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.