On his Saturday CNN TV show, Michael Smerconish had as a guest Victoria Cobb, the Christian organization’s President, that was refused service by a Virginia restaurant. The host acknowledged the Restaurant was wrong, but he saw no difference between its action and the marriage website designer, Lori Smith, in 303 Creative LLC v. Elenis before the Supreme Court. He held that both the Restaurant and Smith broke the law. 

This conclusion is a jolt coming from a lawyer. Even more shocking, his stance mirrors Supreme court justice Sonia Sottameyer. “This would be the first time in the court’s history,” Justice Sonia Sotomayor said in the 303 case oral, that it may rule that “a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion or sexual orientation.”

Our anti-discrimination laws are rooted in the refusal to serve southern blacks at lunch counters. If your menu offers items for sale, you must not discriminate. It’s a simple contract, the Restaurant proffers, and you agree to pay the asked price. We do the vast majority of transactions this way. Refuse certain groups, and you’re breaking the law.

Failing to honor the Christian group’s reservation is prohibited. The Restaurant offered its menu and accommodations to all. The group agreed to pay. Nothing in the transaction required any further meeting of the minds.