First of all to say a photographer or baker cannot refuse service is a misstatement of the facts. Any business can refuse service for any reason they choose, as long as the reason is not for one limited by law. A photographer or baker sure can refuse service for a variety of reasons: credit check, the have a previous booking, will be on vacation, etc. What they cannot do is refuse service for one of the stated reasons contained in the law.
So, there is a class of laws in each State referred to commonly as "Public Accommodation Laws", these laws make it illegal for a business to provide the same goods and services to customers based on factors that vary from State-to-State. There is also a Federal Public Accommodation law contained in the provisions of the Civil Rights Act of 1964. Often the States identify more classes then the Federal Statute.
Public Accommodation laws have been reviewed by both State and Federal courts and found to be a proper exercise (under the Commerce Clause for Federal Law and as a States power to regulate commerce inside the State. You will notice in the New Mexico law cited below that it specifies that goods and services must be offered equally to the public with not "direct or indirect" difference.
New Mexico Statute
28-1-7. Unlawful discriminatory practice.
F. any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation ;
When people say that the photographer or baker cannot refuse service, but this hairdresser can?
No the hairdresser CANNOT refuse service (in New Mexico) based on race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap. The baker, the photographer, the hairdresser and the candlestick maker can all refuse service for other reasons - for example to the governor based on that individuals publicly available political position concerning secular law in the State. When contrasted with the photographer (Elane Photography was the New Mexico case) the business advertised for and routinely performed wedding photography. That was a service offered, they refused because of the sexual orientation of the couple - they were in violation of the law because they chose to make a distinction directly based on the sexual orientation of the couple.
If you'd like to read the case you can read the decision here -->>
http://www.adfmedia.org/files/ElanePhotoNMSCopinion.pdf
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The laws exist, they have been reviewed by the courts. That is reality. However just because the government can do something doesn't mean that it should. The only way at this point to reverse these laws which usurp the individuals right of free association and rights of property is to make the case for the laws to be repealed.
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