Abstract
The New York Rangers and New York Knicks regularly play their home games at Madison Square Garden Arena in New York. However, the operator recently decided to stop allowing a certain group of people into the arena: lawyers who work for firms that are litigating against the operator in court.
Facial recognition devices have been placed outside the entrances to the arena, and attorneys have stopped being allowed into basketball and hockey games. The goal is to ensure that attorneys think twice before suing the operator.
The Czech Constitutional Court ruled in the area of discrimination and freedom of expression, or the right to do business, in its ruling II. ÚS 3212/18, approving the conduct of a hotelier who conditioned accommodation in his hotel for citizens of the Russian Federation on signing a declaration that he disagreed with the annexation of Crimea. The dispute is interesting in that, while in general consumer discrimination disputes (especially in the United States) are currently hotly contested in relation to the conflict between freedom of religious expression on the one hand, and the right not to be discriminated against (usually on the basis of sexual orientation) on the other, in the Czech case the conflict is with opinion or political orientation.
Although it could be argued that political opinion is not nearly so existential and "binding" a restraint for a person to serve certain groups, the Constitutional Court's ruling argued strongly for freedom of enterprise at the expense of the general prohibition of discrimination, and limited the grounds that constitute "prohibited" distinctions to a closed list of characteristics such as skin color, religion, gender, and so on. At the same time, it departed from the standardized test for discrimination, and instead constructed a new one.
Did the court do the right thing? Should it not have settled for the previous judgment of the Supreme Administrative Court and the discrimination test that both it and the European Court of Human Rights have repeatedly tested? Has it been too lenient with businessmen, and has he not forgotten the customers altogether? Has the court's ruling not opened up the possibility of trying creative distinctive strategies such as those faced by colleagues in New York? The aim of my contribution is to evaluate the ruling II. ÚS 3212/18 and to reflect not only on these pressing questions.