Thursday, November 2, 2023
I have an essay up -- "Protecting Equality or Correcting Thoughts?" -- at Law & Liberty on the 303 Creative case and some broader questions about the reach and aims of public-accommodations laws. Here is a bit:
This is not the place for a detailed history of public-accommodations laws (a task which has been ably undertaken by Law & Liberty contributor, Prof. Adam MacLeod). It is worth emphasizing, though, that, over time, the aims and justifications of these rules have also evolved and expanded. At first, these laws’ focus and concern seemed to have been monopoly power, or the obligations that were thought to accompany a publicly conferred license, or business operations that occupied a kind of choke-point in the marketplace. When the availability of a room at the inn could make the difference between life and death, or cold and warmth, the right of the innkeeper to arbitrarily choose his clientele was expected, reasonably, to give way. Later, the Heart of Atlanta Court built on, and above, these earlier foundations, and emphasized that these laws, in addition to ensuring Black citizens’ access to interstate commerce and ability to travel freely throughout the country, “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”
Given the pervasive, persistent, and systemic nature of racial prejudice and discrimination, and the demeaning, insistent efforts of so many to resist the equality guarantees of the Civil War amendments, the Heart of Atlanta justices’ invocation of “personal dignity,” as well as market access, was welcome and warranted. In cases like Masterpiece Cakeshop and 303 Creative, though, the public-accommodations-enforcement project seems less about combatting monopoly, ensuring meaningful access to the commercial sphere, or vindicating equal-citizenship rights than about marginalizing, punishing, and re-educating those with at-present disfavored views on a few currently controversial questions.
Justice John Paul Stevens, dissenting in Boy Scouts v. Dale, a case where the Court concluded that it would violate the First Amendment to use a public-accommodations law to require the Scouts to take on a “gay rights activist” as a scoutmaster, did not focus on Mr. Dale’s ability to access volunteer opportunities. Instead, he warned of the “atavistic opinions,” “nourished by sectarian doctrine,” that the Scouts’ policy was thought to reflect. He was confident that such opinions, which cause “serious and tangible harm,” could and should be changed through assiduous application of the state’s public-accommodation regulation. The assertedly reformative, rehabilitative effects of vigorous enforcement have also been invoked by Jack Phillips’s current opponents, who have as a stated aim “correct[ing] the errors of his thinking.”
This way of thinking about the ends of and warrant for public-accommodations laws is both deformed and dangerous. It is a dramatic overreach, and an unwelcome departure, for these laws to be used not to facilitate equal access to commerce and civil society but to punitively re-educate those with traditional, or now-disfavored, views about controversial questions.