A South Dakota Republican lawmaker, Michael Clark is in big trouble by suggesting, in a Facebook post, that business owners should be free to refuse service to anyone for any reason, including because of a customer’s skin color.
“He should have the opportunity to run his business the way he wants,” Clark said on Facebook. “If he wants to turn away people of color, then that(‘s) his choice.”
Clark was referring to a recently decided Supreme Court Case which acknowledged a Colorado baker’s right to refuse to make a custom wedding cake for a gay couple. Clark called the decision “a win for freedom of speech and freedom of religion.”
The decision from the court is not expected to establish a broad precedent with regard to the ability of business owners to discriminate against their customers, seeing as the context for the decision was relatively narrow. Justices concurring with the opinion cited the baker’s religious beliefs as the critical issue in the case, as well as the expressive dimension of the baker’s artistic output.
“A custom wedding cake is not an ordinary baked good; its function is more communicative and artistic than utilitarian,” the solicitor general argued. “Accordingly, the government may not enact content-based laws commanding a speaker to engage in protected expression: An artist cannot be forced to paint, a musician cannot be forced to play, and a poet cannot be forced to write.”
However, even the attorneys who supported the baker’s case said that the right to refuse service to a gay couple could not be extended to protect the refusal to serve people of color. Racial discrimination, they said, “is a familiar and recurring evil that poses unique historical, constitutional and institutional concerns.”
The Civil Rights of 1964 explicitly prohibits businesses from discrimination against their customers on the basis of race, color, religion, sex, or national origin, something the State Representative Clark had to be reminded of by his constituents this week.
“Businesses absolutely do not have a ‘choice’ to turn away customers on the basis of race,” one user responded to Clark’s original post. “I suspect you’d be singing a different tune if a business refused to serve a straight/white/Christian.”
Clark has since apologized for his remarks, suggesting he had “jumped in on it a little bit too fast,” insisting, “I would never advocate discriminating against people based on their color or race.”