The Message that Matters: Public Accommodation Laws, Race, and Same-Sex Marriage

June 20, 2016

What do Pfizer, Chipotle, and Bruce Springsteen have in common? Perhaps more than you might think, as Mark Rienzi, Senior Counsel for the Becket Fund for Religious Liberty and Associate Professor of Law at Catholic University, pointed out recently at the "Protecting Religious Liberty" conference at the CATO Institute. It turns out that each of those companies made decisions about business transactions based on their moral beliefs and the message that each business deal would send. For Chipotle, that meant not sponsoring a Boy Scout event because of their (now previous) take on gay scoutmasters. For Pfizer, that meant no longer selling a drug to state governments that used it for capital punishment. And for Bruce Springsteen, that meant not playing a concert in North Carolina because of objections he had to the bathroom bill signed into law earlier this year. Christian-owned businesses seeking to convey a message regarding marriage only ask to be treated the same.

Public Accommodation laws have long protected individuals from being denied service because of their protected class status. In the 1950-60s, this often meant that blacks could not be turned away from hotels or restaurants because of the color of their skin. Over the years, different locales have expanded the classes protected by these laws. Today, the list of individuals protected sometimes includes sexual orientation.

So does that mean that a cake artist, photographer, or invitation calligraphist must provide that service if a city or state has a public accommodation law? Not exactly.

It is important to note that there is a distinct difference between racial discrimination, like when Heart of Atlanta Motel refused to serve blacks in 1964, and not serving a particular event. As Rienzi asserted, there is "[n]o parallel to the Jim-Crow South, in other words there is no indication that what we have got is a broad denial of service," for same-sex couples and wedding vendors. The famous wedding vendor cases often involve gay clients who have conducted business at these establishments before. The objection for business owners is not the person, but the message of the particular event.

As the Supreme Court made clear in its 9-0 opinion in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, public accommodation laws "are well within the State's usual power to enact when a legislature has reason to believe that a group is the target of discrimination," as long as "they do not, as a general matter, violate the First and Fourteenth Amendments." In other words, state governments can protect individuals facing discrimination as long as the laws do not conflict with protections like the Freedoms of Speech and Religion that apply against the states.

In that case, the parade organizer was sued for not allowing a group wanting to march in the parade "to express pride in their Irish heritage" as gay, lesbian, and bisexual individuals. The group alleged that Hurley had violated Massachusetts’s public accommodation law by not allowing the message of the group to be incorporated in the parade. In striking down the application of the public accommodation law against Hurley, and noting that gay individuals were not excluded from the parade, the Supreme Court stated that "the Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another." The Court emphasized "one important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say.'"

While Louise Melling, another panelist at the CATO event from the American Civil Liberties Union, emphasized the harm experienced by LGBT couples referred to other businesses because of the nature of the event, Mark Rienzi pointed to another key Supreme Court case, Snyder v. Phelps. The Supreme Court declared that while the Westboro Baptist protestors said deeply hurtful things at the military funeral for Snyder’s son, speech on matters of public concern is entitled to "'special protection' under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt."

These Supreme Court decisions established the precedent that public accommodation laws do not trump the First Amendment protections for people to choose the message they wish to promote, without discriminating against the person. Just like the parade, which allowed gay, lesbian, and bisexual people to participate in the parade, the florists and bakeries at the center of this debate have knowingly served homosexuals in the past and would continue to serve them for other events. It is the current message of the particular event at issue, and the artist has the right to choose what that message is.

As the majority in Obergefell v. Hodges noted, "Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here." Compelling artists who support natural marriage to speak a particular message by forcing them to participate in a particular event violates the principles of the First Amendment and oversteps the historical use of public accommodation laws.