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Can You Refuse Service Based on Sexual Orientation or Gender Identity?

A Tennessee hardware store was back in the news following this week's Supreme Court decision in favor of a baker who refused service to a same-sex couple. Jeff Amyx, owner of Amyx Hardware & Roofing Supplies in Washburn, Tennessee originally put up a "No Gays Allowed" sign in his storefront window in 2015 in response to the Court's ruling that bans on same-sex marriage were unconstitutional.

The story of Amyx's sign, and his and the store's outspoken homophobia, was recirculated in the media this week in the wake of the new decision, and the question is raised again: Can stores legally refuse service based on sexual orientation or gender identity?

Narrow Decision or Not?

As we discussed previously, the Supreme Court did not say that Jack Phillips, owner of Masterpiece Cakeshop in Colorado, was legally justified in refusing service to David Mullins and Charlie Craig, who had requested a wedding cake for their reception. Instead, the Court ruled that the Colorado Civil Rights Commission, which determined Phillips violated state anti-discrimination laws, was impermissibly hostile to his claims of religious freedom. Therefore, the underlying decision against Phillips was vacated, without any ruling on whether, as a general matter, business owners are permitted to discriminate based on their religious beliefs.

Other instances of sexual orientation discrimination in service, in Colorado and elsewhere, have been successfully prosecuted under state and local anti-discrimination laws, and those laws and cases have not been overturned by the Supreme Court. Additionally, federal courts have applied the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 to discrimination based on sexual orientation in the employment context.

Supremes v. States, Municipalities

Still, business owners like Amyx may be emboldened by the Court's latest ruling, especially in the absence of state or local anti-discrimination statutes. Tennessee, conspicuously, does not include sexual orientation or gender identity in its protected classes under state civil rights laws, although some cities and counties (like Knoxville, Memphis, the Metropolitan Area of Nashville, and Davidson County) do have ordinances prohibiting discrimination on the basis of sexual orientation and gender identity.

So while Amyx may, at least for now, be allowed to post a "No Gays Allowed" sign in his store (and another that reads: "We reserve the right to refuse service to anyone who would violate our rights of freedom of speech & freedom of religion"), that doesn't mean that all business owners can deny service because of a customer's sexual orientation or gender identity. There may be local, state, and perhaps federal laws that prohibit such discrimination.

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