“We reserve the right to refuse service to anyone.” The “Five Man Electric Band” sang about signs like that.
“The sign says, "Long-haired freaky people need not apply."
So I put my hair up under my hat and I went in to ask him why.
He said you look like a fine outstanding young man, I think you'll do.
So I took off my hat, I said, "Imagine that, huh, me working for you."
“Signs, signs, everywhere signs;
Messing with the scenery, breakin' my mind.
Do this, don't do that, can't you read the sign?”
Some of the words were changed to protect the innocence of readers. But the point is made. Folks have been reading signs posted above the doorway of local “greasy-spoons” when they should be reading the U.S. Constitution.
Some businesses may want to “reserve the right to refuse service to anyone” but can’t. They made a bargain with the government when they bought that property. How does that work? My property-law professor at the University of Wyoming law school explained it like this. Think of private property as a “bundle of sticks.” When you buy property, you get some sticks, but never the entire bundle.
The neighbors get enough of the sticks to enforce covenants. Are there mineral rights? The sellers may keep enough of the sticks to drill for oil. The government always gets some of the sticks, enough to enforce zoning laws, property taxes, and anti-discrimination laws.
If motel, restaurants, or retail businesses had all the sticks they could reserve the right to refuse service to anyone. But they don’t. Their forbears lost that argument in the 60s when property owners thought they could refuse service to blacks.
In 1963, President Kennedy proposed prohibiting private businesses from discriminating against people because of the color of their skin. Those conservatives who were also racists complained. “My business is my private property,” they cried, echoing those who want to deny service today to homosexuals.
Congress posed this question, “Does the owner of private property devoted to a public establishment enjoy a property right to refuse to deal with a member of the public because of that member’s race, religion, or national origin?” The answer in a nation of civil rather than religious laws is “no.”
Don’t blame “liberals.” Those who decided government should keep enough “sticks” to prevent discrimination were the same beloved Founding Fathers conservatives love to quote.
Under the English common law, adopted by the Founders as the basis of U.S. law, anyone using private property for commercial gain by offering goods or services to the public accepts the commitment of the government to protect their rights to enjoy the benefits of private property. Those benefits include due process as well as the use of public funds for the benefits provided by public roads, highways, transportation, police, and fire protection that allow customers to safely access your business.
In exchange, the government retains enough of those “sticks” to make certain your business does not discriminate against other citizens.
Lawmakers reasoned private property exists for the purpose of enhancing individual freedom and human liberty. “Is this time-honored means of freedom and liberty to be twisted,” Congress asked, “so as to defeat freedom and liberty?”
Business owners can’t have it both ways. They cannot receive government protections without accepting the protections government provides to their customers. The concept is really quite understandable. Don’t want to serve the public? Don’t go into business.
The bill seeking to allow businesses to discriminate against some customers came up in Wyoming this year. It didn’t pass but will be back.
“Signs, signs, everywhere signs, messing with the scenery, breakin' my mind.” These are the signs sadly indicating many still don’t “hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Those are the legal implications. Next week I’ll explore the spiritual implications.