Tuesday, July 07, 2020
Hawai'i Free Press

Current Articles | Archives

Saturday, February 24, 2018
Vacation Rental Home Is "Public Accommodation" -- Lesbians are Mandatory
By Robert Thomas @ 3:15 AM :: 4399 Views :: First Amendment, Small Business, Tourism

HAWICA: Vacation Rental Home Is "Public Accommodation," And Can't Discriminate Based On Sexual Orientation

by Robert Thomas, InverseCondemnation, February 23, 2018

Here's one from the Hawaii Intermediate Court of Appeals, Cervelli v. Bufford, No. CAAP-13-896 (Feb. 23, 2018), in which the court considered whether homeowners who rented out rooms in their home to the public, but refused to do so to a lesbian couple, violated Hawaii's public accommodation laws, or were sheltered from the statute by the Free Exercise Clause and other constitutional provisions.

In short, the court held they could be held liable, even though it is their home, first concluding that renting out a room in your home qualifies as offering a public accommodation, even though it is your residence. The owners advertise and offer rooms to the general public on their website and through third-party websites, rent to a large number of people (up to 200 nights per year), and pretty much takes all comers "aside from same-sex couples and smokers." Slip op. at 11.

The potential renters here inquired if a room was available, were told it was, and then informed the property owner that they were a same-sex couple. After which the owner denied accommodation. The only reason provided was the same-sex relationship.

The court first concluded that Hawaii's anti-discrimination statute governed this case even though it involved a home in which the owners resided, because it covers things like hotels, motels, and inns, and also covers establishments "that provide[] lodging to transient guests," which would include a home. Or at least not automatically exclude a home.  

The most interesting portion of the opinion -- the analysis of the property owners' Free Exercise and other constitutional defenses -- begins on page 18 of the slip opinion. The owners asserted that as "strong Christians," they were opposed to renting a room in their home to a couple in a same-sex relationship and had a constitutional right to refuse to do so. The court acknowledged a homeowner's right to be left alone and to privacy and free association and religion, but concluded that the owners "opened up" their home to over 100 customers per year, for money, and thus had effectively forfeited those rights in the rooms. (In more technical terms, the court concluded that even applying strict scrutiny, the State has a compelling interest in prohibiting discrimination on sexual orientation, and that the owners' interest do not outweigh that.) The court disposed of the remainder of the owners' constitutional claims on similar grounds. 

The opinion doesn't discuss the Masterpiece Cakeshop case now pending before the U.S. Supreme Court, which presents a similar, but not identical issue. Unlike that case, the Cervelli case doesn't involve claims that the proprietor is an "artist" and is being required to perform some unique service.

The long and the short of this opinion seems to be that if you use your home like a hotel, you are going to be treated like a hotel: "In other words, the success of Aloha B&B's business requires that [the owners] not be left alone." Slip op. at 20. We think that pretty much sums it up. 


Big Q: Do you think that a bed-and-breakfast owner broke the law by refusing to lodge a lesbian couple?

PDF: Cervelli v. Bufford, No. CAAP-13-0000806 (Haw. Ct. App. Feb. 23, 2018)    

2013: Judge rules against Christian innkeeper who refused to rent bedroom to lesbian couple

2013: Judge: Lesbians Can Force Their Way into Your Home if You Rent Out Rooms


TEXT "follow HawaiiFreePress" to 40404

Register to Vote


808 Silent Majority

808 State Update AM940


ACA Signups Hawaii



Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii



Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust 

Build More Hawaiian Homes Working Group

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute


Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

CSIS Pacific Forum

DAR Hawaii


DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii


Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute


Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling



Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube


Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes


Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group


Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii



National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Hawaiian

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii


OHA Lies

Opt Out Today


Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii



Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Save Dillingham Airfield

School Choice in Hawaii


SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu


West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii