Supreme Court

Supreme Court Declines To Consider Whether a Bed and Breakfast Can Discriminate Against Gay Couples

A state-level decision against the property owner shows the limits of the Supreme Court's wedding cake ruling.

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Bed and Breakfast
Kevin George / Dreamstime.com

The Supreme Court today declined to hear a case about discrimination against a gay couple at a bed and breakfast in Hawaii, leaving in place a state court ruling against the business owner.

The rejection highlights how narrowly the justices threaded the legal needle when they ruled in favor of Masterpiece Cakeshop in Colorado. In that case, the Supreme Court determed that Colorado had shown religious animus against the baker when they punished him for refusing to sell a wedding cake to a gay couple.

In the case rejected today, the operator of the Aloha Bed & Breakfast in Honolulu was found to be in violation of the state's antidiscrimination laws on public accommodations after refusing to rent a room to a lesbian couple in 2007. The owner resisted Hawaii's public accommodation laws on the basis of the free exercise of her religion under the First Amendment. The state ruled against her, and the Supreme Court is declining to intervene.

This should not surprise anybody who's closely followed these cases. Jack Phillips, the owner of Masterpiece Cakeshop, was clear that he wasn't refusing to sell cakes to gay people or to gay couples. He argued that his religious opposition to gay marriage recognition meant that he shouldn't have to make a cake that would be seen as celebrating same-sex marriage.

Reasonable people can debate whether baking a cake counts as a form of expression. Renting a room or a home is not seen by most as requiring a personal or moral approval of the renting party's romantic relationships.

When the Supreme Court ruled 7-2 in favor of Phillips' bakery last year, some people read the ruling as a broad win for religious freedom. It was not. The majority ruled that Colorado's Civil Rights Commission had not fairly or neutrally applied Colorado's discrimination laws, and that members had openly expressed clear animosity and contempt toward Phillips' religious beliefs in a case where they were obligated to be impartial.

Courts have regularly ruled that neutrally applied antidiscrimination laws can prohibit businesses from turning away people on the basis of being a member of a protected class, regardless of what their faith tells them. Even a Religious Freedom Restoration Act (RFRA) protection on the state or federal level has limits.

When the Supreme Court justices heard the Masterpiece Cakeshop arguments, they publicly debated what counted as speech or expression in the producing of a consumer good and whether forcing Phillips to bake a cake was compelling him to engage in speech, but they didn't ultimately decide the case on that issue.

All of that is to say, the court still hasn't decided whether a baker is expressing support for gay marriage by baking a gay couple a wedding cake. But a person running a bed and breakfast is not expressing support by renting them a room.

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  1. It’s Bed and Breakfast.

    Not Bed and Blowjob.

    1. Lesbians.

      1. Bed and Tribadism?

      2. What if they’re pre-transition, post-hormonal therapy, non-dress conforming TG lesbians? Huh? Yeah, don’t be so quick to judge next time, Adolf.


        1. Ok, you win.
          I cannot figure out what that would look like

          1. Melissa Click + Rachael Dolezal?

    2. Yes, that’s right, because a straight couple would never engage in…oral sex. Or anal sex. Or pre-marital sex. Or masturbation. Or *gasp* miscegenation. That is purely the realm of the depraved queers. Great point.

      1. Relax. It was just a joke.

        SJW central is thataway.

      2. Take it easy, Francis.

  2. Reasonable people can debate whether baking a cake counts as a form of expression.

    It wasn’t merely “baking a cake.” The guy’s objection in Masterpiece was to coming up with and executing one of his unique and fairly elaborate cake designs for the plaintiffs’ SSM. So the case had elements of compelled expression that would not be present with a routine wedding-cake order.

    He offered to let the plaintiffs use any of his off-the-shelf cakes for their wedding, but they wanted one of his custom cakes.

  3. The rejection highlights how narrowly the justices threaded the legal needle

    Not at all. SCOTUS could have ruled 9-0 that Masterpiece was a 1A violation and still, quite easily, have rejected this case. These cases are barely distant cousins. The only people connecting them are the ignorant masses/media who don’t know shit about 1A law and “read the [Masterpiece] ruling as a broad win for religious freedom” (or, as the ignorant media did, a loss for gay rights).

    The fact that the Shack even feels a need to write this post simply highlights the extent of the ignorance.

  4. Counting a Bed and Breakfast as a public accommodation shows how far afield this concept has gotten from it’s original scope.

    1. I agree. Unfortunately, it seems that horse has left the barn. And as such, when Hawaii passed protection for LGBT, this was the obvious result.

    2. How so? It is literally an accommodation for the public.

      From wiki. Title II’s definition of public accommodation is limited to “any inn, hotel, motel, or other establishment which provides lodging to transient guests”

      1. The original purpose of public accommodations as a legal concept were originally about providing necessities. A bed and breakfast is a niche ambience luxury product, no one is going to be sleeping in their rental car because a BnB did not let them stay.

        1. It is an inn. Probably closer to the original concept than a modern hotel.

          1. In what fashion is staying in a BnB a necessity?

            A BnB is to modern hotel accommodations as a horse drawn buggy for hire is to a taxi.

            1. Is a wedding cake also not a luxury item?

              And if you can stay in your car, would that not make all hotels luxuries? If motels exist, should hotels not need to be subject to public accommodation laws? What about AirBnB? Or Craigslist?

            2. A horse drawn buggy and a taxi are both vehicles for hire. Similarly a large hotel and a BnB are both rooms for rent. If shelter is a necessity (which it is) then BnBs must be included with other hotels as public accommodations

          2. It is an inn. Probably closer to the original concept than a modern hotel.

            “And the 2A was clearly written to regulate use of muskets and black powder rifles.”

        2. The relevant difference between a B&B and a hotel is not ambience or luxury – there are hotels that are far more luxurious and expensive than any B&B – but that in most B you are staying in the owner’s home. Requiring the B&B to take all comers is an infringement on freedom of association. At a minimum, that must be balanced against anti-discrimination goals.

      2. An inn, a place of hospitality, shelter, lodging.

        Heard of that somewhere. Something about good will, which for these inkeepers did not include these women who just wanted a place to stay.

        I am not of their faith. It is up to them to deal and live with.

  5. This is obviously a public accommodation.

    1. Sounds like it’s not open to the public, only certain types of people.

      1. Does that provide opportunity for a counter suit whereby business was lost due to patronage by undesirables of one form or another?
        What if it was explicitly a religious BNB, and they required guests to pray before meals?

  6. I remember when the Soup Nazi had a sign the said “we reserve the right to refuse service to anyone.” Just do that at random like a crazy person.

    1. The Soup Nazi’s ingenious marketing strategy would fall foul of the “he discriminated against me because x” crowd, who can twist whatever the actual reason was, if any, into something that is most grievous to their woke sensibilities.

      1. He never refused anyone. He just suspended the, from buying for a year.

  7. a person running a bed and breakfast is not expressing support by renting them a room.

    How might a person running a bed and breakfast *not* express support?

    1. A sign that says “while we are legally obligated to obey all applicable non-discrimination laws, we want the following groups to know that, were it not for the law, we would refuse you service. The list is as follows […]”

      Alternatively, putting up cross-stitching of Leviticus quotes in every room would also do the trick.

      1. Hostile environment! You’ll be hearing from my lawyer!

  8. “But a person running a bed and breakfast is not expressing support by renting them a room.”

    This should come as a relief to the owner of every seedy motel who rents rooms to prostitutes and their johns. The owner can simply explain to the cops and the judge that he rents to everyone regardless of their sex habits.

  9. As I suspected, Hawaii’s legal code is *not* religiously neutral, so we’re not defending a Platonic legal regime where everyone regardless of religion has to follow the same rules.

    Hawaii has religious exemptions to its vaccination laws, not just for adults, but for children.

    So you can religiously opt out from getting vaccinations for your kids, based on your religion, but you *can’t* opt out of renting rooms for the night to members of the Sapphic Sisterhood.

    1. From Hawaii’s legislative Web site:

      “If any parent, custodian, guardian, or any other person in loco parentis to a child objects toimmunization in writing on the grounds that theimmunization conflicts with that person’s bona fidereligious tenets and practices. Upon showing the appropriate school official satisfactory evidence of the exemption, no certificate or other evidence ofimmunization shall be required for entry into school.”

      https://bit.ly/2FaAcfe

    2. If you’re looking for religious exceptions in legal codes, you really didn’t have to look that far.

      Every non-discrimination law has an exception for religious belief when it comes to hiring for a church or other religiously-affiliated entity (think Catholic schools refusing to hire non-Catholics).

      That said, so what? Having narrowly tailored exceptions in one area doesn’t mean another can’t fairly apply to all.

      1. Which is precisely my criticism of the Smith decision – that it leaves states free to give out religious exemptions like candy to favored religions and causes, while disfavored religions and causes get screwed.

        In Hawaii, if Mrs. Sky-Clad Priestess doesn’t want her schoolchildren immunized because she thinks it would make the Goddess Gaia cry, then she gets an exemption.

        But a traditional Christian couple operating a bed and breakfast has to rent one-bed apartments to Chloe and Doris when they’re in town to attend the Melissa Etheridge concert.

        1. that it leaves states free to give out religious exemptions like candy to favored religions and causes, while disfavored religions and causes get screwed.

          Cool story.

          I wish you much luck on your quest to make every legal code truly “religiously neutral”.

          1. The story you heard in your head may have been cool, but in fact I’m not trying to make every legal code religiously neutral, instead I’m trying to restore the rule of the Earl Warren and Warren Burger Supreme Court that this is a case-by-case issue.

            1. (Roughly, what is now called the RFRA standard)

          2. We could start with eliminating ‘public accommodation’ laws.

      2. If you have narrowly tailored exemptions you are, by definition, not fairly applying the law to all. That’s the *purpose* of those exemptions.

        1. Escher has the burden of proof wrong.

          Under the old Warren/Burger/RFRA test (the better understanding of the 1st Amendment despite the unfortunate Smith decision), restrictions of religious practice have to be the least restrictive means of achieving a compelling government interest.

          (That’s why you get to enforce murder laws against jihadists who thinks God wants them to kill people – punishing them as murderers is the least restrictive means of achieving the compelling interest of punishing murderers.)

          In other words, it’s *restrictions* on freedom which have to be narrowly tailored.

  10. “Reasonable people can debate whether baking a cake counts as a form of expression. Renting a room or a home is not seen by most as requiring a personal or moral approval of the renting party’s romantic relationships.”

    I knew an 80-something year-old woman, who refused to rent her house to a gay couple once she realized they were gay. As far as she was concerned, if she rented to them, she’d have been facilitating their commitment of adultery, and she’d have rather been burned at the stake than willingly contribute to that. And when she explained that to the gay couple, you know what? They went and found somebody else to rent them a house.

    Minister’s wives who were born around World War I are like that. They may even get more like that the closer they get to death’s door. Maybe she wasn’t like most people, but that isn’t the question. Since when is our right to free exercise of religion a question of what most people think? Whatever freedom from establishment means, isn’t it expressly a right in spite of how most people see things?

    1. What’s “seen by most” is effectively circled in red and crossed out by the First Amendment. Read it again:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

      “Congress shall make no law” = it doesn’t matter what the CRA, most people, or politicians say. Democracy has its place, and so does reason. The First Amendment, on the other hand, protects stupid speech and stupid religious beliefs, too. If you don’t like the First Amendment, why not try to repeal it? Why keep ignoring its plain meaning or pretending it says something else? Don’t like what would happen without it? You just want it to mean something different for gays?

      I’ve know plenty of LGBT. None of them seems to think the whole world–including the Constitution–needs to be recreated to make them feel comfortable. You don’t like fundamentalist Christians? So what. Fuck you. They don’t like LGBT either. So what? Tell them to fuck off. It’s childish to insist on a world where everyone has to like you–or treat you as if they like you even if they don’t. Grow up.

      1. I would imagine that even if the Christian homeowners liked the nice Sapphic couple who wanted to rent a room, they wouldn’t necessarily do everything the couple wanted.

        Contrariwise, even if the Sapphic couple liked the Christian homeowners, they wouldn’t necessarily do everything the homeowners wanted, like adopt Christianity and avoid committing sodomy.

        I’m not speaking to the situation in this particular case because I don’t know their subjective feelings.

      2. Cool story.

        I’ll believe that you’re serious, and that you represent any serious number of similarly serious folks, when there’s a major movement to repeal the CRA (1964) and all similar laws.

        Until then, I remain skeptical when folks voice such sentiments in response to the handful of non-discrimination cases that involve gay people, but never over the literally hundreds of such cases that are filed every year for other protected classes.

        Or to put it another way… actions speak louder then words, and y’alls actions says you don’t object to non-discrimination laws, just to gays.

        1. “Unless you start a campaign to get rid of the 16th Amendment, I won’t take seriously your opposition to a 90% tax rate. You’re obviously motivated by bribes from billionaires.”

          Take your talking points to Democratic Underground.

        2. You want me to tell you that the First Amendment protects fundamentalists from the CRA when it involves race? Maybe there are a handful of people who think renting to people of other races violates their First Amendment religious rights. I’ve read the commandment against adultery, but I don’t remember seeing anything in there about renting to people of other races. If there are people like that, and they want to assert that the First Amendment protects their religious right, then they should have their rights protected by the First Amendment like everyone else’s.

          I understand the Amish aren’t required to educate their children past the eighth grade on religious grounds. I understand Sikhs are given leeway in regards to head coverings and carrying a ceremonial dagger where other people wouldn’t be allowed to do so. Conscientious objectors, because of their religious objections, were apparently allowed to serve in the army during World War II. The idea that laws shouldn’t conflict with an individual’s religious beliefs–even if it’s the CRA–doesn’t scare me. The First Amendment is what it is and says what it says.

          1. Whether I think any particular speech is smart or stupid or any particular religious belief is bigoted is another question–a question that should have no impact on First Amendment questions. Just because I think racist speech is reprehensible doesn’t mean it isn’t protected by the First Amendment, and there’s no good reason why someone’s abhorrent religious beliefs shoudn’t be protected either. That’s what tolerance is about.

    2. Minister’s wives

      What a trollop, violating the godly celibacy of a man of the cloth like that.

  11. Reasonable people can debate whether baking a cake counts as a form of expression. Renting a room or a home is not seen by most as requiring a personal or moral approval of the renting party’s romantic relationships.

    That’s a pretty strong assertion you’re making there. Do you have anything to back it up?

    Nope.

    Not only is no evidence presented to show that ‘most people’ do anything of the sort but no evidence is presented as to why baking a cake is different from renting a room.

  12. I find religious bigotry to be a tumor on humanity and on those grounds think they should lose all these cases.

    However, the Roberts court’s “threading the needle” like this gives my pragmatism boner a twitch. Keep things quiet. The court is way too powerful to be so separated from democracy, so it survives by not rocking the boat too much. This is also the most effective way of getting the right-wing theocratic agenda through. Frogs in boiling water. Roberts is no idiot.

    1. “Roberts is no idiot.”

      Maybe not, but how would you be able to tell?

      1. Everything you believe is a lie.

        1. I believe that you exist.

          1. No you don’t.

            1. Then I’m sitting here arguing with nobody – which is even less productive than your average Internet discussion, which is saying something.

              1. Is it though?

              2. Arguing with nobody would be more productive in this case.

  13. Religious rights are one of the excellent examples of what I’m talking about when I talk about “natural law”.

    What I’m talking about is like economics. Darwin noticed that when you have a species of birds that are competing for limited resources, over time, those birds who can avail themselves of an abundance of resources if only they specialize–will specialize into different niches (and different species) over time. Ultimately, we’re talking about supply and demand and specialization and exchange, and it doesn’t matter whether we’re talking about birds on the beach in the Galapagos or American farmers and Chinese factory workers, the same natural laws are at work (economics). These economic laws are “natural” in that they exist regardless of whether any people recognize and understands them, and they’re “laws” in the sense that interfering with these laws has consistent consequences cross culturally and throughout history.

    1. Economics is easier to quantify, but they’re hardly the only relationships that have consistent consequences cross culturally and throughout history. Our religious rights are another example of the same phenomenon. Before the Thirty Years War, if you were living in the HRE, being allowed to follow your religious convictions required that both your governing baron and the emperor both shared your religion. That meant that you had to either fight an offensive or defensive war if you wanted to follow your own religion–and led to some of the bloodiest times in European history. The Peace of Westphalia addressed that carnage by decreeing that barons could choose their own religion regardless of the religion of the HR emperor (freedom from establishment) and individual subjects could practice their own religion regardless of the religion of their baron (free exercise). With this principle intact, religious wars didn’t resurface.

      1. Religious rights were the solution to that carnage, and everywhere you look, throughout history, cross culturally, the same kinds of consequences arise whenever religious rights aren’t respected and protected by law. One of the reasons ISIS was doomed to fail was because of their lack of tolerance for Muslims of other faiths. Once it becomes clear that people of other faiths can’t live under ISIS, people of other faiths become more willing to fight ISIS to the death. Pliny the Younger wrote a litter to the Roman emperor asking what to do with Christians who refused to bow to an effigy of the emperor. You see Jews were given a special exclusion from that because the Romans knew that Jews had a funny thing about idolatry. No need to go into detail, just understand that the Roman fucking Empire understood that they had to respect this natural law of religious rights–or suffer the consequences. If you want the Jews to form an insurgency against you, put an idol right smack in the middle of their temple like the Greeks did.

      2. Forcing fundamentalists to bake gay wedding cakes or open their B&B to LGBT isn’t likely to cause a religious revolution. The effects are likely to be smaller. Still, the principle and the natural law are the same. If you don’t fundamentalists to vote for political representatives based primarily on their religious beliefs, then you better respect the religious rights of fundamentalists. If you do not, this time will not be different–the end result of people choosing their representatives based on their religious beliefs will be the same as it’s always been–just like the natural laws of supply and demand and specialization and exchange have always been the same.

  14. Either you endorse the cops dragging black customers away from lunch counters or you endorse cops enforcing their right to eat lunch like anyone else. This is the same debate. Apply libertarianism to the question and see which side the cops should be on. If they’re on the side of evil, for whatever reason, examine why libertarianism is worth anything.

    1. Either you endorse the cops dragging black customers away from lunch counters or you endorse cops enforcing their right to eat lunch like anyone else.

      These are certainly the only options.

      1. But they are. It’s a question of owner’s rights vs. customer’s rights. Capital-friendly libertarians don’t really think customers should have rights, do they? I simply don’t see why not. I’m for more rights, not fewer.

        1. But they are.

          We’ve been over this before. You don’t need “the cops” to enforce your property rights.

          You could have phrased it, “Either you endorse diner owners dragging unwelcome people away from the lunch counters that they own or you endorse those unwanted people forcing their way into diners where they aren’t welcome.”

          Capital-friendly libertarians don’t really think customers should have rights, do they? I’m for more rights, not fewer.

          I’m a customer of yours now Tony. I have a right to your chef services. Now serve me by making me lunch in your kitchen. You do believe in expanding customer rights, don’t you?

          1. That’s a big hand wave. Of course you need cops. The law takes one side or another, and either way it implies cops, i.e., government force. You’re trying to make the property rights of the business owner more absolute than they are or should be, in my opinion. Property rights do not exist by mere assertion. Otherwise someone who comes along may want to assert a different arrangement.

            The right to access private businesses that cater to the public regardless of the owner’s bigotries was a new right, something to be celebrated as an innovation in the art of lawmaking. We should have more things like that. That you favor the right of the owner to expel people based on his bigotries is interesting, but that case lost long ago, as it should have.

            The good thing your case is no more or less libertarian than the opposing case. Both want the taxpayer-funded thugs on their side.

    2. You either endorse cops enforcing your enslavement of people or you don’t.

      Because its funny how you never seem acknowledge that free trade is a two-way street. I guess that’s why you love Trump so much – he’s as protectionist as you want in a master.

      1. A speed limit on commercial trucks on highways is technically an impediment to free trade. You don’t realize that you’re arguing against the concept of law, which every market is and should be subjected to. You can’t have a merkt without law. You just want the law to be on the side of the bigoted owners in this instance.

        1. You can’t have a merkt without law.

          You can’t have a market without property rights, which should be defended by the law, if there is to be such a thing. Is that what you were trying to say?

          1. A market is a creation of laws. In the absence of law there are phenomena that resemble markets but that are, in a law-based society, often referred to as theft, pillage, or monopoly. Property rights are presumably a valuable component of law in a market-based economy, but like all rights they aren’t absolute. You can’t use the restaurant you own to serve barbecued babies, and you can’t use it to expel customers for being black. It’s just civilization. Stop worrying.

            1. You keep confusing ‘legislation’ with ‘law’. They are not the same thing.

              1. Yes they are.

        2. Tony|3.18.19 @ 9:13PM|#

          A speed limit on commercial trucks on highways is technically an impediment to free trade. You don’t realize that you’re arguing against the concept of law, which every market is and should be subjected to. You can’t have a merkt without law. You just want the law to be on the side of the bigoted owners in this instance.

          Uhm, that’s not the argument you were making nor does it have anything to do with my response. An ‘impediment to free trade’ has nothing to do with the use of violence to *force people to trade* – which is what you advocate.

          1. It’s Tony. Of course his argument is stupid.

          2. The alternative is using state violence to force customers out of shops for being black. You think that’s a better use of government resources?

            1. You mean using state violence to deal with criminal trespassing?

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