Can a Restaurant Refuse to Serve Anyone at Will?
The reports of this incident indicate that the local police are either ignorant of or grossly indifferent to the relevant law. First, the El Paso Times article quotes a local police officer (without indicating whether he responded to the call), who states that police could have charged the men with "criminal trespass" because:
Every business has the right to refuse service. They have the right to refuse service to whoever they don't want there. That's their prerogative.This comment, however, is grossly misleading. While places of public accommodation can decline to serve or host individuals, they cannot do so in a manner that violates antidiscrimination laws. For example, the restaurant could not have lawfully turned away black, white or Asian-American diners because of race (ask Denny's).
Although federal laws and the laws in most states do not prohibit places of public accommodation from discriminating on the basis of "sexual orientation" or "gender identity," an El Paso civil rights ordinance does. Accordingly, restaurants in the city cannot lawfully discriminate against GLBT customers. Therefore, unless Chico's Tacos bans kissing by all diners -- which is highly unlikely -- then it has discriminated on the basis of sexual orientation and violated the ordinance.
The fact that the restaurant ejected all of the gay males -- even the three who did not kiss -- only bolsters the evidence that this incident was purely about discrimination. Also, the guards' alleged use of anti-gay epithets and the police officer's false assertion that homosexual conduct is illegal (see below) prove discriminatory motivation as well.
Does Texas Law Ban Gay and Lesbian Kissing?
Another police distortion surrounds the responding officer's statement that he could arrest the men because Texas law bans "homosexual conduct." Most of reports correctly indicate that in 2003, the Supreme Court invalidated a Texas statute that prohibited homosexual conduct (see Lawrence v. Texas). That law, however, only prohibited oral or anal sex -- not kissing -- between two people of the same sex. Accordingly, the police officer was wrong to threaten the individuals with arrest for two reasons. First, Texas law does not ban same-sex kissing, and six years ago, the Supreme Court invalidated a state law that banned gay and lesbian sex.
Conclusion: Sue the restaurant and the police for clear violations of the law. The end.