President Trump and Attorney General Sessions Want to Enshrine a Business Right to Discriminate Into the Constitution

Can businesses put up a sign that says, “We Don’t Sell To Gays?” President Trump says yes.

Today Trump and Attorney General Jeff Sessions told the Supreme Court in an amicus brief that businesses have a constitutional right to discriminate against lesbian, gay, and bisexual people. That means that business owners could put a sign in the window saying, “We Don’t Serve Gays,” even if a state or Congress says anti-gay discrimination is unlawful.

While the Justice Department says this wouldn't necessarily allow businesses to turn people away because of their race, if the Constitution protects such a right to discriminate against gay people, it would also authorize businesses to discriminate based on national origin, sex, religion, disability, gender identity, or any other basis. That means businesses could put up other signs as well: “We Don’t Sell to Women.” “No Muslims.” “No Transgender People.” All in open defiance of the nation’s civil rights laws.

How did we get here?

The case before the Supreme Court has deceptively simple facts. Dave Mullins and Charlie Craig were planning their wedding reception in Colorado. Along with Charlie’s mom, Dave and Charlie went to the Masterpiece Cakeshop bakery near Denver to order a cake in July 2012. The bakery turned them away, saying it doesn’t make wedding cakes for gay couples because that would violate its religious beliefs and artistic freedom.

Everyone in this country should be opposed to such a radical ruling that would undermine America’s core commitment to equality.

Under long-standing Colorado law, businesses that are open to the public can’t turn customers away because they are lesbian, gay, or bisexual. That’s just what happened here, so Charlie and Dave sued. The Colorado courts agreed that it was discrimination and ruled that free speech and religious protections don’t give anyone a right to discriminate.

It’s easy to dismiss the case as trivial. Dave and Charlie could — and did — get a cake from another bakery. And few people would really want a cake from a bakery that doesn’t actually want to bake it.

But consider what a ruling for the bakery could mean here — constitutional protection for discrimination based on freedom of religion or expression. That’s breathtaking in its scope and consequences. It would mean that a florist could refuse to sell flowers for the funeral of an interfaith couple, a dance studio could turn away the children of an interracial couple, an architect could put up a sign saying, “No Jews,” a doctor could turn away transgender people altogether. And each and every law that makes discrimination illegal would be overridden by the constitutional right to discriminate.

In fact, the consequences go far beyond nondiscrimination laws.

If any business has a constitutional right to express its views or its religion by refusing to comply with a nondiscrimination law, it could defy other government rules as well. Businesses could refuse to follow food safety rules because they want to express themselves through their refusal. Or a company could flout consumer protection regulations because they are inconsistent with its religious beliefs.

This case has never been about the cake. It’s about whether anyone in America can be turned away from a business because of who they are. It’s about whether the Constitution gives businesses the right to discriminate whenever they want to.

Everyone in this country should be opposed to such a radical ruling that would undermine America’s core commitment to equality. That President Trump has endorsed a right to discriminate against LGBT people may not be surprising, given his earlier actions to strip transgender youth of protections in schools and to deprive lesbian, gay, and bisexual people of federal civil rights protections altogether. But it couldn’t be more un-American or shameful.

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Liberal

I am 100% for the ACLUs agenda concerning the freedom of speech and freedom of property rights.

A business should be allowed to determine who can come into the property. However, this should only apply to individually owned businesses. You own the property you determine who can step foot on it. On the other hand, public corps and LLCs should not be protected from discrimination and exempted.

Anonymous

This administration is the anti-christ in every sense of the word, the HATE, PREJUDICE and IGNORANCE is sad on so many levels, I am sure of the US pending destruction like Sodom and Gomorrah!

Eric

Interesting comments... so you think a privately owned company (say Albertson's Grocery, or the corner store) should be able to discriminate against a particular protected class, but a public company like ExxonMobil has to sell gas to everyone? Should Albertsons be allowed to put up a "No Blacks/Gays/Jews Allowed" sign across the street from Exxon's gas station? This is idiotic.

Anonymous

That makes no sense.

Legally liberal

You are part-right: individually owned business do have a right to determine who can come onto the property. If they do not want to be open to the public, they can make their business accessible by appointment only and reserve the right to refuse service for any reason.
If they are open to the public and want to keep people from coming in their store, they must serve a legally-binding ban notice to each person they want to keep out, in person. Then if the individuals violate the ban notice, they can be charged with trespass and the police must be involved. However, this only applies to the official property, which in the case of a lease, usually begins at the doorway -- so the banned party could legally stand outside your door and inform people that you're a bigot.

Re: Eric

Albertsons is an LLC

Anonymous

This is a grey issue. With the potential to encroach on the Freedoms of Others, on either side, fairly high. - How Trumpian of Me. - Alright so what do we do with the Baker who refuses to bake a cake, Lock Him/Her Up, Fine him or her? - And that's a bullshit equivocation, people can choose another baker(AND YES IT IS ABOUT CAKE), clearly the level and operations of the Business itself, is a factor here. We're not talking about going to Hobby Lobby....oh shit...or Chic-a-fila....damn...Sunshine is the best disinfectant, let folks express themselves and their hatred fully, Hobby Lobby and Chic-a-fila still discriminate in less overt ways than the baker did, and people are still shopping and eating their. - You're not going to be able to LEGISLATE MORALITY OR EMPATHY OR UNDERSTANDING, alright that's what it is about, this isn't cropping up everywhere, it didn't come from a long standing history, such as Black Discrimination did, from Slavery. - Jim Crow didn't drop from the sky from which it came due to the supreme court or even politics alone. - His discrimination is not justified by Religious Freedom, that's bullshit, any new religion could identify against any demographic and potentially encroach on others. - But most of the time, denial of services and discrimination happen 1 silent and disparate act at a time. - He could have just said "nope not baking you a cake", they could have asked why and he could have said "Have a nice day." And nothing would have needed to be justified and nothing could have even had a chance to be brought to trial.

No rainforest

I agree and have been saying the same thing. It's no different than private clubs who are allowed to exclude certain people (i.e. Boy Scouts and gays) Businesses should have to make known any exclusions though. That way if I see a business with a sign that's says "No..." I can take my business elsewhere.

Scott Scrimshaw

https://docs.google.com/document/d/17k9zIRsHUq2EWJ6Poyky7UtVzt6Iw4ivbXY8...

"Denying someone access to bathrooms, "forcing" someone to bake a cake or "forcing" someone not to (depending on one's point of view) is not really the issue. Complying with Constitutional law is. Yes, laws are the use of force for Citizen compliance. But Citizens make the Social Compact to institute those laws. People don't seem to get that these are Civil Liberty issues based clearly on the Civil Rights Act of 1964 and really are grounded in our Nation's Founding Documents. They also don't seem to understand Jim Crow and the Segregated South."

Anonymous

Scott, there is also the 1st Amendment that gives them both Freedom of Expression and "ensuring that there is no prohibition on the free exercise of religion," Your rights are colliding with theirs and, no, its not a settled matter or the Supreme Court wouldn't be taking the case.

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