The Volokh Conspiracy
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Refusing to Sell Rifles and Shotguns to 18-to-20-Year-Olds Violates Oregon's Ban on Public Accommodation Discrimination
Oregon is one of the states that bans retailers from discriminating based on age against customers age 18 and above. (Some states don't have such rules, or have an age 21 cutoff.) The Oregon statute says it generally applies to any person who is "of age," which appears to mean 18, the age of majority in Oregon, at least for those products that are legal to sell to 18-to-20-year-olds (as long guns are in Oregon). Indeed, the statute specifically mentions alcohol and marijuana sellers for special treatment, but makes no such special provision for gun sellers (emphasis added):
659A.403 Discrimination in place of public accommodation prohibited. (1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.
(2) Subsection (1) of this section does not prohibit:
(a) The enforcement of laws governing the consumption of alcoholic beverages by minors …;
(b) The enforcement of laws governing the use of marijuana items … by persons under 21 years of age …; or
(c) The offering of special rates or services to persons 50 years of age or older….
659A.406 Aiding or abetting certain discrimination prohibited. Except as otherwise authorized by ORS 659A.403, it is an unlawful practice for any person to aid or abet any place of public accommodation, as defined in ORS 659A.400, or any employee or person acting on behalf of the place of public accommodation to make any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older….
And in Wednesday's decision in Dalbeck v. Bi-Mart Corp., the Oregon Court of Appeals (in an opinion by Presiding Judge Erin Lagesen, joined by Judges Bronson James and Jacqueline Kamins) held that the statutory text indeed generally protected customers age 18 and above against age discrimination, including as to sales of long guns. The court added:
Gun violence is an escalating problem in this country….
The law, though, limits the solutions currently available to solve that problem. In particular, current Oregon law, by generally prohibiting discrimination based on age against a person who has reached the age of majority, does not allow for the problem of gun violence to be solved by discriminating against people aged 18 to 20 based on their age.
We, as a court, are not empowered to craft an exception to the legislature's bar on age discrimination that the legislature itself did not write …. If there is to be an exception to the prohibition on age discrimination contained in ORS 659A.403, it must come from the legislature itself, not from the courts.
Judge Kamins' concurrence concludes that the question is closer than does the majority, but ultimately agrees with the majority.
