Monday, June 25, 2018

The Civil Rights Act of 1964, in letter and in spirit, bans discrimination against individuals based on their membership in classes of people:  race, religion, national origin.  It does not allow the operator of a place of public accommodation to refuse service (the old signs read "We Reserve The Right To Refuse Service To Anyone."  I remember them well.  Racism was no less subtle then than it is now.) to an individual based on their membership in a protected class (it doesn't include gender or sexual orientation).

It says nothing about shame.

Sarah Sanders was refused service at the Red Hen on the basis of her public actions.  Actually, she wasn't even refused service:  she was simply asked, politely and privately, to leave.  The story leaked on to the internet, and she used her government Twitter feed to confirm it (which may well be a violation of government law).  The shaming itself was minimal, and entirely civil.  It wasn't the equivalent of Kirstjen Nielsen being hounded from a D.C. Mexican restaurant by protesters.  Still, polite or not, did it violate the "spirit" of the Civil Rights Act?

Interestingly, had she been a convicted child molester required to register with the police, she could have been refused service on the basis of public shaming for her behavior in the past.  I wonder if Mr. Haas would consider that a violation of the Civil Rights Act?  No, Ms. Sanders is not a convicted felon; but she was being shamed for her participation in the Trump Administration, the final straw of which was the immigration crisis that Administration created.  However, the staff of the Red Hen is mostly gay, and they objected to serving a woman whose stance on matters like the Masterpiece Cake case was so open and supportive of the discrimination against the gay couple by the baker/owner of that shop (a place of "public accommodation" under the Civil Rights Act, but again, sexual orientation is not a protected class under that law).  Racial animus is the sine qua non of American law:  evidence of racial animus is supposed to undo any legal approval or legal action whatsoever (the Supreme Court rulings today on redistricting in Texas and North Carolina may call even that standard into question, but for the moment, taken as inviolable).  The primary purpose of the Civil Rights Act is to deny legal authority to racial animus.  The government will not allow you, the proprietor of a place of public accommodation, to act on racial animus (which can include national origin, clearly) in deciding who can enter your place of business and purchase your goods and services.

The owner and staff the Red Hen were not driven by racial animus.  They were driven by something else:  social opprobrium.  Sarah Sanders placed herself in a public position that outraged many people in the country, perhaps a majority of them.  The staff and owner of the Red Hen spoke for their space.  Hospitality is where you control the space, and invite others to partake of what it offers.  What they did was to withdraw their hospitality from Sarah Sanders, because of her actions.  We can debate whether that action was socially appropriate (is it ever appropriate to be inhospitable?).  But it is not a legal matter; not even close.

Donald Trump and his administration are violating the very letter of the law, the very provisions of the U.S. Constitution.  Far from upholding his oath of office to preserve, protect, and defend the Constitution of the United States, he is treating it like he treats government documents:  having read it, he's through with it, and he tears it into pieces to signal that fact.  This is what he said today:

The 14th Amendment is quite clear:  due process and equal protection of the laws applies to persons; not "citizens."  The only way to do what Trump wants is to bypass the Constitution, the judiciary (established by the Constitution), and government entirely, and simply make Trump king.  If I'm an operator of a restaurant who can't ask Donald Trump to leave my establishment (because I don't own a McDonald's), I'm certainly free to ask his public minions (Cabinet Secretaries, Press Secretary) to leave because I don't want any association with him whatsoever.  Or just because I think he's a loathsome human being, and that there's a value to public shaming.

Donald Trump's actions and statements are a far greater "sign we are coming apart" than privately asking Sarah Sanders to leave a restaurant.

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