A few years ago, I was invited to speak at a symposium on religious freedom at a Seventh Day Adventist (SDA) church in Takoma Park, Maryland.
Also on the panel was an attorney for the church whom I had known for years. I suspected that during the Q&A, the issue of business owners refusing to serve certain people because of the owners’ theological beliefs would come up, and I wondered what the attorney would say. SDAs tend to be theologically conservative, but they’re also often strong supporters of separation of church and state.
Sure enough, the issue came up almost immediately when we called for questions. The SDA attorney, a large, physically imposing man, was very plain-spoken. He said something like this: “I am left-handed. I am also a member of the Adventist church. Let’s say I walked into a shop, and the owner said, ‘I’m sorry, but we don’t serve left-handed SDAs’. My answer to that would be simple: ‘Guess what—you do now.’”
The nation needs a little more of that attitude as we appear to be hurtling headlong into a new era of discrimination, one where the owners of stores and other businesses are arguing they should be able to deny services to anyone who doesn’t measure up to their theological beliefs. (Mind you, the people we’re talking about here own secular, for-profit businesses. No one disputes the right of clergy to decide who can attend their houses of worship and receive their services and sacraments.)
This issue is exploding in our courts. The US 8th Circuit Court of Appeals, one of the nation’s most conservative, ruled recently that a Minnesota videographer doesn’t have to shoot weddings for same-sex couples, even though that state has a law barring discrimination against LGBTQ residents. And the Arizona Supreme Court granted the same right to a calligraphy studio whose owners said they didn’t want to make wedding invitations for same-sex couples.
Most of these cases deal with vendors who work in the wedding industry. After the US Supreme Court upheld marriage equality in 2015, religious right legal groups ramped up their arguments that fundamentalist Christians and others who own businesses should not have to serve certain people—usually members of the LGBTQ community, but the same logic would certainly also cover atheists, humanists, single parents, cohabitating couples, and others.
As these issues have played out, I’ve been surprised by the number of people on social media and other platforms who seem to believe that business owners, especially small mom-and-pop operations, have some sort of innate right to decide who they will serve and who they won’t.
Common arguments include:
It’s my business. I can run it however I want. Not really. While business owners enjoy wide latitude in making day-to-day decisions, there are certain laws all must follow. With a few exceptions, businesses must pay the minimum wage. Restaurants are subjected to health inspections. Stores and factories must meet certain conditions to ensure employee safety. Many forms of discrimination are also banned. Businesses that are considered public accommodations are expected to serve the entire public.
I put up a sign in my business saying I reserve the right to refuse service to anyone. One often sees signs like this in bars and restaurants. But a mere sign doesn’t have the power to override America’s civil rights laws. Prior to 1964, when the Civil Rights Act was passed, it was common in the Jim Crow South for blacks to be denied service in restaurants, hotels, and other public accommodations. Federal law now bans this type of invidious discrimination, and that ban can’t be circumvented merely by posting a sign.
To be sure, a business could refuse service to a specific individual who has been known to cause trouble. If a man comes into your bar every night, gets drunk, harasses the staff and other customers, and starts busting up the place, you can refuse to serve that man. But putting up a sign and thinking that gives you the power to refuse to service to an entire class of people who have protected status against discrimination (Muslims, for example), is going to get you sued.
The US Supreme Court said religious business owners can refuse service to certain people. No, it did not. The Supreme Court, ruling in a case concerning a baker in Colorado who refused to make wedding cakes for LGBTQ people, ruled that local oversight bodies in the state had engaged in religious bias against the baker during the process. It was a narrow ruling, and the court did not issue a sweeping ruling granting religious people the right to ignore civil rights laws. Indeed, the Supreme Court actually reaffirmed the importance and continuing validity of nondiscrimination laws.
Religious freedom gives me the right to discriminate. Religious freedom has not traditionally been interpreted to allow one person to cause harm to another—and subjecting someone to discrimination is certainly a form of harm. After the Civil Rights Act was passed, some restaurant owners still refused to serve blacks and insisted they had a religious right to do it. A case, Newman v. Piggie Park Enterprises, reached the Supreme Court in 1968. It was brought by Maurice Bessinger, the owner of a chain of barbeque restaurants in South Carolina. By the time the matter got to the high court, the justices were considering a narrow question concerning whether the lawyers who’d brought the legal challenge should be able to be reimbursed for the fees they spent on it. The court ruled 8-0 that the lawyers were entitled to recover those fees, but in a footnote also addressed Bessinger’s religious freedom argument (which lower courts had rejected), calling it “patently frivolous.”
Without the right to discriminate, businesses will be forced to offer goods and services they don’t want to offer. This is a horror story told by the religious right: Jewish delis will be forced to sell ham and cheese sandwiches! A restaurant owned by a Hindu will have to offer beef dishes! The short answer is, it’s not going to happen. The government has a compelling interest in stamping out discrimination, thus it can override a religious freedom claim in some cases. But the government has no compelling interest in determining what meals the local diner has on its menu.
Furthermore, the cases in the courts right now concern business owners who are happy to provide certain services or goods—but not to everyone. The Colorado baker boasted about his beautiful wedding cakes and was happy to make them for most people—except LGBTQ residents. Thus, a service was made available to most people but not to others, based on characteristics that people cannot change. That is the classic definition of discrimination.
It’s possible that the Supreme Court, now stacked with conservatives thanks to President Donald Trump, will change course and allow discrimination based on religion in the marketplace. But that hasn’t happened yet, at least not on a nationwide level. If that day does come, it will be a sad one for meaningful religious freedom. That principle, which, of course, also protects the right of humanists to reject all faiths, is much too important and precious to be turned into a device furthering shabby forms of discrimination.