The Washington PostDemocracy Dies in Darkness

Did the Red Hen violate Sarah Huckabee Sanders’s rights when it kicked her out?

Stephanie Wilkinson, owner of the Red Hen restaurant in Lexington, Va., asked White House press secretary Sarah Huckabee Sanders to leave on June 22, 2018. (Video: Allie Caren, Dalton Bennett/The Washington Post)

Celebrities of the mid-20th century flocked to the Stork Club, a swanky Manhattan nightclub then considered to be one of the most prestigious in the country. Among the patrons one night in 1951 was Grace Kelly, a young actress on the cusp of her film career. She noticed that the club refused to serve entertainer and activist Josephine Baker, probably due to her race, and the two women walked out of the establishment arm in arm.

Film historian Lara G. Fowler tweeted this anecdote Saturday night with the hashtag #Restaurants4Sarah, in reference to White House press secretary Sarah Huckabee Sanders being asked to leave a Virginia restaurant on Friday due to her support for what the owner called an “inhumane and unethical” administration. The Stork Club would have seated Sanders, Fowler wrote, but it wouldn’t have served Baker, an “upstanding citizen who helped in the French Resistance.”

The latest sign of political divide: Shaming and shunning public officials

The awfulness of what happened to Baker is black and white from a modern legal perspective, as denying service on the basis of race violates federal law. But recent events — including the Sanders incident, a trans woman being asked to leave Cuba Libre in Washington and the Masterpiece Cakeshop case — highlight the confusion around the legality of refusing service.

The incidents have been discussed in conjunction with one another, but civil rights attorney Alexandra Brodsky said the only substantial similarity is that “they underscore what an affront to a person’s dignity it is to be turned away.”

“Restaurants and stores turning away queer and trans people is part of the systemic discrimination that these customers face in all facets of their life,” Brodsky said. “Sarah Sanders is one of the most powerful people in the country right now, and the ideology she espouses and for which she was asked to leave is the reason we have public accommodations laws for other people.”

Those laws often differ on a state-to-state basis, though the Civil Rights Act of 1964 includes race, religion, national origin and color as factors that make discrimination illegal everywhere, according to Washington University law professor Elizabeth Sepper. While political affiliation is a protected trait in the District, the same cannot be said for Lexington, Va., where Sanders visited the Red Hen. According to the ACLU, only the District, Seattle and the Virgin Islands specifically protect people from being refused service because of their political affiliation or ideology.

The owner of the Red Hen explains why she asked Sarah Huckabee Sanders to leave

David Cole, ACLU national legal director, told The Washington Post’s Mary Jordan he doesn’t support the Red Hen’s actions. “I think it’s wrong, but under most jurisdictions’ laws, it has not been made illegal,” he said.

Sepper, on the other hand, said Sanders was denied service based on her individual actions, not because she is registered as a Republican. Restaurants reserve the right to boot someone out for a trait that is not protected. “If your boss fires you and you open a business and only refuse to serve your former boss, that’s not a violation of discrimination law,” Sepper said.

Charlie Gerstein, a D.C. civil rights lawyer, put it this way: “You can kick someone out of your restaurant because you don’t like her, because she was mean to you in high school.”

J. Kenji López-Alt, a cookbook author and Serious Eats columnist who is also chef and partner at Wursthall in San Mateo, Calif., said he would ask a customer to leave “if they make other guests or my staff uncomfortable. So basically, if you’re a jerk, you get asked to leave. If you’re in a job where you’re publicly a jerk or a liar, we don’t have to find out you’re a jerk in the restaurant, because we know you are.”

What if the restaurant is in a state that doesn’t include sexual identity as a protected trait, and, López-Alt said, “What if your customer is ‘being gay’ in front of your staff, and your staff doesn’t like gay people?” Is there a double standard? Yes, he said. “In some cases I’d ask the customer to leave, and in other cases, I’d say I hired the wrong person, and I’d ask that staff person to leave.”

Washington is an especially interesting place to consider how politics can influence a dining experience, given the wide swath of politicians present; just look to last week’s protest of Homeland Security Secretary Kirstjen Nielsen’s policies at MXDC Cocina Mexicana for proof.

Everything Trump got wrong about Red Hen, in one tweet

Diane Gross, co-owner of Cork Wine Bar, said she has hosted prominent figures “of various political persuasions” and would never ask a customer to leave unless they were being disruptive.

“I think the bottom line is that we’re in the hospitality industry, and we need to be hospitable,” said Gross, who filed a lawsuit with her husband alleging President Trump’s ownership of the Trump International Hotel constitutes unfair competition that damages their business. “That’s why we do this, to welcome people into our restaurants or hotels or other hospitality establishments and provide folks with the same level of service regardless of who they are or what their political affiliation is or their background or whatever.”

Some patrons experience anything but hospitality in places of public accommodation.

A manager at Cuba Libre in the District recently threatened to call the police after Charlotte Clymer, a trans woman who works as an activist and spokeswoman with the Human Rights Campaign, refused to show a male attendant her ID before using the women’s restroom. She knew she was in the right and showed the manager D.C.’s Human Rights Act on her phone, she told The Post’s Amy B Wang on Sunday, but was still kicked out. Clymer’s experience echoes that of characters on recent episodes of the FX series “Pose,” set in 1980s New York City. Two trans women visit a gay bar and are eventually kicked out after a manager tells them he isn’t interested in hosting “a costume party.”

Transgender woman says she was asked for ID to use restroom, then kicked out of D.C. restaurant

A recent survey found 53 percent of 6,450 transgender and gender nonconforming respondents had been “verbally harassed or disrespected in a place of public accommodation, including hotels, restaurants, buses, airports and government agencies.”

Sepper also related Clymer’s experience to that of Charlie Craig and David Mullins, the Colorado couple who in 2012 were denied a wedding cake due to the Masterpiece Cakeshop owner’s religious opposition to their marriage. The Supreme Court handed down a narrowly worded 7-to-2 ruling in the baker’s favor earlier this month, leaving undecided whether religious beliefs or free speech rights can justify a business’s decision to refuse services to gay people.

Sanders “is not being denied service based on any sort of group category or affiliation,” Sepper said. “In some sense, she’s being denied service on a very individual level.”

Some state statutes against discrimination in public accommodations date back to the 1880s, according to Sepper. A number of Northern states codified common law to make it clear that service could not be denied to newly emancipated racial minorities, she said, but this didn’t affect segregation, which persisted throughout the Jim Crow era.

“I think we’re living through a time where people are starting to be reminded that equality in public places matters a lot and tends not to impose economic harm,” Sepper said. “We saw that with the Starbucks case, right? Black citizens in Philadelphia being evicted from a business when their fellow white citizens were not, doing the exact same thing.”

Dining out is politics, López-Alt noted, as where you choose to eat shows your support for the institution. Similarly, whom you serve at your restaurant can show where you stand on certain issues.

“You’re not just eating in a bubble, right?” he said. “To say as a restaurant that your job is to serve the customer and that’s it, that’s not true. As a restaurant owner, you’re also a real person and you’re putting a message out there, whether you want that to be a pleasant message or not.”

More from Food:

A brief look at Trump officials’ eventful visits to D.C. Mexican restaurants

Restaurant industry vows to fight D.C. voters’ move to raise tipped workers’ pay

The culinary diplomacy of the Trump-Kim summit lunch menu