THE UNRELENTING LIBERTARIAN CHALLENGE TO PUBLIC ACCOMMODATIONS LAW
By Bagenstos, Samuel R | |
Proquest LLC |
There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in places of public accommodation, was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Essay begins by discussing the controversy in the Reconstruction and civil rights eras over the penetration of antidiscrimination principles into the realm of private businesses' choice of customers. Although the controversy was discussed in the earlier era in terms of civil versus social rights, and in the later era in terms of property, contract, and association, the same fundamental concerns motivated objections to public accommodations laws in both periods. The Essay then turns to the current controversy. It begins by discussing
INTRODUCTION
There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in "place[s] of public accommoda- tion,"1 was a remarkable success. Although Title II triggered the most contro- versy of all of the bill's titles as the Civil Rights Act proceeded through Con- gress-including objections from such notables as Robert Bork2 and William Rehnquist3 (pressed in
But the consensus is illusory. Notwithstanding the swift reaction to
My suggestion that the legal controversy remains ongoing may be surpris- ing. After all, Plessy is decisively confined to the constitutional anticanon.14 And the Court has, to be sure, continued to reaffirm the state-action holding of the Civil Rights Cases.15 But that decision's invalidation of the Civil Rights Act of 1875 has been completely displaced as a matter of reality-if not doc- trine-by the Court's rulings upholding Title II of the Civil Rights Act of 1964 in the McClung and Heart of
But, I shall argue, appearances are deceiving. Although the reaction to Paul's comments shows that skeptics of public accommodations laws are un- willing to attack Title II itself, the reasons for that unwillingness are essentially pragmatic. These skeptics appear to agree that laws prohibiting private busi- nesses from excluding classes of customers violate libertarian principles, but they recognize that a frontal attack on Title II of the Civil Rights Act is a politi- cal nonstarter.19 Instead, they have sought to retreat to safer political and legal ground from which to challenge the expansion of public accommodations laws to businesses and bases of discrimination not addressed by Title II.20 This stra- tegic retreat shows increasing signs of success. The
My argument proceeds as follows. In Part I of this Essay, I discuss the con- troversy in the Reconstruction and civil rights eras over the penetration of anti- discrimination principles into the realm of private businesses' choice of cus- tomers. Although the controversy was discussed in the earlier era in terms of civil versus social rights, and in the later era in terms of property, contract, and association, I argue that the same fundamental concerns motivated objections to public accommodations laws in both periods. In Part II, I turn to the current controversy. I begin by discussing the response to
My main goal in this Essay is analytic and descriptive. I aim to show that although we no longer use the language of civil and social rights, the law of public accommodations discrimination remains preoccupied by the same sorts of questions that it once confronted using that language. Today's controversy regarding public accommodations laws is a controversy about whether the civil rights category should cede back some of the territory it once conquered from the category of social rights. Although I have my own normative views about that controversy, I hope that my analytic account is one on which participants on both sides of the debate can agree.
I. THE EXPANDING TERRITORY OF "CIVIL RIGHTS," FROM RECONSTRUCTION THROUGH THE CIVIL RIGHTS ERA
From the moment the American civil rights project began, tension and con- flict have existed regarding how broadly and deeply equality principles should extend into civil, economic, and social relations. During Reconstruction, these tensions and conflicts were expressed through the language of the tripartite the- ory of civil, political, and social rights. By the civil rights era of the mid- twentieth century, the language of the tripartite theory had largely dropped out of the mainstream discourse. But the same substantive tensions and conflicts continued. As the civil rights era proceeded, political and judicial actors ex- panded the domain of the equality principle more and more broadly. In so do- ing,
In this Part, I introduce the conflict over the breadth of the civil rights pro- ject in the Reconstruction and civil rights eras. My aim is not to tell anything close to the entire history of this conflict. Instead, I aim to show that, in both periods, influential skeptics objected that the project of racial equality was im- properly intruding on what should be understood as private choices; and to show that those objections, although expressed in the language of social rights during Reconstruction and of property, contract, and free association during the civil rights era, were substantively similar. My discussion in this Part thus pro- vides important background for Part II of this Essay, which shows how the same conflict continues today.
During Reconstruction, the conflicts over the scope of civil rights laws were often expressed in the language of the tripartite theory of rights. Most public actors at the time seem to have taken for granted that there was a distinc- tion between three classes of rights: civil rights (understood as basic rights at- tendant to participation in civil society), political rights (understood as rights to participate in the governance of the community), and social rights (understood as rights involving the participation in social life).24 The boundaries between these different spheres of rights were highly contested, and there was no con- sensus on precisely what each sphere included. But there was a relatively clear consensus about the "core of each conception": "The core civil rights included the rights to sue and testify; social rights included the right to select one's asso- ciates; voting was the central political right."25
As a number of scholars have demonstrated, Reconstruction-era congres- sional debates acknowledged that civil, political, and social rights represented three distinct dimensions of equality.26 Instead of challenging the tripartite the- ory, those debates concerned whether particular areas of life should be under- stood as implicating civil rights or instead social or political rights. In the standard account of those debates, most participants agreed that the Thirteenth and Fourteenth Amendments (and the Civil Rights Act of 1866) focused on protecting civil rights, the Fifteenth Amendment (and its enforcing legislation) protected political rights, and no provision of federal law protected equality in social rights.27 Throughout this period, the scope of the civil rights category remained highly contested, and social rights-almost an epithet28-represented a residual category of activities that the law did not reach. Perhaps the broadest congressional understanding of the civil rights category during the Reconstruc- tion era appears in the Civil Rights Act of 1875, which treated race discrimina- tion in public accommodations as a violation of civil, rather than merely social, rights.29
In its decisions that punctuated the end of Reconstruction, the
The decisions in the Civil Rights Cases and Plessy highlight the consensus at the time that social equality was beyond the power of law to achieve. For many during the Reconstruction era, the civil-rights/social-rights distinction served a function like the one that the structurally similar public-private distinc- tion would later be understood to serve-to preserve a sphere of private, indi- vidual choice.37 "In essence," argue
In Plessy and subsequent cases, however, the Court applied the social rights concept beyond cases in which it merely protected the private choice of the litigants before it. Rather, the Court applied the concept to uphold statutes that required race segregation in public conveyances and schools-statutes that might override the individual choices of private actors.41 And the social rights concept also played a key role in ensuring that prohibitions on interracial mar- riage-which perforce override private choices-would not be held unconstitu- tional.42
There was an undeniable tension between these two instantiations of the concept of social equality,43 but the basic animating argument for distinguish- ing between civil and social equality remained one of preserving private choice. In Balkin's words, the dominant thinking at the time rested on the idea that "social equality and inequality are produced in the realm of private choice" and that the government could take account of widespread social understandings through "reasonable restrictions designed to soothe social tensions and diffuse social conflicts."44 Such restrictions, rather than constituting "social engineer- ing," were understood by Plessy-era thinkers to "facilitate the private sphere."45 This embrace of regulation as a means to protect private choice was unstable- as became increasingly obvious during the Lochner period-but that is some- what beside my point. Rather, my point is simply that the civil-rights/social- rights distinction served, by the end of Reconstruction, to protect race discrimi- nation in public accommodations and that the justification offered for that distinction was one of protecting a "social" sphere of private choice in race relations.
When the civil rights era began nearly a hundred years later, people no longer spoke in terms of civil rights versus social rights. Balkin suggests that the questions of the civil rights era no longer "fit well into the tripartite theo- ry."46 Speaking of
Much of
On its face,
Opponents of Title II sometimes framed their arguments in terms of free- dom of contract or association.
As
Other times, the arguments against Title II were framed in terms of the Thirteenth Amendment. The argument was not the one we might have expected from the Civil Rights Cases-that discrimination in public accommodations was not a badge and incident of slavery that
The fact that Negroes, or those who sympathize with their aspirations, may believe that white persons who refuse to serve them are being arbitrary or ca- pricious, does not alter in any way the legal effect of the thirteenth amend- ment. This provision bans absolutely, and in the most express terms, the claim of any person to force any other person to serve him, for any reason whatso- ever.68
Avins, in turn, relied on
The few [businesses] that do not serve Negroes adopt that policy either be- cause their clientele insist upon exclusiveness, or because of the reluctance of employees to render intimate personal service to Negroes. Both the clientele and the business operator have a constitutional right to discriminate in their private affairs upon any conceivable basis. The right to exclusiveness, like the right to privacy, is essential to freedom.72
Whether framed as rights of contract, association, or freedom from invol- untary servitude, these libertarian objections invoked the same notions of pre- serving private choice that underlay the civil-rights/social-rights distinction. And, indeed, Avins himself specifically argued that Title II violated not only the Thirteenth Amendment but also what he characterized as the Fourteenth Amendment's protection of free association-a protection he viewed as deriv- ing from the Reconstruction-era refusal to "enact social equality."73
This case demonstrates that the Negro desegregation program is not limited to public affairs. The right of white people to enjoy a choice of associates in their private lives is marked for extinction by the N.A.A.C.P. Compulsory total togetherness of Negroes and whites is to be achieved by judicial decrees in a series of Negro court actions.76
This passage, with its overtones of interracial marriage, resonates strongly with the Plessy-era civil-rights/social-rights distinction.
This history might lead us to conclude that the civil-rights/social-rights distinction no longer matters in the law. As I hope to show in the rest of this Essay, I think that conclusion would be a mistake. There have always been con- flicts regarding the proper boundary between antidiscrimination protections and private choices-the conflicts that the civil-rights/social-rights distinction once mediated. The Court and
II. THE CONTEST TODAY
The proper reach of civil rights laws regulating private business conduct is contested today to a degree that it has not been since the 1960s. Indeed, we are edging closer to reengaging precisely the same fights that occurred in the years surrounding the passage of Title II of the Civil Rights Act. This contest is a bit hidden, as even libertarian conservatives profess allegiance to Title II these days. But a close analysis of their arguments suggests that the position of these libertarians and conservatives is largely a tactical one-an effort to retreat to stronger political ground on which to fight the continued extensions of (and perhaps to commence a rollback of) the laws that prohibit discrimination by private parties.87 Although many libertarians have formally given up the effort to eliminate prohibitions on race discrimination by private places of public ac- commodation, many have continued to oppose extensions of public accommo- dations laws to new defendants and bases of discrimination. And their opposi- tion to those extensions has been based on principles that, taken seriously, threaten the core of Title II.
My argument in this Part unfolds in three stages. First, I examine a recent occasion in which libertarian opposition to public accommodations laws re- ceived prominent airing in mainstream American politics:
The second stage of my argument examines one of the key positions to which libertarians retreated when they gave up their frontal attack on Title II: a distinction between "commercial" and "expressive" enterprises. Prominent lib- ertarian commentators, notably Dale Carpenter,88 have argued that this distinc- tion makes the most sense of the
In the final stage of my argument, I show that the threat is not just a theo- retical one. Rather, a current wave of litigation pursuing the expressive and re- ligious rights of for-profit corporations-through challenges to the application of public accommodations laws as well as challenges to the Affordable Care Act's "contraception mandate"-relies on a theory that would collapse the ex- pressive-commercial distinction. Although these challenges have had mixed success, they highlight the difficulty of cabining libertarian attacks on public accommodations laws to the marginal cases. Whether or not one thinks that these challenges should succeed, they demonstrate that we continue to struggle over the proper placement of the civil-rights/social-rights line, nearly fifty years after
It is unusual these days to hear arguments against public accommodations laws based on property rights and freedom of contract. After all, as a doctrinal matter, the
The controversy over
Substantively,
Unlike his father,
The substance of Epstein's, Bernstein's, and Kuznicki's arguments against Paul's position, I contend, reflected what these writers understood to be their political dilemma. Each of these writers sought to articulate a theory that rec- onciled Title II with libertarian principles while providing a principled, libertar- ian basis for opposing expansion of public accommodations laws beyond race- based protections covering a narrow class of businesses. But the balance is too precarious; the arguments offered by these writers either fail to reconcile Title II with libertarian principles or fail to provide a principled basis for opposing expansion of public accommodations laws beyond Title II. One suspects, there- fore, that the driving force behind the articulation of these arguments is not principled so much as it is political. On a deeper level, one doubts that Epstein, Bernstein, and Kuznicki really accept that Title II is consistent with libertarian principles. But they hope to avoid the "embarrass[ment]" that opposition to a deeply entrenched, widely accepted law would cause, so they are willing-as a "tactical" move-to concede that "hill" to the civil rights revolution while re- treating to stronger political ground to fight off further advances of the public accommodations antidiscrimination project.109
Bernstein's intervention in the intralibertarian debate over Paul's com- ments exemplifies the problem. Bernstein notes approvingly that "libertarians are loath to concede the principle that the government may ban private sector discrimination," because "the concept of antidiscrimination is almost infinitely malleable."110 He observes that defenders of antidiscrimination laws "typically focus on laws banning racial discrimination" and says that "[t]hey do so be- cause opposition to race discrimination has great historical and emotional reso- nance."111 But he notes that antidiscrimination laws extend far more broadly, "to discrimination based on religion, sex, age, disability (including one's status as a recovering drug or alcohol addict), pregnancy, marital status, [or] veteran status," and even to "everything from sexual orientation to political ideology to weight to appearance to membership in a motorcycle gang."112 Thus, he con- cludes, "to concede the general power of government to redress private dis- crimination through legislation would be to concede virtually unlimited power to the government."113
So why does Bernstein defend Title II? Well, he argues, libertarians "are often willing to make certain exceptions to their opposition to anti- discrimination laws, so long as they can identify an appropriate limiting princi- ple."114 And what is the limiting principle that should allow libertarians to make an exception to Title II? Bernstein makes two essential points. First, he argues, race discrimination in private business at the time
These, however, are not strong arguments of libertarian principle for ac- cepting Title II while rejecting broader extensions of public accommodations laws. The first-state action-point is initially appealing, but it extends far be- yond Title II. As
As for the second point, that discrimination in the South was enforced by private violence and harassment in which local officials sometimes acquiesced, the essential problem is that Title II extends far beyond cases in which private- sector discrimination is supported by "a white supremacist cartel."121 Bernstein tacitly admits that such a cartel did not generally exist in the North,122 yet Title II applies there as well. And Title II continues to apply today even after the fla- grant public and private discriminatory system of
Although Epstein resists a repeal of Title II, the enactment of such a law today, in the absence of a regime like
As Epstein himself acknowledges in his contribution to this Symposium,129 the white-supremacist-cartel justification would not easily support Title II to- day. Even as of 1964, if the problem was a cartel that enforced discrimination by businesses via threats, violence, and harassment, why is the proper libertari- an response not to directly target the threats, violence, harassment, and monop- oly, so that business owners will be truly free to choose whom to serve?130 Bernstein says that targeting the cartel directly would have required "a massive federal takeover of local government to prevent violence and threats against, and extralegal harassment of, those who chose to integrate," and that Title II's ban on discrimination by private business owners was a much more "[p]ractical" way of achieving the same end.131 But that makes no sense. If those who engaged in threats, violence, and harassment to prevent business owners from serving blacks could not be stopped by the threat of federal prose- cution-at least without a "massive federal takeover of local government"- then why would they be stopped by a federal law prohibiting business owners from discriminating? Bernstein says that Title II allowed business owners to meet "threats of violence and harassment" with "an appeal to the [business's] obligation to obey federal law."132 But it is not clear why a Ku Klux Klan member who was not deterred by the threat that he would be personally subject to criminal prosecution for violent threats against businesses would be deterred by the fear that the victim of those threats would be subject to injunctive relief and civil penalties for giving into them. And Bernstein never explains why en- forcing Title II in this context would not have required the same sort of "mas- sive federal takeover" that he believes it would have taken to enforce the prohi- bition on threats, violence, and harassment.
The effort by Bernstein, Epstein, and others to construct a limiting princi- ple that allows libertarians to support Title II while opposing the extension of prohibitions on public accommodations discrimination thus should be regarded as a failure on its own terms. The argument either does not provide a principled libertarian justification for Title II or does not provide a basis for limiting the extension of public accommodations laws. The libertarian objections to Paul's comments thus are best regarded as reflecting a keen sense of the politically possible-a concession that our society durably regards a right to be free from race discrimination by certain core public accommodations as a civil right. But the position leaves open the opportunity to engage in further contest over where to draw the line between civil and social rights-a contest that will be waged on ground that is more politically favorable to skeptics of antidiscrimination laws.
As I show in the rest of the Essay, that contest has indeed moved to more favorable ground for libertarians by focusing on circumstances in which anti- discrimination laws seem to violate not just pre-legal-realist understandings of property ownership but also more modern understandings of civil liberties. I turn to these controversies in the next two Subparts of the Essay. As I note, though, whatever the doctrinal heading, the contest is the same one that has persisted since the Reconstruction-era distinction between civil rights and so- cial rights came to prominence-a contest over defining the degree to which antidiscrimination law may penetrate into spaces once understood as "private" or "social." And, indeed, many of the arguments for expanding or contracting the civil rights sphere are the same across the doctrinal contexts. All of this suggests that the doctrinal arguments are merely the latest vehicle for continu- ing the long-running contest between broad and narrow understandings of civil rights.
Beginning with its decision in
In this Subpart, I respond to these arguments on their own terms. On its face, Dale seems to threaten the constitutionality of applying public accommo- dations laws in many circumstances beyond the specific context of the case. I then turn to the expressive-commercial distinction, which many commentators have relied on in suggesting the threat is limited. I argue that the distinction is a very unstable basis for confining the libertarian principles of Dale.
Dale involved a state law prohibiting sexual orientation discrimination by public accommodations. The Court held that application of that law to bar the
The risk Dale poses to all public accommodations laws is evident. If the mere requirement that an organization not discriminate against gays in admis- sion to membership is compelled association or forced speech that violates the organization's First Amendment rights, the requirement that a business not dis- criminate against African American customers could readily be understood as compelled association or forced speech by a parallel argument. A business cor- poration, just like a nonprofit association, has First Amendment rights- including rights against being compelled to support the messages of others in some circumstances-under current doctrine.138 Serving an African American customer in a restaurant side by side with white customers sends the message of equal citizenship of blacks and whites at least as strongly as admitting gay members to the
And, of course, freedom of association has long been a key argument of- fered against public accommodations laws. Bork's classic
Given this background, it should be no surprise that the Dale dissenters charged the majority with "convert[ing] the right of expressive association into an easy trump of any antidiscrimination law."143 And a number of commenta- tors similarly saw Dale as a general threat to antidiscrimination and public ac- commodations laws.144 As Andrew Koppelman and
One key means by which lower courts have limited Dale is by erecting an expressive-commercial distinction. This distinction finds its origin in
In response to the claims that Dale threatens antidiscrimination laws gener- ally, a number of scholars have looked to
First, regulation to promote inclusive membership practices is justified when applied to associations whose primary purpose is participation in the commer- cial milieu because of the central importance of fair access to material re- sources and mechanisms of power. Second, because such associations operate within a highly competitive marketplace and have a fairly focused singular purpose whose pursuit is largely guided by this competitive context and aim of profitable operation, these associations do not function in a context that is like- ly to be conducive to the free, sincere, uninhibited, and undirected social inter- action and consideration of ideas and ways of life.155
But the expressive-commercial distinction is not a stable one, for at least three reasons. First, though Dale contains some language noting the "extreme[] br[eadth]" of
This brings me to a third problem with the commercial-expressive distinc- tion. To the extent that its supporters have offered a defense of the distinction, they have, like Carpenter and Shiffrin, defended it as resulting from a balancing of the interest in associational freedom against the interest in avoiding discrim- ination. But there is no obvious reason why that balance fits perfectly within the line between commercial and expressive activities-even if we could figure out where that line fell. The more strongly one believes in the value of free as- sociation, the more likely one is to think that an exemption from the anti- discrimination principle for even some classes of commercial businesses is tol- erable. At the limit, one might take Epstein's position that "the state has no in- terest in counteracting discrimination by private associations that do not pos- sess monopoly power"-whether those associations are commercial or noncommercial.160 After all, if an individual who is discriminated against has somewhere else to turn for her goods or services, how could the desire to open up economic opportunities for her justify the impingement on free association? Once we are balancing associational and nondiscrimination interests as Carpen- ter and Shiffrin are, it is very difficult to cabin the associational-freedom prin- ciple to noncommercial entities.
C. Current Challenges to the Expressive-Commercial Distinction
I argued in the previous Subpart that the expressive-commercial distinction is an untenable one. And, indeed, the instability of the distinction has become more and more apparent. In this Subpart, I discuss two recent legal develop- ments that press on the distinction. First, in a series of state-law public accom- modations cases brought against businesses that have refused to serve same-sex couples' weddings or commitment ceremonies, for-profit businesses have ar- gued that their goods or services are inherently expressive and that the First Amendment negative-speech doctrine thus precludes application of public ac- commodations laws to them. Second, a number of for-profit corporations have challenged the Affordable Care Act's so-called "contraception mandate" as violating their own or their owners' religious rights under the First Amendment and the Religious Freedom Restoration Act.
These developments-one inside and one outside of the public accommo- dations context-threaten to eliminate any expressive-commercial distinction. If that is right, then the strategic retreat by libertarian opponents of public ac- commodations laws seems to have worked. The property-and-contract objec- tion to public accommodations laws that Bork and others pressed in the 1960s was politically vulnerable in a post-Lochner world. But First Amendment ar- guments have remained resonant across the political spectrum. By withdrawing from the vulnerable ground of property and contract to the more politically congenial ground of the First Amendment-and by directing their objections, in the first instance, at laws that do not focus on race discrimination- libertarian skeptics have put themselves in a position to threaten even the core applications of public accommodations laws.
As in
Although the
In arguing that application of the
Although this argument does give some commercial businesses a First Amendment defense to the application of public accommodations laws, Elane Photography and its amici insisted that the constitutional constraints on those laws would be limited. In particular, the amici argued that First Amendment protection would "extend[] only to people who are being compelled to engage in expression."170 Yet this line is not as "clear and administrable"171 as they suggested. The amici argued that "[u]nder Wooley, photographers' First Amendment freedom of expression protects their right to choose which photo- graphs to create," but "caterers, hotels, and limousine companies do not have such a right to refuse to deliver food, rent out rooms, or provide livery services, respectively, for use in same-sex commitment ceremonies."172 That is because, they said, photography is expression but catering and so forth are not.173
But that is a bit coy. As anyone who has ever hired a caterer for a wedding, bar mitzvah, or other occasion knows, catering has inevitably expressive ele- ments. It is common for chefs to describe their food as "art" and "creations."174 And the presentation of food at an event typically expresses a message deemed appropriate to the event-be it celebratory (as at a graduation) or somber (as at a funeral). Hotels that host weddings often do more than provide a room for the ceremony; they set up and decorate the space in undeniably expressive ways. Even limousine companies often write "Just Married" on the cars that carry newlywed couples. If the fact that the service provided by a business incorpo- rates an expressive element is sufficient to create a First Amendment defense against the application of a public accommodations law, then all of these busi- nesses should have a First Amendment defense to a law that prohibits them from discriminating against customers on the basis of sexual orientation-or race, or any other group status, for that matter. Not surprisingly, a cake shop that refused to serve a same-sex couple's wedding recently responded to allega- tions that it violated a state public accommodations law by making an argument that was identical to Elane Photography's.175 And in Elane Photography, the
More generally, any business's provision of a good or service to someone on an equal basis with others can always be characterized as expressive. The provision of the good or service expresses the message, at the least, that the customer is entitled to be treated like any other customer.177 The statement of Elane Photography's co-owner-that she would not photograph an event that violates her religious beliefs-suggests that it was the refusal to send that mes- sage that motivated her objection to the application of the public accommoda- tions law. If the First Amendment prohibits for-profit businesses that offer their goods and services to the public from being required to send messages they do not want to send, then it is difficult to see a principled basis for limiting that prohibition to cases in which the good or service the business sells is itself ex- pressive. Even when a business is selling nothing but motor oil, an antidiscrim- ination law will force it to send a message that it may not want to send. Once we expand the "expressive" zone to include for-profit businesses that sell their goods or services to the public, it becomes clear that the expressive-commercial distinction cannot be counted on to cabin Dale's constitutional exemption from public accommodations laws.
The Cato, Volokh, and Carpenter amicus brief argued that the "line be- tween expression and nonexpressive behavior" can be readily drawn by refer- ence to existing First Amendment cases.178 If a business's "activity may be banned, limited only to certain narrow classes of people, or subjected to discre- tionary licensing," amici contended, it would not violate the First Amendment to apply antidiscrimination laws to that activity.179 But if the activity "is pro- tected by the First Amendment against a ban, for instance because it involves writing or photography," they argued, applying antidiscrimination laws to it would violate the First Amendment.180
But that conclusion does not follow from the premise. Crucially, the amici failed to take account of the accepted doctrinal distinction between laws that target speech for regulation and neutral laws that do not single out expressive activity.181 The First Amendment prohibits an ordinance that requires newspa- per racks, and only newspaper racks, to obtain a discretionary permit from local officials before being placed on the sidewalk.182 But the First Amendment does not prohibit an ordinance that requires all vending machines to obtain a discre- tionary permit before being placed on the sidewalk-nor does it prohibit en- forcement of that general ordinance against a newspaper company that places its machines on the sidewalk without the required permit.183 That is true even though enforcing the permit ordinance against the noncompliant newspaper has the effect of limiting expression. Being in the business of selling speech does not grant a general First Amendment immunity from the application of neutral laws, "unrelated to expression," that have an effect on speech.184 So too in the Elane Photography case, the application of the public accommodations law may have the effect of requiring the photography company to engage in expres- sion against its will, but that is only because of the application of the generally applicable rule prohibiting any business that opens itself up to the public from discriminating against potential customers based on their sexual orientation.185 Because the First Amendment does not give businesses that exist to sell speech any presumptive immunity from generally applicable laws that have an effect on expression, and because any business could legitimately claim that the ap- plication of public accommodations laws to it forces it to send a message, it is difficult to see how the argument in the Cato, Volokh, and Carpenter amicus brief could be readily cabined to those for-profit corporations that are specifi- cally "expressive."
The amicus brief also highlights the malleability of the balancing approach that underlies Carpenter's and Shiffrin's academic defenses of the expressive- commercial distinction. The brief emphasizes the large number of wedding photographers in
The contraception mandate cases190 are somewhat further removed from the context that is my principal interest in this Essay. After all, those cases do not involve public accommodations statutes; they involve a regulation of em- ployer-provided insurance that the federal government imposed pursuant to the Patient Protection and Affordable Care Act (ACA).191 And they do not rest primarily on constitutional challenges to the application of the ACA in any event. Rather, they principally rest on the Religious Freedom Restoration Act of 1993 (RFRA).192 RFRA provides, as a rule of construction, that federal stat- utes will not be interpreted to impose substantial burdens on religious exercise unless doing so is the least restrictive means of achieving a compelling inter- est.193 The employers in these cases are private corporations owned by individ- uals who have a religious opposition to contraception that works by preventing the implantation of a fertilized egg. They argue that, by requiring their health coverage to pay for contraceptive methods that they believe prevent implanta- tion, the ACA imposes a substantial burden on their religious beliefs.194
RFRA does not constrain state laws195-including state antidiscrimination laws-and an expanded federal public accommodations law could override it. Perhaps most important, the religious exercise issues presented in these cases do not necessarily say anything about whether a business could maintain a First Amendment defense to the application of public accommodations laws when its owner objected to serving a particular class of customers for nonreligious rea- sons. Nonetheless, one potential outcome of the challenges to the contraception mandate is the further erosion of the already-flimsy commercial-expressive dis- tinction. A crucial premise of the challenges is that secular, for-profit corpora- tions can be a vehicle for the religious exercise of their shareholders and that regulation of those corporations can thus violate rights to free exercise of reli- gion. For the mandate's challengers to prevail, then, there must be no commer- cial-expressive distinction under RFRA.
And, indeed, that is precisely what the Tenth Circuit held in its decision ruling for the challengers in
To be sure, the courts could say that ruling for the contraception mandate's challengers would not undermine the expressive-commercial distinction in free speech or free association cases. After all, RFRA goes beyond what the First Amendment itself requires.200 But, until now, RFRA's prophylaxis has been understood as extending broader protections to the entities that are already pro- tected by the First Amendment-not as protecting a broader range of entities than does the First Amendment.201 And if the
Neither the public accommodations cases exemplified by Elane Photog- raphy nor the contraception mandate cases yet touch the core of public accom- modations law. They do, however, mark a tightening siege. If the courts extend First Amendment or RFRA protection to for-profit corporations in these cases, the expressive-commercial distinction's potential to limit the risk posed by Dale will be substantially eroded. And libertarian opponents of public accom- modations statutes will be well positioned to continue the stepwise efforts to contain, and indeed roll back, the penetration of the antidiscrimination norm into what was previously considered the "private" or "social" sphere.
CONCLUSION
In this Essay, I have argued that the apparent consensus surrounding public accommodations law is illusory. Although libertarian opponents have given up the effort to undertake a frontal assault against Title II of the Civil Rights Act of 1964, they have engaged in what is merely a strategic retreat. By avoiding an attack on Title II itself, and by relying on First Amendment arguments rather than those based on property or contract, skeptics of public accommodations laws have put themselves in a position to potentially block further expansion of those laws-and even to threaten their core applications. Although these skep- tics' arguments take a different form than the arguments of opponents of the Civil Rights Act of 1875-focusing on freedom of association rather than the civil-rights/social-rights distinction-they implicate precisely the same con- cerns as did the arguments raised against public accommodations laws during the Reconstruction and civil rights eras. Neither the Civil Rights Act of 1964 nor the
1. 42 U.S.C. § 2000a (2012).
2.
3. See RICK PERLSTEIN, BEFORE THE STORM: BARRY GOLDWATER AND THE UNMAKING OF THE AMERICAN CONSENSUS 363 (2001).
4.
5.
6.
7. See RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 127-28 (1992).
8. See infra Part II.A.
9. See, e.g.,
10. See infra Part II.A.
11.
12.
13.
14.
15. See
16. Pub. L. 90-284, tit. VIII, 82
17.
18. See 3 BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 209-17 (2014).
19. See infra Part II.A.
20. See infra Part II.
21.
22. See infra Part II.C.
23.
24.
25.
26. See, e.g.,
27. See, e.g., id. Primus argues instead that the Reconstruction-era Republicans actual- ly saw all three Amendments as protecting civil rights and that the Fifteenth Amendment reflects the expansion of the concept of civil rights rather than the extension of constitutional protection to political rights. See PRIMUS, supra note 24, at 156-60.
28.
29. See ch. 114, 18
30. 109 U.S. at 22.
31. See id. at 59-60 (Harlan, J., dissenting); see also Siegel, supra note 25, at 1126-27 ("
32.
33. Id. at 544.
34. Id. at 551-52.
35. See id. at 561 (Harlan, J., dissenting).
36. See id. at 562-63.
37. It is hardly surprising, for this reason, that the civil-rights/social-rights distinction proved to be unstable and continually contested. For examples of discussions of the similar instability of the public-private distinction, see
38.
39. Tushnet, supra note 25, at 887.
40.
41. See, e.g.,
42.
43.
44. Id. at 1701.
45. Id.
46. See id. at 1709.
47. Id.
48. See, e.g.,
49. Balkin, supra note 40, at 1709.
50. See id. at 1709-10.
51. See T.H. MARSHALL, CITIZENSHIP AND SOCIAL CLASS 10-11, 46-48 (1950).
52.
53. Id. at 492-93 (emphasis added).
54. Id. at 493.
55. Id. at 495 (emphasis added).
56. See, e.g.,
57.
58. Id. at 22.
59. Id.
60. See PERLSTEIN, supra note 3, at 363-64.
61. See KEVIN M. KRUSE,
62.
63. See The Civil Rights Cases,
64. For an excellent and extensive discussion of these arguments, see McClain, supra note 5, at 136-41. See also
65. See S. REP. NO. 88-872, at 42-53 (1964) (individual views of Sen.
66. Id. at 53 (emphasis omitted).
67. Schmidt, supra note 4, at 425.
68.
69. 341 P.2d 859 (Wash. 1959) (en banc).
70. See id. at 861, 866.
71. Id. at 869 (Mallery, J., dissenting).
72. Id.
73.
74. 357 P.2d 702 (Wash. 1960) (en banc).
75. See id. at 703.
76. Id. (Mallery, J., concurring); see also id. at 704 ("The Negro race, ably led by N.A.A.C.P., makes the result of every Negro lawsuit the measure of its success in securing not only rights equal to whites in public affairs, but also of special privileges for Negroes in private affairs.").
77. See, e.g., McClain, supra note 5, at 128-35 (discussing the
78. Heart of
79. Id. at 258-61.
80. At the same time, the civil rights category was occupying the territory formerly occupied by political rights, as
81. Loving v.
82. See supra text accompanying note 42.
83. See Fair Housing Act of 1968, Pub. L. 90-284, tit. VIII, § 804, 82
84.
85.
86. See id. at 189 (
87. I should emphasize that an agenda to roll back the coverage of laws prohibiting private-sector discrimination is not the same as an agenda to promote private-sector discrim- ination. One can honestly and vehemently oppose discrimination by private actors while still believing, on libertarian principle, that the government should not intervene to prevent it- and many libertarians take this precise position.
88.
89. See
90. Heart of
91. See, e.g., Pinnock v. Int'l
92.
93. See id.
94. See id.
95. Id.; see also Bork, supra note 2, at 24 ("The trouble with freedom is that it will be used in ways we abhor. It then takes great self restraint to avoid sacrificing it, just this once, to another end.").
96.
97.
98.
99.
100.
101. My argument in this Essay is an analytic one, not a normative one. Accordingly, it is of no particular moment whether I think prohibitions on discrimination by businesses that hold themselves open to the public are justified. For whatever it is worth, I do tend to agree that such antidiscrimination rules are justified, largely for the reasons set forth by Singer, supra note 99, at 147. See generally
102. For a contribution that describes public accommodations laws as one of a number of restrictions on alienability within property law, see
103.
104. See, e.g.,
105.
106. Epstein, supra note 105.
107. Bernstein, supra note 105.
108. Kuznicki, supra note 105.
109. I am not the only one who reads the situation this way. Other libertarians accused these commentators in real time of pulling their punches for political reasons. See, e.g., Jef- frey Miron, What Matters Are Consequences, Not Context, CATO UNBOUND (
110. Bernstein, supra note 105.
111. Id.
112. Id.
113. Id.
114. Id.
115. Id.
116. Id.
117. EPSTEIN, supra note 7, at 127-28.
118.
119.
120.
121. Bernstein, supra note 105.
122. See id.
123. See, e.g., Jacoby, supra note 104 ("What is the justification for laws banning pri- vate discrimination today, when
124. EPSTEIN, supra note 7, at 128 (emphasis added).
125. Epstein, supra note 105. Epstein takes a similar position in his contribution to this Symposium.
126.
127. Id. at 120.
128.
129. See id. at 1260-61.
130. See, e.g., EPSTEIN, supra note 7, at 29-30 (arguing for state intervention to prevent force and fraud).
131. Bernstein, supra note 105.
132. Id.
133. See infra note 151 and accompanying text.
134.
135. See id. at 649-53.
136. Id. at 653.
137. Id. at 659.
138. See, e.g.,
139.
140.
141.
142. See PERLSTEIN, supra note 3, at 363-64.
143.
144. See, e.g.,
145. See ANDREW KOPPELMAN &
146.
147. Id. at 633-34.
148. Id. at 634.
149. Id. at 635.
150. Id. at 636.
151.
152. Carpenter, supra note 88, at 1518.
153. Shiffrin, supra note 151, at 876.
154. See id. at 875-76.
155. Id. at 877.
156.
157. Rubenfeld, supra note 139, at 812 (quoting Dale, 530 U.S. at 655).
158. Id.
159.
160. Epstein, supra note 126, at 120. Epstein elaborates that position in his contribution to this Symposium and acknowledges that the expressive-commercial line is shaky at best.
161. 309 P.3d 53 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (2014).
162. Id. at 59-60.
163. In the
164. See id. at 63.
165. See id. at 63-72.
166. See Brief of Amici Curiae Cato Inst.,
167. See Elane Photography, 309 P.3d at 66 ("Elane Photography argues that because the service it provides is photography, and because photography is expressive, 'some of [the] images will inevitably express the messages inherent in [the] event.' In essence, then, Elane Photography argues that by limiting its ability to choose its clients, the [New Mexico Human Rights Act] forces it to produce photographs expressing its clients' messages even when the messages are contrary to Elane Photography's beliefs." (alterations in original)).
168. See id. at 64 (noting Elane Photography's reliance on Wooley v. Maynard,
169.
170. Carpenter Brief, supra note 166, at 17.
171. Id. at 18.
172. Id. at 17.
173. See id.
174.
175.
176. See Elane Photography, 309 P.3d at 71.
177. See supra note 139 and accompanying text.
178. Carpenter Brief, supra note 166, at 18.
179. Id.
180. Id. at 18-19.
181. See, e.g.,
182. See
183. See id. at 760-61.
184.
185.
186. Carpenter Brief, supra note 166, at 19.
187. Id. at 20.
188. Id.
189. See supra Part II.A-B.
190. See, e.g.,
191. Pub. L. No. 111-148, 124
192. Pub. L. No. 103-141, 107
193. See 42 U.S.C. §§ 2000bb-1, 2000bb-3.
194. See Conestoga Wood, 724 F.3d at 381-82;
195. See City of Boerne, 521 U.S. at 536.
196.
197. Id.
198. Id. at 1135.
199. See supra note 158 and accompanying text.
200. See City of Boerne, 521 U.S. at 532.
201. See, e.g.,
202. See
203. See supra note 138 and accompanying text.
* Professor of Law,
Copyright: | (c) 2014 Stanford University, Stanford Law School |
Wordcount: | 17519 |
PUBLIC ACCOMMODATIONS UNDER THE CIVIL RIGHTS ACT OF 1964: WHY FREEDOM OF ASSOCIATION COUNTS AS A HUMAN RIGHT
Advisor News
Annuity News
Health/Employee Benefits News
Life Insurance News