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A Hawaii bed and breakfast, reports Zack Ford for Think Progress, is asking the Supreme Court to invoke a remnant from the Jim Crow era to justify not having to host same-sex couples, in a case that draws a clear connection between the nation’s history of civil rights fights and the current efforts to discriminate against LGBTQ people.
In 2007, a same-sex couple from California requested to stay for a week at Aloha B&B, but Aloha owner Phyllis Young refused to rent them a room because of her religious beliefs about sexuality. The state of Hawaii determined that this was illegal discrimination on the basis of sexual orientation
Since then, the case has been slowly litigated. The Alliance Defending Freedom (ADF), an anti-LGBTQ hate group, has repeatedly and unsuccessfully appealed on Young’s behalf. Earlier this year, the Hawaii Supreme Court declined to hear an appeal from Aloha B&B, prompting ADF to ask the nation’s highest court to rule in the case.
The petition to the Supreme Court relies on what’s known as the “Mrs. Murphy exemption,” which allowed smaller establishments with “not more than five rooms for rent or hire” to continue discriminating on the basis of race.
As University of Hawaii at Manoa law professor David Forman explained in a 2012 article, this exemption was added to the Civil Rights Act as a compromise that “codified exclusionary policies rooted in our nation’s infamous Jim Crow era.”
Sen. George D. Aiken (R) argued in 1963 that Congress should “integrate the Waldorf and other large hotels, but permit the ‘Mrs. Murphys,’ who run small rooming houses all over the country, to rent rooms to those they choose.” Since these small lodgings are more intimate and personal, Aiken argued, an elderly widow should be allowed to refuse service to Black people if she would fear for her safety by letting them stay in her home.
Many states, including Hawaii, incorporated aspects of the “Mrs. Murphy” exemption in their state-level nondiscrimination protections.
Hawaii’s version of the exemption, however, only appears in its housing nondiscrimination law — and not in its public accommodations law, which applies to any establishment “that provides lodging to transient guests.” That means the exemption does not apply when providing lodging to travelers.
As an appeals court explained in its ruling against Young earlier this year, Hawaii’s lawmakers “conspicuously omitted” the “Mrs. Murphy’s exemption” when otherwise borrowing language almost verbatim from the federal law. It spells out that the exemption would apply if Young rented her rooms as a landlord would to permanent tenant; however, “given Young’s choice to use her home for business purposes as a place of public accommodation, it is no longer a purely private home.”
ADF’s Supreme Court petition contends that the appeals court narrowed the scope of the “Mrs. Murphy” exception in a way Young could never have predicted. It also attempts to frame Young’s business as offering long-term housing. “Many guests stay for weeks at a time,” it argues. “Although nearly all of Mrs. Young’s guests stay less than a month, a few have stayed five weeks or more.”
But five weeks does not a leasing agreement make. As the appeals court outlined, 95 percent of Young’s guests stay for less than two weeks, and 99 percent stay for less than a month. Moreover, 99 percent of the guests are travelers who do not live in Hawaii, making clear the guests are not seeking long-term housing there.
ADF also argues that it’s a violation of Young’s religious beliefs to allow a same-sex couple to stay in the same room of her home. “Mrs. Young is a devout Christian who believes that she is morally responsible for the sexual activity that takes place under her roof,” the petition notes, highlighting that she didn’t allow her daughter to share a room in her home with her live-in boyfriend. Young testified that if “she allows [sinful] activity to happen in her home, she participates in the sin.”
Several conservative religious organizations have chimed in with amicus briefs urging the Supreme Court to take up the case and rule in Young’s favor.
A coalition of groups — including the Billy Graham Evangelical Association, Samaritan’s Purse, the National Association of Evangelicals, Concerned Women for America, Congressional Prayer Caucus Foundation, National Legal Foundation, Pacific Justice Institute — argue the Court should overturn its past precedent to allow business owners to discriminate against any group however their beliefs dictate.
In one passage, the groups cite Lawrence v. Texas — the 2003 case overturning sodomy laws — as an example of how the Court has “frequently noted the special place of the home in the preservation of our freedoms.”
The Ethics & Religious Liberty Commission (ERLC), the political arm of the Southern Baptist Convention, made similar “religious freedom” arguments, including one particularly inventive passage that claims Young “did not refuse, but referred; she did not discriminate, but she declined the business.”
Of all the LGBTQ rights-related petitions awaiting consideration by the Supreme Court, Aloha Bed & Breakfast v. Diane Cervelli makes the most obvious case that civil rights for all groups are fragile. The Jim Crow-inspired “Mrs. Murphy exemption” was designed to allow discrimination on the basis of race, but now could be the vehicle by which the Supreme Court weakens civil rights protections more broadly.