We reserve the right...

Somewhere out there in the U.S., you may have seen a sign hanging in a window that reads, “We reserve the right to refuse service.”

The public statement may seem like a simple one—but it is a highly political act that draws a fine line between constitutional rights and unlawful discrimination, leaving many to wonder if this “right” is actually legal or not.

The simple answer is yes, the ‘right to refuse service’ is legal—but it is accompanied by some pretty big exceptions. It’s worth picking this one apart, no matter which side of the service counter you stand.

The legal line on discrimination

In 1964, Congress passed Public Law 88-352, which included the Equal Employment Opportunity Commission as well as the Civil Rights Act of 1964, which focused on discrimination in public service or hiring. The Civil Rights Act of 1964 prohibits public accommodations from refusing service to customers because of skin color, race, religion, sex, nationality, or any physical conditions a customer can’t prevent. The Civil Rights Act of 1964 is a landmark civil rights and US labor law in the United States that outlaws discrimination based on race, color, religion, sex, or national origin. It prohibits unequal application of voter registration requirements, racial segregation in schools, employment, and public accommodations.

The legislation had been proposed by President John F. Kennedy in June 1963, but opposed by filibuster in the Senate. Thereafter, President Lyndon B. Johnson pushed the bill forward, which in its final form was passed in the U.S. Congress by a Senate vote of 73-27 and House vote of 289-126. President Johnson signed the Act into law on July 2, 1964, at the White House.

Arizona SB 1062 was an Arizona bill to amend an existing law to give any individual or legal entity an exemption from any state law if it substantially burdened their exercise of religion, including Arizona law requiring public accommodation.

It was one of several similar bills in U.S. state legislatures allowing individuals to refuse service based on religion, with some bills specifically protecting religious disapproval of same-sex marriage. It was widely reported as targeting LGBT people, although Arizona law provides no protection against discrimination on the basis of sexual orientation. Critics noted that it would have broadly denied anyone service on religious grounds. Supporters argued that it was simply restoring the legal status of the right to free exercise of religion as intended by the First Amendment to the United States Constitution.

The bill was passed by the Republican-controlled state legislature and vetoed by Republican Governor Jan Brewer on February 26, 2014.

The national controversy surrounding the bill prompted Arizona State Senator Steve Gallardo to publicly come out as gay. He referred to the bill as a “game changer,” and noted the national controversy surrounding its passage, as prompting his decision.

The right to refuse service, then, means that public accommodations, such as restaurants, theaters, banks, gyms, and stores, can lawfully deny service to a customer if they feel that their business might suffer from engaging in such a transaction—as long as they don’t base that decision on the categories above.

How can a business legally refuse service?

A business or a business owner can refuse service if:

·      The customer is too rowdy and causing a scene.

·      The customer threatens an employee or the business owner, making that party feel like they are in danger.

·      The customer does not meet the company’s clothing or health requirement. (i.e. “No Shirt, No Shoes, No Service”)

·      The customer breaks the lawful rules of the establishment; for example, if a tenant breaches the “no-pet policy” for the housing they are trying to acquire.

·      The customer would overfill the establishment’s capacity.

·      The customer requests service when the establishment is not open.

Can a restaurant or bar refuse service to someone because the customer’s cargo shorts offended? Sure. In fact, there are restaurants who won’t serve you if you aren’t dressed your best.

However, businesses do not have the right to deny service to a customer because she is a woman or worships a different god—that’s called unlawful discrimination.

What exactly is the difference between unlawful discrimination and lawful discrimination?

Lawful discrimination is when someone is treated differently due to characteristics that do not pertain to civil rights—i.e. being denied a loan from a bank due to poor credit. That’s considered your own fault. 

Both state and federal laws prohibit discrimination based on age, disability, sex, race, religion, and nationality in any capacity. When discrimination involves the denial of a person due to birth or physical appearance, such as refusing to serve a customer a cup of coffee because they are African-American, the business or company may be on the path toward a major lawsuit. 

The fine line between lawful and unlawful discrimination appears when, for example, a business’ refusal targets a customer’s sexual orientation or identification within the LGBTQ community. However, a total of 29 states allow businesses to turn away a customer who is trans-gendered or homosexual under certain circumstances, while 19 states have laws with added protections against discrimination due to sexual orientation.

Are religious beliefs an exception?

Everyone knows that the First Amendment gives Americans the right to speak freely and also exercise their freedom of religion, press, assembly, and petition. Free speech is a pillar of American values—but it is also the reason why some businesses are able to refuse service to certain customers due to the owner’s religious beliefs.

In 2015, Indiana Gov. and Vice President-elect Mike Pence signed one of the harshest bills for pro-discrimination. The Religious Freedom Restoration Act (RFRA) gives any corporation or individual the right to refuse service to customers based on their “sincerely held religious beliefs.” For example, an evangelical Christian business owner can deny a married gay couple because they don’t think it’s right to marry someone of the same sex.

In April, Mississippi Gov. Phil Bryant signed a similar bill supporting the same declaration as the RFRA. Mississippi’s law also declares that gender identification is “determined by anatomy and genetics at the time of birth,” letting businesses make their own decision on who is allowed in their restrooms, dressing rooms, and locker rooms. 

Courts have tested the refusal of service due to discrimination against sexual orientation, like the Ingersoll v. Arlene’s Flowers case where a florist refused to make a bouquet celebrating the requesting customer’s anniversary with his partner. The decision was between the right to be treated equally under the U.S. law and the freedom of religion and speech. A trial court found Arlene’s Flowers violated Washington state’s non-discrimination laws. The business filed an appeal.

In short, the right to refuse service is controversial yet protected under the law because the act of refusing someone service—and the consequence of being refused—pit constitutional rights against each other. 

Constitutional Rights

The following are important constitutional rights:

·            Freedom of Speech – One fundamental right guaranteed under the First Amendment is the right to freedom of speech and press. Both the federal and state governments are generally prohibited from limiting an individual’s right to expression, with only a few limited exceptions. Today, government-sponsored censorship is a controversial topic in constitutional law.

·            Freedom of Religion – Another significant right protected by the First Amendment is the right to freedom of religious choice.  The First Amendment explicitly prohibits the establishment of a government religion, such as a state church. Today, school sponsored prayer is one of the most controversial topics invoking the freedom of religion clause.

·            Right To Bear Arms – The Second Amendment grants the people “the right to keep and bear arms.” No other constitutional right is more hotly debated than the right to have and bear a gun. The Supreme Court is still in the process of clarifying what the Second Amendment exactly means. Thus, debates continue as to whether the government can implement gun control laws and how extensive those laws can be.

·            Freedom from Unreasonable Search and Seizure – The Fourth Amendment protects citizens from government trespass without a court-issued warrant. This protection extends to houses and papers. Today, police search of vehicles and computers, as well as government wiretapping, are controversial topics in constitutional law.

·            Protection from Self-Incrimination – The Fifth Amendment protects citizens from the acts of self-incrimination and double jeopardy. To avoid self-incrimination, a citizen can “plead the fifth,” effectively exercising his/her constitutional right to avoid answering a question or avoid testifying. A specific example of police procedures required under this Amendment is the reciting of a person’s Miranda Rights upon an arrest. This amendment also protects against harassment of an individual by prohibiting the act of successive prosecutions for the same accusation of crime.

·            Due Process of the Law and Right to Trial by Jury for Criminal Charges – The Fifth, Sixth and Fourteenth Amendments guarantee citizens the right to a public and speedy trial by an impartial jury before being deprived of their life, liberty or property. The accused also has the right to legal counsel for a criminal trial if he or she can’t afford an attorney.

·            Equal Protection – The 14th Amendment to the Constitution provides that “no state shall deny to any person within its jurisdiction the equal protection of the laws.” Consequently, state governments and their agencies are prohibited from discriminating against any individual on the basis of classifications such as race, sex, or religion.

So far this is the land of the free and the home of the brave. Yet in these troubled and divisive times shall one wonder how far back we will go to “Make America Great Again”?

Back in the day, my father managed a private club. Membership was by invitation only. A prospective member must have a sponsoring member initiate the process. After some vetting and approval of the board of directors, you were given a pass (like a library card) to be able to enter.

Not being of the caste but with my father’s position, our family was allowed entrance into the world of the elite and tastes the spoils of privilege. Fortunately we were also shown the behind-the-scenes workings to keep the well to do happy.

He had to face the reality of changing times and the exclusivity was fading. These were times where everyone knew their place and knew which water cooler to drink out of. First the wives were welcomed to destroy the good ole’ boy’s club and then people of color of the wait staff were invited into the front door instead of the back.

All our best liberal philosophies and spouting are challenged when we walk into a dining establishment with our kids and it are full of leather-clad bikers. What would a business establishment do when a group of open-carry camouflage clad folks walk in. Remember the bouncer at the door decides who can enter.

We have locks on our doors. Are our nations starting to put locks on their borders?