legal notes T R A N S L AT I N G T H E L A W F O R Y O U
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Do I Have to Sell to Him? BY STEPHEN M. PERRY, ESQ ., Casner & Edwards, LLP We’ve probably all heard stories about the expansion of political disagreements into retail establishments. A restaurant in Virginia refused to serve the President’s former press secretary. A burger franchise in Alabama declined to serve police officers. A New York City bar refused admittance to a patron who was wearing a MAGA hat. Meanwhile, store workers have been shot for asking patrons to wear a mask, a request that itself has become embroiled in politics.
Those involved in real estate transactions are not immune from the extreme political divide that grips our country. Owners of real estate who are listing those properties may very well say, “I won’t sell to anyone who supports [fill in the blank].” What does the law have to say about the injection of politics into the world of real estate sales? Is it lawful for a property owner to refuse to sell real estate to those whose political views are deemed offensive to the property owner? The case of the disgruntled wearer of a MAGA hat who was refused admittance to the bar, he actually went to court. The bar won. The judge determined that applicable federal and New York law protected discrimination on account of race, religion, and gender, but not discrimination on account of political beliefs. As fervent as some of the President’s supporters may be, the judge rejected the plaintiff’s argument that his wearing a MAGA hat was a bona fide part of his religion. And the plaintiff’s First Amendment rights to freedom 8
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of speech did not come into play because the First Amendment only restricts the actions of governmental bodies and not private establishments. Some commentators have opined under similar reasoning that there was no legal problem a few years back when a woman in California instructed her real estate broker not to entertain any offers on her house from Donald Trump supporters. They pointed out that the fair housing laws do not protect against discrimination on account of political beliefs. While it is true that political beliefs, as such, are not protected by the fair housing laws, things may not be so simple as that. To illustrate this point, let’s go back to the situation with the bar. Only this time, suppose
that it was a bar in Birmingham, Alabama, and that it put up a sign stating that only registered Republicans would be allowed to enter. This would likely keep out the overwhelming majority of Black patrons. In fact, it would be a pretty good way of bringing back the Jim Crow laws. For that reason, even though the civil rights laws do not protect against political discrimination, a refusal to admit into the bar those who were not Republicans would almost certainly constitute unlawful race discrimination. The same problem would potentially apply in the real estate scenario if sellers were to advertise their property with a statement that said, “Democrats need not apply.” On the face of things, this advertisement might seem to be addressing
