The ‘right to refuse’ service should be protected

A public clash between a pierogi vendor and a celebrity defense lawyer has gone viral over the past few weeks, and brought the ethics and morality of one constitutional right to the forefront of local conversations: the right of service workers and business owners to refuse service. 

The “right of refusal,” as it is known, is protected by the Constitution — provided it’s on the basis of belief, not identity. The 14th Amendment of the U.S. Constitution guarantees the equal treatment of citizens, but refers to state and federal regulations, and does not extend to private conduct. So businesses are legally allowed to restrict access to their establishment. Think: the “no shoes, no shirt, no service” sign hanging across the front door of a local ice cream shop. 

The Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 bring the antidiscrimination piece into play. Under these legislative acts, a business cannot refuse service because of race, gender, religious creed, disability, or ethnicity. A business can, however, refuse service due to political leanings, harassment, or any reason outside of discrimination. 

Our Island, which has a year-round population of about 20,000, surges to more than 100,000 in the summer, as tourists and seasonal residents flock to homes and rentals that represent some of the most expensive real estate in America. The Island’s shops and restaurants that cater to this summer community often experience a clash of cultures, and sometimes there are tensions between those who live here and those who visit. Most recently, those tensions came to the surface at a fold-up table at the West Tisbury Farmer’s Market decorated with colorful signage, selling fresh pierogi. 

A few weeks ago, the vendors of Good Pierogi — owned by year-round residents Krem Miskevich and their spouse Lily Rose — opted out of selling their products to seasonal resident and Harvard Professor Emeritus Alan Dershowitz because of his defense of alleged sex trafficker Jeffrey Epstein in 2008. Dershowitz helped Epstein secure a plea deal and avoid charge prior to the case being reopened, and before he was found dead of an apparent suicide in a New York jail cell in 2019. The Island has many differing views of the Farmers’ Market incident, but there seems to be clear support for the vendor and a growing awareness of the right to refuse service. 

But a point of confusion has been caused by Dershowitz, who has sought to cast the incident in which he was denied service around discrimination against his religious beliefs. In interviews with The Times after the incident, Dershowitz claimed he was denied pierogi on the grounds that he had worn a T shirt with “Proud American Zionist” in a bold font across his chest to the Farmers Market on a prior Saturday morning. He equated his Zionist beliefs with his Jewish identity, and said that therefore, he was denied pierogi on the basis of religious creed. 

There are pertinent facts that create holes in Dershowitz’s legal assertion. The first is that Good Pierogi only operates on Wednesdays, and wouldn’t have seen his “Proud American Zionist” T shirt; Dershowitz was denied on a day when he wore a Farmer’s Market T, which could be seen in a video that has circulated on local and national social media pages. The second point is that even if Good Pierogi had seen his shirt, Zionism is largely defined as a political movement that believes in an established state for Jewish people; it was started by Theodore Herzl in 1897 as an ethno-nationalistic organization, according to sources from the University of Michigan to the Anti-Defamation League. And lastly, as Miskevich wrote in a post on their social media in response to the situation, they are proudly Jewish. 

Miskevich wrote about their intentions in denying service in a statement online: “When he came to our booth, I experienced a surge of emotion. As a chef, I love to share what I cook with the public, regardless of who they are. In this case, what was at the forefront of my mind was the fact that this was the high-profile attorney who represented several sexual predators and abusers, including Jeffrey Epstein. The food we make is a labor of love, it’s our craft. In our minds and hearts, selling to Alan Dershowitz was the equivalent of supporting his decisions and statements.”

This political reason for refusal of service was not just according to the vendors, but also Dershowitz himself. Right after the incident, he can be heard on a recorded video from the scene telling a police officer he was refused pierogi because of his politics. 

“The protected (or what the Supreme Court has identified as ‘suspect’) classes or categories are race, religion, and sex. Political views are protected by the First Amendment. Both the vendor and Alan Dershowitz have a right to express their political views, and if the vendor declines to sell Dershowitz something on the basis of political beliefs, [they have] a right to do so,” professor of law and Chilmark resident Jack Fruchtman said in an interview with The Times. 

Let’s throw some hypothetical scenarios in the ring: A person walks up to a seafood counter insisting they be served by someone who speaks only English, and threatens to call immigration enforcement on workers; a manager can legally tell them they can get their lobster roll elsewhere. A local business owner is a Trump supporter, and doesn’t want to serve anyone who voted otherwise; with a sign on the door and a conversation here and there, they’d be protected in their right to do so. A 16-year-old doesn’t feel comfortable serving a table full of older men who are drinking and eyeing them inappropriately; they don’t need a reason not to serve them — as long as their manager or business owner has their back — as it is their constitutional right to opt out.

At its core, the Farmers Market incident sparked a discussion not only about political beliefs but about safety. In daily practice, the right to refuse service protects workers. There are few other laws that can protect a service worker in the face of the type of bullying that the Island has seen in this case. And there are no laws besides the right of refusal that protect someone before any harm actually occurs, such as physical violence or verbal assault. The right of refusal, for some, is important because it can stop a conflict from escalating before it starts. 

“If someone wants to refuse service to a customer — whether they are rowdy or offensive to staff, or for no reason whatsoever — they can refuse service. They can also go to the police station and get a no-trespass order against that person,” civil rights lawyer and seasonal Vineyard resident Thomas Lesser said in an interview. “You can say to anyone, ‘I don’t want you to eat in my restaurant, for any reason.’ However, that reason can’t be based on a protected category.”

When Dershowitz threatened to sue the pierogi vendors after he was initially refused service, the quick-jump-to-lawsuit may have felt familiar to those who’ve read about cases he’s brought to the courts that have made national headlines. In 2022, a woman named Virginia Giuffre — who was allegedly trafficked by Epstein as a teenager, and survived years of abuse that she detailed in court documents — recanted her claims that Dershowitz was one of the clients she had been forced to be intimate with after a lawsuit by Dershowitz was settled out of court. He has also sued CNN, Netflix, and TD Garden within the past decade, according to a recent Boston Globe article that outlined his many spats and suits. 

Protection is hard to ensure for individuals faced with potential violence when the perpetrators are well-connected. The right to refuse provides that protection. It’s the dam at the beginning of a proverbial river that some people play in, while others drown. Some local workers and business owners have decided it’s best not to get in the water at all. If a guest is drunk, belligerent, asking an underage server to go home with them, or name-calling, it’s the right of the business to remove that person and err on the side of the worker’s sense of safety — they are not obligated to wait until such behavior begins. 

Most individuals only speak out about possible harm when they strongly believe they won’t be in a difficult position between the law and an individual who has good lawyers on their side. Those who have seen the proof that the right of refusal is crucial to workers’ safety are the ones who pour the morning coffees, stack plates across their left arms, and stir old-fashioneds as guests lounge on cushioned bar seats. 

Standing their ground at a folding table on that morning in the Farmers Market, the vendor may not have intended to cite one of the most important laws that exists for service workers and business owners. But it’s a good thing they did. Upholding workers’ rights is crucial, especially on an Island where so many young people and marginalized groups serve local businesses. We all owe it to one another to be well-versed in the constitutional laws that protect the people who live and work on our Island.