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The Right to Refuse Service

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Back in 1994, the restaurant chain Denny’s settled a class-action racial-discrimination lawsuit for $54.4 million. Although the restaurant is known for always being open and serving breakfast, lunch, and dinner at any time, day or night, black patrons alleged that they had been refused service, forced to wait longer than white customers, charged more than white customers, and asked to prepay for service.

The agreement resulted from separate lawsuits filed in California and Maryland that were then expanded to include claimants in 48 other states. In California, a black girl alleged that she had been refused the restaurant’s customary free birthday meal. In Maryland, six black U.S. Secret Service agents alleged that they had been forced to wait an hour for service while white customers were served ahead of them.

In a strange twist of fate, Denny’s restaurant parent company, Advantica, was chosen by Fortune magazine in 2001 as the “Best Company for Minorities.”

More recently, Hands On Originals, a T‑shirt company in Lexington, Kentucky, was picketed by Lexington’s Gay and Lesbian Services Organization (GLSO) for refusing to produce T‑shirts for the city’s “gay pride” festival to be held on June 30. The design featured a number 5 on the front, with “Lexington Pride Festival” and the names of the event’s sponsors appearing on the back.

Although the firm bid on producing the T‑shirts, the owners declined to fill the order after they had been selected. The owners, who were not initially aware that they were bidding on a gay-themed T‑shirt, explained to the GLSO that, as a Christian organization, producing the T‑shirts would be against their conscience. The owners did locate another T‑shirt business for GLSO that would honor their low bid.

Nevertheless, the GLSO fileda public-accommodation discrimination complaint with the Lexington-Fayette Urban County Human Rights Commission, alleging,

On or about March 8, 2012, members of the GLSO were told that our Pride Festival t‑shirt printing quote would not be honored due to the fact that the t‑shirt company is a Christian organization. We were told that our t‑shirts would not be printed. We believe that we have been discriminated against in violation of Local Ordinance 201-99, based on sexual orientation.

Last month, an organized demonstration with picketing by about 60 homosexual activists in front of Hands On Originals encouraged the public to boycott the business. The Lexington school district has already stopped purchasing merchandise from the company.

One of GLSO’s officers who attended the demonstration, Aaron Baker, stated, “Ultimately the owners of Hands On Originals need to recognize that discrimination is not OK and need to make a commitment not to continue that.” But he also said that “Hands on Originals does a lot of business in this town, and people should be aware of the situation, so they can make an informed decision about whether they want to buy from them.”

Baker is wrong, but he is also right.

Discrimination is neither “not OK” nor something “not to continue.” Every individual and business owner should have the right to refuse service. In a free society, every individual and business owner would have the right to refuse service. It is part and parcel of the inviolability of private property, the freedom of assembly, the freedom of association, the freedom of contract, free enterprise, and the free market. In a free society, as Future of Freedom Foundation president Jacob Hornberger maintains,

A person has the fundamental right to associate with anyone he chooses and on any basis he chooses. He might be the biggest bigot in the world, choosing only to associate with white supremacists, but that’s what freedom is all about — the right to make whatever choices one wants in his life, so long as his conduct is peaceful — i.e., no murder, rape, theft, fraud, or other violent assaults against others.

In a free society, business owners, like homeowners, would have the right to run their businesses as they choose, including the right to refuse service. And that’s not all. In a free society, business owners would have the right to discriminate in their place of business on the basis of race, creed, color, religion, age, gender, height, weight, disability, attire, familial status, marital status, socioeconomic status, political preference, religious piety, national origin, appearance, odor, sexual orientation, or anything else, whether logical or illogical, reasonable or unreasonable, rational or irrational. It couldn’t be any other way and really be a free society.

As it is now, although it is unlawful to refuse to serve certain classes of people, it is not unlawful to give senior citizen discounts (discrimination based on age) or free meals to groups such as children, people celebrating birthdays, and police officers even though doing so discriminates against adults, people not celebrating birthdays, and all occupations besides police officers.

Clearly, there is much confusion about discrimination in our relatively free (as opposed to absolutely free) society overseen by regulators, bureaucrats, and judges — authoritarians, statists, and busybodies who seek to use the force of government to compel others to associate or do business with people they don’t want to. Currently, if the patron of a business or organization is not a member of a federally protected class, the legal right to refuse service generally depends on whether the refusal was arbitrary or whether there was a specific interest in refusing a patron service. That leaves everything up to the whim of government regulators, bureaucrats, and judges.

Lest there be any misunderstanding, I should say that a free society has nothing in common with the Jim Crow era. Jim Crow regulations, which prohibited white businessmen from serving black customers, were maintained by government force. They were the antithesis of the voluntary association found in a free society. And not only did they harm blacks, they denied the fundamental right of whites to associate and conduct business with them as they saw fit.

The basis of GLSO’s public-accommodation discrimination complaint is the Civil Rights Act of 1964. Listed among the goals in the preamble of the Civil Rights Act is, in addition to enforcing “the constitutional right to vote,” preventing “discrimination in federally assisted programs,” and authorizing “the Attorney General to institute suits to protect constitutional rights in public facilities and public education,” the government’s intent “to provide injunctive relief against discrimination in public accommodations.”

The government is using the word “public” in two different senses. As Title II, “Injunctive Relief against Discrimination in Places of Public Accommodation,” section 201 states,

(a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

But there is a big difference between the government’s protecting “constitutional rights in public facilities and public education,” and the government’s providing “injunctive relief against discrimination in public accommodations.” The former is a legitimate purpose of government; the latter is an illegitimate purpose. One protects rights; the other violates rights. The first ensures that the government grants the public equal access and equal opportunity to what is public; the second dictates how a private business should operate.

The GLSO’s Aaron Baker is right about one thing. People should be aware of the practices of any business “so they can make an informed decision about whether they want to buy from them.”

In a free society, it is not just businesses that have the right to refuse service; customers have the right to investigate the practices of any place of business and boycott or give bad publicity to any business establishment that doesn’t meet their standards. Discrimination is a two-edged sword. It could function as a death knell for any business because of boycotts, bad publicity, or too narrow a market to make a profit. But in a free society, the practice of discrimination must be an option for buyers and sellers.

Although conservatives may sound like libertarians when they talk about freedom, property rights, and limited government, they usually fall short of advocating a truly free society.

Typical is Richard Garnett, professor of law and associate dean at Notre Dame Law School. In his recent Public Discourse article “Confusion About Discrimination,” he shows that it is conservatives who are confused about discrimination:

We believe that “discrimination” is wrong. And, because “discrimination” is wrong, we believe that governments such as ours — secular, liberal, constitutional governments — should take steps to prevent, discourage, and denounce it. We are right to believe these things. The proposition that it is not only true, but “self-evidently” true, that all human persons are “created equal” is foundational for us. The principle of equal citizenship holds near-universal appeal, even though we often disagree about that principle’s particular applications.

At the same time, it is not true that “discrimination” is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it — say, through its expression and spending — even when it is wrong. “Discrimination,” after all, is just another word for decision-making, for choosing and acting in accord with or with reference to particular criteria. We do and should “discriminate” — we draw lines, identify limits, make judgments, act on the basis of preferences — all the time.

What Garnett really means is that “wrongful discrimination is wrong.” It is this that governments should oppose, but only when “it makes sense, all things considered, and when it is within their constitutionally and morally limited powers, to do so” because “we do not believe that governments should or may prevent, correct, or even discourage every instance of wrongful discrimination.” Some acts of wrongful discrimination “are beyond the authorized reach of government policy,” some are “too difficult or costly to identify, let alone regulate,” and others are “none of the government’s business.”

Many liberals could agree with exactly what the conservative Garnett is saying, but then both would argue endlessly about whether this case of discrimination is “wrong” and whether that case of wrongful discrimination should be corrected by government action.

Libertarians, on the other hand, would argue correctly and consistently that, by their very nature, the rights of private property, freedom of assembly, freedom of association, free enterprise, and freedom of contract include the right to refuse service and otherwise discriminate — for any reason.

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