Reserving the right to refuse service

posted at 8:01 am on August 23, 2013 by Jazz Shaw

In yet another topic sure to enrage, Sterling Beard – writing at The Corner – catches up with the latest news on a strange case coming to us from New Mexico. It’s now gone all the way to the state Supreme Court, and the story may be at an end. In case you hadn’t heard, wedding photographers can’t refuse to take pictures at a gay wedding or they have violated the New Mexico Human Rights Act.

The court found that Elane Photography’s refusal to serve Vanessa Willock violated the act, which “prohibits a public accommodation from refusing to offer its services to a person based on that person’s sexual orientation,” according to the ruling.

Justice Richard C. Bosson, writing in concurrence, said that the case “provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice.” In addition, the case “teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less.”

AP covered this story when it hit the last level in the courts, but it’s one of those areas of the law that always leave me scratching my head. When you’re talking about services provided by the government, there’s no question in cases like this. The government can’t refuse to grant a drivers license or a fishing license or what have you to somebody just because they are Jewish or black or gay or female, etc. Everyone pays for the government and everyone is entitled to equal treatment and availability of services offered. Simple enough. But what of the private sector?

When you raise the specter of “reserving the right to refuse service” in private enterprise, one of the first images evoked is the famous Whites Only Lunch Counter. Now, if you are one of the hardest of the hard core, Big L Libertarians, you’ll claim that this is still too great of an intrusion of government control on private enterprise. The argument goes that the owner will prosper or suffer as a result of the policy as the market dictates. Black diners clearly need to eat, so other competition will rise to fill that vacuum. And in the extreme case, enough people will be angered by the policy that the restricted lunch counter will be driven out of business. It’s the Invisible Hand in action.. it either high fives your or smacks you down.

But still, that image makes many, many people feel extremely uncomfortable. Maybe the government has to step in. But if they do, the policy seems to be rather selectively enforced, doesn’t it? How about when Hooters refuses to serve anyone who is a Mayor who is a serial sexually inappropriate actor? How do eateries refuse service to people with no shirt or no shoes if it’s not illegal to go barefoot or without a top? (For men, at least.) For a less silly example, how about when many cemeteries refused to bury the body of the Boston Marathon bomber? Funeral homes tend to frequently be smaller, family run operations just like photography studios, often run out of people’s homes. Could they be sued for refusing service? If so, I never heard of anyone suggesting it. But in this case, because the photographer turned down the job for a gay wedding, they have now lost in court at every level and will pay for it in cash.

This may be the wrong side of the law here, but I’m left pondering one comment I saw on Twitter shortly after this news came out.


I’m not even one of the people who oppose gay marriage, as many of you know by now, but this story just seems wrong. I suppose this is why I’m not a lawyer.

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The ineffective sophistry on this site is astounding sometimes.

urban elitist on August 23, 2013 at 11:08 AM

True enough. But for some reason, the moderators just won’t ban you, so we’re stuck with it.

There Goes the Neighborhood on August 23, 2013 at 5:15 PM

the Bible has been revised numerous times over the centuries…

libfreeordie on August 23, 2013 at 10:38 AM

Please define “revised” for us.

(Starts sundial #12,001)

Del Dolemonte on August 23, 2013 at 11:49 AM

libfree should have said “mistranslated” instead of “revised”. The KJV alone contains over 300 translational errors from earlier bibles…but that’s no surprise since the KJV came about after the British crown defied papal authority.

JetBoy on August 23, 2013 at 11:52 AM

The fact that Catholics often object to the translation in the KJV because it doesn’t match their own does not constitute translation mistakes.

There Goes the Neighborhood on August 23, 2013 at 5:33 PM

Is the Judge also going to mandate that the pictures are good?

rgranger on August 23, 2013 at 6:10 PM

If I was a photographer and found something distasteful, I wouldn’t be able to photograph it and definitely wouldn’t be able to do a good job.
Knowing how the photographer felt about the wedding, the couple had to know she wouldn’t be able to do justice to their love union. They only demanded it so they could sue.
These kind of cases are going be springing up in every state. They’ve sued cake makers and photographers so far.

lonestar1 on August 23, 2013 at 6:11 PM

I love the court’s ruling. I can now be served even without wearing a shirt or shoes!

Colony14 on August 23, 2013 at 6:22 PM

CapHog is comical.

CW on August 23, 2013 at 6:43 PM

Dear Vanessa Willock,

Just move over the border into Texas here. We have no such unconstitutional law and we would be glad to have you here.

Theophile on August 23, 2013 at 7:06 PM

Does this mean that when the Leftist newspapers refuse to run our anti-abortion ads that we can sue them?

Theophile on August 23, 2013 at 7:43 PM

crave [kreyv] Show IPA verb, craved, crav·ing.

verb (used with object)

1. to long for

darwin on August 23, 2013 at 2:08 PM

You crave me.

Capitalist Hog on August 23, 2013 at 2:12 PM

…can’t…you’re always eating yourself!

KOOLAID2 on August 23, 2013 at 8:53 PM

My take.

kingsjester on August 24, 2013 at 8:48 AM

“HOW WOULD JESUS THREAT HOMOSEXUAL MEN OR WOMEN?” Capitalist Hog on August 23, 2013 at 1:44 PM

John 8 describes the story of the woman caught in adultery. There are many nuances to the story, such as the people brought only the woman and not the man (which was a violation of the law since both were to be punished under the law). But at the end of the story, Jesus addresses what to tell someone caught in a life of sin, such as those who practice homosexuality…

…Jesus declared. “Go now and leave your life of sin.” —John 8:11

Because to leave them to their sin, without offering the salvation of the Gospel message, is to allow them to remain in their sin and ultimately travel to Hell for all eternity. Who really cares for homosexuals? Those who would allow them to continue on their journey to ultimate destruction, or those that throw a lifeline even if they choose not to accept it?

dominigan on August 24, 2013 at 11:10 AM

“Human Rights” commissions are not really about human rights. They are tools for leftists to suppress human rights, usually of free speech they don’t like.

Chessplayer on August 24, 2013 at 3:14 PM

“HOW WOULD JESUS THREAT HOMOSEXUAL MEN OR WOMEN?” Capitalist Hog on August 23, 2013 at 1:44 PM

Jesus would cast the unclean spirits out of them, healing them from their sickness.

Rebar on August 24, 2013 at 4:50 PM

Defenders of liberty and a free society should not be intimidated by enemies of liberty and a free society — liberal and conservative, Democrat and Republican, and even some libertarians — who label them as racists, bigots, or Neanderthals for objecting to certain provisions of the Civil Rights Act.

The second-longest and most far-reaching part of the Civil Rights Act is Title II: “Injunctive Relief against Discrimination in Places of Public Accommodation.”

The internal justification for this title is the ambiguous commerce clause in Article I, Section 8 of the Constitution that gives the Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

More evils have resulted from the federal government abusing the commerce clause than from any other part of the Constitution.

The framers of the Constitution intended the interstate commerce clause to create a free trade zone among the states, not to give the federal government regulatory power over every business that has any connection with interstate commerce.

Because this part of the Civil Rights Act in particular was an unconstitutional expansion of federal power that destroyed the rights of private property, freedom of assembly, and freedom of association, free enterprise, and freedom of contract, it was opposed by members of Congress.

Although it has been part of federal law for over 45 years, it should still be repudiated by all proponents of liberty and a free society just like the rest of Lyndon Johnson’s Great Society programs.

Although the inns, hotels, motels, restaurants, cafeterias, lunchrooms, lunch counters, soda fountains, gas stations, movie theaters, concert halls, sports arenas, and stadiums referenced in Title II of the Civil Rights Act are all in business to offer goods and services to the public, they are all still private businesses (excepting certain halls, arenas, and stadiums that are owned by a municipality, in which case my comments would not apply).

Just as no one has a right to enter my home, so no one should have a right to stay at my inn, hotel, or motel; eat at my restaurant, cafeteria, lunchroom, or lunch counter; enjoy a beverage at my soda fountain; fill up at my gas station; view a movie at my theater; listen to a concert in my hall; or watch a sporting event at my arena or stadium.

There should be no distinction between a private home and a private business. In a free society, a person has the fundamental right to associate with anyone he chooses and on any basis he chooses.

In a free society, business owners, like homeowners, would have the right to run their businesses as they choose, including the right of exclusion. In a free society, everyone would have the right to discriminate in his place of business — yes, discriminate — against male or female, Blacks or Whites, Christians or Jews, Protestants or Catholics, heterosexuals or homosexuals, atheists or theists, natives or immigrants, smokers or nonsmokers, obese or anorexic.

The simple truth is that Americans don’t live in a free society, although they may think they do. We live in a relatively free society compared to people in many other countries, but we do not live in a society that is absolutely free. We have a nanny state. We have a government full of politicians, bureaucrats, and regulators and a society full of statists, authoritarians, and busybodies who all want to use the force of government to impose their values, remake society in their own image, and compel others to associate with people of their choosing. It is futile to attempt to change human nature. Like attracts like, whether it is political preference, sexual orientation, religious piety, or skin color.

It’s time to stop considering discrimination to be a dirty word.

I prefer Wal-Mart to K-Mart, ketchup to mustard, blue to pink, Chevy to Ford, blonds to brunettes, and Coke to Pepsi. Pepsi may be cheaper, healthier, and better tasting, but I still prefer Coke. Perhaps I just like the color, the smell, or the Coke logo on the can. My preference for Coke over Pepsi may be completely irrational, but in a free society it is my choice to discriminate against Pepsi as long as I don’t violate the rights of Pepsi drinkers.

By the same token, if I prefer to rent my home to married couples instead of unmarried ones, serve in my restaurant Whites instead of Blacks, allow into my theater heterosexuals instead of homosexuals, put up in my hotel Democrats instead of Republicans, sell merchandise in my store to Christians instead of Jews, and permit to join my club men instead of women, then I have the natural and moral right to do so. The fact that I don’t have the legal right to do any of these things means that the state is violating my rights instead of protecting them.

To say that proponents of liberty and a free society long for the return of Jim Crow laws is a gross misrepresentation. Jim Crow laws, which banned White businessmen from serving Black customers, are just as wrong as anti-discrimination laws. These government-mandated and government-enforced laws denied the fundamental right of Whites to associate and conduct business with Blacks. The real problem with segregation and discrimination is that they were de jure, not de facto; mandatory, not voluntary; public, not private.


donabernathy on August 26, 2013 at 10:44 PM

From the beginning, the only word I’ve had for this case was “sad.”

factsonlypls on August 27, 2013 at 1:37 PM

Now, if you are one of the hardest of the hard core, Big L Libertarians, you’ll claim that this is still too great of an intrusion of government control on private enterprise.

I’m not even one of the hardest of the hard core Big L Libertarians, and I think that Atlanta Motel v. United States was wrong.

Like its predecessor, Wickard v. Filburn, it presumes that the state has a right in cooerced commerce — that the state can force a private transaction where one of the parties is unwilling, just because it furthers some overarching need of the state.

So the Supreme Court upheld the Affordable Care Act. But in doing so, Chief Justice John Roberts’ majority opinion appears to have placed new limits on Congress’s ability to regulate interstate commerce. Will this make future federal legislation harder to enact? Or does Congress still, in theory, have the power to make everyone buy broccoli? That’s a key question legal scholars are now mulling as they pick through the decision.

Forcing farmers to sell broccoli is the flip side of this issue.

The Elaine Photography case will indeed be interesting if the Court accepts it.

unclesmrgol on March 1, 2014 at 12:53 PM