Suppose I were to tell you the following story:

A black couple and a white couple, both from out of State, were traveling together in the State of Alabama. They decided to stop at a motel somewhere inside the Yellowhammer State, and asked for two rooms. The manager of the hotel comes by later, saying, "We don't want you [the black couple] here."

The black couple protested, but the manger stood firm, citing a policy of not allowing blacks to stay on the property. The manager said that he had to appeal to the majority and the majority wouldn't want blacks to stay at the hotel. The manager decides to let the blacks stay one night, but had to leave the next morning and would not be compensated for the inconvenience.

Off the top of my head, that's a Federal civil rights case. The motel, in doing business with out-of-State customers, is a participant in interstate commerce. The Supreme Court of the United States has ruled previously that since there is an action in interstate commerce, Federal laws will apply and trump any State interest. Under the previously-settled jurisprudence, the motel cannot prevent the black couple from staying there.

Remember: Although the State may have a law which allows a business to discriminate in terms of who it serves, if the business trafficks in interstate commerce, Federal pre-emption overrides the State statute. After all, we won't stand for discrimination of any kind, right? Well, there's a bit more to it than that. Some of the details identifying the parties have been changed. In reality, several couples, most of whom were from San Diego, California, were travelling together in Florida. These couples, a mix of heterosexual and homosexual, decided to stop at Big Ruby's, a hotel in downtown Key West.

They apparently registered without incident but were later approached by the manager, who in fact said that the heterosexual couples would have to leave because the manager didn't want them there. When the heterosexuals protested, they were told that the majority of the hotel's guests wouldn't want them there.

The heterosexuals left.

My response to this runs on several levels:

I. First, a guffaw. I find this case amusing. From the story, it appears that other homosexual support agencies have tried to remedy the damages, but that's irrelevant to the legal issues at hand.

II. Part of me hopes Big Ruby's is able to beat this. I like the concept of freedom of association and I'm more than willing to trust the free enterprise system to impose some sort of broadly-acceptable mean. That means if Malcolm X wants to open up a hotel that serves only blacks, that's fine. If he can stay open, hey that's great for him; bravo to the new niche market he's serving. If he can't, then too bad and perhaps he shouldn't have served only blacks. However, this is not the majority opinion and is out of step with established jurisprudence, which leads me to point III.

III. To remain faithful to stare decisis and other principles of the well-settled jurisprudence over things like this, I hope the DOJ falls in on Big Ruby's like a ton of bricks. Send lots of earnest men and women down there in droves, so that we can see a repeat of what Tom Wolfe wrote about the affirmative action space program in The Right Stuff:

Every week, it seemed like, a detachment of Civil Rights Division lawyers would turn up from Washington, from the Justice Department, which was headed by the President's brother, Bobby. The lawyers squinted in the desert sunlight and asked a great many questions about the progress and treatment of [name redacted] and took notes. [Charles] Yeager kept saying he didn't see how he could simply jump [name redacted] over these other men. And the lawyers would come back the next week and squint some more and take some more notes.

The story points out that there is some wiggle room for the hotel's position; if they are able to classify themselves as a clothing-optional establishment, then a policy of gender exclusivity can be upheld. Without any further information, I would think that such a dodge would be difficult for Big Ruby's to make, unless it has a history of serving only male or female homosexuals. I don't know, and I really don't care. This one might be amusing to watch.

Tip of the Wisconsin hat to Interested-Participant.

Posted by: Country Pundit at 05:21 PM | No Comments | Add Comment
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