David Bernstein has an interesting post on how far California has taken its public accommodation laws, and offers this example:
There is a German restaurant called the Alpine Village Inn, in Torrance California. A group of four neo-Nazis went there to eat, each wearing a lapel pin with a swastika on it. The management asked them to take off the lapel pins. They refused. The management asked them to leave. They refused. The management called the police, who arrested them.
Then, remarkably, the Southern California ACLU gets involved, and sues the restaurant for calling the police on the Nazis! This much I’ve confirmed from media accounts. According to the commenter who first alerted me to this story, “the defendants’ insurer eventually settled following unsuccessful pretrial challenges to the complaint, believing they could not prevail under California law!â€
The lawsuit was brought under California’s Unruh Act, which provides that “all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages facilities, privileges, or services in all business establishments of every kind whatsoever.†The California courts have held that the protected classes delineated by the Act are not exclusive; the Act also protects arbitrary discrimination by a business establishment based on similar characteristics to the above. Apparently, the insurer thought that “political views†was sufficiently similar to “religion†that the courts would likely rule against the insured.
The big question I would have is, could you use the Unruh Act in California to sue California Pizza Kitchen and Peet’s Coffee for their discrimination against people open carrying? It’s hard for me to see how that’s distinguished from neo-Nazis wearing swastikas, except perhaps for open carry being far less disgusting and vile.
I don’t agree with taking public accommodations this far at all, but the left has made this system. I see no reason why we shouldn’t use it against them so long as it prevails.
Filing that lawsuit would be right out of Alinski’s playbook – make your opponent live up to his own values.
I approve.
“It’s hard for me to see how that’s distinguished from neo-Nazis wearing swastikas, except perhaps for open carry being far less disgusting and vile.”
Except that to a lot of Californians, open carry is not less disgusting and vile.
That’s an awesome idea.
I wonder if the ACLU would have taken this case if the Nazi’s had been open carrying?
I live in California (for the next 8 days, then off to Texas). I had no idea this law existed. I see lots of restaurants with those signs that read “We reserve the right to refuse service to anyone.” I guess that means those signs are only partially true: if you belong to a protected class, or are close enough to a protected class, you can demand service or sue.
I think that an open carry lawsuit is brilliant. CPK and Peet’s didn’t have to get in the middle of the open carry fight (especially Peet’s), but now that they have staked their ground, it’s time to make them pay.
Also, if anyone is going to do this, they need to hurry. The ban on open carry is CA is FLYING through the statehouse.
Mike W. :
The Illinois ACLU wouldn’t take it. They consider the 2nd ‘anachronistic’.
Based on my extensive legal background I gained by watching Law & Order, I disagree that “political views” would necessarily be conflated with “religion.”
Presented with guns, the court would simply rule that open carriers are not a protected class. Case dismissed.
I don’t know the precedents involved, but I’d guess the matter is complicated when the political expression involved goes beyond just expression into creating a functional difference between you and another person. I mean, I can make refusing to wear shoes into a political statement, but it’s unlikely a court would rule my politics trump a no-shirt no-shoes policy.
An openly armed person isn’t _just_ making a political statement; he’s also making himself better able to resist force. If a restaurant can say its no-guns policy is based on the capacity for force rather than the political statement involved, I’d expect a California court to uphold that argument.
There’s an outside chance an honest court might rule against a restaurant that explicitly allows concealed but not open carry, but that would presumably just lead to a flat no-guns policy.
Assuming you tried to bring a case like that, what you’d probably end up with is an exercise in judicial linguistic gymnastics, showing us how Nazis are not like guns and guns are not like Nazis. If nothing else, it would be a great way to drop many thousands of dollars to get a laughable piece of jurisprudence out of our kangaroo courts (did I just say that? Don’t tell the state bar!)
In seriousness though, such a case might establish some really, really bad precedent in this state, to go along with all the other bad precedent, i.e. People v Hale. Best to just sit on hands and wait until SCOTUS issues their Chicago v McDonald opinion.
My problem with filing an open carry lawsuit under the Unruh Act is that you are not simply taking advantage of an existing government program (e.g., federal student loans, refundable tax credits, etc.). Rather, you are asking for an expansion of the government program to include a new and equally illegitimate violation of property rights.
Moreover, you would be suing an individual for asserting his or her natural property rights. You would not be using the Unruh Act against the left, but rather against a private property owner. I would not support any property owner’s decision to ban open carry, but I would defend his or her right to do so.
Jim,
You can argue (with a straight face, I would add) that the Unruh Act is nothing more than state application of the 14th Amendment’s Equal Protection Clause. You’re not expanding a program in that case, though I do follow along with with your property rights issue.
While you are correct that you would be using The Act against a property owner, in the example cases, 2 corporate entities, there is a valid argument that you are using the law against the left. They want equal treatment, only when it suits them. Beyond that, unequal treatment is fine if it falls outside the purview of their particular interests. By putting the ‘equal’ back in ‘equal protection’, you create a situation where the double-edged sword cuts back at them and their agenda.
It is hardly an optimal solution, and the property rights question is a thorn. But we are talking about California here, land of “Rights for me and mine, but not for you and yours.” I think correcting that flawed worldview takes precedence over the Libertarian argument.
Unless we want to do away with the 14th Amendment (something I’m not against).
In a perfect world, Sebastian, where California’s public accommodation laws were applied in a principled, consistent way, then yeah, this might be an interesting legal strategy to pursue.
We don’t live in that world. California’s public accommodation laws are applied in an unprincipled, results-oriented fashion, and always have been. The Apline Village case is the exception, not the rule.
I mean, I think everybody can predict how the judicial parsing would go: open carry is functionally distinguishable from merely wearing a Nazi pin because while both may be political statements, the former also creates the potential risk of unarmed patrons or police being shot, which in turn can create civil liability for the shopowner, yadda yadda yadda.
Ed,
The Fourteenth Amendment only applies to state action. I don’t see any state action at issue in this context, so the Fourteenth Amendment is irrelevant. Sure, the state may be enforcing the Unruh Act in a way that violates the Fourteenth Amendment, but at root we are talking about private action.
But put all that Fourteenth Amend. stuff aside. The result of sharpening this double-edged sword is that private property owners get cut. I am not willing to do that, even if it means the left gains an understanding of the concept of universal rights.
But I can see where you are coming from.
Jim, I took Ed’s comment to mean that the state was effectively extending the 14th Amendment to private actors, which I think is not too far off the mark. Of course the 14th Amendment itself would not apply here.
Sebastian: nice theory, but it would never fly. In fact, I’d go as far as to say it should never fly. To the extent Nazis who refuse to take off their lapel pins are protected by the Unruh Act (and I’m skeptical of that), lapel pins are easily distinguishable from actual, functional weapons. For the analogy to work, OC advocates would have to eschew carrying actual guns, and instead wear lapel pins with pictures of guns or, better, T-shirts with pictures of guns and “Those fascist prigs at CPK won’t let me carry this!” scrawled across them.
WHatever happened to the concept of freedom of association and private property?
If I go into a restaurant (private property with public access), and the owner/manager/etc decides that he does not want to serve me, and wants me out FOR ANY REASON WHATSOEVER, that should be his privilige. And the law and courts should have no grounds to interfere to force the restaurant to seat and serve me. Not even the ACLU.
BUT, that said, seeing as most restaurants that I’ve ever been in are in the business to MAKE MONEY AND A PROFIT, I would have to be doing something fairly horrid and obnoxious to make the owner not want to seat and serve me. And if my actions were that bad as to be a public menace, then the owner would be within his rights to call the police, WITHOUT REPURCUSSIONS FROM ANOTHER OUTSIDE AGENCY to force me to serve that customer.
‘Nuff said.
Ooops. Syntax error. that’s what I get for multi-tasking at work.
And if my actions were that bad as to be a public menace, then the owner would be within his rights to call the police, WITHOUT REPURCUSSIONS FROM ANOTHER OUTSIDE AGENCY to force the owner to serve that customer.
I learned a long time ago that restaurant owners and managers should never argue with a customer, or ask them to leave, or disagree when the customer complains.
It is far easier to serve food to the creeps that will make very clear to the obnoxious fools that they should never, ever return to that restaurant. If they ever get over the screaming runs.