Monday, August 11, 2014
Epstein and Bagenstos on Title II
I have been reading a great deal this summer on and around the Hobby Lobby case and its longer-term implications. I want to spotlight, in particular, two articles in the most recent issue of the Stanford Law Review, which features a symposium on the fiftieth anniversary of the Civil Rights Act of 1964.
The first is by Sam Bagenstos. Titled "The Unrelenting Libertarian Challenge to Public Accommodations Law," its abstract reads:
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 Rand Paul’s 2010 comments questioning whether public accommodations laws are consistent with libertarian principles as well as the harsh response those comments drew from prominent libertarian commentators. It shows that Paul’s libertarian opponents disagreed with him only on pragmatic—not principled—grounds. The Essay then turns to an analysis of Boy Scouts of America v. Dale and of recent developments that promise to undermine the expressive-commercial distinction that has kept Dale from threatening the core of public accommodations law.
The second is by Richard Epstein, titled "Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right." Epstein's abstract reads:
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.
Both articles are excellent and, as their authors recognize, highly relevant to the issues raised and presaged by Hobby Lobby. I do question the framing. I don't think all questioning of the expansion of the number and reach of public accommodation laws, or all views that hold that there must be some room within those laws for religious accommodation, can be described--or labeled, and having been labeled, dismissed--as libertarian. For various reasons, however, some sincere and some more strategic, those who reject this framing, and whose accommodationist leanings in this area are distinctly a minority view at present, have either held back or not fully thought through their own views. I think the time in which they could hold back has passed. If they don't want the entire discussion to be framed in terms of libertarianism vs. anti-libertarianism, they are going to have to speak up. When they do, they will have to engage with both of these fine articles.