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Can You Be Arrested for Not Serving Gays?

Wednesday afternoon, Arizona Gov. Jan Brewer vetoed a controversial anti-gay bill that would have allowed businesses that asserted their religious beliefs the right to deny service to gay and lesbian customers, CNN reports.

But what happens if a business owner in Phoenix balks at Brewer's veto of SB 1062 and refuses to serve gay customers, anyway? More specifically, can he or she be arrested?

The answer will turn on whether it's viewed criminally or civilly.

Civil Liability: Public Accommodations

Federal and state laws prohibit discrimination against certain protected groups in businesses and places that are considered "public accommodations," covering most businesses that are open to the general public. However, not all public accommodation laws cover sexual orientation discrimination.

In much of Arizona, the veto of SB 1062 is not a big deal because under Arizona law, gays have no protections from discrimination at businesses or public accommodations. That means despite the veto, businesses in these places cannot be sued for sexual orientation discrimination because it's not against the law in the first place.

But the veto does have an impact on places like Phoenix, which prohibits sexual orientation and gender identity discrimination. In Phoenix, gays who are discriminated against can sue the business for damages.

Before filing a lawsuit, a person in Phoenix who suspects he or she has been discriminated against in a public accommodation must first file a complaint with the Equal Opportunity Department Compliance and Enforcement Division.

Criminal Penalties: Criminal Contempt of Court

Getting arrested for refusing to serve a gay customer is a very different matter. One possibility for an arrest is if a business owner engages in criminal contempt.

Criminal contempt of court refers to behavior that disobeys, offends or disrespects the authority or dignity of a court. It can occur directly, in the presence of the court, or indirectly when it happens outside the presence of the judge.

Again, in areas of Arizona where sexual orientation discrimination is not recognized, businesses will not face contempt issues. But in places like Phoenix, they can.

For example, a judge can order those who refuse to bake a gay couple's wedding cake or refuse to take a gay couple's wedding photos to comply with the law via court order. If the business violates the court order and continues to discriminate against its gay customers, the person refusing service can potentially be arrested for criminal contempt of court.

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