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. 

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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