Red Hen restaurant owner Stephanie Wilkinson got a concerned call from her restaurant staff. Prompting the panicked phone call was the fact that POTUS press secretary Sarah Huckabee Sanders had just walked in for dinner at the small restaurant in Lexington, Virginia. Apparently, that’s enough of a situation to prompt a phone call to the owner outside of her regular working hours.
Wilkinson arrived at the restaurant and asked Sanders to step outside with her. She then explained that Sanders had to leave in order to uphold the restaurant’s standards including “honesty, and compassion, and cooperation…” Wilkinson says that she has no regrets in asking Sanders to leave the restaurant.
The question is, in light of our anti-discrimination laws and the Supreme Court’s recent decision in the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission “cake shop” case, were Wilkinson’s actions legal?
The 1964 Civil Rights Act
The Civil Rights Act of 1964 prevents a business owner like a restaurant, theater, retail shop or hotel from refusing service to a person based on a protected class. Protected classes include race, color, religion, sex or national origin. The purpose of the law is so that business owners have to stop being discriminatory jerks to people they don’t like who are trying to go about their lives.
Exceptions to the Civil Rights Act and the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission Case
There are a few important exceptions to the Civil Rights Act. In the recent, famous “cake shop” case, the Supreme Court of the United States said that a business owner may refuse to provide a service where providing the service requires them to violate their sincere religious beliefs — i.e., you don’t have to make a cake for a homosexual wedding if homosexual marriage is contrary to your religious beliefs. The Supreme Court didn’t exactly rule that you don’t have to provide someone a service if you don’t like what they stand for. They more or less just said that a state civil rights commision can’t decide whether someone violated a civil rights law based on whether the people running the civil rights commission agree with the person’s religious stance. Basically, they can’t discriminate on the basis of religion when they’re deciding whether someone is discriminating on the basis of religion.
There are some exceptions in the Civil Rights Act of 1964. Thanks to the Religious Freedom Restoration Act and constitutional freedom of religion, a person or company can refuse to provide a service or follow a law if doing so substantially burdens their exercise of religion. A restaurant can also refuse service for other reasons like if the person refuses to wear a shirt or shoes or if they’re too drunk to be served more alcohol. But a restaurant has to have a very good reason to deny service. “I don’t like your politics” is not a good reason, just like a restaurant owner can’t refuse someone generic service for being a Pentecostal or for being a certain race just by stating that their religion prevents them from serving someone who they disagree with.
What’s a Protected Class Under the Civil Rights Act of 1964?
The homosexual couple in Colorado didn’t ask the baker to bake a generic wedding cake. They asked the baker to bake a cake specifically for a homosexual wedding. In Sanders’ case, Sanders wasn’t asking the restaurant to make her a dinner celebrating separating parents from children at a border crossing. Instead, Sanders’ was asking for the same dinner and drinks that every other person at the restaurant was asking for. The bake shop owner made it clear that the homosexual couple could purchase anything else from the bake shop just not a tailor-made cake for a homosexual wedding. If the baker had refused to sell the couple any products at all, he likely would have been in violation of the Civil Rights Act anti-discrimination laws. Sanders didn’t want anything special – she was refused service because of who she works for and what she believes. So they’re different situations.
But…political affiliation is not a protected class. The Civil Rights Act say that you can’t discriminate against a person based on a protected class like sex, race or religion. Was Sanders discriminated against because of her religion or because of her employer and political beliefs? The Red Hen won’t serve Trump Press Secretaries. There’s also a coffee shop in California that refuses to serve police. Neither police nor Trump Press Secretaries are a protected class under the Civil Rights Act. Is that okay? Should they be?
If At First You Don’t Succeed…
What I find interesting about the cake shop case is that the cake shop owner lost at every single level of justice until he reached the U.S. Supreme Court. The Colorado Civil Rights Commission ruled against him and made fun of him in the process. The Colorado Court of Appeals ruled against him. The Colorado Supreme Court refused to even look at the case.
The cake shop owner had to appeal and appeal and appeal and finally got justice in the very last round. The Colorado Civil Rights Commission officials said the cake shop owner was wrong. So did the Colorado Court of Appeals. What happens to the thousands of litigants who don’t have the resources, knowledge or wherewithal to appeal their case again and again when lower administrative bodies and courts rule improperly? If the cake shop case hadn’t gotten the attention that it did, would the Supreme Court have taken an interest? What we can learn from the cake shop case is that the lower adjudicative bodies don’t always get it right, and we have an appeals process for a reason.