There are many opinions regarding a business owner’s responsibility to serve the public versus their right to offer services aligned with their personal beliefs. On any issue, sides are often drawn based on individual views about the issue with each side promoting one right over another. However, there is a way to reconcile interests on all sides, respect our differences and improve access to services for everyone.
Public accommodation laws, like California’s Unruh Act, seek to provide access to services for all people no matter what their sex, race, religion, sexual orientation or other personal identities protected by law. Hopefully, we all can agree with this objective and also agree with an ACLU statement to the Supreme Court that everybody has a right to participate in the economic life of the community. Let’s keep these goals in mind: access to services and a right to participate.
To accomplish these goals, the Unruh Act states that all persons are equal and entitled to full and equal accommodations or services in all businesses. The Department of Fair Employment and Housing has interpreted this to mean that a business must offer the same service to all consumers or discontinue the service altogether. This is required despite a business owner’s sincere convictions and the general availability of the services. Under these constraints, business owners face two options when a request conflicts with their personal values: violate sincerely held principles or withdraw from the marketplace.
It is hard to understand how requiring a business to discontinue service will improve public access to services. Some businesses will limit services to avoid these conflicts and other potential service providers may never enter the market at all. Discouraging businesses with sincere convictions from participating in the market not only reduces access to services, it reduces diversity, innovation and competition. This is not full access.
For some services, customers may want to use a business whose owners have shared views and beliefs. When business owners of conscience are driven out of the market, certain groups may not be able to find adequate representation in the marketplace. This is not equal access.
Furthermore, the marketplace consists of both buyers and sellers. The Unruh Act currently protects consumers by trying to ensure that all persons have access to available services. Public policies should also ensure that business owners from all protected classes can enter the marketplace. If we want a marketplace where everyone has a right to participate, the personal identity of both the consumer and business owner should be protected.
Unfortunately, laws intended to be neutral for the benefit of public accommodation are being used to transform society. Under the guise of the state’s compelling interest to address discrimination, targeted beliefs are being driven out of the marketplace as business owners are forced to participate in actions contrary to their personal values. Emboldened by the state’s actions, activists can engage in reverse discrimination against businesses with opposing views by forcing them to comply or driving them out of business.
So how can we transition to a policy that is more inclusive, where business owners are allowed to honor sincerely held convictions and support access to services for everyone? The solution can be achieved by simply recognizing two principles for business owners when facing matters of conscience:
1. Allow a business to decline a request for service when the purpose clearly conflicts with the business owner’s sex, race, religion, sexual orientation or other personal identities protected by law. Businesses should serve every person, but should not be required to serve every purpose.
2. When a business declines such a request, the business should offer to assist the customer to find another source that does provide the service. This action provides an accommodation to ensure that all services remain available to all persons.
The Unruh Act was intended to protect against discrimination and ensure that everyone can participate in the marketplace regardless of their personal identity. These protections should apply equally to all persons, both buyers and sellers. Recognizing these principles for business owners (without changing consumer rights) would balance discrimination law, reduce frivolous claims, support market diversity and make California a place where commerce meets conscience.
Mike Miller is a finance and business consultant. His wife Cathy is owner of Tastries Bakery, which is at the center of a discrimination lawsuit. The opinions expressed are his own.