An LGBTQ-friendly vendor was banned from a Fort Worth market. Is this legal in Texas?
Roots Markets banned a vendor from its weekly craft and food fair on Magnolia Avenue because of its support of the LGBTQ+ community, igniting a firestorm of criticism on social media.
“Our business (the Market) has values just like any other business,” the Fort Worth market said in an email to vendor Carlie Alaniz, owner of The Lucky Pot Co, promising to refund her vendor fee. “Our values are biblically based, we do not have the same values as LGBTQ+.”
After Alaniz posted about it, the market received backlash on the decision from users on Facebook and Instagram. Alaniz said she can’t get back the time and effort she spent promoting the event.
That brings forth the question of whether there are any legal protections Texas vendors have in situations such as this one.
To understand these implications, The Star-Telegram asked a Texas A&M University law professor about the laws pertaining to the Roots Markets controversy, including the rights of vendors and whether the market can use its religious values as a basis for kicking out a vendor. Here’s what he said.
Federal law ‘is murky’ on the Fort Worth market excluding LGBTQ+ vendor
Business owners have constitutional rights to exercise their religion, and free speech rights to oppose any viewpoint, Franklin Snyder told the Star-Telegram. And as a matter of pure contract law, anyone can refuse to do business with anyone. You don’t have a right to make someone else sell or buy something from you.
Discriminating in your business based on a protected category (e.g., race, sex or veteran status), however, violates federal and state anti-discrimination laws.
“The U.S. Supreme Court and lower courts have had to face the question repeatedly, and the current situation is murky,” Snyder says.
In Bostock v. Clayton County, the Supreme Court held that anti-discrimination laws apply to LGBTQ people. Since that was a case against a government entity, there was no question of religion, because the government is constitutionally barred from establishing any religious test.
In Burwell v. Hobby Lobby, the court held that businesses can exercise religious freedom in situations where a government rule violates their tenets.
“Theoretically, the constitutional right to free practice of religion should trump the statutory provisions of the Civil Rights Act of 1964, because no statute can infringe on religious rights,” he added.
But in practice, courts have struggled. A Colorado case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, held that a baker who opposed sex transition based on Biblical views unlawfully discriminated when he refused to bake a cake for a gender transition party. That case went up to the Supreme Court, where the baker won on technical grounds, and will probably go up there again, Snyder said. Other courts are wrestling with these issues.
The most recent case, 303 Creative LLC v. Elenis, concerns a Colorado web designer who does not want to design websites for same-sex weddings. The Colorado Anti-Discrimination Act prohibits businesses open to the public from discriminating on the basis of sexual orientation. This will be a test of how the Supreme Court looks at the issue.
“These are going to be very difficult and controversial issues, and we likely won’t know for a decade or so how the lines will play out,” Snyder explained.
In Texas, it’s even more complicated
Such situations are complicated by the fact that Texas has no state law banning discrimination based on sexual identity. Some local governments do, however, so the state is “something of a patchwork,” Snyder says.
Nationwide, certain businesses are held to be places of public accommodation, and cannot discriminate against anyone based on protected grounds. Texas has no such statute. Half of the states that do, however, do not prohibit discrimination on the basis of sexual identity.
While the Roots Market case seems to parallel the Masterpiece Cakeshop case from Colorado, Snyder doubts that Texas courts would reach the same decision without a definitive ruling on the issue by the U.S. Supreme Court.
