PUBLIC ACCOMMODATIONS UNDER THE CIVIL RIGHTS ACT OF 1964: WHY FREEDOM OF ASSOCIATION COUNTS AS A HUMAN RIGHT
By Epstein, Richard A | |
Proquest LLC |
On its fiftieth anniversary, Title II of the Civil Rights Act of 1964 enjoys widespread social support on all sides of the political spectrum. That support is fully deserved to the extent that the nondiscrimination in public accommodations provisions offset the monopoly power of common carriers and public utilities, or neutralize the abusive application of public power and private violence to suppress the free entry of firms that would otherwise target minority customers in competitive markets.
The subsequent expansion of Title II's nondiscrimination principle becomes much more difficult to justify, however, when applied to normal businesses when segregationist forces no longer hold sway. In particular, these principles are suspect when applied to membership organizations that care about their joint governance and common objectives. In these cases, the principles of freedom of association should constitutionally protect all groups, even those that do not fall under the uncertain rubric of expressive associations.
The application of the modern antidiscrimination rules for public accommodations to Christian groups who are opposed to gay marriage on moral principle represents a regrettable inversion of the original purpose of Title II, using state power to force these groups to the unpalatable choice of exiting the market or complying with these modern human rights laws that prohibit any discrimination on grounds of sexual orientation. These rules should be struck down even if the other antidiscrimination prohibitions represent a group of settled expectations that no one today wishes to overturn.
INTRODUCTION
The fiftieth anniversary of the passage of the Civil Rights Act of 1964 has been, and will continue to be, a source of remembrance and reflection. Like many people of my generation, I believed then, as I believe today, that its passage was a defining moment in American culture, which had for far too long tolerated state-sanctioned segregation backed by massive social intolerance. At the time, the civil rights movement had priorities that are accurately reflected in the order of its particular titles. Title I, which dealt with voting, was first and foremost on everyone's mind because the overt and systematic exclusion of African Americans from the polls was as complete an affront to full citizenship as anyone could imagine. Next in line was Title II, which dealt with the question of public accommodations. Title VII, which dealt with employment discrimination, was way down on the list, as it should have been.1
Title II was passed when memories were still fresh of the many indignities that had been inflicted on African American citizens on a routine basis. It took little imagination to understand that something was deeply wrong with a nation in which it was difficult, if not impossible, for African American citizens to secure food, transportation, and lodging when traveling from place to place in large sections of the country. In some instances, no such facilities were available, and in other cases they were only available on limited and unequal terms. As someone who came of age (quite literally) when the Civil Rights Act was passed, it is easy to recall how widespread moral outrage propelled the statute to its passage. The sit-ins in Southern and border states were still fresh in the memories of the general public.2 Those memories come flooding back with more recent historical accounts of the earlier times. Just recently, I read
In one sense, therefore, it is proper to treat the fiftieth anniversary of Title II as occasion for unrestrained celebration of legislation that has both met and exceeded the expectations at the time of its passage. But at the same time, the passage of a successful piece of legislation should give rise to at least some level of reflection about the principles on which that legislation rests and their soundness for general applicability. On this score, the inquiry goes off on two branches. For the first, it turns out that the original design of Title II contains its fair share of conceptual and practical difficulties, relating both to the terms of its passage on the one hand and its precedential value on the other. The para- digmatic case of Title II's application in 1964 was against monopolists who used their powers of exclusion to limit the options of politically vulnerable per- sons.6 Historically, the dominant white segregationists who controlled the polls, the police, and all key government positions exercised in combination a level of state monopoly power that no simple public utility could hope to match. It was against the backdrop of this unified phalanx that the passage of the Civil Rights Act of 1964 has to be understood.
For the second, the resurgence of Title II-type obligations under modern "human rights laws" indicates a serious and regrettable reversal of fortune with respect to the basic function of this legislation. Under pressure from modern civil rights advocates, the worm has unfortunately turned, as people have lost sight of the evils that a public accommodations law should combat. The new application of the next generation of human rights law has the exact opposite orientation: may the state force small and isolated businesses, often with Chris- tian beliefs, to violate their bona fide religious beliefs in order to provide ser- vices in highly competitive market segments? The fact that the two problems are both seen to justify strong government intervention offers powerful evi- dence of an unfortunate change in the dominant social attitudes toward the pub- lic use of force.
In order to work out the development of this theme, I shall proceed as fol- lows. In Part I, I shall set out in brief fashion the essential structure of Title II, which, at least in form, has become the template against which all modern hu- man rights laws are measured. In Part II, I shall examine the substantive sound- ness of the modern civil rights laws when tested against the standards for anti- discrimination laws developed in various common law contexts. In so doing, I shall pay special attention to the controversial critique of public accommoda- tion laws offered by the late Robert Bork in
I. THE STATUTORY SCHEME
In order to put this inquiry into perspective, it is critical to set out the spe- cific guarantees contained in Title II, paying special attention to their scope and underlying rationale. The initial section sets out the basic guarantee: "All per- sons shall be entitled to the full and equal enjoyment of the goods, services, fa- cilities, privileges, advantages, and accommodations of any place of public ac- commodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin."8
Once that is established, subsection (b) of the legislation then lists the types of accommodations that fall within the general ambit of the Act.
Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State ac- tion:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occu- pied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the prem- ises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
(4) any establishment (A)(i) which is physically located within the premis- es of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.9
These provisions have to be read in light of the narrow exemption that is found in subsection (e), which reads: "The provisions of this title shall not ap- ply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b)."10
In addition to these basic coverage provisions, Title II also contains subsec- tions (c) and (d), which are intended to secure the proper constitutional basis for the substantive provisions just set out above. Thus subsection (c) offers a very broad definition of what it means for the "operations of an establishment" to "affect commerce," which includes the service at these establishment of in- terstate travelers or the use of food, gasoline, or other products that "move[] in [interstate] commerce."11 Subsection (d) then gives a definition of the meaning of state action under the provision, which includes all conduct carried out under the color of state law or custom or required by any state or political subdivision thereof.12 There is no question that these provisions received extra attention in order to avoid the fate of the Civil Rights Act of 1875,13 which had been de- clared unconstitutional in the Civil Rights Cases on the ground that "[i]ndividual invasion of individual rights is not the subject-matter of the [Four- teenth] Amendment."14 Nor could the Civil Rights Act of 1875 reach those forms of private action that were outside the scope of interstate commerce as that phrase was understood at the time, which roughly speaking was limited to any journey that involved two or more states.15 It is commonly overlooked-I plead guilty to the offense-that Title II does not explicitly apply to retail es- tablishments,16 which thus fall into a limbo between the explicit command of Title II and its narrower exception, which has been plugged in large measure by the human rights laws of the next generation.17 It is worthwhile examining both the substantive soundness of the basic provisions of Title II and its constitu- tional basis in some detail. It is equally important to note that the Commerce Clause restraint drops out with respect to state human rights laws, even though the various property right restrictions on government remain very much in play.
II. SUBSTANTIVE SOUNDNESS
In the run-up to the passage of the Civil Rights Act of 1964, most serious commentators had little doubt about the moral imperative behind passage of Title II of the Act. In light of the earlier court precedents, they were far more worried about its constitutional foundations for congressional action. The nota- ble exception to that consensus was the ever-contrarian Robert Bork, who in
The legislature would inform a substantial body of the citizenry that in order to continue to carry on the trades in which they are established they must deal with and serve persons with whom they do not wish to associate. In part the willingness to overlook that loss of freedom arises from the feeling that it is ir- rational to choose associates on the basis of racial characteristics. Behind that judgment, however, lies an unexpressed natural-law view that some personal preferences are rational, that others are irrational, and that a majority may im- pose on a minority its scale of preferences. The fact that the coerced scale of preferences is said to be rooted in a moral order does not alter the impact upon freedom. . . . Of the ugliness of racial discrimination there need be no argu- ment (though there may be some presumption in identifying one's own hotly controverted aims with the objective of the nation). But it is one thing when stubborn people express their racial antipathies in laws which prevent individ- uals, whether white or Negro, from dealing with those who are willing to deal with them, and quite another to tell them that even as individuals they may not act on their racial preferences in particular areas of life. The principle of such legislation is that if I find your behavior ugly by my standards, moral or aes- thetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.18
That passage, especially its last four words, has provoked outrage that has spanned generations. Although Bork tried to distance himself from this piece, mere recollection of the phrase helped doom his 1987 nomination to the
Let us start with the positive. There is little doubt that Bork is correct on his major premise that it is difficult to conceive of how a society can flourish if it does not respect the basic principle of freedom of association-the funda- mental right that all individuals, regardless of race, sex, or age, have to choose the persons with whom they choose to do business. The logic behind this free- dom of association principle runs as follows: Any legal system has to contain rules that first keep people apart (so that they will not kill each other). Yet at the same time, people have to be able to engage in various relationships with other individuals in order to reap the gains from voluntary interaction.
Those gains can come about in two distinct ways. The first is through sim- ple acts of exchange whereby one person sells goods or services to another. The basic economic logic of that exchange is that that the seller values the cash (or other nonmonetary consideration) received more than the goods or services sur- rendered, while the buyer values the goods or services received more than she does the cash used to pay for them. Both sides thus benefit from the transaction, and each is in a position to make better use of the consideration received than of that surrendered. The seller can choose to use his added wealth to acquire or make new goods for sale, and the buyer can use her goods either for consump- tion or resale. A successful transaction sets the stage for further beneficial in- teractions with each other and with third parties. Legal systems may huff and puff about the exact conditions for valid exchanges, but they all recognize the category of sales and, along with it, similar two-party arrangements like leases, mortgages, bailments, and the like.
The second source of potential gains does not involve transfer, but coop- eration. Two or more individuals can pool their capital or labor in some form of partnership where they divide the gains as they see fit, typically in accordance with their respective contributions. These arrangements are governed by a full set of legal and social norms. The constant need for cooperation requires a higher level of affinity between parties. Many of their obligations are cast in the slippery but necessary terms of good faith; in essence, treat the welfare of your partner as equal to your own. One reason why parties are allowed to select their associates is that they pick those whom they tend to trust, which in turn creates a social glue that reduces the burden on the purely legal sanctions that are put in place to protect each trading partner against the potential default of others.
It is, of course, an open question just how much trust is involved in differ- ent kinds of relationships, or indeed among different relationships in the same class. As a rough generalization, people care a lot more about the choice of their long-term business associates than they do about the personal identity of people with whom they trade standard goods, at least in situations involving mass-produced goods. Hiring a worker is not like walking through the checkout line at
The most important goal of public policy in this context is to make sure that government officials remember how little they know about the internal dy- namics of the full range of voluntary transactions. These transactions are all en- tered into by different parties, each with its own internal structure, history, and personnel. The organization makes its judgments with a full range of infor- mation that is not obtainable by outsiders no matter how hard they work. Any internal conflicts of interest-so called agency costs20-of which there are many, are tiny in comparison with the conflicts of interest between the business as a whole and its regulators who have no stake in the financial viability of the firm. Decentralization of public institutions thus is the order of the day.21
It is therefore correct for any sound legal system to grant individuals free- dom of choice in the full range of exchange and cooperative contexts. At one level, Bork's position was so correct as a theoretical matter that it is hard to see what the shouting was about in 1963. But shouting there was, and even when that subsides, there are valid sources of criticism. I will not talk at length about Bork's misuse of natural law theory, except to say that orthodox natural law theory lends no support to the proposition that "some personal preferences are rational, [and] that others are irrational."22 Quite the opposite, it assumes that these preferences are personal and subjective and devotes its energy to articu- lating the set of rules in which these preferences can be maximized in the famil- iar fashion-controlling aggression and allowing for voluntary cooperation along lines that rest on a deeply utilitarian foundation.23 But if we put his un- necessary philosophical digression to one side, there remain two important questions on which Bork falls short. The first is getting a proper theoretical un- derstanding of the duties of common carriers. The second is adjusting social theory to take into account that the sometime manifest imperfection of power structures throughout
A. Common Carriers
One striking feature of Bork's 1963 article was that it was written at the time that he was immersed in his articulation of a general theory of antitrust law. The central tenet of that theory, which he developed in connection with
Normatively, I think that there is a great deal to be said for this approach. The office of antitrust law is to distinguish between competition and monopoly and to make sure that legal intervention promotes the former and hampers the emergence of the latter. When Bork entered the antitrust field in the early 1960s, most mainstream antitrust scholars thought that the law should serve all sorts of collateral objectives, including protecting small businesses against the rigors of competition.26 Bork did much to counteract those diversions in the law, arguing against the common belief that the simultaneous pursuit of multi- ple objectives counts as some kind of social benefit. Bork was right to insist that the embrace of multiple inconsistent objectives often leads to intellectual confusion and the perpetuation of unwanted social losses.
It is therefore a matter of great irony that the most glaring defect in Bork's critique of Title II stems from his failure to recognize that antitrust law is not the only body of legal rules that is directed toward the control of monopoly. Of equal, or perhaps greater, importance is the legal response to the problem of natural monopoly that emerged somewhat earlier in the English law than did antitrust law, here in connection with those businesses that were, for good rea- son, deemed "affected with a publick interest."27 The key historical text for these purposes is Lord Chief Justice
Those conditions do not hold with wharfs and cranes, and so the rule is otherwise. As Hale explains:
If the king or subject have a publick wharf, unto which all persons that come to that port must come and unlade or lade their goods as for the purpose, because they are wharfs the only licensed by the queen, according to the stat- ute of I. El. cap II. or because there is no other wharf in that port, as it may fall out where a port is newly erected; in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, [etc.,] neither can they be inhanced to an immoderate rate, but the duties must be reasonable and moder- ate, though settled by the king's license or charter. For now the wharf and crane and other conveniences are affected with a publick interest, and they cease to be juris privati only . . . .
. . . But in that case the king may limit by his charter, and license him to take reasonable tolls, though it be a new port or wharf, and made publick; be- cause he is to be at the charge to maintain and repair it, and find those conven- iences that are fit for it, as cranes and weights.28
From this short passage, so is the business of general rate regulation born. The owner of these wharfs and cranes, or what became to be known as "essen- tial facilities,"29 is first subject to a limit on what he can charge. But by the same token, he is entitled to receive sufficient revenues to allow him to main- tain his business. That basic condition in turn requires that he be allowed to re- cover the costs of his operation, both sunk and continuing, and make a competi- tive rate of return on that investment, lest he take his capital elsewhere. In modern terms, the obligation is to respect the commitments to charge reasona- ble and nondiscriminatory rates, typically called RAND or FRAND obliga- tions, where the F stands for "fair."30 The former requirement is to squeeze out the monopoly profits without exposing the regulated industry to the risk of con- fiscation. The latter requirement is intended to make sure that the monopolist does not use its power over price to discriminate between more and less fa- vored customers, including such divisions by race.
I have written at great length of the many pitfalls that befall any effort to set the rates needed to avoid the twin risks of monopolization by the firm and confiscation by the state.31 But in these instances, much of the difficulty is eliminated by the nature of the problem. In dealing with routine passenger traf- fic, there is no reason to discriminate in the treatment that is given to two cus- tomers on the same train or bus. Any system of rate regulation can set the ap- propriate tariffs. But unlike cases where the cost of service depends on the na- nature of the goods that are shipped, there is a strong presumption that there is no reason to vary the rates charged to different customers in order to prevent any form of cross-subsidization, which, although widely practiced, is not ap- propriate here any more than it is in competitive markets. The straightforward application of the nondiscrimination rule offers a powerful response to the dan- gers of racial segregation, without having to resolve the separate question of what rates should be regarded as reasonable. It is for that reason that the prob- lem of setting rates for ordinary passengers is relatively easy, at least compared to the business of setting rates for public utilities, where different classes of us- ers require, arguably, very different forms of treatment because of major differ- ences in the cost of providing service to them. To be sure, any modern transpor- tation (or hotel or leasing) system takes steps to allow rates to shift in response to changes in demand and cost, so that no one expects that all passengers sitting on the same airplane have paid the same price for their tickets. But if time of departure or time of ticket purchase or method of purchase matter in this mar- ket, race surely does not. It is hard to imagine any principled exceptions to this general rule, but, if any occur, they should be dealt with only when they arise, and not in setting the basic business framework. For example, unruly persons can be expelled from public transportation facilities for misbehavior, and if they engage in repeated offenses, they can be barred from use of the facilities altogether, even if that expulsion policy has some differential effect by race. On matters of sex, the historical record is a bit more complicated. In some docu- mented instances, the boorish behavior of male passengers justified the use of special ladies' cars to forestall various forms of sexual harassment.32
The topic of common carriers deals extensively with various exercises of monopoly power, and thus overlaps with the topics of antitrust that preoccupied Bork at the time he wrote his
It is, of course, the case that Bork repudiated his 1963 article in his book The Tempting of America, where he wrote: "My position was incorrect be- cause . . . there are no general principles to decide competing claims of associa- tion and nonassociation."34 As was often typical of Bork, he leaped from one extreme to the other. In this context, the monopoly control position offers a principled way to deal with the rival claims. By moving to a kind of theoretical skepticism about this issue, Bork adopted a position that links all too well with his later affection for pure majoritarianism. If it turns out that no theory can re- solve this profound difference, then the political majority might as well have the last say on that issue, at least until the winds of fortune shift in the opposite direction. In contrast, the monopoly control theory does not shift with the polit- ical winds, an important consideration given the massive shifts in political power since the passage of the Civil Rights Act of 1964, as is evident from the most cursory account of the historical realities leading up to the passage of that law.
B. The Historical Reality
As is evident from the text of Title II, its focus on luncheon counters in res- taurants-small businesses in highly competitive industries-indicates the weak fit between the traditional theory behind the antidiscrimination principle and the institutions to which it was targeted. If all that mattered was pure theo- ry, individual owners of various diners could discriminate to their hearts' con- tent, as their customers would simply move over to some rival establishment down the street that was prepared to extend them service. Yet it is very clear that pure theory does a very poor job describing the historical practices of the Old South, where, to say the least, the prospect of free entry as a check against monopoly power was a snare and a delusion. It is important to ask the question of why the standard economic theory of competition failed so abjectly in prac- tice. That failure does not come from technical mistakes within the theory. Ra- ther, the explanation depends critically upon the totalitarian nature of the Old South, and much of the rest of
The point here is quite simple. So long as people are free to leave, they cannot be exploited by those who wish to continue to employ their services. Conversely, free entry into the South by Northern employers could have bid up the wages for labor above the rates that Southern employers acting in concert (and backed by the force of the state), the Ku Klux Klan, and a host of informal groups and gangs could have set. The basic insight is that a competitive market will work well in both directions because the fortunes of an oppressed group under open market conditions depend only on the attitudes of those who are most favorably disposed to it. The opinions of others groups do not matter since they are no longer in the hiring market. The conditions are very different when either private violence or political power sets wages and other employment terms. With the former, it is the least favorably disposed group that can deter- mine the terms of trade. With the latter it is, roughly speaking, the median voter.
These avenues of political control were effectively exploited in the South prior to 1964. I wrote a short account of these laws in my 1994 article Standing Firm, on Forbidden Grounds, which answered my many critics as follows:
The Emigrant-Agent Laws imposed heavy taxes on those agents who sought to encourage black labor to leave the South for more gainful employment elsewhere. If there were no market pressures operating for the exit, then pre- sumably these statutes would have been unnecessary. As it was, they were un- able to stem the flow of migrant labor from the South, but not for want of try- ing. Vagrancy laws were used as a means for forcing blacks to enter into labor contracts in the first place, by attacking so-called idleness, and contract- enforcement laws in
The standard blackboard account of markets does not delve into the opera- tion of these rules but assumes, if only implicitly, that public institutions are well ordered. In this context, "well ordered" means that these institutions en- force the background norms of tort and criminal law so as to prevent various forms of private aggression against all citizens within the state, all of whom have, of course, full rights of access to the political system to help choose the people who will enact and enforce the laws. It also assumes that the major agencies of the state distribute the essential services such as gas, electricity, and telephone service on equal terms to all citizens. It further assumes that state public institutions will not turn a blind eye to private acts of violence that are intended to prevent other individuals from exercising their normal rights of as- sociation in the marketplace. The dysfunctional nature of Southern labor mar- kets needs no further elaboration. No one can claim that this system of South- ern governance was "well ordered."
The stress on aberrant social institutions is not in evidence in the contribu- tion of
In a postrealist world, we understand that regulation is not incompatible with private ownership. Laws delimiting the rights and obligations of property owners and those with whom they deal do not, in Paul's phrasing, make the government the owner of the property. Indeed, the institutions of property and contract depend on background legal rules delimiting those rights and obliga- tions and enforcing them in cases of breach.36
The inspiration for this passage was
Civil rights laws grounded in the problem of monopoly power supply a far firmer basis for economic and political stability alike than the misinformed postrealist critique.40 Far from any universal structural defect in competitive markets, these background considerations of institutionalized segregation make it painfully clear that competitive markets in the standard sense are not easily maintained or supported. Start with a voting system that is wholly skewed to members of one race who bear extensive levels of animus to individuals of an- other race. Any allusion to the system of equal justice before the law is an illu- sion in the face of systematic political domination. The reason why Justice
Unfortunately, the dangerous consequences of Plessy are often obscured by extensive discussions of the then-fashionable tripartite distinction between civ- il, social, and political rights to which Bagenstos devotes much of his Essay. He quotes
The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce so- cial, as distinguished from political equality, or a commingling of the two rac- es upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.43
Yet this passage makes a mockery of the notion of freedom of association implicit in the notion of social rights when it equates law "permitting, and even requiring" these interactions. Laws permitting the freedom of association, at least outside the common carrier situation, are consistent with the libertarian framework, and in the South their most important application would have been to protect blacks and whites who sought to associate together from state sanc- tion or private abuse. But, as Bagenstos notes, the true crime of Plessy is that it "required race segregation in public conveyances and in schools,"44 a pro- foundly anti-libertarian conception. The distinction between civil and social rights is a sideshow. The key notion is that, properly qualified by common car- rier rules, the principle of freedom of association is fully protected by the common law rules of property and contract.
It remains therefore critical to note the threats to the social rights of all in- dividuals posed by segregation. Southern states systemically augmented their powers by how local officials ran their local governments, especially in their control over various common carriers and public utilities. Governments exer- cise power over the ability of businesses and residences to access roads, elec- tricity, gas, and water. In each of these cases, governments have control over the kinds of institutions with monopoly power that are properly subject to gen- eral regulation. But the regulation that is required offers open and equal access to all persons. It is not a system that allows for political actors to deny service covertly to those private firms that do not toe the segregationist line. One rea- son why the Southern system remained as tight as it did was that most local businesses supported the status quo ante and thus had nothing to fear if they implemented segregationist policies. But at the same time, new businesses, es- pecially from the North, that might have been tempted to enter the local market to take advantage of depressed black wages were well advised to stay out lest local government intrigue cut their key services at the most inopportune time. Of course, the local utility could apologize profusely when service was disrupt- ed or curtailed, but what remedy lies when the legal system is itself dominated by champions of segregation?
The disruption of public services was in turn supplemented by the use and threat of private violence against those who tried to stand up to the dominant political forces. A friendly gesture by a white person to a black friend could lead to dangerous consequences. As youngsters in the North in the 1950s, with no direct connection to the South, we knew well that so simple an act as pur- chasing gas from a black-owned filling station could lead to a beating or worse.
At this point, it is only necessary to put together the pieces. The practice of freedom of association cannot survive in a society that has corrupt electoral in- stitutions, corrupt provision of public services, corrupt use of public force, and unrestrained use of private violence. The hard question in these settings is to ask exactly what legal changes should be made. In one sense, the thought that some nondiscrimination principle could gain hold through legislation seems laughable. Indeed, it was only because federal legislation could work, with much huffing and puffing, to override state legislation that the local monopoly was broken. In this regard, it is worth noting that the 1962 decision in Baker v. Carr provides powerful evidence of the tenacity of those who held undue pow- er to insulate themselves from institutional reform.45 The party that controls the local franchise can continue to redirect power and resources to its favored con- stituency. It was only by going outside the system that the legislative solution had a chance.
There were three possible lines of attack against these entrenched segrega- tionist institutions. The first of these was the use of private rights of action and public prosecution against those who used force. In speaking of the remedial issues, Bagenstos asks: "Even as of 1964, if the problem was a cartel that en- forced discrimination by businesses via threats, violence, and harassment, why is the proper libertarian response not to directly target the threats, violence, har- assment, and monopoly, so that business owners will be truly free to choose whom to serve?"46 No one should claim that these direct actions should be pre- cluded. The harder question is whether they should be regarded as sufficient, as his question seems to imply. Bagenstos's way of setting up the problem fails to grasp the difficult remedial choices of under- and overenforcement. Private rights of action against a variety of individual persons are hard to enforce, es- pecially in a system where the levers of power are in the hands of the champi- ons of segregation who approve of the current arrangement. The matter there- fore required federal intervention, which worked much better than any form of case-by-case remedy through the tort system. To be sure, there may be some overbreadth in relying on federal intervention, but the rapid extent to which the major retailers and restaurants fell into line showed that the broader response was the best option. It is only a hard-line libertarian who would rely solely on ex post damage actions or criminal sanctions in the individual case. The classi- cal liberal approach is far more flexible on the choice of remedies.
At this juncture only two lines of attack remained, and there was no reason not to use both of them. The first of these was to go after embedded sources of political power. The second was to prevent its most vicious manifestations. On the first point, it was manifestly the right decision to start the attack on segrega- tion through a reform of the electoral system. At the time that Title I was passed, nothing fancy was intended or needed. The explicit exclusion by race was a staple of Southern artifice, and it did not matter whether it was done overtly or stealthily. The practices had to stop. In dealing with these remedial choices, the challenge is always to thread the needle between remedies that are too tough and those that are not tough enough. This issue of remedial design is important for answering the question, for example, of whether to have special preclearance rights in Title I of the Civil Rights Act.47 Interestingly enough, the preclearance procedures of the Voting Rights Act of 1965,48 have no analog in the context of public accommodations. Instead, the major issues of overenforcement in the public accommodations context relate only to the choice between public and private enforcement or some combination thereof.
Yet it would be a mistake to think that it was sufficient to prevent long- term abuse without tackling the short-term problem of the systematic denial of service in many places in the Deep South and elsewhere. The key point here is to note that many of the strongest supporters of Title II were the large firms that would be regulated by it. It is not that these firms thought it was good in itself to surrender power to the federal government. Rather, it was their clear percep- tion that only federal intervention could hold at bay those local officials and lo- cal citizens that could be expected to shut down their operations by hook or crook if the firms tried to integrate their facilities. Viewed in this light, the dominant motive for the passage of Title II came from parties whose basic commercial interests were undermined by segregation and who wanted gov- ernment protection at the federal level against the depredations by public and private forces at the local level.49 Thus just as the railroads did not want to be subject to state segregation laws in the 1890s, so in the 1960s, the next genera- tion of businesses wanted to be out from under the thumb of those dangerous and reactionary elements who prevented them from integrating their facilities, which they desperately wanted to do.
Viewed from this perspective, the question with respect to Title II was whether it went too far or did not go far enough. Even those who thought that
The situation on the ground in 1964 therefore called for extensive measures to undo a broken and corrupt system. But remember that none of those violent episodes around the time of the passage of the Civil Rights Act of 1964 did an- ything to undermine the basic relationships that as a matter of first principles should govern a society with sound public institutions, including properly elected public officials, a disinterested police force, a professional public ad- ministration, and strict control over private violence. The politics that sur- rounded Title II of the Civil Rights Act did not clearly distinguish between the first- and second-best rationales for its implementation, for at the time there was no pressing need to do so. But times change, and background conditions can change with them. On each of the key measures-voting, public admin- istration, policing, and private violence-the abuses were largely eliminated, in large part due to some of the extraordinary measures imposed in the immediate aftermath of the Civil Rights Act.
The major transformations over the past fifty years should spark a norma- tive reexamination of the scope and impact of Title II. In this regard, it is useful to set the two rationales for the application of Title II against the various insti- tutions that are covered by it. The best practical argument for Title II was that it functioned as a corrective against private force and public abuse in government. The best theoretical argument for Title II was that an antidiscrimination rule was needed to offset institutions that wielded monopoly power. In principle, that rationale is as good today as the day it was uttered. But the economic land- scape has changed in ways that have eroded the strength of traditional monopo- lies, at least those not backed by government force. One feature of advanced technology is that it reduces the number of firms and industries that hold mo- nopoly power. In the Middle Ages, the one inn on the road from
III. THE EXPANSION OF TITLE II AND KINDRED STATUTES
With the adoption of Title II, it is important to see how its statutory defini- tion of a public accommodation squares up with the traditional account of a common carrier. The expansive nature of Title II's definition becomes clearer when its scope is contrasted with the smaller class of businesses that were cov- ered under Hale's "affected with a publick interest" test before that test's de- mise in Nebbia v. New
Businesses which though not public at their inception may be fairly said to have risen to be such and have become subject in consequence to some gov- ernment regulation. They have come to hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner by devoting his business to the public use, in effect grants the public an interest in that use and subjects himself to public regulation to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly.55
After offering that definition, Chief
In light of the argument developed in Part II of this Essay, the key question then arises whether the peculiar constellation of political and legal forces pre- vents free entry into particular geographical markets. Racially motivated zoning laws may have those effects. But ordinarily, population mobility counteracts any nascent form of monopoly power in ordinary business establishments. The number of business choices is very high so that the case for Title II becomes quite thin over many areas of its operation. Nor can it be said that a strong set of formal and informal sanctions makes it impossible for any particular firm to serve members of minority groups. We are long past the days when
The competitive market works well when supported by well-ordered public institutions, whose formation undercuts the case for retaining Title II. But in the area of its original application there is no need whatsoever to take on that hero- ic battle. Within the class of institutions originally targeted by Title II in 1964, its effect has caused no visible inconvenience. Some of these public accommo- dations remain common carriers, at least for some fraction of their markets, as with certain airline and railroad routes. But even those institutions that have no or weak monopoly power still resemble common carriers in certain key ways. Look at the way in which admission to a movie theater or amusement park is determined: it is strictly and solely by the ability to pay, subject to certain limi- tations on age (for admission) and sex (for washrooms). Even though these in- stitutions are not common carriers, their proprietors have no interest in review- ing customer resumes before selling tickets to the latest show. Quite simply, it is in their interest to take all comers on the same terms just as common carriers have traditionally done. Loutish or menacing behavior can still result in ejec- tion with cause, so that these operations proceed more or less without a hitch. Why repeal a benign statute in order to raise symbolic hackles? The contrast between the common applications of Title II and the intrusive and mischievous preclearance procedures under sections 4 and 5 of the Voting Rights Act could not be more vivid.
The potential application of Title II is fraught with far greater risk, howev- er, when enforcement challenges organizations that do not operate lunch coun- ters and movie theaters, for in these cases rival interests come into play. That principle was recognized in the run-up to Title II in connection with one hard- fought exemption from Title II: an exception for "an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his resi- dence."64 Each of these specific conditions was the result of a hard-fought compromise over the status of Mrs. Murphy's much-debated boarding house. To get the pulse of the times, read this uneasy account of the struggle from the vantage point of the passionate defender of Title II:
Already there was grave concern over the wide-spread newspaper talk that the public accommodations section would be gutted, possibly by an exemption for "small" public accommodations. "Mrs. Murphy's boarding house" with a few rooms was one thing, for her right of privacy cut across the [black per- son's] right to a room. But a general exception for all small public accommo- dations was something else again. A [black] laborer entering a small diner could be quite as hungry as a [black] banker seeking service at the
The scope of that concession was limited to situations where people were justly concerned about their privacy and safety when asked to live and work in close proximity with each other. People do check references before accepting boarders. The point of this exception under Title II was to carve out the cases where personal preferences matter most, while leaving subject to the law the large inn or hotel, where the impersonal nature of the business makes for few of these close interactions. Basically, the deal worked, and the exception has had no significant role to play.
The same type of concern was also raised with respect to "a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b) [which defines the insti- tutions covered by Title II]."66 Clubs are different beasts because they all have distinct organizational objectives, membership rules, and complex internal gov- ernance structures. These organizations never relate to their members in the same way that hotels, restaurants, and movie theaters relate to their customers. In clubs and other voluntary organizations, people care a lot about whom they associate with. The type of open seating that works on airplanes won't work in organizations that choose to assign seats at their annual banquet. No defender of the nondiscrimination provision believes that all these organizations should, or could, run on the same principles as the traditional business.
The original application of public accommodations laws to common carri- ers, narrowly defined, covers those cases where claims for associational prefer- ences are at their weakest. At that point, the social losses, if any, created by im- posing a nondiscrimination norm hardly seem to be of any concern, given the smooth implementation of the program once the restrictions were in fact put into place. Indeed, it is hard to tell whether Title II protected the preferences of individuals who opposed segregation but were afraid to speak out, whether it added legitimacy to the nondiscrimination principle, or whether it just matched the change in public sentiments reflected by the widespread and growing politi- cal support for the statute itself.
The next question is how the broad reach of the new antidiscrimination principle plays out in other cases that are covered by a very broad definition of what counts as a public accommodation. Take the example of private clubs, or- ganizations which are generally open only to members, which means that someone has to take the time to decide who is in and who is out. The member- ship process itself gives firm evidence that people care more about who is a member of their club or church than they do about the identity of the person next to them in the checkout line. Put otherwise, the question is whether these private institutions should be treated like the common carriers of old when the arguments of freedom of association that cut against the characterization grow far stronger. Not only is there a complete absence of monopoly power, but there is also a concern with internal operations that just does not arise in the earlier civil rights cases. Nonetheless, the next generation of antidiscrimination cases ignored these critical differences.
IV. FROM PUBLIC ACCOMMODATIONS TO HUMAN RIGHTS
A. Jaycees and
The first of the new wave of cases was the 1984 decision in Roberts v.
But the legal relevance of this diversion is uncertain. Even though it is crystal clear that the Minnesota Human Rights Act covers retail establishments, the fit between the Jaycees and the statute still looks less than ideal, given the objectives of the Jaycees to "foster the growth and development of young men's civic organization in
Notwithstanding the Jaycees' extensive social program, the Commissioner took the position that the Jaycees was covered by the Minnesota Human Rights Act.75 The Jaycees then mounted its constitutional challenge against the Act in federal court, which in turn certified the question to the
(a) is a "business" in that it sells goods and extends privileges in exchange for annual membership dues; (b) is a "public" business in that it solicits and re- cruits dues-paying members based on unselective criteria; and (c) is a public business "facility" in that it conducts its activities at fixed and mobile sites within the State of Minnesota.76
The manifest differences between organizations like the Jaycees, with their substantive programs, and the standard movie theater is too evident to require any serious discussion, for these organizations are not just open to the public upon payment of a fee. When the case reached the
As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an associa- tion lacking these qualities-such as a large business enterprise-seems re- mote from the concerns giving rise to this constitutional protection.
Yet why? No one quarrels with the view that intimate personal associations wshould not be subject to any antidiscrimination norm. Could it really be a crim- inal offense to deliberately refuse to marry a person because of his or her reli- gion or national origin? But nothing that
As a working generalization with many exceptions, civic leagues like the Jaycees have to govern relationships of large numbers of individuals with wide variations in tastes and sentiments. Any decision to let the state force an associ- ation of one person or group on an organization necessarily has serious nega- tive consequences for the persons within the organization who lose some con- trol over their organization when subjected to this state imposition. The range of sentiments and tastes is vastly expanded by the change in membership, which makes it harder to reach consensus on matters of common concern. The original members, who may have given years of service to their organization, are thus left with the choice between running an operation in ways that com- promise their principles, leaving the organization, or shutting it down al- together.
Yet the need to permit one group to break down the doors of another insti- tution cannot be justified on the ground that they have no place else to go. There are no transactional barriers to letting the new members in, and just that change in membership policy would happen if in fact the change in composi- tion were a win-win situation for the outside applicants and the current mem- bers. The fact that this transformation does not happen across the board is evi- dence that the Minnesota Human Rights Act imposes win-lose types of deals, which are always harder to maintain given that one side is always intent on al- tering the deal in order to improve its terms of trade. The results are not unique to these so-called public accommodations, but also extend to any organization where the mandate is imposed on the one side for the benefit of the other. This happens, for example, when employers have to deal with unions on a good faith basis, even when the union has (as the exclusive representative of the work- ers80) monopoly power over the firm, including the power to abrogate preexist- ing contracts with workers.81 A similar result happens under rent-control stat- utes that require landlords to renew their leases against their will with terms that promise them far less by way of rent than a market rate. Indeed, we should expect nothing less than this kind of antisocial behavior. The party subject to the imposition is right to protest the use of force directed its way, so that it will use every means within the law (and, regrettably, some beyond it) to rid itself of a losing contract, either by breaking off the relationship or changing its terms of trade. It is for this reason that ordinary contracts at will, which are termina- ble at any time by either side, routinely have great durability. A set of constant incremental adjustments allows both sides to share in the gains, which reduces the desire of either side to defect from the agreement.82 Of course these con- tracts often do dissolve as one party finds that it no longer wants to deal with the other. But these are clean breaks that are not marked by prolonged struggle involving strikes, lockouts, and other refusals to deal, which are routine in labor law cases.83 Quite simply, external force by the state is always necessary to keep win-lose arrangements from blowing apart, which introduces new levels of social uncertainty and new layers of administrative oversight.
The question is whether there is reason to incur these long-term destabili- zation costs. Letting one organization exclude potential members does not pre- vent outsiders from joining or forming countless organizations that do not use sex or race or any similar criterion for admission. Indeed, it was surely the case that many members of the Jaycees in 1984 were also members of organizations that admitted women as full and equal members. There were in all likelihood many women's organizations that did not admit men on equal terms. It is no credit to
Consistent with this view, it would be a deep mistake to require any large all-women association to admit men. Philosophically, it could well be more dangerous to decide that such organizations were entitled to a pass from the general antidiscrimination law because of the legacy of discrimination against women, which is then viewed as creating a historic debt that can never be paid off. The world is a better and more confident place if voluntary organizations can choose their own admission requirements and change them in accordance with the wishes of their membership. Indeed, in a world of free association, no organization is exempt from changing social pressures, and each must adjust its membership provisions to take into account that social risk. At a guess, all-men organizations pay a higher social price for exclusion than comparable groups for women. The members and boards of such organizations have to think long and hard before they decide to reduce the potential membership base of their organizations. And should they make the decision to preserve their exclusive membership lists, the only persons who should be in a position to challenge that decision are their own members, in accordance with their internal rules. In a heavily competitive environment, the fact that some group is able to become and stay large only means that it has adopted a successful formula for govern- ing its internal affairs. Its success does not mean that it has to forfeit control over the policies that have guided it to date.
The decision to treat the Jaycees as a business was made in large part be- cause
Yet it is a mistake in a discussion of this sort to concentrate on these differ- ences. What matters is the common mistakes that make both of these regimes a threat to individual liberty and a massive drain on the productive capacities of the residents of
In grappling with these thorny issues, it is clear that the dim voice of Rob- ert Bork did not echo in the ears of
The other cases in the Roberts line illustrate the same weaknesses of its tri- partite classification of associations. In Board of Directors of Rotary Interna- tional v.
Initially, it seems clear that the organizations at issue in
Of course, no group should be immune from criticism because of its poli- cies of either admission or exclusion. But the threshold to engage in those ac- tivities, always open to all, is far lower than the threshold that has to be crossed to engage in acts of state coercion that are in fact far more intrusive than the gathering of names that was rightly invalidated in
Given the way the law has developed, however, the logic of voluntary as- sociation does not apply in any across-the-board fashion. Roberts and its prog- eny have made it clear just how contingent freedom of association is on the predilections of judges. Nonetheless, that willingness to extend human rights laws to new situations has not foreclosed further development of the rules limit- ing freedom of association. In Roberts, the Jaycees did not put much emphasis on the distinctive nature of its operation. Chances are it would have changed course quickly anyhow. It is harder to be confident about that judgment with
A quick glance at the
It is the mission of the
The values we strive to instill are based on those found in the Scout Oath and Law:
Scout Oath
On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong,
mentally awake, and morally straight.
Scout Law
A Scout is:
Trustworthy
Loyal
Helpful
Friendly
Courteous
Kind
Obedient
Cheerful
Thrifty
Brave
Clean
Reverent.99
Not many railroads could remain in business if their passengers all had to sign on to that program. Nor can one claim with a straight face that the
It is necessary to take a step back to see why the claim of freedom of asso- ciation is strong here: just ask what would happen if whites in
This point gains real immediacy in this case because we know that the
When the issue came to the
The question is what to make of this decision.
Even that prediction, however, does not answer the normative question of whether that line ought to stand once we move away from the restaurant situa- tion to other situations that give rise to more serious disputes over policy objec- tives and admission requirements for organizations like the
B. The Small Business Problem
The remaining issue is whether or not the category of expressive organiza- tions could, or should, extend to other commercial firms of all descriptions. I have already indicated that it is highly unlikely that anyone would wish to ap- ply it to restaurant situations. But the same is not true with respect to a wide range of employments, some of which involve intimate, or at least deeply per- sonal, interactions between employers and employees. In dealing with this question, Bagenstos takes issue with the position advanced by Carpenter and Shiffrin, and insists that the line between ordinary and expressive employments will be exceedingly difficult to maintain in practice given the wide range of business types along a continuum.109 Indeed, I think that Bagenstos is right on just this point for a wide range of establishments: think of health care personnel and personal trainers, contexts in which most people have deep preferences as to the people with whom they interact. There is no question that many custom- ers use information about race, national origin, religion, sex, and sexual orien- tation to decide whom to patronize. These choices are bundled in with deep no- tions of identity politics. I know of no one who thinks that this set of customer choices should be limited by any human rights law. So why have a different rule on the opposite side of the relationship, where the preferences may in some cases be just as intense?
To be sure, many people will say that businesses have a profit motive that makes them less willing to act on these preferences. But that is precisely the point. Knowing that in most cases they will be eager for business, the sensible result is to let them choose their own customers so that these choices will sort themselves out quite nicely. Where these identity issues do matter-largely in small firms, one suspects-the businesses may pay a financial price in order to act in accordance with their own beliefs. There is no need therefore to reserve any such associational privilege under the First Amendment to "expressive" ac- tivities.
It should be clear that I don't think that Carpenter and Shiffrin are making some kind of strategic retreat because "they recognize that a frontal attack on Title II of the Civil Rights Act is a political nonstarter."110 I think that they are making their argument in complete good faith because they believe that the dis- tinction is both correct and sustainable. On that issue, however, I think that Bagenstos is correct-but only conceptually-that the line will not hold. Simi- larly, my own position is not a sneaky attempt to challenge Title II. It is a frontal assault that rests on the explicit and emphatic defense of the older view that only the presence of monopoly power should trigger a generalized obliga- tion of universal service on nondiscriminatory terms. In my view, any concep- tual effort to subdivide associations into three separate categories, some of which receive higher levels of constitutional protection than others, is doomed to face not only serious line-drawing issues, but also the greater sin of intellec- tual incoherence.
Here is why. The standard theory of freedom of association writ large is that the members of the organization get to determine its purposes, its mode of operation, and the composition of its membership. So long as transaction costs are low, as they typically are, the refusal to deal does not represent any form of market failure, but only the revealed preferences that the gains to the outsiders are smaller than the perceived losses to the insiders. We make that conclusion not because we collectively weigh their preferences on some exquisite scales of justice, but because we observe that there has been no deal.
In contrast, the modern view applies antidiscrimination laws to those or- ganizations so long as they do not meet some state-determined standard of "ex- pressiveness," which flies directly in the face of that traditional understanding, and thus leads to the obvious question: what should be done in those cases in which standard business associations-family partnerships, private corpora- tions, and small firms with single owners-are organized to serve both reli- gious and secular ends, or whose principals seek to take into account their own religious beliefs in choosing the goods and services that they offer to the mar- ket? This pattern of behavior is perfectly consistent with neoclassical econom- ics, which recognizes that parties may choose to take the gains from coopera- tive activities in nonpecuniary forms. It is not as if these organizations will go out of business; after all, they are not looking for the last dollar in market trans- actions. But it does spell trouble down the road for these groups when faced with challenges as to how they interact with their customers.
This point was brought home with great vividness in the recent New Mexi- co decision,
But for these purposes, the
And for what? In looking at this case, it is clear that this was a deal that neither side wanted. Just imagine if Elane Photography had taken the job with- out telling Willock and Collinsworth of Huguenin's religious preferences, and Huguenin then had showed up bedecked with bold Christian paraphernalia and signaled to all the guests that she did not approve of the relationship. Why in- vite anyone to a commitment ceremony who is not committed to the cause of which it is a part? On ceremonial occasions like this, the line between the per- sonal and impersonal starts to blend. Notwithstanding this context, however, the
Bagenstos's colorful prose should, however, lead him to endorse the exact opposite conclusion. Why face these issues of classification as a matter of pub- lic law when the parties in this fiercely competitive business can sort matters out themselves? There are few error costs, given market pressures, in defending freedom of association across the board, and massive disruptions caused by de- fending the NMHRA, which tramples over the all-too-human right of freedom of association. As a matter of first principles, there should be no need to locate these cases on the right side of the Dale line that for legal purposes ought not to exist in the first place. Normatively, the correct rule is that freedom of associa- tion is a generalizable value that holds in all competitive markets; the effort to apply the antidiscrimination laws in that domain is a giant form of overreach, no matter whether the lines of difference are race, religion, or sexual orienta- tion. This position applies a fortiori to those persons who reject a request for services on bona fide religious grounds, but it is not limited to them. This posi- tion also applies to all sorts of services, not some subclass like photography that may just be given preferred First Amendment status on freedom of speech grounds. There is virtually zero risk of systematic exclusion when competitive substitutes are available, so that using the broad freedom of association princi- ple produces few error costs. If most organizations regard these distinctions as abhorrent, it is all the more important to allow those who differ to go their sepa- rate ways. Customers have lots of options to choose from, while the practition- ers of certain beliefs have few choices of their own if forced to engage in prac- tices that they find offensive to their religious beliefs in order to stay in busi- ness.
Nor is it possible to sugarcoat the
That outcome represents, moreover, the standard position in competitive markets that each person-whether merchant or customer-is the master of his offer; the firm has the unqualified right to turn down any business proposition, just as the potential customer can choose for whatever reason the firms that it wants to deal with. Surely Willock has no duty to accept Elane Photography's offer to work on any project whatsoever if she takes offense at its policy not to photograph gay marriages-no questions asked. That right is shared by all oth- er members of the public. No one claims that someone who puts out a request for services has committed herself to hire a contractor without regard to his re- ligious or sexual preferences. It is therefore odd to posit some "humiliation and dignitary harm"128 as a trump on the side of a disappointed customer, without recognizing that the mandated services now impose humiliation and dignitary harm on business proprietors who are also human beings: why else is Elane Photography fighting this case? These issues are hot. They can spur widespread boycotts and other actions against the firm-think of Chick-fil-A.129 The deci- sion to override private associational preferences based on the allegation of soft harm thus founders. Those harms are created on the one side in the attempt to limit them on the other.
The correct analysis therefore requires looking at both sides of the relation- ship before making some judgment on both social efficacy and dignitary harms. That point is also correct on more general grounds. The first point is that it is likely that Willock and Collinsworth could not pay enough money to Elane Photography to overcome its objection. Nor could Elane Photography pay enough to Willock and Collinsworth to make them change their minds. This dispute is not over money, but fundamental values. But what lesson can be learned from the observation that it is difficult for two parties to bargain them- selves out of impasses? In this situation, the correct default rule is that the two sides go their separate ways.
That choice of default rule becomes more salient as the number of potential parties increases. Thus if Elane Photography is under a duty to serve all com- ers, it cannot not afford to buy off the long queue of gay and lesbian couples that come to its door asking for financial payment. But if Elane Photography has the right to exclude for any reason, then selective admission of chosen per- sons becomes the norm on which free association can rest. So giving owners the right to exclude others reduces the bargaining complications that would otherwise ensue, which in turn eases the path to competitive markets as others jump in and offer to serve the customers that Elane Photography will not. The point here applies across the board. It is not an answer to say that by this logic Elane Photography could refuse to serve black customers, which is within its rights, just as it is for any firm to refuse to serve white customers, or to refuse to serve any firm that does not engage in a systematic policy of nondiscrimina- tion. Once again, the principle of freedom of association applies across the board once the issues of monopolization and the abuse of state power are put to one side. In all cases, competitive firms will fill the supposed gap.
The overall system works far better with strong property rights and of course the strong protection of individual autonomy in all personal dealings. It is for that reason that in ordinary property arrangements elsewhere, it is the du- ty of the outsider to win consent, not the duty of the owner to buy off all out- siders that she does not wish to admit. So the standard rule is that the cattle owner has to keep the cattle out of the farmer's land, and not the other way around. Armed with the right to exclude, the landowner can decide which, if any, outsider to let in to graze on his land.130 Those who do not like the situa- tion can go elsewhere. Elane Photography does not have any dominant market position in
The question then arises as to what should be done going forward. In one sense the damage was already done once the
There is at least one deep irony in this collective rejection of
There is much pragmatic sense in their position. As I have argued else- where, constant practice may give rise to a prescriptive constitutional right that is formed in much the same way as the long use of a right-of-way can create a prescriptive easement.135 But as with prescription, the right should only go as far as the established social practice, which has never covered situations like Elane Photography, where the equities between the parties lie so much in favor of the firm. No doctrine of settled expectations should sanction this new legis- lative development. Indeed, the case for protection starts with the observation that now Elane Photography is part of a discrete and insular minority under footnote four of
This pragmatic plea for the status quo ante leaves untouched the question of how this issue should be resolved as a matter of first principles. On that score there is no reason to be coy or pragmatic. As a matter of first principles, Title II of the Civil Rights Act should be regarded as unconstitutional as ap- plied to all voluntary organizations in well-functioning markets. Civil rights laws are turned upside down when used to harass small businesses with minori- ty viewpoints. At this point, the Robert Bork of 1963, who was so wrong about public accommodations in the Old South, is unhappily vindicated by the care- less way in which statutory duties to serve are extended far beyond their origi- nal purpose of coping with monopoly power in common carrier situations.
V. GOVERNMENT DISCRIMINATION
The decision to pick on small and isolated groups is not just a function of antidiscrimination law as it applies to private parties. It has also arisen in con- nection with government actions that overtly and consciously discriminate against small groups that wish to retain their organizational preferences. In the- se cases, the dominant question involves the actual or potential application of the doctrine of unconstitutional conditions.137 That principle states in its canon- ical form that even if the state has the power to grant or deny a certain privi- lege, it may not have the power to grant that privilege contingent on certain conditions that are constitutionally suspect. The scope of the doctrine is broad because it arises whenever the government exerts monopoly power or control over some essential facility normally open to the public at large. In constitu- tional language, these cases of government ownership often involve the opera- tion of public forums, including streets, parks, and halls, where people are al- lowed to congregate. In all of these cases it has long been held that
[w]herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liber- ties of citizens.138
The reference to the public trust in this case is the signal that fiduciary du- ties are involved so that the state cannot pick and choose between the groups that are allowed to engage in political activity on public premises. In essence, there is no particular obligation to open the premises to all comers, but there is a duty to act in a fair and nondiscriminatory way with respect to said groups, whose conduct is only subject to time, place, and manner restrictions.
It thus becomes clear that in allowing groups to enter onto the public high- way, the relevant government authorities cannot discriminate among potential applicants on the grounds of their own political or associational preferences. For example, in Hurley v.
A narrow majority of the
In defending that result,
The key point about the doctrine of unconstitutional conditions is that it limits the power of state choice when the state acts as a common carrier in the use of its monopoly power. The only justifications that allow for discrimination are those that the state could apply through direct regulation of private activi- ties. It could refuse to allow groups to join if they posed the threat of force or fraud. Otherwise the only difference between the open public forum in Hague v. Committee for
Nor is this an isolated instance. One current battle with the health care law is whether the statute can force religious institutions to supply contraception and abortion services to female employees even if it is inconsistent with the re- ligious beliefs of the organization, usually as represented by its dominant fami- ly shareholders.146 That debate is extensive and wide ranging, and it is often cast in terms of whether the "boss" should be able to determine the sexual prac- tices of female employees.147 But the reality is that the "boss" in this case is the government that seeks to force organizations to make expenditures that they don't want in order to serve state but not private ends. In this case too, the cor- rect response is for the government to understand that it cannot condition its grants and regulations on any idea that suits its fancy. Instead it must follow the widely rejected principle that in exercise of its monopoly power, it cannot deny government benefits to practices that it could not ban directly,148 which covers this case. Antidiscrimination laws should never be used as a government club against recalcitrant individuals in their everyday lives.
AN UNHAPPY CONCLUSION
In the English language the word "discrimination" once had two meanings, the first of which is in danger of being lost. In its positive sense, discrimination refers to persons of taste and discrimination who can draw the right lines for setting preferences of places to go, things to like, and people to choose as com- pany. In its negative and now standard sense, discrimination is always against some group, where it is thought that some bad or invidious motive accounts for the behavior.
There is some truth to both of these definitions, and the task of legal an- alysis is to decide when this or that form of discrimination should be allowed. It is very risky to permit any single group, public or private, to be the arbiter of good or bad taste. So the ultimate lesson to learn here is to try to decentralize the use of power in good Hayekian fashion,149 which in turn requires an extra dollop of suspicion in organizing social relationships. The common law re- sponse to this development, which was to impose duties of nondiscrimination on parties with monopoly power over relatively commoditized goods and ser- vices, was a good first cut into this problem. It meant that people could not be kept out of railroads and off the electrical grid, but it also allowed all private groups to select their own members and govern their own organizations when they provided uniquely differentiated services in competitive markets. That rep- resents in my view the correct division between government regulation and pri- vate freedom of association.
Those principles in part drove the earlier applications of Title II of the Civ- il Rights Act, where a combination of public abuse of essential facilities and private violence posed a mortal threat to the individual liberties of vulnerable citizens, often on grounds of race. Title II of the Civil Rights Act offered a sen- sible first response in this respect. But with the increase in power of the civil rights movement, the more recent applications of antidiscrimination law have had a very different purpose. There have been many aggressive attempts to achieve state-mandated nondiscrimination over a wide range of business and social institutions that are bereft of monopoly power and that have distinctive purposes and objectives that rightly resist any form of state standardization. In this sphere, the situation is topsy-turvy. Antidiscrimination law now is a threat to the diversity of our private institutions. It allows the state to impose nondis- crimination obligations on weak and powerless individuals, institutions, and firms that only wish to be left alone. It then compounds the mischief by insist- ing that its key control over basic public facilities allows it to impose its will on private institutions that are powerless to resist its combination of direct controls and fines. It is indeed a sorry state of affairs that a great norm intended to blunt private power has now become a tool to allow all-too-powerful institutions to stamp out those groups that oppose their vision of the good society.
I have no doubt that any group that wishes to buck the dominant social sen- timent must face the risk that it will lose popularity and business to people who are offended by its views. The application of public opinion in just that regard is an essential safeguard of our social institutions, but only so long as those same sentiments are allowed to the minority group that wishes to distance itself from the majority. There should be free and open competition in the world of ideas and behavior. But it also must be remembered that this process need not generate a unity of views on key questions of gay rights any more than it must generate a uniform view of whether Macs are better than PCs, or the reverse. The interplay of social forces is well equipped to figure out what distribution of power goes to which group.
The modern application of public accommodations and human rights laws pushes too far and too fast in the wrong direction. There is little doubt that sex discrimination has become a dirty word in many quarters. It is equally clear that the opponents of gay marriage are losing the public debate as well. It is surely correct to support gay marriage for the reasons noted above. The state has a monopoly over marriage licenses and should not discriminate between various candidates for marriage, which is why libertarian organizations are and should be firm supporters of requiring the state not to discriminate between couples in its exercise of monopoly power. But the state becomes the source of discrimi- nation when it fines and punishes those who wish to exercise their own rights of association. Those rights should be broad and firm. They should not depend on whether an organization is or is not expressive, is or is not religious in orien- tation, or is or is not engaged in political speech. Our authoritarian human rights acts have to be recalibrated so that they protect one of the most funda- mental of human rights-the right to associate, or not to associate, with people of one's own choosing. It is that lesson that we have to relearn on the fiftieth anniversary of the Civil Rights Act of 1964.
1. See RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS (1992) (critiquing Title VII and calling for its repeal in competitive labor markets).
2.
3. See ISABEL WILKERSON, THE WARMTH OF OTHER SUNS: THE EPIC STORY OF AMERICA'S GREAT MIGRATION (2011).
4. See id. at 206-10.
5.
6. See id. at 261.
7. Robert Bork, Civil Rights-A Challenge,
8. Civil Rights Act of 1964, tit. II, § 201(a), 42 U.S.C. § 2000a(a) (2012).
9. Id. § 201(b), 42 U.S.C. § 2000a(b).
10. Id. § 201(e), 42 U.S.C. § 2000a(e).
11. Id. § 201(c), 42 U.S.C. § 2000a(c).
12. Id. § 201(d), 42 U.S.C. § 2000a(d).
13. Civil Rights Act of 1875, ch. 114, 18 Stat. 335, invalidated by The Civil Rights Cases,
[A]ll persons within the jurisdiction of
Id. § 1, 18 Stat. at 336.
14. 109 U.S. at 11.
15. See The Daniel Ball, 77 U.S. (10 Wall.) 557, 566 (1870).
16. The point is driven home at great length in
17. See infra Part IV.A.
18. Bork, supra note 7, at 22.
19. See, e.g.,
20.
21.
22. Bork, supra note 7, at 22.
23.
24.
25. For some of that history, see
26. See, e.g., Robinson-Patman (Anti-Price Discrimination) Act of 1936, Pub. L. No. 74-692, 49 Stat. 1526 (codified as amended at 15 U.S.C. § 13 (2012)) (seeking to deny large purchasers, then called chain stores, the advantages of volume purchases to the extent that they hurt smaller competitors).
27.
28. Id. at 77-78. I talk about these developments at great length in
29.
30. See, e.g.,
31. Epstein, supra note 28, at 346-50.
32. See BARBARA YOUNG WELKE, RECASTING AMERICAN
33. Bork, supra note 24, at 7.
34.
35.
36.
37.
38.
39. Bagenstos, supra note 36, at 1222.
40. For one defense of this proposition, see
41.
42. Bagenstos, supra note 36, at 1210 (quoting
43. Plessy, 163 U.S. at 544.
44. Bagenstos, supra note 36, at 1212.
45.
46. Bagenstos, supra note 36, at 1226-27.
47.
48. Pub. L. 89-110, §§ 4-5, 79 Stat. 437, 439 (codified as amended at 42 U.S.C. §§ 1973b-1973c), invalidated by Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013). The con- troversies here continue with the recent
49.
50.
51. See 42 U.S.C. § 2000a(b).
52.
53.
54. See id. at 543 (describing the packing house); id. at 533 (describing the state stat- ute); id. at 535 (listing the traditional regulated categories); id. at 539, 544 (suggesting that the packing house probably does not fit into any of those categories).
55. Id. at 535.
56. Id. at 535-36.
57.
58.
59.
60.
61.
62.
63. See WILKERSON, supra note 3, at 206-10.
64. Civil Rights Act of 1964, tit. II, § 201(b)(1), 42 U.S.C. § 2000a(b)(1) (2012).
65.
66. § 201(e), 42 U.S.C. § 2000a(e).
67.
68. The Minnesota Human Rights Act at issue in Roberts, for example, imposed an obligation not "[t]o deny any person the full and equal enjoyment of the goods, services, fa- cilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex." Id. at 615 (quoting MINN. STAT. § 363.03(3)) (internal quotation marks omitted).
69.
70.
71. Bagenstos, supra note 36, at 1225.
72. Singer writes:
Businesses other than inns and carriers dealt in necessities such as salt, food, materials to make clothes, and services such as medical care. Denial of such goods and services would have caused great hardship precisely because there was often no more than one general store or doctor in the area, thereby constituting as much of an effective monopoly as the inn or stagecoach. In addition, many businesses other than inns and common carriers were required to obtain licenses or franchises from the state in order to operate.
Singer, supra note 16, at 1292-93. But even if there were no close substitutes, the services in question were not of the standardized variety.
It is exceedingly doubtful that the physician was treated as a common carrier. See, e.g., Hurley v. Eddingfield, 59 N.E. 1058, 1058 (Ind. 1901) ("In obtaining the state's license (permission) to practice medicine, the state does not require, and the licensee does not en- gage, that he will practice at all or on other terms than he may choose to accept. Counsel's analogies, drawn from the obligations to the public on the part of innkeepers, common carri- ers, and the like, are beside the mark."). Hurley is not cited in Singer's article.
73. Roberts, 468 U.S. at 612 (quoting the Jaycees' bylaws).
74. I.R.C. § 501(c)(4)(A) (2012).
75. Roberts, 468 U.S. at 615.
76. Id. at 616 (quoting
77.
78. Roberts, 468 U.S. at 619-20.
79. Id. at 620.
80. 29 U.S.C. § 159(a) (2012).
81.
82. See generally
83. See, e.g., Boys Mkts., Inc. v.
84. Pub. L. No. 74-198, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151- 169).
85. See, e.g., Coppage v.
86. I have raised these specific criticisms in numerous places. See generally, e.g., EPSTEIN, supra note 1 (critiquing Title VII);
87. See, e.g., Vaca v. Sipes,
88. The last qualification is needed because unions can only survive with the support of a majority of their workers, which leads them to adopt highly inefficient work rules, hurt- ing some current employees and keeping out prospective employees.
89. For the standard definitions of Pareto and Kaldor-Hicks efficiency, see, for exam- ple,
90.
91. See id. at 544 & n.2, 545-47.
92.
93. Id. at 6 (quoting ADMIN. § 8-102(9)).
94. See id. at 5-6.
95.
96.
97. Id. app. at 661-62 (quoting
98.
99. Dale, 530 U.S. at 649 (internal quotation marks omitted) (quoting the
100. Cf.
101. See
102. See U.S. CONST. amend. I.
103.
104. Bagenstos, supra note 36, at 1229.
105.
106. Bagenstos, supra note 36, at 1231.
107.
108. A recent article noted:
The
Reasons for the attrition, which is slightly greater than the 4 percent losses in 2012 and similar-sized declines in several previous years, are not fully understood but are likely related to the divisive vote on admitting openly gay youths to Scouts as well as a 60 percent increase in annual membership dues.
109.
110. Id.
111. 309 P.3d 53, 58-59 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (2014). In another recent development, a
112. See generally
113. Elane Photography, 309 P.3d at 59-60.
114.
115. Elane Photography, 309 P.3d at 60.
116. Id. at 59.
117. Id.
118. See, e.g.,
Businesses that serve the public, such as wedding photographers, should be exempted, but only if they are willing to bear the cost of publicly identifying themselves as discriminatory. That cost will make discrimination rare almost everywhere. Employers-some of whom also object to recognizing same-sex marriages-should not however be allowed to discriminate in providing benefits for their employees, such as denying health insurance to same-sex spous- es. You can find another wedding photographer, but you only have one insurance plan. . . .
I've been a gay rights advocate for more than 25 years. Here, for the first time, I make common cause with my longtime adversaries. I've worked very hard to create a regime in which it's safe to be gay. I'd also like that regime to be one that's safe for religious dissenters.
Id. I welcome
119.
120.
121. See Brief of Amici Curiae Cato Inst.,
122.
123.
124. Bagenstos, supra note 36, at 1235.
125. See id.
126. Elane Photography, 309 P.3d at 59.
127.
128. Elane Photography, 309 P.3d at 64.
129. See, e.g.,
130.
131. Ch. 332, 1999 Ariz. Sess. Laws 1769 (codified as amended at ARIZ. REV. STAT. ANN. §§ 41-1493 to -1493.02 (2014)).
132. S.B. 1062, 55th Leg., 2d Sess. (Ariz. 2014).
133.
134. Id.
135.
136.
It is unnecessary to consider now whether legislation which restricts those political pro- cesses which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Four- teenth Amendment than are most other types of legislation . . . .
Nor need we enquire whether similar considerations enter into the review of statutes di- rected at particular religious, or national, or racial minorities: whether prejudice against dis- crete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
Id. (emphasis added) (citations omitted).
137. For my views, see
138. Hague v. Comm. for Indus. Org.,
139.
140. 130 S. Ct. 2971, 2980 (2010) (internal quotation marks omitted). For my views, see generally
141. Christian Legal Soc'y, 130 S. Ct. at 2991-92.
142. 1 Joint Appendix at 236-45, Christian Legal Soc'y, 130 S. Ct. 2971 (No. 08-1371), 2010 WL 372139 (listing "Registered Student Organizations").
143. Christian Legal Soc'y, 130 S. Ct. at 2978-79 (internal quotation marks omitted).
144. See id. at 3019-20 (
145. See id. at 2986.
146. See, e.g.,
147. For a brief account, see EPSTEIN, supra note 135, at 470-75.
148.
149.
* Laurence A. Tisch Professor of Law,
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THE UNRELENTING LIBERTARIAN CHALLENGE TO PUBLIC ACCOMMODATIONS LAW
LAWYERING THAT HAS NO NAME: TITLE VI AND THE MEANING OF PRIVATE ENFORCEMENT
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