Ask ELi: Can Businesses Ever Legally Refuse to Serve Customers?

A reader wrote in recently to say: “while exiting the local Whole Foods store last week, I noticed a black-and-white sign that said, ‘We reserve the right to refuse service to anyone.’” He added that he “wondered what the difference is between saying this in a sign and the Charlotte fruit vendor who doesn't allow same sex marriage ceremonies in his apple orchard.”

The reference is to the ongoing First Amendment suit against the City of East Lansing, based on the City’s decision not to allow Charlotte-based Country Mill to return as a vendor at the East Lansing Farmer’s Market. The City’s rationale for removing Country Mill was that the refusal to allow same-sex marriages at their Charlotte orchard violates the City’s Civil Rights ordinance.

The most recent development in that case is a preliminary decision by a federal judge ordering that Country Mill be allowed to return as a vendor for the rest of the Market’s season while the suit is being decided.

Whole Foods is legally in Meridian Township, although it is often called "the East Lansing Whole Foods" because it has an East Lansing address, and lots of East Lansing businesses have signs like this, so we see this reader's question as worth tackling here. At first glance, it might seem that refusing to perform same-sex marriages is a business decision similar to “refusing service to anyone,” and that if one can form the basis of a Constitutional lawsuit, the other must surely be illegal.

The difference is that the Constitution has long been interpreted to prohibit discrimination against “protected” classes of people. Federally-protected classes include groups identified by race, color, religion, age, sex, pregnancy, citizenship, familial status, disability, veteran status and genetic information.

These protections are most often granted through federal legislation such as the Civil Rights Act of 1964, which prohibits discrimination by privately-owned places of public accommodation on the basis of race, color, religion or national origin. Places of “public accommodation” include hotels, restaurants, theaters, banks, health clubs and stores.

Sexual orientation is not a federally protected class. But various states and municipalities have chosen to enact their own laws granting protection to members of the LGBTQ community. The City of East Lansing has such a law, and used it as the basis for refusing to include Country Mill as a Farmer’s Market vendor. East Lansing was, in fact, the first city in the nation to enact protections for LGBTQ people. 

The difference? By including sexual orientation as a protected class in the City’s Civil Rights Ordinance, the City has made it illegal to discriminate against LGBTQ people in East Lansing. They are, in East Lansing, a protected class. (Meridian Township also has an ordinance protecting LGBT people.)

While the Country Mill suit revolves around the business owners’ refusal to perform same-sex marriages at a farm located outside the City of East Lansing, refusal to sell cider to a gay couple at the Farmer’s Market would have been clearly prohibited discrimination. The lawsuit will determine whether East Lansing can bar Country Mill for the business’s policy with regard to hosting marriages in Charlotte.

By contrast, Whole Foods and other businesses with similar signs do not specify a group or class to whom they reserve the right to refuse service. They are within their Constitutional rights, for example, to refuse service to a customer who is belligerent towards employees, or visibly intoxicated, because neither customer is part of a protected class of people.

No matter what the sign our reader saw suggests, businesses in East Lansing cannot refuse service to a customer because she is black, transgender, or wearing a hijab, because all of those people are members of protected classes in East Lansing.

Note: After this story was published, it was amended slightly to note that Whole Foods has an East Lansing address and is legally in Meridian Township, and that Meridian Township also has an ordinance to protect LGBT people.