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Author Topic:   Where should there be "The right to refuse service"?
Minnemooseus
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Posts: 3879
From: Duluth, Minnesota, U.S. (West end of Lake Superior)
Joined: 11-11-2001
Member Rating: 2.7


Message 1 of 928 (728651)
05-31-2014 10:33 PM


This topic is intended as a spin-off of various discussions of businesses not wanting to cater to gays, which are probably primarily found at the Homosexuality and Evo, Creo, and ID topic.

So, my question is as in the topic title: Where should there be "The right to refuse service?"

One question has been a baker supplying a wedding cake to a gay couple. The liberal (for lack of a better term) side of the argument says that the baker can't legally discriminate. But what is someone (gay or straight) wants some artwork on the cake that the baker considers distasteful, such as being pornographic?

A similar situation could happen in the case of a wedding photographer. Could the photographer legally balk at shooting a nudist wedding, be it gay or straight?

Moose

Edited by Minnemooseus, : Touch up topic title - get the "?" outside of the """".


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ramoss
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Posts: 3225
Joined: 08-11-2004


(1)
Message 2 of 928 (728655)
05-31-2014 11:34 PM
Reply to: Message 1 by Minnemooseus
05-31-2014 10:33 PM


I would say that 'you can't refuse people'. but, fi they want' a pornographic cake, unless you do pornographic cakes for other people, then, you can refuse to do that, because it is not a produce you provide.

If you do wedding cakes, then you should sell the same cake you make for one type of client for the other type of client. Religion, gender, ethnic group or sexual preference shouldn't matter.


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Jon
Inactive Member


Message 3 of 928 (728656)
06-01-2014 12:32 AM


Is there a reason businesses that provide non-essential services should not be allowed the right to refuse service to whomever they please?

Love your enemies!

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PaulK
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Posts: 17167
Joined: 01-10-2003
Member Rating: 3.7


Message 4 of 928 (728659)
06-01-2014 2:11 AM
Reply to: Message 1 by Minnemooseus
05-31-2014 10:33 PM


The big question is whether there should be anti-discrimination laws at all. If we grant that there should be, the extension to protect gays seems obviously right and just.

Pervasive discrimination can amount to a "tyranny of the majority", and make life very unpleasant, unacceptably so, for minorities. If there is truly a threat of that, then it seems to me that anti-discrimination laws may well be less bad than the alternative. And even if those in the cities are adequately catered for, what about rural communities where there are fewer providers? The law has to be fair and it has to work - adding complications about alternative providers are a risk to both. That said, using the law to compel service is rarely a good option where there are adequate alternatives.

To consider the hypothetical example cases, I don't believe that any law requires that a wedding cake be decorated exactly as the customer wishes, no matter what. Anti-discrimination laws only require equal service. If the baker can reasonably claim that they would not have provided an equivalent decoration to anyone then they have a case.

For the photographer we have to ask if nudists are a protected group first, and to be honest the photographer would do a lot better arguing that his personal discomfort would hinder his work than expressing moral outrage.


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dwise1
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Message 5 of 928 (728660)
06-01-2014 2:35 AM
Reply to: Message 1 by Minnemooseus
05-31-2014 10:33 PM


The question that kept coming to my mind in those topics was, "What's the legal basis for a 'right to refuse service' and what do court decisions say about it?" We can (and did) spend days on end and burn up considerable bandwidth arguing our own uninformed personal opinions, but none of that would mean a thing in the real world, unlike legal opinions would. So what is the informed legal opinion?

In the meantime, we have all seen signs hanging in businesses saying they reserve the right to refuse service to anyone or that require customers to follow a dress code ("No shirt, no shoes, no service", and I have encountered one where a man is required to wear a tie). Are there legitimate situations that would stand up in court? In my own uninformed opinion, a business could legitimately refuse service if the individual is being disruptive or presents a health or safety hazard.


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Faith 
Suspended Member (Idle past 678 days)
Posts: 35298
From: Nevada, USA
Joined: 10-06-2001


(1)
Message 6 of 928 (728661)
06-01-2014 3:11 AM
Reply to: Message 5 by dwise1
06-01-2014 2:35 AM


The Federal Civil Rights Act guarantees all people the right to "full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion, or national origin."

In addition to the protections against discrimination provided under federal law, many states have passed their own Civil Rights Acts that provide broader protections than the Federal Civil Rights Act. For example, California's Unruh Civil Rights Act makes it illegal to discriminate against individuals based on unconventional dress or sexual preference.

In the 1960s, the Unruh Civil Rights Act was interpreted to provide broad protection from arbitrary discrimination by business owners. Cases decided during that era held that business owners could not discriminate, for example, against hippies, police officers, homosexuals, or Republicans, solely because of who they were.

In cases in which the patron is not a member of a federally protected class, the question generally turns on whether the business's refusal of service was arbitrary, or whether the business had a specific interest in refusing service. For example, in a recent case, a California court decided that a motorcycle club had no discrimination claim against a sports bar that had denied members admission to the bar because they refused to remove their "colors," or patches, which signified club membership. The court held that the refusal of service was not based on the club members' unconventional dress, but was to protect a legitimate business interest in preventing fights between rival club members.

SOURCE

There's more.


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AZPaul3
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Posts: 6636
From: Phoenix
Joined: 11-06-2006
Member Rating: 3.1


Message 7 of 928 (728663)
06-01-2014 6:45 AM
Reply to: Message 1 by Minnemooseus
05-31-2014 10:33 PM


The liberal (for lack of a better term) side of the argument says that the baker can't legally discriminate. But what is someone (gay or straight) wants some artwork on the cake that the baker considers distasteful, such as being pornographic?

The First Amendment would protect a baker from being forced to speak in a manner against their conscience by using her artistic talents to create the cake bearing the recognized gay motifs and symbols. Examples would be a two groom topper, the rainbow motif in the icing, two penis shaped cakes joined at the balls, these types of things. The baker has the right to refuse to create objectionable art.

So, two gays walk into a christian baker and ask to buy a cake for their wedding.

1. Baker refuses service because they are gay. This is against the anti-discrimination laws.

2. They sit down with the reluctant baker to plan the cake.

-- A specific gay motif is requested. The baker has a right to refuse to create the artwork. If no agreement can be reached the baker has the right to refuse service.

-- A generic design suitable to any wedding with the customary and usual decorations, sans bride/groom topper, is chosen. The baker has no right to refuse service.

Could the photographer legally balk at shooting a nudist wedding, be it gay or straight?

This is where the courts come in. I believe the photographer could refuse such a contract for service based upon the fact that the person is asked to work in an environment, in a surrounding, they fine offensive. I think the courts would find that you cannot force a person to perform a service in what the provider could reasonably consider an offensive atmosphere, provided that "offense" is not based upon bigotry against any class of people. No, nudists do not count as a class of people.

Where should there be "The right to refuse service?"

A business has the right to refuse service where the refusal is based on just about anything else other than obvious discrimination against a class of people.

"No shirt, No shoes, No service" is a health, as well as a business decorum issue.

"We reserve the right to refuse service ..." applies to abusive, dangerous, openly offensive clientele. Think Dram Shop laws or a bar refusing to serve a gang sporting their colors which might lead to fights with rivals. So long as the reasons for refusal are not based upon the willful discrimination against an entire class of people then the business has a right to maintain a safe, lawful, non-abusive atmosphere for its customers.

[abe] See Faith's quote above. [/abe]

Edited by AZPaul3, : cuz

Edited by AZPaul3, : more cuz

Edited by AZPaul3, : Faith beat me to it.


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Pressie
Member
Posts: 2102
From: Pretoria, SA
Joined: 06-18-2010


(1)
Message 8 of 928 (728666)
06-01-2014 7:57 AM
Reply to: Message 1 by Minnemooseus
05-31-2014 10:33 PM


Very interesting subject, Minnemooseus. It's a very grey area.

Haven't made my my up on when you should and when you shouldn't.

I'll tell you a story from my young days, when I worked in pubs in Syney, NSW, Aus. (Had to support myself and the studies).

Pubs in Sydney sold alchohol and also had those disgusting Pokies (gambling machines).

Normal notices on the doors. Reserve right of entry to people who were a bit dirty, etc. Dress codes. Basically as long as they were dressed in relatively clean clothes, they were allowed in.

Legally we were not allowed to discriminate against race, colour,creed, religion, sexual orientation, etc. All fine and well.

Could serve everyone alcohol, allow everyone on the pokies, etc.

However, they also had laws where, if any staff member ever even suspected that a person was intoxicated, the staff member had the legal right to refuse service and ask the customer to leave. It means that, if a staff member even thought that a person was indoxicated, they could legally tell the patron to leave. No tests involved. If the patrons didn't leave, staff members could call the cops to remove the persons involved. They would arrive a few minutes later and do it. No questions asked.

On the other side of the law, if the police showed up unexpectedly, talked to any person on the premises and found that the person was intoxicated; the staff of the establishment would be fined a hefty amount and the owner could loose his license.

I used that law on the Pokies a few times . Knew the regular customers. Talked to them all the time. Knew lots of people who couldn't really afford to gamble; would ask them to leave whether they were intoxicated or not. Just said: you're too intoxicated to be on the premises. Then they legally were oblidged to leave. It worked some times, other times it didn't.

I knew this one woman (quite wealthy), who gambled all her money away. In the beginning, she would sit in front of the pokies, all day and all night, loosing thousands (always sober, never drank any alchohol). One night she started crying. They were going to loose their house. She actually asked me to refuse her entry, due to those laws, next time she came in. Always did it after that. The owner of the establishment was furious, but the woman's husband came in and thanked me for saving their house.

It's a hard question you asked. Nothing is ever either black or white. Usually lots of grey inbetween.

Up to a point, I can understand why Fundie Christians should be allowed not to provide wedding cakes at gay weddings. Up to a point I also can understand why Fundie Christians should be forced to also sell wedding cakes at gay weddings.

A very difficult subject.


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Modulous
Member (Idle past 1338 days)
Posts: 7789
From: Manchester, UK
Joined: 05-01-2005


(1)
Message 9 of 928 (728667)
06-01-2014 9:18 AM
Reply to: Message 8 by Pressie
06-01-2014 7:57 AM


However, they also had laws where, if any staff member ever even suspected that a person was intoxicated, the staff member had the legal right to refuse service and ask the customer to leave. It means that, if a staff member even thought that a person was indoxicated, they could legally tell the patron to leave. No tests involved. If the patrons didn't leave, staff members could call the cops to remove the persons involved. They would arrive a few minutes later and do it. No questions asked.

I can one up this. In the UK it's actually a criminal offense for a bartender to serve a drunk person - they are legally mandated to refuse service!

quote:
Section 141 makes it an offence to sell or attempt to sell alcohol to a person who is drunk, or to allow alcohol to be sold to such a person on relevant premises.

And more - it's illegal to buy alcohol for your mate, if they are drunk:

quote:
Under section 142 a person commits an offence if, on relevant premises, he knowingly obtains or attempts to obtain alcohol for consumption on those premises by a person who is drunk.

I'm not sure if this next one is still on the books, but until recently you could have your licence to sell alcohol revoked or refused renewal on the grounds that your establishment is 'frequented by thieves, prostitutes or persons of bad character'.

I have refused service to drunks and prostitutes (who were working). But not thieves or other persons of bad character (otherwise I'd have been unemployed).

Edited by Modulous, : No reason given.


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Pressie
Member
Posts: 2102
From: Pretoria, SA
Joined: 06-18-2010


Message 10 of 928 (728668)
06-01-2014 9:21 AM
Reply to: Message 9 by Modulous
06-01-2014 9:18 AM


I forgot to mention that the most important and overriding law was:

'It's illegal to allow any intoxicated person on any public premises'


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Pressie
Member
Posts: 2102
From: Pretoria, SA
Joined: 06-18-2010


Message 11 of 928 (728669)
06-01-2014 9:23 AM
Reply to: Message 9 by Modulous
06-01-2014 9:18 AM


moduouls writes:

I can one up this. In the UK it's actually a criminal offense for a bartender to serve a drunk person - they are legally mandated to refuse service

It was exactly the same there.

I agree with those laws. Just so difficult to try and enforce. The politicians got completely intoxicated in private suits at the SFG and SFS...legally.

Edited by Pressie, : No reason given.


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Pressie
Member
Posts: 2102
From: Pretoria, SA
Joined: 06-18-2010


Message 12 of 928 (728670)
06-01-2014 9:43 AM
Reply to: Message 9 by Modulous
06-01-2014 9:18 AM


Modulous writes:

I can one up this. In the UK it's actually a criminal offense for a bartender to serve a drunk person - they are legally mandated to refuse service!

I've had some of the best nights and days of my life in the UK in pubs, being served by fantastic people and meeting wonderful customers. Some of the best people in the world I've ever met. We started off sober and then things got along. Pissed as can be. Didn't know that they and me were breaking the law!

I even stayed in a house in High Wycombe (did I spell it correctly?) , with the full use of their extra car for a few weeks due to me meeting them in a pub. The most wonderful people on earth!

Edited by Pressie, : No reason given.

Edited by Pressie, : No reason given.

Edited by Pressie, : No reason given.


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RAZD
Member (Idle past 639 days)
Posts: 20714
From: the other end of the sidewalk
Joined: 03-14-2004


(1)
Message 13 of 928 (728671)
06-01-2014 10:57 AM
Reply to: Message 1 by Minnemooseus
05-31-2014 10:33 PM


When it endangers others.
So, my question is as in the topic title: Where should there be "The right to refuse service?"

When it endangers or harms others.

The bartender refusing to serve someone who has had too much is a common example ...

The gunshop owner refusing to serve a mental patient is also a logical application ...

Where should there NOT be "The right to refuse service?"

When it does more harm than good and does not endanger others.

Thus discrimination doesn't qualify ... whether racist, homophobic, misogynistic, agist, etc.

Enjoy.


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NoNukes
Inactive Member


Message 14 of 928 (728672)
06-01-2014 12:14 PM
Reply to: Message 13 by RAZD
06-01-2014 10:57 AM


Re: When it endangers others.
When it does more harm than good and does not endanger others.

A black man with fairly close cropped hair badly in need a trim comes into my barber shop and asks for a haircut. I tell him I don't know how to cut his hair. He asks for a beard trim and I tell him the same thing.

Discrimination or not?

Or my wife tells me that the last time you came into my shop you hit on her. You come into my shop two weeks later asking for a haircut, and despite the fact that my wife is not there this time, I still throw your lame butt out of the shop.

Discrimination or not.

Edited by NoNukes, : No reason given.

Edited by NoNukes, : No reason given.


Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)

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New Cat's Eye
Inactive Member


Message 15 of 928 (728675)
06-01-2014 12:19 PM
Reply to: Message 3 by Jon
06-01-2014 12:32 AM


Is there a reason businesses that provide non-essential services should not be allowed the right to refuse service to whomever they please?

There's a federal law against discriminating for particular reasons.


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