John C. Kirk - The right to refuse service?

Feb. 25th, 2014

03:42 am - The right to refuse service?

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In the last few days, I've read a couple of stories about companies refusing to do business with gay people:
Razing Arizona
'Equal' rights?

The Telegraph has a bit more info on the first story:
"The conservative southern state of Arizona has passed a controversial law allowing businesses to refuse to serve gay people if it goes against the owners' religious beliefs."
The governor hasn't (or hadn't) approved that bill yet, so I'm not quite clear on the legal status, but it doesn't bode well. This reminds me of the photos I've seen from the 1950s, showing racial segregation in the USA. If the law goes ahead, George Takei has proposed that people should boycott the entire state. Personally, I've never been to America, and I don't have any particular plans to go, so there's not much I can do differently, but I think that this law is wrong.
Edit: The state governor vetoed the bill.

The second story is a bit closer to home: a gay couple are getting married in Scotland, and they wanted to hire a "candy cart" for the reception. (I assume that this is a trolley filled with pick'n'mix sweets, or something similar.) However, the company owner refused to supply their wedding, because she's opposed to gay marriage.

I don't know the couple in question, and the company (Sweetsation) haven't made any public announcement, although a lot of people have sent them comments on Facebook and Twitter. So, I don't know whether this story is actually true, but for now I'm taking it at face value. The company have certainly seen the messages (they've deleted lots of Facebook comments); I'm wary about saying that anyone has a moral/legal obligation to publically deny false rumours, but pragmatically I think it would make sense for them to say something.

Personally, as I've said before, I'm in favour of gay marriage. (More generally, I'll support marriage between any two adults who have capacity and give consent and aren't already married to anyone else.) If I owned a candy cart business then I would be quite happy to cater for gay weddings. However, this situation seems a bit different to one in Arizona. I don't know how the law applies to this, so I'm just thinking about this in terms of my conscience.

Looking at the final line of the blog post:
"Organising your wedding is supposed to be full of excitement and happiness and unfortunately Sweetsation Carts has ruined that for us."
Is it really that big a deal? Couldn't they just buy some sweets from someone else? Admittedly, it's easy for me to say that, since I'm not being excluded and I've never planned a wedding. I also thought that the letter from the company owner was quite polite, since she didn't directly insult them, she just said that she didn't want to be a hypocrite.

Another aspect is that this seems like a different type of business relationship. For instance, suppose that I was doing freelance work as a web developer. I think it would be fair enough to refuse work from particular clients, e.g. if I said "I won't deal with the Liberal Democrats after they broke their promise on tuition fees." On the other hand, if I was running a pub (implicitly open to everyone over a certain age) and LibDem MPs came in then I would serve them like any other customer. I don't actually have any huge grudge against the LibDems, I'm just using them as an example. However, sexual orientation is one of the protected characteristics in the Equality Act 2010, whereas political views aren't.

If there is a difference between customers and clients, I'm not sure where I'd draw the line. For instance, several supermarkets run home delivery services, and I'd expect them to deliver to all customers (in a particular geographical area), so it's not simply a question of whether you go to them or they come to you. Similarly, if this was a car hire company then I'd expect them to rent out their cars to any customer (possibly subject to a credit check), so it's not about the scarcity of particular equipment (i.e. having to choose between customers/events). I wondered whether it's about providing a personalised service, either because the company is doing something that's customised for them (e.g. a cake design) or because their staff are spending a significant amount of time on the customer's site. However, I don't think it would be right for a chimney sweep to refuse business from a gay couple either.

Maybe the issue here is that it's the nature of the event rather than the characteristics of the couple. If they'd tried to book the candy cart for a birthday party, that would be the equivalent of them booking a table in a restaurant, and if the company owner had refused then it would be pretty much the same as the companies who'd (hypothetically) refuse entry to gay customers in Arizona. However, if the owner is specifically opposed to the wedding taking place then I can understand her not wanting to be involved with the wedding itself.

I don't really have a conclusion here, but I think this has at least been a useful mental exercise for me, just trying to work out why these two situations felt different, and whether there's any rational basis for that.

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From:mrpj100
Date:February 25th, 2014 09:14 am (UTC)
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Having been in this situation myself, perhaps I can help you out a bit here, John :-)

As you point out, it's not uncommon or unreasonable for businesses to refuse custom under certain circumstances - such as delivery being too expensive, or the potential customer being too much of a credit risk. You will also find that it's very common for businesses to maintain a blacklist of previous customers that they don't want to deal with - perhaps because the customer pays late, or causes trouble. My Grandmother used to let out holiday cottages, and anyone who left the place in a mess would be told, on future enquiries, that the cottage was fully booked for that week. All of this is considered acceptable business practice, both within the eyes of the law and society at large.

However, what the Equality Acts protect against is direct prejudice against certain types of people based on who they are. This prevents the "no dogs, no blacks, no Irish" signs that used to appear in hotelroom windows in the Bad Old Days, and against more recent cases, such as the case of the gay couple refused a double room by Christian B&B owners. The law requires that you offer everyone the same service regardless of who they are.

In the case of the candy cart hire company (presuming its veracity for the purposes of the discussion), they were knowingly breaking the law by discriminating against a gay couple wishing to hire their services. However, I think the offence taken by the couple is hugely enhanced by being told it as a bald-faced statement like that - it says "You are not good enough for us", which feels very insulting. Now, the owners could have avoided the offence (and skated very close to breaking the law) by claiming to be unavailable on that date, in which case the couple would have taken their business elsewhere without offence. It's not the refusal to serve, as such, that offends - because you can easily take your business elsewhere - but it's the direct insult of being told that your "lifestyle" (or worse, your whole identity) is somehow inferior, and that the merchant can refuse to serve you on that basis. I hope this helps - let me know if you have any more questions.
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From:johnckirk
Date:February 25th, 2014 02:16 pm (UTC)
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Thanks for your comment - you certainly have a more informed perspective on this than I do, and I hope that I didn't offend you with my blog post.

It sounds as if there are two issues here: refusing service, and how that refusal is conveyed.

According to the BBC:
"Under the terms of the the Marriage (Same Sex Couples) Bill, religious organisations will have to "opt in" to offering weddings, with the Church of England and Church in Wales being banned in law from doing so."

That sounds reasonable to me. If a church isn't obliged to perform the wedding, should the same apply to other people who are directly involved in that event? I found an article from Christian Today, which mentions a few cases like this, e.g.
"Elaine and Jonathan Huguenin, two Christian photographers from New Mexico were told they had to photograph Vanessa Willock's 'Commitment Ceremony' with her lesbian partner."
That article also talks about some bakers who refused to provide wedding cakes for gay couples, which is similar to the candy cart issue. The ACLU have more details about the photography case.

So, what's the difference between the church and the other associated people? Is it that the church is inherently providing a religious service (in both senses of the word) whereas food and photography are more secular? Even within the church, could a particular person (e.g. an organist or bell-ringer) refuse to turn up, or is it just the vicar (registrar?) who actually marries the two people who is allowed to refuse?

The B&B issue also seemed a bit tricky, because they claimed not to be specifically discriminating against gay couples, i.e. they would also have turned away a straight unmarried couple. Since gay couples couldn't get married, there was an implicit effect there, but I wonder whether the case would go the same way if it happened in a few years time (i.e. if the hotel allowed married gay couples to share a room but turned away unmarried gay couples).

As for the method of refusal, this reminded me of a scene from Fables #76 (reprinted in "The Dark Ages" TPB). The premise is that a former war criminal has joined the community and been given amnesty. However, one of the local restaurant owners refuses to allow him entry.

Vulco: "Absolutely not!"
Beast: "But Vulco! He's a member of Fabletown now!"
Vulco: "So what? All that means is I have to put up with him living in our community, and I'm not supposed to bring up his past crimes. You'll notice I didn't mention one of them. But nothing in Fabletown law requires me to feed him, or even allow him into my diner. See that notice? 'The management' -- that's me -- 'reserves the right to refuse service for any reason.' And unlike out in the Mundy, our private policies still have some tooth behind them. You can't sue me for making you feel bad."


Would it be any better if a company simply refused without offering any explanation at all, rather than making a false excuse ("We're not available that day")? When I read that comic, it sounded quite reasonable (mainly due to the specific person being turned away), but I think that it could easily lead to a slippery slope, e.g. people being refused entry at the door based on their ethnicity.
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From:elvum
Date:February 25th, 2014 04:20 pm (UTC)
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Treating religions specially is mostly pragmatism in my opinion - you can't make people change their beliefs by legislation, and it's better to have a law that illegalises 99% of discrimination than no law at all.

And if you're going to refuse someone something that they are within their rights to ask for, then doing so tactfully is simple good manners (and good business practice), regardless of whether or not your refusal is legal...

(As a side-note: I think that comics are a bad reference for this sort of issue - they present a distorted and over-dramatised version of reality, and are subject to additional narrative constraints that make plainspoken, unsubtle characters much more common than they are in the real world.)
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From:johnckirk
Date:February 25th, 2014 09:46 pm (UTC)
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I agree with you that it's best to refuse tactfully. Personally, I thought that the email from the candy cart company was a sincere attempt to turn them down politely, but obviously there are several people who didn't interpret it that way, so even if their intentions were good they would have been better off with a different approach. (At the risk of derailing the discussion, I've had messages from religious people because of the WNBR telling me that I don't have a soul and I'm going to burn in hell, so maybe I'm just desensitised.)

As for comics, I think you may be dismissing an entire medium a bit too hastily. For instance, the B&B issue reminded me of a scene from Captain Marvel (2012) #3, set at NASA headquarters in 1961 where several women have applied to join the space program.

Jackie: "You tell me, Howard. How is that fair? You're denying these girls the opportunity to compete on the basis of their gender alone!"

Howard: "It's fair, Jackie, because the standard is the same across the board! Every one of the fellas has to have military jet experience -- every one. If I waive that for you girls, what do I tell the men we didn't admit on the same grounds?"

Jackie: "You tell them that women are not allowed in the jet program and since that's the only place to get that experience--"


That's a fictional story, but looking at the NASA website, their biography of Jerrie Cobb supports this:
"Jerrie was appointed by the Administrator of NASA as consultant to the nation's space program in May 1961, but NASA's requirement that astronauts have military jet test pilot experience eliminated all women since women were not allowed to fly in the military."

I'd say that any distortion comes from the creative team (potentially for valid reasons), and it will vary between titles and genres. So, much like TV programs, or any other medium.
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From:elvum
Date:February 25th, 2014 11:17 pm (UTC)
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I don't mean to dismiss an entire medium, particularly one as diverse as comics, but I feel reasonably confident in characterising the people and situations portrayed in them as being frequently unrepresentative of the real world.

My point about comics is merely that if you try to use the way they present people in various situations as a *model* for real-world people in real-world situations, your model will be flawed: although fictional narratives have to be comprehensible to real-world people, *absolute* realism is only occasionally a useful constraint for comic authors to adopt.


Edited at 2014-02-25 11:23 pm (UTC)
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From:shuripentu
Date:February 26th, 2014 08:18 am (UTC)
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Also, using a comic whose primary purpose is entertainment to illustrate a point you're trying to make about a marginalised group and the struggles they face is something you need to do extremely carefully – if at all. Because you run the risk of implying that the marginalised group, their struggles, and their sufferings, are on the same level as entertainment.
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From:mrpj100
Date:February 25th, 2014 08:55 pm (UTC)
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I didn't take any offence, though others might have in similar circumstances. You should think carefully about how you write about sensitive issues, particularly when they relate to identity, even when amongst friends.

Anyway, to the issue in hand: let's start by confining our discussion to the UK, which is a cultural context we both should have a good understanding of. I'll come on to the situation in the USA a bit later.

So, your argument is that the law [the M(SSC) Act] with regard to churches is inconsistent with the Equality Act 2010 as applied to private businesses. Yes. Yes it is. This is "realpolitik" - meaning the way in which our desired ideals are often constrained by what can be achieved politically. Equality legislation has been built up over time, with various minority groups being recognised as being in need of legal protection from discrimination by business owners, charities and other similar organisations. This is mostly about ensuring fair access to goods and services - a free market, if you like.

I don't know if you've seen the full-page ads in Metro and other newspapers for the "Sandals" all-inclusive holiday resorts in the Caribbean? They are "couples-only" resorts - their marketing material makes it clear that they provide for adult couples only and do not take bookings from groups or from families with children. However, their small print used to say "mixed-sex couples only" until 2004, when they bowed to consumer pressure and relaxed their policy. Details here (http://en.wikipedia.org/wiki/Sandals_Resorts#Refusal_of_service_to_gay_couples) if you're interested. They can reasonably claim that being a resort for adult couples is a part of their business concept - I'm sure many of their customers enjoy the idea of a beachside holiday without rowdy stag parties or screaming children - but to insist that their customers are male-and-female only takes a step too far into discrimination.

Just to give an example of the benefits that anti-discrimination legislation brings - if Mike and I go away on holiday within the EU, we benefit from legislation that means we can, by law, stay in any hotel and have a double room without (at best) being asked awkward questions by the receptionist, which is embarassing but not the end of the world, or (at worst) being cast out onto the street late at night in a strange town by a hotelier that doesn't want us under his roof. I would very much like to travel to Malaysia to visit friends at some point - a country which follows Islamic religious practice in many aspects of the law - and if we do, we'll have to take great care to either book via specialist agencies that can find hotels prepared to break the law (risking a police raid in the night...) or stay in separate rooms, which is not the end of the world but not entirely my idea of a good holiday!

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From:mrpj100
Date:February 25th, 2014 08:56 pm (UTC)

...continued in part 2...

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Anyway, many people wanted to claim exceptions from equality law whilst it was being drafted, and the most vigorously contested cases were those of Christian-run (mostly Roman Catholic) adoption agencies, who wished to continue to prevent gay couples from adopting children from them, because they believe that this was bad for the child (against all evidence to the contrary, I might add). The adoption agencies lost their case that their right to act on their religious views trumped the rights of gay couples to adopt children, and some chose to wind up the adoption service rather than bow to the new law. I'm sure their business is being taken up by other agencies happy to work within the law. So, English law is clear that anyone providing a service, in the absence of any exception in the law, should not discriminate against their potential customers.

So, we come on to the delicate business of marriage equality. The Blair government looked at the issue as part of their bonfire of discriminatory government legislation (Section 28 (http://en.wikipedia.org/wiki/Section_28) and the ban on homosexual people serving in the forces, for example) and concluded that the political support required for full marriage equality wasn't there at the time - too many MPs, activists and lobby groups objected. I note from the Wikipedia article that the Blair government tried to abolish Section 28 in 2000 and the bill died in the Lords. They succeeded in 2003, having garnered more support to the cause and addressed some of the concerns of the antis. Anyway, having had a close-run thing with Section 28, they felt that they didn't stand a chance of introducing equal marriage legislation, which was even more controversial, and attracted opposition from a much wider range of religious groups. So, civil partnerships were introduced as a legal fudge, offering nearly all the benefits of marriage to same-sex couples, but under a different brand. That's realpolitik. The legislation as originally passed included an outright ban on contracting civil partnerships in places of worship, again as a piece of realpolitik - a reassurance to religious groups that were opposed. Civil partnerships were seen to be a success, and the Equality Act of 2010 dropped the outright prohibition of CPs in places of worship, though relatively few religious organisations took up the option to do so. Anyway, people started to talk about equal marriage as the logical next step. The current post-2010 Cabinet are all largely pro-equal-marriage, and they felt that they'd get it through Parliament without a huge amount of fuss. However, the reality proved very different, and very strong opposition from the leadership of the Church of England resulted in a bill that included various reassurances to conservative elements within the Church. Hence the so-called "quadruple-lock" which protects religious organisations from being compelled by a court to conduct a same-sex weddings, provides an opt-in system for those that do with to do so (mostly the Quakers, Unitarians and Reform Synagogues at this stage), and expressly prohibits the CofE (and the Church in Wales, which isn't even an Established Church) from holding same-sex weddings at all. This was all deemed politically necessary to get the main thrust of the bill through Parliament. I'm sure that with time the quadruple-lock will gradually be unpicked by subsequent legislation, as and when the time is right. Unfortunately, when it comes to the law, particularly matters that are controversial, we rarely get a perfect solution the first time, if at all. As Bismark said - laws are like sausages, it's best not to see how they're made. Realpolitik ensures your legal sausage is made from things you might otherwise find indigestible!

In any case, the legal principles laid out in statute (i.e. Parliamentary) law are then interpreted on a case-by-case basis in court. Hence the case of the B&B owners - their defence of discriminating against all unmarried couples was struck down by the judge as irrelevant to the law at hand.


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From:Mike Prior-Jones
Date:February 25th, 2014 09:38 pm (UTC)

Re: ...continued in part 2...

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It's been pointed out to me that the repeal of the ban homosexual people in the services was a result of the European Court of Human Rights, not the Blair government... http://en.wikipedia.org/wiki/Smith_and_Grady_v_United_Kingdom
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From:mrpj100
Date:February 25th, 2014 08:57 pm (UTC)

...part the third!

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In the case of churches (or other religious groups) conducting same-sex marriages (or civil partnerships) the legislation requires that the local authority receive the consent of the relevant religious authorities before a venue can be licenced. Some churches are hierachical - in the CofE, that authorisation must come from a Bishop. However, others are "congregational" - a church meeting is held and the decision is put to a vote of the church membership. Either way, the church gives its consent in a formal way to take part in these ceremonies, and any members that object are obliged to go along with the majority, or leave. I'm sure some of this will be tested in case law before long.

One final note about America, since I did promise to address it - the polarised politics, blended with religious and cultural beliefs, have produced an astonishingly tense and fractious environment for any kind of debate of contentious issues in the USA. These are the "culture wars" - and many issues can end up being proxy wars between different factions for political control. Some of the legislation introduced into state legislatures, which aims to reintroduce discrimination, or relax gun controls, or whatever, is done in order to make Republican politicians look good in front of their grassroots membership. It's mostly about people retaining their position within the party, and it's very unfortunate that minority groups and the vulnerable can be caught in the political crossfire. That, sadly, is also realpolitik.

Edited at 2014-02-25 08:57 pm (UTC)
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From:johnckirk
Date:February 25th, 2014 10:17 pm (UTC)

Re: ...part the third!

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Thanks for writing all that - it was interesting and informative. I can certainly see your point about staying in hotels without the risk of eviction.

Regarding adoption agencies, that's probably the key point here, which answers my original post. I can understand why some people (e.g. photographers or caterers) wouldn't be comfortable attending a gay wedding, and I don't think that they should be forced to do so. However, if they're not willing to do that then they ought to find a different line of work.

As for the USA, Reuters have an interesting follow-up article: three Senators who voted for the bill have now changed their mind. I suspect that you're right about their motivation, i.e. they wanted to look good and now they've realised that it backfired.
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From:Mike Prior-Jones
Date:February 25th, 2014 09:16 pm (UTC)
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It would appear that LJ has marked some of my posts as spam. For anyone wishing to read the whole of what I wrote, have a look here http://pastebin.com/KXUrGj8v
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From:johnckirk
Date:February 25th, 2014 09:17 pm (UTC)
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I was wondering what happened to the first 2 instalments, but I've taken them out of the spam filter now.
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From:Mike Prior-Jones
Date:February 25th, 2014 09:20 pm (UTC)
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Great, thanks! I was using a Twitter login bceause earlier in the day I found that LJ's Google integration was down - one of these days I'll actually get a proper account...
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