A Lesson In Free-Market Economics: Gay Shop Owner Kicks Christians Out Of His Business Because Their

[Jim Lane]

21. The owner's action may violate the Civil Rights Act of 1964

He runs a place of public accommodation as defined in Title II of the Act. That means he's prohibited from discriminating "on the ground of race, color, religion, or national origin." He certainly wouldn't be allowed to bar all Christians. He also wouldn't be allowed to bar members of a specific denomination, such as Catholics or Southern Baptists.

What if he bars anti-choice activists, and they can show that they come disproportionately from a particular denomination? He's not barring all Catholics, but his policy of exclusion probably falls more heavily on Catholics than on Unitarians. In employment discrimination, there's a theory called "disparate impact". For example, not only is an employer prohibited from refusing to hire women; the employer is also prohibited from setting, say, a required minimum height of 5' 7". There are women taller than that and men who are shorter, but the rule would affect more women than men. It's therefore illegal unless the employer can show that the height requirement is a bona fide occupational qualification (and, of course, it would have to be applied on a gender-neutral basis).

The question whether disparate-impact claims are cognizable under Title II appears, surprisingly, to be an open one, more than half a century after the law was enacted. In a quick search I find a decision from earlier this year by the Ninth Circuit. In Hardie v. NCAA, the court stated:

Neither the Supreme Court nor we have decided whether
disparate-impact claims are cognizable under Title II. A few
courts have found that Title II authorizes disparate-impact
claims, see Olzman v. Lake Hills Swim Club, Inc., 495 F.2d
1333, 1341–42 (2d Cir. 1974); Robinson v. Power Pizza,
Inc., 993 F. Supp. 1462, 1464–66 (M.D. Fla. 1998), while
others have rejected disparate-impact liability under Title II,
see, e.g., Akiyama v. U.S. Judo Inc., 181 F. Supp. 2d 1179,
1187 (W.D. Wash. 2002); LaRoche v. Denny’s, Inc., 62 F.
Supp. 2d 1366, 1370 n.2 (S.D. Fla. 1999). Several courts
have declined to decide the issue altogether. See, e.g.,
Arguello v. Conoco, Inc., 207 F.3d 803, 813 (5th Cir. 2000);
Jefferson v. City of Fremont, 73 F. Supp. 3d 1133, 1145–46
(N.D. Cal. 2014) (citing cases).

We express no view today on whether Title II
encompasses disparate-impact claims.

Seattle, as it happens, is in the Ninth Circuit.

The whole religious freedom argument -- that homophobic bakers who refuse to bake a cake for a gay couple are acting according to their religion -- wouldn't apply here. It's clear that Mr. Borgman doesn't believe that God has told him not to serve these people. He just doesn't like them. (Of course, the current course of disingenuous acceptance of any claim of religious freedom is open to the obvious problem, not confined to Seattle coffee shops, that people who don't want to comply with a law will lie. If the Ninth Circuit were to rule that excluding the anti-choice protesters violated the Civil Rights Act, Mr. Borgman might suddenly decide to convert to a religion that teaches its congregants that serving such people is a sin in the eyes of God.)

Probably those offended by this incident will boycott the coffee shop rather than suing for their right to dine there.