The Right to Refuse
Can we still say no?
I was in a restaurant the other day and saw a sign, "we reserve the right to refuse service." It occurred to me that I hadn't seen this sign in quite some time. It may be that it has always been there and I just ignored it; it hadn't really applied to to my behavior for a few decades. Perhaps it hasn't been necessary to post such a sign. I do know that a business can refuse service if a legitimate business concern has been identified. It can be applied to individuals or groups relating to certain guidelines (i.e. no shoes, no shirt, no service). Disruptive customers and situations that threaten the provision of business to other patrons would fall into these guidelines. The key is whether it is an arbitrary application of the right to refuse that will open the floodgates of legal troubles. Application that discriminates against race, gender, disability, religion, or national origin are arbitrary, and thus illegal. So the right of refusal stands, but it isn't applied in a broad brushstroke, it is defined...sort of.
Consider the bill SB 1062 which is before Arizona Governor Brewer. The bill is a modification of a 1999 Arizona law, the Religious Freedoms Restoration Act (RFRA). The original RFRA was passed in 1993 by Congress, and signed into law by President Clinton. It was intended to avoid imposing a substantial burden upon a person's free exercise of their religion by another individual. The law was ruled unconstitutional when applied to the states laws (Boerne v. Flores). This required state and local authorities to draft their own law regarding this issue. Arizona was one of the states which drew up their own RFRA. The RFRA tells the court that the state may only violate the individuals religious freedom if they meet certain requirements, which the state must demonstrate. The RFRA must generally apply to all faith or no faith.
In Arizona at this time the RFRA does not define what individual can claim that their religious rights are being violated by the state, should they refuse service. There are ordinances in some Arzona cities that could be overruled by this modification. So at this moment, it depends on where you live and or do business in Arizona as to whether you can feel secure in some of your rights.
Consider the case of Elaine Huguenin in New Mexico. New Mexico has a RFRA that is not well defined in its wording. Huguenin refused to provide her photography service to two women for their "commitment ceremony". The customers were able to get a replacement photographer, but they sued as they felt their rights had been violated due to their sexual orientation. Huguenin defended that she did not refuse due to their homosexuality, but rather because her strongly held religious beliefs on marriage would not allow her to promote the message of the ceremony. Because of the ambiguity in the New Mexico RFRA the New Mexico Supreme Court found that since the state was no party to the suit, the RFRA was not applicable as a defense. That conclusion allowed the court to parse Huguenin into Elaine the individual and Elaine the small business owner. The judge wrote, the forced violation of Elaine's religious beliefs was "the price of citizenship".
SB1062 would modify the current RFRA of Arizona to have more precise language of to whom and how it applies. Three important changes to the Arizona RFRA:
1. RFRA would cover "any individual, association, partnership, corporation, church, religious assembly or institution or other business organization" (i.e. Hobby Lobby's battle against the Affordable Healthcare Act's birth control mandate.)
2. A RFRA violation can be cited "regardless of whether the government is a party to the proceedings" (see Huguenin).
3. The person asserting a violation must prove three things:
a. The person's action or refusal to act is motivated by a religious belief
b. The person's religious belief is sincerely held
c. The state's action substantially burdens the exercise of the person's religious beliefs
The first two changes are made to provide for the broadest coverage. The third is to prevent the concoction of loophole religions to latch on to the claim. The changes also make it a more difficult defense against the government. The applicant must prove that their rights were unreasonably violated as there was no "compelling government interest" and that the government didn't use the "least intrusive means" to further that interest.
I for one am uncertain how these changes will create a new set of Jim Crow laws. I believe that the free market will undo the business owner who restricts the trade coming in their door. I think that percision and clarification in the language will help to improve the understanding and application of the current law. I don't think that the rights of one individual should automatically trump those of another, that is why we need clear law. I am hopeful that soon we won't have to raise the "price of citizenship" on one individual to cover the cost of another.
