Following news that a Virginia restaurant refused to serve White House Press Secretary Sarah Huckabee Sanders, many conservatives accused liberals of hypocrisy when it comes to discrimination. How can they argue that LGBTQ people should be protected from discrimination (like from wedding vendors) and be okay with refusing service to Sanders? The reality is that the two have nothing in common.
Joe Murray of the group LGBTrump made such a point in an op-ed in USA Today. Noting that Stephanie Wilkinson, co-owner of The Red Hen, was inspired in part by her LGBTQ employees to ask Sanders to leave, Murray accused the staff of hypocrisy. “If Wilkinson is able to use her convictions — which included a perceived mistreatment of the LGBT community — as a justification to deny service,” he wrote, “Christians should be able to, without LGBT objection, use their deeply held religious convictions to do the same.” He added that Wilkinson’s views aren’t “any less prejudicial than those of a Christian baker unwilling to bake a cake for a same-sex wedding.”
If you are someone who believes that Masterpiece Cakeshop ought to have been forced to bake a cake decorated for a gay wedding, but you think that Stephanie Wilkinson was right to kick Sarah Sanders out of her restaurant because she hates Sanders’s politics, then you are an unprincipled hypocrite.
But these takes are simply not valid.
In general, businesses can actually refuse service to anyone for any reason with only a few specific exceptions. State, federal, and local laws carve out specific protected classes of people that public accommodations like businesses can not arbitrarily discriminate against, such as race, religion, and country of origin. The stakes in Masterpiece Cakeshop related to how Colorado enforced its law, which included protection on the basis of sexual orientation. But very few of these laws offer any protections related to one’s politics, and it’s not even clear that the ones that do would have protected Sanders.
The city of Washington, D.C. offers protections, for example, on the basis of political affiliation. This is defined narrowly, however, as only applying to “belonging to or supporting a political party.” Had Sanders been asked to leave a restaurant in D.C., it’s unlikely she’d able to make the case it was discrimination against her simply because she’s a Republican, particularly if there were no evidence the restaurant was otherwise discriminating against Republicans writ large.
One of the only other laws in the country that might have come close to protecting Sanders is Seattle’s, which protects against discrimination on the basis of “political ideology.” This is broadly defined as any idea or belief “relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group,” including membership in a political party.
Despite this broad definition, Wilkinson’s actions wouldn’t necessarily have run afoul of it. Seattle’s law leaves room for discriminating on the basis of political conduct that can “cause substantial and material disruption of the property rights of the provider of a place of public accommodation.” In her refusal, Wilkinson explained that “the restaurant has certain standards,” and that defending an “inhumane and unethical” administration violated those standards of “honesty, compassion, and cooperation.” Thus, even under Seattle’s law, she would likely have had room to argue that serving Sanders would have been destructive to the restaurant’s reputation.
The Red Hen is, of course, not in Seattle nor in D.C., and no state or local law in Lexington, Virginia offers Sanders any protections.
In many ways, the Sanders incident disproves one of the arguments conservatives regularly make when defending anti-LGBTQ businesses. Sanders’ father Mike Huckabee once argued, for example, that making wedding vendors serve same-sex couples was like forcing a Jewish deli owner to serve bacon-wrapped shrimp. But in the same way that the law doesn’t protect people who defend immigrant family separation, it also doesn’t protect people who eat pork and shellfish.
Another restaurant refusal that took place this weekend is illustrative. Charlotte Clymer, a transgender woman who works for the Human Rights Campaign, encountered discrimination on the basis of her gender identity during a visit to Cuba Libre, a D.C. restaurant. After policing her use of the women’s restroom by demanding she produce her identification, the restaurant forcibly removed her from the premises. As she detailed on social media, she even showed the restaurant manager that discrimination on the basis of her gender identity was illegal in D.C., to no avail.
Last night, I was told by the manager of @CubaLibreDC that I couldn't use the women's restroom, and after challenging his discrimination with D.C. law and responding to his threat of calling the police w/ "please do so", I was forcibly removed from the restaurant. (thread)
— Charlotte Clymer🏳️🌈 (@cmclymer) June 23, 2018
Clymer described feeling “shattered” as she stood at the curb outside the restaurant. She had been asked to leave not because of specific actions she had taken as an individual, but because of arbitrary discrimination based her identity. Dating back to the Civil Rights Act of 1964, laws protect classes as a means of mitigating mistreatment for those groups. Cities like D.C. and 21 states have added protections like sexual orientation and gender identity to likewise counter the unjust stigma and persecution of LGBTQ people.
People can’t choose the color of the skin, their sexual orientation, or their gender identity, which is why civil rights laws carve out such classes. But people can very easily choose not to regularly lie to the American public to defend a presidential administration’s odious and discriminatory actions.
The irony is that Sanders herself repeatedly said that the White House stood with the baker in the Masterpiece Cakeshop case — that his “religious liberty” should entitle him to refuse service to same-sex couples. “In this case and others, the Department of Justice will continue to vigorously defend the free speech and religious freedom First Amendment rights,” Sanders said after the decision came down this month.