There has been much discussion recently over Public Accommodation. The news has been filled with the story of a website designer who refused to accept a job from LGBTQ+ customers, citing religious objections. This is the most recent cause célèbre that found its way onto the supreme court docket and was argued yesterday. Dec 5th. At the center of the debate is whether a business can refuse service or is bound to provide service based on the public accommodation law.
This case follows a similar one in 2018, which also argued against the Colorado public accommodation law,that found for a baker who refused to use his talents to bake a cake for a same sex couple based on religious belief. The opinion of this last case was a narrow one based on the hostility shown during legal proceedings to the baker’s religious views.
The question to answer is. What is Public Accommodation. Under federal law it is:
42 U.S.C. §2000a (a)All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin. 42 U.S.C.
The Colorado law does go deeper into the class of persons, to include:
CO Rev Stat § 24-34-601 (2016) “An individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
I do believe in enforcing public accommodation laws. The concept of public accommodation lives deep in the heart of America. But there are limits when it comes to individual talent. I was against the Colorado baker feeling it was a violation of public accommodation until I found out the couple was asking for him to design a unique cake using his individual talents. This changed the tenor of the argument to forcing someone to sell not just a product but part of themselves. Had the couple asked for the Number “9” cake that would have fallen under public accommodation but when it went to asking the individual to provide his expertise which violated his individual belief, that went too far.
The same argument applies to the web designer. If she had standard templates and just added names, then she could not refuse service. To design an individual and unique web page requires her to apply her own talents and imagination. This should not be under public accommodation.
So, since I said I agree with the concept of public accommodation then let’s discuss how it should be applied.
In June of 2018, President Trumps Press Secretary, Sara Huckabee Sanders was refused service and asked to leave the Red Hen restaurant in Lexington, Va. because she worked for Trump. This week a restaurant in Richmond Va. canceled a reserved party less then two hours before the start because the group, the Family Foundation, was perceived as anti-LGBTQ and staff said they felt uncomfortable and unsafe serving them. Neither Sanders nor the Family Foundation asked for any special accommodation and ordered off the menu. The refusal to serve these groups is in direct confrontation to the sprit of public accommodation. In theory this does not violate the Virginia law – § 2.2-3904. Nondiscrimination in places of public accommodation – since there is nothing in the law that mentions political affiliation – other then sexual orientation and gender identity.
These last two however do violate the sprit of the law and flies in the face of American culture. There has been a long hard fight over the last 50 years to ensure anyone, who is not breaking the law, can go to any business and get what the business offers. The history of America also fights for the individual. You cannot discriminate just because you do not like someone, but the government cannot force you to perform a unique function against your wishes.