Can Businesses Exclude Same Sex Couples?

Recently, I was asked whether or not a business in the wedding industry could elect to not offer their services to same-sex couples. This very interesting legal question touches on a unique point where state interests in preventing discrimination intersect with state interests in promoting the rights to freedom of speech, freedom of association, and separation of church and state. The short answer is no, businesses can not refuse services to same-sex couples based on their sexual orientation.

The recent California Supreme Court decision allowing same-sex marriage does not really change the laws regarding whom businesses must serve. California law imposes a compulsory duty on business establishments to serve all persons without arbitrary discrimination. Specifically, California law makes it illegal for “business establishments” to discriminate on the basis of sexual orientation and marital status. This obligation is codified in the Unruh Civil Rights Act, which is located in California Civil Code §51(b). The Unruh Act has been held to require business establishments to offer the same benefits and services to same-sex domestic partnerships as to heterosexual married couples. (See Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, wherein the California Supreme Court held that a business establishment, such as a country club, cannot arbitrarily discriminate in its membership admission on the basis of domestic partnership status.) Now that same-sex marriages are recognized in California, businesses the state has a stronger position to compel businesses to treat same-sex couples the same as heterosexual couples.

Businesses still retain their right under the Unruh Act to establish reasonable regulations that are rationally related to the services performed and facilities provided. For example, a landowner may require prospective tenants, including single parent families, to meet certain income criteria as long as the policy is applied alike to all persons. Such business practices are not arbitrary, but constitute prudent business practice. The restriction is thus reasonably related to the operation of that business. So, a business owner may have the “right to refuse service to anyone” based on a legitimate business reason, but not based on an arbitrary discriminatory reason. A liquor store could refuse to sell someone alcohol because they are visibly intoxicated, but a liquor store cannot refuse to sell alcohol to someone because they are black, or because they are a woman, or because they are gay.

Business owners are also allowed to make choices as far as what products they provide and what areas they specialize in. So, for example, a women’s lingerie store can decide to sell products that are only marketed to women without being discriminatory towards men. Or, a Christian pain relief bookstore owner can choose to carry only Christian authors. But that Christian bookstore could not refuse to sell its books to a non-Christian and likewise the lingerie store could not refuse to sell its products to a male customer. Likewise a business can specialize in certain areas. So a wedding planner could advertise that they specialize in “Chinese weddings,” but they could not put a sign on their door that says “Chinese customers only.”

There has also been a lot of litigation around the subject of what qualifies as a “business establishment.” The phrase “business establishment” includes any and all business organizations, entities, or enterprises. An organization is not excluded from the Unruh Act simply because it is private or non-profit. That said, there have been a few cases which have held that certain religious organizations were not “business establishments” within the Unruh Act. The California Supreme Court held in 1998 that a local Boy Scout Council was not a “business establishment” whose membership decisions were subject to the anti-discrimination provisions of the Unruh Civil Rights Act. The court found that in the context of its membership decisions, that the Boy Scout council was at its core “an expressive social organization whose primary function was inculcation of values in youth members.” So the Boy Scout group was allowed to exclude a homosexual adult from a membership position because of his homosexuality. However, in a different case, a non-profit religious corporation that published a business telephone directory was held to be a business establishment because its primary function was business related. Therefore the telephone directory could not exclude clients from advertising in its book based on their religion.

There are different laws which control the rights of churches to make membership decisions, likewise there are different laws regarding employment and housing discrimination. I do not discuss those here. Also, it should be mentioned that much of this area of law has been formed by court opinions. Therefor, much of the contours of this doctrine could change with future court decisions. I would anticipate that we will soon be hearing of cases that attempt to define the parameters of this law as it applies to legally married same-sex couples.

Thank you for your interest in this article.  You should not rely upon it as legal advice. The information contained herein does not create an attorney-client relationship. This article is intended for entertainment and general information purposes only. Laws vary state. Anyone seeking legal advice for a specific situation should consult a qualified lawyer or similar qualified professional in the appropriate state.

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