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July 13, 2016 3:32 pm

Why Religion is Not an Excuse to Discriminate in Public Accommodations

With wit, logic and common sense, Professor Joe Singer exposes how public accommodations that invoke “religious freedom” to bar service to LGBTQ people are simply discriminating based on religious beliefs. Our nation already turned away from the era where people had to “call ahead” to businesses to make sure they are welcome,’ we are “already invited.” Professor Singer makes a compelling argument that using religious beliefs as a sword is actionable religious discrimination. As our nation considers anew claims of religion in the marketplace, Professor Singer reminds us that we already have the answers.  
Mary L. Bonatuo, GLAD Civil Rights Project Director

No one should have to call ahead to see if they are welcome.

There is a famous scene in the first Star Wars movie where Luke Skywalker and Obi-wan Kenobi walk into a bar. They are accompanied by two robots. The bartender stops Luke and says, “Hey, we don’t serve their kind here.” C-3PO decides that he and R2-D2 will stay outside to avoid trouble. The moment is perplexing. As the camera circles the room, we see every manner of wondrous creature; they are not just from different races but different planets. The clientele is as diverse as they come. But for some reason we do not understand, androids are not welcome.

What does it mean to find the door slammed in your face? What does it feel like to be told “we don’t want your kind here”? What does it mean to be excluded from a place to which everyone else — literally everyone else — is invited?

It means more than a minor inconvenience. It means more than walking down the street to find another bar. It means more than letting the bartender live his life according to his own rules and values.

What does it mean? Audra McDonald explained it best. After Indiana passed a law allowing public accommodations to refuse to serve LGBTQ patrons for religious reasons, she tweeted:

There’s the rub. Should you have to call ahead to find out if you are welcome? Should you have to call ahead to see if they will serve you in the restaurant? Give you a room at the inn? Sell you a wedding dress? Let you rent the ballroom at the hotel for your wedding reception? Go to the bathroom?

Businesses who claim that religious liberty gives them the freedom to exclude customers as they wish say they just want to be left alone. They want to live their lives on their own terms free from interference by the state or by other people. They want to be free from being forced to violate their religious beliefs. If they won’t bake you a cake, you can just go elsewhere. Why force an association that will be unpleasant for both sides? Why take away the right of the business owner to exclude non-owners from the property? Let me live my life in accordance with my religion and you can live your life in accordance with yours. You may want to marry someone of the same sex, but just leave me out of it. Go hang out with people who don’t mind your lifestyle.

This reasoning is confused in a number of ways. Let’s sort them out.

The difference between religious liberty and religious discrimination

But we must remember that everyone has the freedom to practice religion, not just you.

The Constitution protects the right to freely exercise your religion and that is a really wonderful thing. But we must remember that everyone has the freedom to practice religion, not just you. If your religion tells you that women should dress modestly and that men should not be around women who violate this norm, then you are free to implement that belief in your church, your mosque, your synagogue. But others have their own religious beliefs and practices, and they are free to act differently in their own religious spaces.

What does this mean for public spaces — places in the world where people of different religions interact? If those who seek to regulate dress and segregate people by sex get to control interactions in the marketplace, this interferes with the freedom of other people to live by their own practices that may include self-expression in dress and interaction in public among persons of different genders. This clash cannot be resolved by just “protecting religious freedom.” There are religious freedoms on both sides. Someone’s belief, someone’s practice has to give way.

The accommodation our society has chosen is the one that gives individuals freedom to enter public spaces on equal terms. That means that women are free to dress as they please, as long as they comply with minimum standards applicable to everyone. It means that you are allowed to think that people should dress more modestly. What we do not allow is for some people to control the behavior of other people in ways that deny them equal liberty. Your right to religious liberty does not give you the right to tell other people how to dress. Your belief that women should stay at home does not give you the right to impose that view on women who do not share your religious beliefs.

But a business owner might object that she is not trying to tell other people what to do. She just wants to decide who to do business with.

Let’s think about that. What would happen if a hotel owner said, “I’m sorry, but we do not serve Christians. Go somewhere where you are wanted.” Would that interfere with the religious liberty of a Christian customer? According to federal law, the answer is yes. Discrimination on the basis of religion is illegal in public accommodations. Most Christians would find the exclusion offensive. They would consider it to be both a form of discrimination and an interference with the free exercise of religion.

If that is so, you can’t have it both ways. Either stores have a duty to serve customers regardless of their religion or they have a right to deny access based on religion. It cannot be the case that stores are free to exclude Jews and Muslims but have a duty to admit Christians. The point of antidiscrimination law is to prohibit discrimination. If you have right to enter a bakery regardless of your religion, then other people have a right to enter the bakery regardless of their religion. That means you cannot impose a religious test on your customers.

The debate about religious liberty and public accommodations has oddly assumed that there are religious beliefs and practices on only one side. The debate has been framed as a contest between the religious liberty of the store owner and the nondiscrimination claims of the customer. But this is nonsense.  Whatever made anyone think that LGBTQ people don’t have religious lives? They may have different religions than those whose religious beliefs entail exclusion of them. But that does not mean they have no religious identity.

Many religious groups now perform and sanctify same-sex marriages. Many individuals find same sex relationships fully compatible with a belief in God. And an increasing number of organized religions celebrate the ability to form a lasting attachment with someone you love, and to have that relationship recognized, affirmed, and sanctified, regardless of the sex or gender of you or your partner. Of course, some LGBTQ people adhere to no particular religious tradition at all, but that is no different than many non-LGBTQ people. Freedom of religion includes the freedom not to adhere to any particular religion.

The truth is that we are dealing with religious liberties on both sides. And you cannot consistently demand that stores serve Christian customers while arguing that stores can exclude non-Christians. You cannot claim a right to a hotel room regardless of the sex of your spouse and then deny that same right to someone else.

Either public accommodations are open to the general public or they are not. You cannot have it both ways. So which is it to be?

Why public accommodations are open to the public

When racial segregation was widespread in the South, African-Americans had to plan ahead if they wanted to travel. They needed to figure out where they could eat, where they could sleep, where they could go to the bathroom. Harvard Law Professor Randall Kennedy recalls that his family would pack a large picnic basket when they traveled through South Carolina when he was a child. At the time, he thought it was just a nice way to make sure they had goodies on the way, that it was a kind of celebration of road travel. But later, he realized it was a necessity. They were traveling to a part of the country where the color of your skin determined whether you would be served in places open to the public. It was never clear that any restaurant would let them in, would treat them with dignity, would give them a place to sit. They had to plan ahead. Many African-Americans traveled with The Negro Motorist Green Book, a publication by Victor H. Green that identified establishments that served African American customers.

If you are traveling through a part of the country where you are in the minority and the majority view you with disdain and discomfort, and if public accommodations are free to shut you out, then you are left vulnerable, on your own, without the services that most people take for granted. You are not only being treated as an outcast — and suffering the pain and humiliation of being treated as less human than others — but you are literally at risk of not getting the things you need to live, to be comfortable, to have dignity. Public accommodations are open to the public because we depend on them to be there for us. We need what they provide.

But more than that, we have a right to be treated with dignity and not to be told “we don’t serve your kind here.”

Public accommodations and private property

But what about private property? Don’t you have a right to exclude non-owners from your home? And don’t businesses own their property? Don’t they have the same right to exclude people that all of us have in our own homes?

The answer is that not all property is the same. Property that is open to the public is subject to different rules than property that is private. Homeowners do get to determine whom to invite for dinner. People get to choose their friends. But if you open a business to the general public, you enter the world of the marketplace. The market may consist of owners of private property but, unlike the home, the market is open for anyone to enter. You cannot be excluded from participation in the marketplace because you are in a subordinate caste. You cannot be kept off the bus because you are not welcome.

Public accommodations hold themselves out as open to the public. You have an open invitation to enter and you know they want you to come in. The law imposes obligations on public accommodations to serve those who accept that open invitation.

A restaurant can exclude a customer who is drunk or disorderly or abusive to the wait staff. But a restaurant cannot exclude a customer because of the customer’s race. A hotel cannot refuse to give a room to someone because they are Jewish. A gym cannot refuse to let someone join because they have a disability.

When a public accommodation excludes a customer, it is not a mere exercise of an owner’s rights in her own property. It deprives the customer of the ability to enter the market. If businesses were free to discriminate, it would stop others from getting a job, renting an apartment, buying a wedding cake. It would prevent customers from accessing the part of the social world where they can obtain property themselves. Owners have property rights but customers do too; customers have the right to enter the marketplace to acquire property. How are you going to clothe yourself if no one will sell you a shirt?

The Civil Rights Act of 1866 says that every person has the same right to make contracts as is enjoyed by white citizens. The Supreme Court has said that this not only means that the courts will enforce a contract if you can find someone willing to contract with you. The Civil Rights Act means that a business open to the public cannot refuse to contract with you simply because of your race. Every citizen has the right to acquire property regardless of race; that means that public accommodations cannot refuse to serve you for discriminatory reasons. Sexual orientation is no different.

It is no answer to tell the customer to go down the street. I grew up in a small town in New Jersey. The florist shop was the florist shop. If it would not sell me flowers, then I could not get flowers in town. And if the county was filled with people with the same religious beliefs — if I was in a small minority — then the decision not to sell me flowers would mean that I cannot get them where I live. And if no one will hire me because of my religion or my sexual orientation, that means I will have to move elsewhere to get the things I need to live. If every owner has the right to exclude at will, and if many people share the same prejudices, then exclusion of people in a particular class is the equivalent of an eviction order. To live, to get the things you need, to enjoy associations customary among our citizens, you have to move elsewhere.Most people do not have to worry about being treated this way. When most people walk down the street and see a restaurant, they know they have been extended an invitation to come in and get something to eat. When most people go to the shopping mall, they know the shop owners are dying for them to browse, to stay for a long time, and buy as much as possible. When most people see a motel on the highway, they know the motel wants them to stop and find a warm place to rest. And when most people get engaged and go to the cake shop, they know that the baker is eager to create a beautiful wedding cake just for them.

Public accommodations hold themselves out as open to the public. You have an open invitation to enter and you know they want you to come in. The law imposes obligations on public accommodations to serve those who accept that open invitation.

This idea is not a new-fangled one invented by liberals. At the start of the American Republic, public accommodations had legal obligations to serve the general public. William Blackstone’s Commentaries on the Laws of England were published in the 1760s. They were the prime text on the common law for the first fifty years of American history. Blackstone wrote that “if an inn-keeper…hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and… an action… will lie against him for damages, if he without good reason refuses to admit a traveler.” And this principle did not only apply to inns but to blacksmiths and surgeons — anyone engaged in a public calling who held themselves out as open for business.

That’s what it means to operate a public accommodation. It means that you are holding yourself out as ready to do business with anyone who enters. As Audra MacDonald noted, the whole point of a public accommodation is that you do not have to call ahead to know whether they will deal with someone like you. You’re already invited. By operating the hotel, by opening the restaurant, by establishing the store, they have opened themselves to the general public to provide goods or services.

Obviously businesses can choose what services to offer. A cake shop is not required to sell wedding dresses. But a cake shop is open to the public and if you operate a cake shop you are making a promise to sell your wares to whoever comes to buy.

But what about religious liberty?

Consider what would have happened if religious liberty were a sufficient reason for lunch counters to refuse service to African Americans. The Civil Rights Act of 1964 was passed so that anyone could sit at a lunch counter regardless of their race. At the time, many people held religious beliefs that supported segregation of the races. If religious liberty were a sufficient reason to keep someone away from your lunch counter, the South would never have been desegregated.

Religious liberty is a fundamental American value enshrined in the first amendment. You are free to worship with others of your own religion, to believe in God and in a fundamental moral code, to preach and to write about your beliefs, to speculate about the nature of the divine, to question yourself and others, to invite others to join you in prayer or charitable works, to teach your children about your tradition.

But you are not free to impose your religious beliefs on others. You are free to practice your religion, but so is everyone else. Others are free to believe differently than you, to pray differently than you, to teach their children a different moral code. When businesses exclude customers because they are gay, they are not just exercising their own religious freedoms. They are imposing their religious beliefs on others.

Discrimination in the world of the market is wrong whether based on race, religion, national origin, sex, sexual orientation, or gender identity. When we are at home we can choose our friends. When we go out to a restaurant or a hotel, we may call ahead for a reservation, but we should not have to call ahead to see if they “serve our kind.”

It is true that those who oppose same-sex marriage feel that it is being imposed on them, and that they are being made, in some way, to participate in it. But selling a wedding cake is not the same thing as performing a marriage ceremony. Renting the ballroom for a wedding ceremony does not mean the hotel owner is adopting the Jewish tradition of the couple getting married. The hotel owner is free to preach the Gospel, and even to try to persuade Jews to convert. This can be done in church, in books, on the Boston Common, on the Internet. But a hotel owner cannot deny service to a customer because of the customer’s religion. Hotels are open to all.

Public accommodations are open to all because they operate in the public world of the market where people of different religions and different beliefs interact. We interact in the market because it is where we produce the goods and services that we all need to live. We seek out public accommodations because they invite us to enter and to buy their goods and services. There are open to all because we need what they provide. They are open to all because we should not have to worry about the door being slammed in our face and being told we are not human, not worthy. In a case affirming Congress’s power to pass an antidiscrimination law, Supreme Court Justice Potter Stewart explained that a dollar in the hands of an African American is worth the same as a dollar in the hands of a white person. If you operate a public accommodation, you forfeit the right to tell a customer that their money is no good.

Religious freedom is fundamentally important. But it does not give public accommodations the right to exclude people of other religions or to reject them because their practices or their identity do not fit the owner’s religious code. There is ample space to practice one’s religion, to express one’s beliefs, to limit one’s associations in church or a private club, in books, in the press. But not in a public accommodation.

Discrimination in the world of the market is wrong whether based on race, religion, national origin, sex, sexual orientation, or gender identity. When we are at home we can choose our friends. When we go out to a restaurant or a hotel, we may call ahead for a reservation, but we should not have to call ahead to see if they “serve our kind.”

That’s why we need law reform

There is no general federal law that prohibits discrimination in public accommodations because of sex or sexual orientation or gender identity. And only some of the states have statutes that prohibit such discrimination. Adding new states to the list is a big priority. And for those states unlikely to adopt such laws, it is imperative to work toward a federal nondiscrimination law that can protect LGBTQ people from wrongful discrimination in access to public accommodations. No one should have to call ahead to see if they are welcome.

Joseph Williams Singer is a professor at Harvard Law School focusing on property law, American Indian law, and legal theory involving moral and political philosophy. He has been teaching at Harvard since 1992.

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