Conventional collectivist created authority is a deception in consciousness. You are your own Authority!

Monday, March 10, 2014

Public Accommodations Laws Are Constitutional

Libertarians, according to what I’ve been reading on RRND recently, are split on the question of whether public accommodations laws are constitutional or whether such laws violate the First and Fifth Amendments.

Some believe based on libertarian principles that an owner of a private business which is open to the public has a constitutional right to discriminate against people for any reason they like. They argue, for example, that the owner of a bakery or photography business has a perfect right to deny services to gay customers on First Amendment free exercise of religion clause grounds.

Others maintain that business owners have a Fifth Amendment property right to operate their establishments any way they like and that public accommodation laws violate their property rights. No law is valid, they maintain, which forces them to serve people they don’t want to serve regardless of the reason. So they have the right to discriminate against blacks, gays, Jews, etc. even though their business is otherwise open to the public.

With these thoughtful and rational libertarians I’m compelled to respectfully disagree. I argue that public accommodations laws, like the landmark federal Civil Rights Act of 1964, as well as other federal and state anti-discrimination laws are, for the most part, constitutional.

At the outset, it is clear that private individuals have constitutional rights to discriminate based on the First Amendment freedom of speech, religion, and association provisions in the Bill of Rights. We also enjoy Fifth Amendment property rights. So private individuals are entitled to associate with whomever and however they choose in their private homes, schools, clubs, and the like. That all goes without saying.

No one is required by any law to invite gays, blacks or Jews, for instance, to their kid’s birthday party in their private home or any other private setting. If a business owner wants to discriminate for whatever reason, the legal way to accomplish that is to form his business as a private invitation only club which is not open to the general public.

That’s how the Boy Scouts of America were able to successfully argue their constitutional right to discriminate against gay and non-religious boys as members to the United States Supreme Court in 2000. They convinced a majority of the justices that their organization is a private members only club.

Public accommodations laws are constitutional. A bakery or photography shop may, therefore, not discriminate against gays by, for example, refusing them general services such as selling loaves of bread or film.

On the other hand some courts have ruled that a law may not serve to force a private business to engage in actual expressive conduct which conflicts with First Amendment religious rights. Though the baker must sell cakes to gays, he or she might not have to create a special gay wedding cake for them. And though a cameral shop must sell film and camera equipment to gays, the photographer might not be forced to provide creative photography services at a gay wedding.

The problem in my mind with these rulings is that the courts have attempted to carve out special enforcement of First Amendment rights to religious folks based upon the free exercise clause, but the same court would probably not enforce general First Amendment free speech and association rights or Fifth Amendment property rights to benefit others who want to discriminate but not upon religious grounds.

These courts would probably rule, for example, and rightly so in my opinion, that a restaurant providing catering services to the public should be forced to so for blacks, gays, Jews, etc. despite the fact that its owners might prefer not to associate with those people.

I say that if a private business is set up to be open to the public; if it is not a private club, organization or association; then it is obligated to obey the public accommodations laws in all respects. Such a business has elected to serve everyone when it advertizes and opens its doors to the general public. It is therefore obligated to do so even if its owners might find the lifestyles of some customer’s offensive. 

In short, I don’t think that the owners of businesses which are open to the public, i.e., public accommodations, have a constitutional right to discriminate in violation of public accommodations laws.

Public accommodations laws are constitutional.


  1. "Public accommodations laws are constitutional."

    That is the most empty argument I've heard in a long time.

  2. 1) You keep saying that you think public accommodation laws are constitutional ... but you never say why.

    2) Slavery was constitutional until the 13th Amendment. That didn't make it right.

    1. I cited the SCOTUS Boy Scout case in which the only reason why BSA was allowed to discriminate is because they were deemed a private members only club. Had they decided that BSA was open to the public it would have been obligated to obey public accommodations laws. I agree with the SCOTUS in that point.

    2. Timothy,

      Yes, you've said you agree with SCOTUS that public accommodation laws are constitutional.

      That's not the same as saying WHY you think public accommodation laws are constitutional.

      The only things I find in the US Constitution which would really seem to bear on the issue -- the 5th Amendment clause against takings without compensation and the 13th Amendment ban on involuntary servitude -- would seem to militate against the conclusion, so I'm interested in whatever it is that I missed and you found.

    3. Thomas,

      When I said I agreed with SCOTUS I meant that I agree with their reasons as discussed in the BSA opinion. In a nutshell it boils down to the fact that a private business owner can elect to open his business to the public in which case he in effect declares that the public, i.e. everyone, is welcome. His business is public in a public place.
      He elects to form his business as a public accommodation as opposed to a private members only club. He has exercised his First and Fifth Amendment rights to invite the public to be served by his business. It’s up to him. There is no force or coercion.
      So the public accommodation laws do not violate his constitutional rights. He can be public or private, his choice, but not public for whites and private for blacks, for example. You need not agree, and many libertarians don’t, but that is the reasoning and I think from a libertarian standpoint it is legally sound

  3. Say it ain't so, TJT! I'm stunned to hear this coming from you; I can't remember the last time I disagreed with you so strongly.

    Two points:

    . An easy way to defeat your legal argument is for every business to state, "I do not serve the public; I only serve members. Membership will be granted based upon rules that I arbitrarily set." Though, I suppose you'd be in favor of using laws to defeat that too? Do you favor social groups of blacks to be forced to admit whites? How about social groups of women: should they be forced to accept men?

    . Forget legal arguments: Laws forcing a business to serve those whom its owner would prefer not to serve do nothing to promote advancement of the group(s) disfavored by the business. On the contrary: the recent gay-wedding-cake flap in Denver has, I believe, made a significant dent in the American public's acceptance of gays. Other, similar cases, if they come to pass, will make similar dents, until nobody can deny this is an unavoidable consequence of heavy-handed government meddling.

    I appreciate the keen, and entirely reasonable, sense of sting at being rejected, though you are a perfectly good person. But forcing businesses into slavery is not an answer.

    1. I appreciate all the spirited comments and knew that many purists would not agree with me, but I don’t believe that the Constitution permits operators of public accommodations to discriminate on the basis of race, gender, religion, etc., and yes, erecting a sham shouldn’t suffice to defeat the law. If a business is open to the public it’s a public accommodation.

      Social clubs are another story as they are not public accommodations, so men’s clubs and women’s clubs, and clubs for whites and blacks are perfectly OK.

      I think that the tendency of some of my fellow Libertarians to compare public accommodations laws to slavery is just going way too far. And it’s part of the reason why 90% of mainstream Americans believe we are a bunch of loony tune extremists occupying the outer space fringes of political thought. That’s part of the reason why we can’t get capable candidates elected to public office – people think we’re nuts.

    2. If you claim a right to force me to bake you a cake (or drive you somewhere, or rent you a room and make your bed for you) whether I want to or not, you are claiming a right to enslave me.

      That's not a "comparison." It's a fact.

    3. If your business which is open to the public is baking cakes, renting rooms, or making beds, that is your choice so you are hardly a slave. No one is enslaving you. You don't have to do business with the public. You can start a private members only organization to bake cakes, or clean rooms.

    4. Just because a person doesn't lock their front door for a specified number of hours a day doesn't make their property or their business public.

      You need to explain why you have a property right over private businesses to force them to serve you against their will. Simply citing the authority of five old men in black robes is not an explanation.

    5. Who said anything about my property right to force anyone to do anything? It’s the business owner who decides whether to be public or private, not his customers. It’s entirely up to him. In contractual terms he’s making an offer to serve the public. Any member of the public can accept the offer. If he chooses public then he serves the public; if private, he excludes whomever he wishes. There is no coercion; no violation of constitutional rights; certainly no slavery.

      If a restaurant owner wants to keep riff-raff out of his public business, he can be creative and require customers to wear suit jackets and ties. “No shoes, no shirt, no service,” is perfectly OK, but if a gay or black person comes into a place of public accommodation wearing the required attire, he’s entitled to be served just like anyone else who is part of the public. He’s accepted the offer and the contract is enforceable.

  4. I'm curious: you're a lawyer, right? Are you required by law to take on as a client anyone who walks through the door? Or are you allowed discretion as to whom you represent? If, as I suspect, you ARE allowed discretion, why would that be, if cake bakers are not?

    As for worrying about whether others think I'm a "loony extremest", I gave up years ago trying to run my life around that fear. It's a game that can never be won, and neither, I believe, can the dream of electing libertarians who do not renege on their promises the moment they're in office. Politics is inherently corrupt and corrupting.

    Furthermore, in this case, specifically the gay-wedding-cake flap, the bedrock of America sees it as fundamentally unfair to force a baker, or anyone else, to serve someone he does not want to, I think. You did not respond to my previous assertion that these kinds of laws are counterproductive to the acceptance of gays in the community as a whole. I urge to to reflect upon whether this is in fact the case.

  5. Yes I’m a lawyer in private practice (retired) and the practice of law is a profession, not a public accommodation. I’ve never represented to the public that I would take every case that came into my office. If I opened a restaurant or a bakery to the public, on the other hand, I’d be subject to the public accommodations laws, but as a lawyer I can choose my cases, except, of course, if I’m a public defender I’d be contractually obligated to take all comers.

    As for libertarians and the Libertarian Party, I want our rational ideas to succeed. I’d like to live to see a libertarian president someday. I don’t like it when people try to categorize us as part of the lunatic fringe. Politics is corrupting like you say, but some candidates are better than others and as a practical matter we’re going to have government whether we like it or not.

    Yes, some folks are put off by gays going after bakers who refuse to serve them but most people today have come around to believing that gays are just like everyone else and should be treated that way. No, I don’t think the public accommodation laws are counterproductive. Quite the contrary, I think they are part of the reason why our society has become much more tolerant of minorities.

    1. Isn't baking a profession?

      Your office is set up so that any person can come in off the street and pay for your services. Right? The cake maker never represented that he would take ever customer request.

      What is the explanation that a lawyer can choose but a baker cannot?

    2. No that is not how it was set up. Lawyering is not like baking cakes.

  6. You keep using two terms:

    "Open to the public" and "constitutional."

    But neither the exact expression "open to the public," nor the word "public" in any context resembling it, appears or is plausibly implied anywhere in the US Constitution.

    It seems to be an odd construct, drummed up entirely for the purpose of making private property "public" -- without just, or for that matter, any -- compensation any time you think that you, instead of its owner, should get to decide who gets to use it.

  7. As far as federal laws are concerned, it's hard to see any provision authorization laws regulation such such intrastate transactions. Then the question comes down to whether state or local laws are valid.

    Leaving aside Constitutionality, are they morally valid?

    First off, unless the customer who's denied service is explicitly told the reason, is there a way to prove such discrimination? Aren't we venturing into thought crimes?

    Secondly, is it so easy to make clear-cut distinctions between "public accommodations" and personal services?

    Most importantly, where's the victim? Did the denied customer suffer violence, fraud, or coercion?

    1. Of course the denied customers didn't suffer any crime. It's obvious that Mr. Taylor has his opinion on how other people should act, and he's more than willing to use the guns of the state to force them to conform. 'Serve me, or I'll kill you."

  8. I am not sure how the private club dodge would work for bakeries, photographers, and the like. Do you make every browser entering the store or coming to ask about an assignment join a club first? Large businesses have loyalty programs requiring registration, which could be construed as a private club membership, but if our goal is to protect the associational rights of bigots, we are dealing with sole proprietors, not large firms which can not competitively afford to discriminate.

    The public accommodations issue has bothered me as a libertarian for a long time. The best I can come up with is this: We can recognize that denial of entry or service in a business apparently open to the public is an avoidable harm. Those who wish to discriminate could do so by prominently posting categories of exclusion at entries, and thus remove themselves from the purview of public accommodation laws designed to remedy this harm. To what effect? The business would lose most potential customers at the doorway. Customers of non-excluded categories would have cause of action against the business owner if he failed to provide the association-free environment advertised at the entry. As racial and other identities are often difficult to determine visually, scrupulous enforcement would require burdensome measures of the owner, such as asking each entering customer, while overbroad exclusions would also create causes of action. Undercover "teams" of excluded and non-excluded persons would enter, one claiming harm at the presence of the other, and litigate, it being the owner's burden to prove lack of offense. Such a mandated posting requirement would "work" for a bigoted business owner only in communities that were already highly bigoted.