves for long, and will inevitably be replaced by those that do.

People who are discriminated against don't want to live in a world waiting for the free market system to put socially irresponsible firms out of business. History has shown the majority can be socially amoral for extremely long periods and drift quickly into immoral positions when times get tough. The free market, by definition, is socially amoral.

I'm reminded of how automobile insurance companies ask questions like gender, age and marital status. They charge different rates based on the responses to those questions. My responsibility as a consumer is to shop around and buy from those companies which offer me the best deal.

Could the florist in this Washington case simply quote a higher price than normal to supply flowers to a gay wedding? Can she say "I'm quite busy during that time, thus my quote to provide flowers is $75,000"?

To be clear, I don't think businesses should be able to discriminate in this manner, but I'm trying to see different angles.

Not if the basis for the price discrimination is inclusion in a protected class, as I understand it. You can establish different products for different customer segments, and nothing says the prices have to be the same, even if your costs are the same. For example, if the market is willing to pay a higher price for a Star of David that's made from 1 troy ounce of 24k gold, than it's willing to pay for a Crucifix made from the same quantity and quality of gold, and your costs are identical on both, you can still charge a higher price for the former. But you can't charge non-Christians a higher price for the gold Crucifix than what you charge Christians.

There was a case maybe a year or so ago, I can't recall when exactly, where a local business ran coupons in the weekly Church circular at the owner's place of worship. The government objected, arguing that it was effectively discrimination on the basis of the religion of the customer. I'll go try and find the cite now, and will update this post when and if I find it.