Free Speech

OK for Restaurant to Eject City Councilman Whose Political Positions "Had Financially Harmed" the Restaurant

California public accommodations law has been read as banning discrimination based on "political affiliation," but the court concluded that this didn't apply to discrimination based on "political views" more broadly (or based on votes as an elected official).

|The Volokh Conspiracy |

From Hennessey's Tavern, Inc., 2019 WL 3825492 (Cal. Super. Ct. July 26, 2019), written by Judge Deirdre Hill:

On June 28, 2018, plaintiff Hennessey's Tavern, Inc. filed a complaint against Nils Nehrenheim for [1] trespass to property and (2) conversion, trespass, and destruction of personal property. Plaintiff alleges that this lawsuit arises out of the improper conduct of Redondo Beach City Councilperson Nehrenheim, who intentionally trespassed onto Hennessey's Tavern premises, refused to leave, disturbed business by loudly talking about destroying Rebel Republic Social House's dining deck, and destroyed and carried away a sign from inside Hennessey's Tavern. [Nehrenheim in turn cross-complained, claiming that he was ejected from Hennessey's in violation of the Unruh Civil Rights Act, the California public accommodations nondiscrimination statute.] …

Nehrenheim alleges that … [Hennessey's] has banned Nehrenheim from the restaurant because of his exercise of his constitutional rights of freedom of speech and petition … [and] for his political views, votes, association, political affiliation, and personal beliefs….

The Unruh Civil Rights Act ("the Act") provides that "[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." The primary purpose of the Act "is to compel recognition of the equality of all persons in the right to the particular service offered by an organization or entity covered by the act."

"[T]he antidiscrimination provisions of the Unruh Act are not confined only to a limited category of 'protected classes' but rather protect 'all persons' from any arbitrary discrimination by a business establishment." Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 730. The "'identification of particular bases of discrimination … is illustrative rather than restrictive."' "As our prior decisions teach, the Unruh Act preserves the traditional broad authority of owners and proprietors of business establishments to adopt reasonable rules regulating the conduct of patrons or tenants; it imposes no inhibitions on an owner's right to exclude any individual who violates such rules. Under the act, however, an individual who has committed no such misconduct cannot be excluded solely because he falls within a class of persons whom the owner believes is more likely to engage in misconduct than some other group. Whether the exclusionary policy rests on the alleged undesirable propensities of those of a particular race, nationality, occupation, political affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary discrimination." "Derived from the early common law right of equal access to the services of innkeepers or common carriers, the Unruh Act prohibits business establishments from withholding their services or goods from a broad class of individuals in order to 'cleanse' their operations from the alleged characteristics of the members of an excluded class."

Under this cause of action, Nehrenheim added allegations that that on September 15, 2015, Redondo Beach's mayor and City Council approved a one-year trial period for the installation of outdoor dining decks in Riviera Village. Paul Hennessey was supportive and committed to funding the Dining Deck Pilot Program. On March 2016, the Dining Deck Pilot Program began its one-year trial period. On March 31, 2016, two permits were issued to construct the improvements in the public right of way at 1710 S. Catalina Avenue (Rebel Republic Social House) and 1712 S. Catalina Avenue (Hennessey's Tavern)…. On November 21, [2017,] the City Council members voted [4-0 to terminate] the deck program. Nehrenheim opposed continuing the deck program based on his personal views and political beliefs, including his beliefs that the program was unfair and would not be in the best interests of the community. His concerns included pushing costs on the community, lack of parking, and that sidewalk dining would become cost prohibitive for small businesses. [Details of the resulting acrimonious political dispute between Hennessey's and Nehrenheim omitted. -EV] …

On June 10, 2018, Nehrenheim entered Hennessey's Tavern and a manager informed him that he would have to leave after finishing his drink… Defendant argues that Nehrenheim was not disinvited because of his occupation as a politician, nor was he disinvited because he was a member of a particular political party, political ideology, associated with persons with a particular political ideology, or held any particular deep rooted political belief, or any belief fundamental to his character. Cross-defendant contends that it does not run afoul of the Act by disinviting a person who had financially harmed it.

In opposition, Nehrenheim argues that he is protected because of his political views. He contends that Hennessey viewed Nehrenheim as anti-development related to the business interests of Hennessey and that is why he was excluded from the premises….

Both parties agree that Nehrenheim does not fall under the enumerated classifications as set forth under Civil Code §51(b). As to non-enumerated classifications, past decisions have extended Unruh Act protection to several classifications that are not specifically enumerated in the statute, but cross-complainant fails to cite to any case law that recognizes "political views" as a judicially-recognized classification.

In determining whether "a future claim of discrimination, involving a category not enumerated in the statute or added by prior judicial construction, should be cognizable under the Act,"—in this case, "political views"—there is a three-part analytic framework. Koebke v. Bernardo Heights Country Club (2005) 36 Cal. 4th 824, 840. "The [Supreme] court mandated inquiry into three areas: (1) the language and history of the Act; (2) any legitimate business interests justifying limitations on consumer access; and (3) the consequences of expanding class recognition." King v. Hofer (1996) 42 Cal. App. 4th 678, 682 (citing to Harris v. Capital Growth Investors XIV (1991) 52 Cal. 3d 1142, 1148). "Thus, the first prong of the Harris inquiry is whether a new claim of discrimination under the Act is based on a classification that involves personal characteristics."

Although Harris did not define "personal characteristic," the Harris court indicated that, "at a minimum, it encompassed both the categories enumerated in the Act and those categories added to the Act by judicial construction." "What those categories have in common is not immutability, since some are, while others are not, but that they represent traits, conditions, decisions, or choices fundamental to a person's identity, beliefs and self-definition."

As plaintiff alleges, his "political views" involve his views on terminating the pilot program, which include such reasons as "unfair," "would not be in the best interests of the community," "costs on the community," "lack of parking," and that "sidewalk dining would become cost prohibitive for small businesses." On their face, his "political views," even if such reasons fall under "political," do not "represent traits, conditions, decisions, or choices fundamental to a person's identity, beliefs, and self-definition." Thus, the court concludes, "political" views are not a "personal characteristic."

As for a legitimate business interest, the Unruh Act does not cover business retaliation. See Gayer v. Polk Gulch, Inc. (1991) 231 Cal. App. 3d 515, 525, where the court held that a bar was entitled to exclude the plaintiff because he had recently filed a small claims action against it. See also Scripps Clinic v. Superior Court (2003) 108 Cal. App. 4th 917, 934 (upheld summary judgment to Unruh Act claim based on the plaintiff being banned from a medical clinic for previously suing its doctors for malpractice). Further, the consequences of expanding class recognition would be significant. Accordingly, the court declines to create a "new" classification.

As for "political affiliation," there are no facts alleged to support a "political affiliation."

Further, as for being banned from the restaurant because of his "votes," voting falls under conduct rather than on his status as a member of a class or a personal characteristic. "Were we to hold that conduct involved here gave rise to a protected class under the Act, we would open the door to a seemingly endless stream of new cases never contemplated by the Legislature."

As for Nehrenheim exercising his constitutional rights of freedom of speech and petition, the Unruh Act does not protect…. "[T]he First Amendment imposes limitations 'on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only."'

For a different result in another L.A. Superior Court case many years ago, see this post about the Alpine Village Inn being successfully sued for ejecting patrons who were wearing Nazi lapel pins; but note that such trial court cases are nonprecedential, and it's certainly possible that one Superior Court judge might take a different approach than another.

NEXT: Brickbat: True Colors

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Discrimination is bad but cases like this show that stomping all over the First Amendment (freedom of association) to stop it is worse.

    1. I’d much rather have bigotry out in the open so I can know who to avoid, and where bigots can decide for themselves whether personal taste is worth losing business over.

    2. Shouldn’t freedom of association mean the two (or more) separate entities wish to associate with each other?

      Otherwise is seems like you saying, even though you don’t want to associate with me, I still have a right to associate with you and I can use 1A to enforce our association- and that can’t be right.

      1. “Shouldn’t freedom of association mean the two (or more) separate entities wish to associate with each other?”

        That’s what it does mean.

      2. That is exactly what it should mean, apedad. Yet the way the anti-discrimination laws have been enforced, you can compel other people to associate with you. Part and parcel with the positive right of freedom of association is the negative right to not associate with someone as you choose.

        In the situation above, the business owner did not want to associate with the hostile councilman. The councilman tried to use the anti-discrimination laws to force the business owner to associate with him. As you say, that shouldn’t be right.

        And to Abc…’s comment, I strongly agree. Get the bigots in the open and drive change through social pressure. That will be far more effective and ultimately faster than ham-handed regulatory compulsion.

  2. Freedom of association is sooo much simpler, leaves government right out of huge swaths of daily life, and devolves liberty and responsibility down to individual consciences where it belongs.

    1. Sounds good, but America has a historical record of how the hands-off approach made for a much less free society for disfavored minorities.

      1. The level of revisionism that it takes to refer to Jim Crow Laws as a “hands off approach” is astounding.

        1. Come on, TiP – Jim Crow was both de facto and de jure. You didn’t need local governments to urge white businesses to discriminate.

          1. “Come on, TiP – Jim Crow was both de facto and de jure.”

            And yet your comment pretends it was only de facto.

            “You didn’t need local governments to urge white businesses to discriminate.”

            No, you need governments to make it illegal for businesses not to discriminate.

            1. The thing is Sarc, legal regimes shape culture. It’s impossible to say how prominent “Whites Only” would have been in 1950 in the absence of Jim Crow laws. One can plausibly argue that it wouldn’t have existed at all. Jim Crow laws created racism where it might otherwise not have existed, because the Government had put on paper, and reinforced with the gun, the existence race and the notion of a racial hierarchy.

              1. ” Jim Crow laws created racism. . . .”

                And who created the Jim Crow laws?

                1. The government. The very entities Sarcastr0 claims have to be able to regulate private enterprise to prevent discrimination.

                  1. Local governments. Hardly the same as the federal government.

                    1. “Local governments.”

                      And state governments. And the federal government. Brown v. Board of Education wasn’t the only case decided that day.

                      “Hardly the same as the federal government.”

                      Are you suggesting that only the federal government can pass nondiscrimination laws? Should all the state and local laws that explicitly bar discrimination based on sexual orientation be thrown out?

                    2. I’m suggesting only the federal government was able to take on the southern cartels keeping Jim Crow going.

                      Jim Crow did not look the same regionally as it did nationally. Governmental reactions at those levels from reconstruction through the Civil Rights era reflect that.

              2. Legal regimes shape and are shaped by culture. Are you really trying to argue that it was government that caused the south to be racist?!

                1. And yet you only want to blame culture for its effect on government and excuse government for its effects on culture.

                  Did Jim Crow get better or worse after it received official sanction from the Supreme Court of the United States of America (that’s the federal government)?

                  1. I’m pushing back on Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf’s argument that freedom of association cures all ills.

                    Jim Crow’s social aspect is proof that this is not the case.

                    1. No, you’re pretending that Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf’s made an argument that freedom of association cures all ills.

                    2. Freedom of association is sooo much simpler, leaves government right out of huge swaths of daily life, and devolves liberty and responsibility down to individual consciences where it belongs.

                      I don’t know what pedantry you’re getting at, but my thesis is that de facto Jim Crow is a counterexample to this comment. No more, no less.

                    3. It’s not pedantry to point out that nothing in that statement suggests that freedom of association cures all ills. It’s just basic reading comprehension.

                    4. Not going to argue with my thesis, just quibble about details. Flippant rhetoric perhaps, but details that were not needed in my argument, I’d add.

                      Rhetorically, sealioning fuses persistent questioning—often about basic information, information on easily found elsewhere, or unrelated or tangential points—with a loudly-insisted-upon commitment to reasonable debate. It disguises itself as a sincere attempt to learn and communicate. Sealioning thus works both to exhaust a target’s patience, attention, and communicative effort, and to portray the target as unreasonable. While the questions of the “sea lion” may seem innocent, they’re intended maliciously and have harmful consequences.

                      — Amy Johnson, Berkman Klein Center for Internet & Society (May 2019)[7]

                    5. “Not going to argue with my thesis, just quibble about details.”

                      Pointing out that you are pretending to respond to an argument nobody is making is not quibbling about the details.

                      Tell me, what does Amy Johnson think about arguments from authority and your attempt to make my criticism of the pretend Intolerance Paradox into a criticism of Karl Popper instead?

                    6. I wasn’t responding to an argument no one was making. You argue about whether my summary of his argument was too brief, but my discussion was engaged with the his post, which I quoted.

                      I’m still fine with saying you have a problem with Popper when you argue that one of his more well-known theses is stupid.

                    7. “I wasn’t responding to an argument no one was making.”

                      Yes you were.

                      “You argue about whether my summary of his argument was too brief, but my discussion was engaged with the his post, which I quoted.”

                      No it wasn’t. Just because you quote a post doesn’t mean you’ve engaged with it when you don’t actually respond to what it says.

                      “I’m still fine with saying you have a problem with Popper when you argue that one of his more well-known theses is stupid.”

                      I’m sure you are. This is what makes you such a disingenuous piece of shit.

                    8. Jph – I’m pretty sure at this point that Sarcastro doesn’t actually know how to construct an argument, or what a strawman is.

                      It would explain why he can do it all the time, while simultaneously claiming he doesn’t do it.

                  2. I quote the argument I’m responding to. And in that same post I explain my thesis.

                    Sorry to not conform to whatever opponent you’ve created in your head.

      2. It’s just as accurate to say that America has a historical record of how the hands-on approach made for a much less free society for disfavored minorities.

      3. It didn’t make for it. It allowed for it. That’s important because cultural context matters.

        My problem with the anti-discrimination legal doctrine, or more specifically, identity group legal doctrine, is what’s the endgame? Baking identity into legal structures ends up reinforcing identity stratification in culture.

        So even if anti-discrimination legal doctrine is useful for a period, that doesn’t mean it’s useful forever. Unfortunately, getting rid of it is incredibly difficult because of it’s effect of reinforcing identity as a positive thing. For me, it calls into question the entire utility of it, because the short term benefit is ultimately outweighed by the long term cost.

        1. Yes. That is why principles are so important. They outlast principals.

      4. Those evil duplicitous Louisiana railroad companies, tricking the state government into forcing them to abandon their integrated trains! I knew there was something fishy about that whole scenario. It was a setup right from the start!

        Thanks for enlightening me.

      5. We live in the information age now and the age of making social pariahs out of the disfavored. I say let’s give it a shot.

  3. The reason why freedom of association is complicated is the example of de facto Jim Crow.
    Lots of liberty lovers theorycrafting without taking the lessons of how many people are into making outgroups miserable for non-economic reasons all their own.

    The existence of de jure Jim Crow shows why local governments aren’t the best keeper of equal protection of the laws. It does not prove that people never discriminate but for government existing.

    Separate but equal shows that our views of the Constitution must be allowed to change, even if slowly, lest we stop seeking the liberty the document was created to protect and just start seeking a document.

    1. “The existence of de jure Jim Crow shows why local governments aren’t the best keeper of equal protection of the laws.”

      Once again ignoring that local, state, and federal governments all had Jim Crow laws. And that the federal government sanction the local government’s Jim Crow laws.

      1. Read till the end of my comment – I address the feds aspect in this.

        Do you deny that it was federal government action in the end that stopped the regime of discrimination and segregation?

        1. “Read till the end of my comment – I address the feds aspect in this.”

          No you didn’t. That’s just as valid for local and state governments as well. It’s also just as valid for culture.

          “Do you deny that it was federal government action in the end that stopped the regime of discrimination and segregation?”

          Okay black people. Stop your whining. Sarcastr0 says the federal government already fixed everything.

          Did the federal government have to order MLB to desegregate? The NFL? College football? Was it the federal government sitting at the Woolworth’s counters, or being beaten by police in Birmingham? Did the federal government voluntarily desegregate its schools, or was it forced to just like the state and local governments were (granted, they were at least forced to do so by the federal court system)?

          Not that it matters, because the federal government was only contributing to the correction of mess that it played a significant role in creating. You have a simplistic view of history that just doesn’t match the reality.

          1. I didn’t say the feds fixed everything. Are you arguing that the feds fixed nothing?

            Our experience with Jim Crow, regardless of it’s causes, is why American law tends to find equal protection concerns trump freedom of association concerns.

            And IMO they are quite right about that.

            1. “Are you arguing that the feds fixed nothing?”

              I mean, I explicitly said they contributed to fixing some of the things, so obviously the answer to that is no.

              “Our experience with Jim Crow, regardless of it’s causes, is why American law tends to find equal protection concerns trump freedom of association concerns.”

              Largely because people like you pretend that the government had nothing to do with it.

              1. The feds are not the but-for cause of Jim Crow. They are it’s but-for end.

                No historical nuance to get that principle.

                1. “The feds are not the but-for cause of Jim Crow.”

                  No, but they certainly contributed to its growth and entrenchment.

                  “They are it’s but-for end.”

                  No they aren’t. Again, history is much more complicated than your simplistic portrayal.

                  1. But for cause is not the only cause, you know.

                    What are you getting at that ended Jim Crow if not federal action?

                    1. “But for cause is not the only cause, you know.”

                      I know. I never suggested it was.

                      “What are you getting at that ended Jim Crow if not federal action?”

                      All of the same things that were required to put it in place.

                    2. All of the same things that were required to put it in place.

                      This is meaningless. I have historical facts – It took federal civil rights laws, enforced by the national guard, and a 9-0 decision by the Supreme Court to get things moving.
                      It may have taken other things as well, but you can’t seem to name them. And you try, but you cannot talk around the fact that the above was necessary.

                      And if it was necessary, this shows that at the federal level the negative right of association must give way to equal protection initiatives as those above if you’re going to even attempt to maximize liberty for everyone.

                    3. “It took federal civil rights laws, enforced by the national guard, and a 9-0 decision by the Supreme Court to get things moving.”

                      Things were already moving well before the Civil Rights Act or Brown.

                      “It may have taken other things as well, but you can’t seem to name them.”

                      I’ve already named some. And local and state laws have also gone beyond the requirements of federal law.

                      “And if it was necessary, this shows that at the federal level the negative right of association must give way to equal protection initiatives as those above if you’re going to even attempt to maximize liberty for everyone.”

                      No it doesn’t. A particular response, at a particular time, to a particular situation in no way proves a general proposition.

                    4. Glad you finally came around! Yes, this is one example, serving as a counterexample. That is how counterexamples work – you need only have one.

                    5. “Glad you finally came around!”

                      More lies from Sarcastr0.

                      “Yes, this is one example, serving as a counterexample. That is how counterexamples work – you need only have one.”

                      As I noted, I had already provided other examples. That you are too stupid to understand is your problem, not mine.

                    6. …you can’t counterexample a counterexample. What do you think you’re arguing against, that’s amenable to counterexample? Do you think I’m arguing that ONLY the federal government ended Jim Crow? Because we already had the discussion about but-for cause versus only cause.

                      I can’t find your other examples here of work to end Jim Crow beyond the federal initiatives, other than a weak and unclearly timelined ‘local and state laws have also gone beyond the requirements of federal law.’

                    7. “Glad you finally came around!”

                      More lies from Sarcastr0.

                      Get a sense of humor, dude.

                    8. “Get a sense of humor, dude.”

                      Stop being a disingenuous piece of shit, dude.

                    9. Do you think I was trying to, like, convince other readers you were agreeing with me or something?

                      Or do you just think jokes are lies and you hate them?

                    10. No, I think you are a disingenuous piece of shit who was trying to pretend that my response was any different than my previous responses. I don’t know why this is so hard for you to understand.

                    11. This was the new bit: A particular response, at a particular time, to a particular situation in no way proves a general proposition.

                      This was a concession of something you were’t willing to allow previously:

                      “Do you deny that it was federal government action in the end that stopped the regime of discrimination and segregation?”

                      Okay black people. Stop your whining. Sarcastr0 says the federal government already fixed everything.

                      Your past deflection, now ended. And thus I say again: Glad you came around.

                    12. “This was a concession of something you were’t willing to allow previously:”

                      No it wasn’t, you fucking moron.

                      You made a claim: “And if it was necessary, this shows that at the federal level the negative right of association must give way to equal protection initiatives as those above if you’re going to even attempt to maximize liberty for everyone.”

                      I responded: “No it doesn’t. A particular response, at a particular time, to a particular situation in no way proves a general proposition.”

                      That is about the logic of your claim, not its truth.

    2. First, to address an earlier question, my argument is that legal regimes perpetuate racial identity as a thing. They don’t create race hierarchies. But they do codify that race, an entirely social construct, into firm definition with boundaries that must now be respected on account of the government forcing its citizens to respect race as a thing.

      Second, Freedom of Association absolutely can allow for (and obviously did) de facto Jim Crow. BUT…the subsequent injection of identity into law makes bakes identity into culture in such a way as the culture can never move away from identity. It becomes a defining aspect of an individual’s existence in that society. This shows the ultimate failure of non-discrimination doctrine, because you can’t move to a post-racial society of every interaction with the Government forces you to self-identify.

      And I strongly suspect you can construct a body of law reinforcing equal under the law without having to allow for separate but equal.

      1. There is some intriguing scholarship about how political regimes can create racial identity constructs, but I think we have some pretty good experience that they’re self-perpetuating pretty quickly.

        Thus, the government suddenly becoming color-blind will not mean some slow progress towards society being color-blind; we cannot get there from here.

        Look at the post about gay marriage below; look at the discussions whenever anyone brings up IQ. Look at polls in the South. Look at voting in the South. Look at hiring patterns throughout the US.
        Whether federally caused or not, we aren’t getting to a better place just on inertia. We need continued federal mediation just to break even, and more if we want to make progress.

        1. I’d counter that it’s impossible to get to a color-blind society when you bake color into the law. So a post-racial society can’t actually be the goal of non-discrimination.

          1. We can’t unbake it; we were formed with it baked in. And just changing all the laws right now would make things worse, not better. And based on history, not just in the short term.

            Best hope is that there is a point C that is race conscious but not as fraught as today, and that from there we can unwind racial aspects to our legal regime once they are no longer needed.

            1. No, we’re not. We’re formed with the ability to sort things into groups. We’re formed with the instinct to consider external groups as suspect. However, the sorting mechanism is extremely dependent on inputs. There is no inherent sort by color wherein color provides cultural information. That comes from context.

              The legal framework creates a context. It states that color matters. Furthermore, it forces people to track color as an attribute of importance, further reinforcing that it matters.

              I completely disagree that changing the laws now would make it worse. If you really think that millenials are going to suddenly revert to de facto Jim Crow implementers, you’ve really lost all hope.

              1. Sorry – I don’t mean humans (I’m not super convinced by the race is a social construct crowd, but I’m coming around).

                I mean the US was formed with racial identities baked in. Our legal context, from our Constitution to our Declaration to our early Court cases all got race up in there. That’s the context we need to grapple with.

                Power doesn’t corrupt it reveals, and until we have more millenials in power I’m in trust but verify mode with them. (I’m a tail-end X’er if that matters)

                I don’t know about millennials, but the older cohort, or at least that part with the levers of power, are proving in a bipartisan manner that they’re quite willing to let race do the driving at least at the local level. Voting rights, gerrymandering, redlining, zoning, police. And I’m not just talking about the South. Didja see NYC’s plan to deal with racial disparities in magnet schools?

                Mention Trayvon Martin or Kaepernick or race and IQ around here and see what you get. It’s not pretty. And these are the smart ones.

                We’re in deep. Generations deep. I like our momentum quite a bit, but we are nowhere near the shallow end. I’m not even sure we know what that would properly look like, so steeped are we in a society build on racial stratification.

                1. Except that Constitutionally we’ve done a pretty good job at disentangling race from law. “Race” only appears once in the Constitution. Brown v. Board erased “Race” as a factor. And then the things you mention:

                  Voting rights – Much more about immigration than race (insiders vs. outsiders)
                  Gerrymandering – Much more about parties than race
                  Redlining – Not sure of the evidence of this being a 21st century thing.
                  Zoning – Much more about class than race
                  Police – Much more about class than race

                  I’m not arguing about the history of race relations. But my point is that now, with race baked into law, everything IS about race, like it or not. The Government asks you at every turn what your race is. The Government reports on race in every context it can. We can’t escape it now because instead of simply saying “Thou shalt not have laws that say what a race can do”, we went way way further.

                  So yes, I would argue that the Civil Rights Act did as much to perpetuate the concept of racism as it did to mitigate the effects of racism. And I think that long term the perpetuation is worse than the mitigation.

  4. Haven’t seen mentioned the thing that outrages me as a lawyer.
    Evidently in California additional terms can be added to a statute by a court rather than the Legislature.
    How is this a Republican form of government by, of and for the people?

    1. Well, aren’t those judges elected?

      It might violate the standard judicial/legislative/executive separation of powers, but it is probably a Republican form of government.

  5. “We don’t discriminate on race, we discriminate on melanin content.”

  6. I don’t know how to evaluate this. The legislature identified a specific set of categories. The California courts then read between the lines to discern a general principle not stated in the statute itself. The California courts now parse that general principal to read it narrowly.

    None of this has anything to do with anything the statute actually says. Why bother to articulate and give reasons for reaching particular desired outcomes? It seems to be a sort a ceremonial legalism, formal ceremonies like continuing to engage in statute-construing ceremonies long after any actual statutory construction has ceased. The courts treat the legislature in approximately the way the British treat the Monarchy, continuing formal rituals of ceremonial deference that pretend it retains control over matters long after it has ceased to have any actual say in them.

  7. I wonder if anyone has thought of using the Unruh Civil Rights Act to challenge the legality of being “deplatformed” by California tech companies.

Please to post comments

Comments are closed.