The Right to Refuse Service Should Be Universal and Absolute

From New York to Florida, businesses are asserting what they believe is their right to refuse service.

It brings up a number of questions. Do these businesses have such a right? Should they have such a right? Should such a right be universal? Should such a right be absolute? What about discrimination? What about fairness? What about equality? What about minorities? What about the handicapped? What about the LGBTQ community?

And what about politicians?

Restaurant owners in New York City have discussed refusing to serve the governor of New York, Andrew Cuomo, and the mayor of New York City, Bill de Blasio, because, as part of the draconian response to the coronavirus, indoor dining was shutdown again at New York City restaurants.

Naturally, restaurant owners are furious. “I came up with this motto — if we can’t feed our families, we certainly won’t feed yours,” said organizer Michael Quinn. He points out that “banning indoor dining just pushes people to gather in homes and other places that don’t have the safety measures in place that restaurants have” and that “the state says 70 percent of coronavirus cases can be traced to households and small gatherings, while no more than 2 percent have been attributed to indoor dining at restaurants.”

“He can eat at some sh—- roadside diner outside of Albany but he will not be served anywhere in New York City, known universally as the world’s greatest dining destination! If he has to use the restroom, he can go pee on my street-corner,” said bar owner Larry Baird about Governor Cuomo.

An industry group called the dining restriction unfair, since “restaurants upstate — where hospitalization rates are higher — can stay open.” “It will be the last straw for countless more restaurants and jobs.”

To get around the indoor-dining ban, some bar and restaurant owners have gotten creative by offering patrons free food and drinks in exchange for donations.

Meanwhile, in Orange County, Florida, Rachel’s Gentlemen’s Club (a strip club with mostly male patrons) is being sued by two women who say they were denied entry because they didn’t have any men with them. It turns out that Rachel’s welcomes male patrons, but requires that a woman be accompanied by a man to enter the club. It seems that unaccompanied women “take patrons’ attention away from the strippers, are prostitutes, or are patronizing the establishment solely to find their wayward husbands or boyfriends and cause drama.”

The two women argue that this policy violates Orange County’s human-rights law that bans discrimination in public places. According to Chapter 22, “Human Rights,” Article III, “Equal Access to Places of Public Accommodations,” Section 22-42, “Prohibition of discrimination in public accommodations” of the Orange County Code,

(a) It is a violation of this article for a person who owns or operates a place of public accommodation, whether personally or through the actions of an employee or independent contractor, to deny or refuse to another individual the full and equal enjoyment of the facilities and services of any place of public accommodation on the basis of that individual’s age, race, color, religion, national origin, disability, marital status, familial status, sex, or sexual orientation.

(b) It is a violation of this article for a person who owns or operates a place of public accommodation, either personally or through the actions of an employee or independent contractor, to display or publish any written communication which is to the effect that any of the facilities and/or services of a place of public accommodation will be denied to any individual or that any such individual is unwelcome, objectionable or unacceptable because of that individual’s age, race, color, religion, national origin, disability, marital status, familial status, sex, or sexual orientation.

The local newspaper, the Orlando Sentinel, says that “the case could decide whether LGBTQ people have the same rights as every other citizen” — even though neither woman bringing the lawsuit identifies as lesbian, gay, bisexual, transsexual, or queer.

A judge initially dismissed the women’s lawsuit and ruled that the state’s civil-rights policy supersedes local laws. An appeals court overturned the ruling because Orange County was not a defendant as required by state law when ordinances are challenged. The Florida Supreme Court declined to hear the case, Orange County was added as a defendant, and the case will be moving forward.

Should it?

One the one hand, there is no doubt that many Americans are sympathetic to the desire of the two women to enter a strip club just like male patrons as long as they pay the entry fee. And no doubt most of these same Americans think it should be illegal for businesses to refuse to serve certain classes or groups of people, including politicians.

On the other hand, some Americans no doubt support the strip club’s being allowed to exclude unaccompanied women from entering. And most of those same Americans no doubt also support the right of New York restaurants to refuse to serve the governor and mayor. That is because they believe in the right of any business to refuse entry or service to anyone as long as it is for a legitimate reason or purpose.

But other Americans see things differently. They either side with the women because they have done nothing wrong, but not with the politicians because they have done things that have harmed businesses, or else they question the motives of the women, while holding that businesses shouldn’t be able to refuse service to someone just because his occupation happens to be that of a politician.

So who is right?

Legally, according to the Civil Rights Act of 1964, which sought, inter alia, to “to provide injunctive relief against discrimination in public accommodations,”

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.

This has since been amended to include discrimination on the ground of sex, sexual orientation, gender identity, disability, or age.

The Civil Rights Act goes on to define “public accommodation” as including

  • any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises,
  • any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment;

“Any restaurant” would certainly include New York restaurants, just as “any other place of exhibition or entertainment” would certainly include an Orange County strip club.

So legally, it appears that New York restaurants would not be able to get away with denying service to the governor of New York or the mayor of New York City. And legally, it doesn’t seem as though the Orange County strip club’s discrimination against unaccompanied women will stand up in court.

But the government’s declaring something to be illegal doesn’t make it right that it should be. In a free society, the only actions that would be illegal would be those that violate the personal or property rights of others. Thus, in a free society, murder, robbery, burglary, arson, rape, shoplifting, trespassing, and assault would be crimes, while ticket scalping, prostitution, drug possession, gambling, cutting hair without a license, price gouging, and discrimination would not.

Therefore, the right to refuse service should be universal and absolute, and for two reasons.

One, since discrimination is not aggression, force, coercion, threat, or violence, the government should never prohibit it, seek to prevent it, or prosecute anyone for doing it. And two, since no one has the right to eat at a particular restaurant or be entertained at a particular strip club, no one should have any legal recourse if he is refused service at those or other business establishments.

In a free society, all businesses would have the right to discriminate against any potential patron on any basis and for any reason.

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