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Wednesday, June 12, 2013

The Necessary Thinness of (Most) Commercial Interactions

A few days ago, AP had a story about a gay couple in Colorado who, in the course of shopping for a wedding cake, had been turned away by a baker who did not approve of the use of his products in a gay marriage ceremony.  The ACLU has filed a complaint against the baker on the couple's behalf.  The baker is, of course, claiming that, as a matter of religious freedom, he is entitled to discriminate against gay couples.  Colorado law prohibits places of public accommodation from discriminating on the basis of, among other things, sexual orientation.  So the question, legally, is whether the state's antidiscrimination law violates the First Amendment's Free Exercise Clause.  The argument that it does will run into Employment Division v. Smith, which says that the Free Exercise Clause does not require exemptions from laws of general applicability.  The baker is going to have a hard time making that case.  

We can expect to see more of these sorts of disputes as gay marriage proliferates across the country.  In fact, the Colorado case resembles a case that has been rising through the New Mexico state courts and is currently pending before the New Mexico Supreme Court.  The New Mexico case involves a wedding photographer who refused to provide her services at a gay comitment ceremony because, in her words, she only handled "traditional weddings."  In that case, lower state courts found the photographer's actions to have violated the New Mexico laws prohibiting discrimination in places of public accommodation and rejected First Amendment challenges to the application of those laws to the photographer.  The wrinkle in the New Mexico case is that the photographer is arguing that the law burdens freedom of expression, rather than simply the exercise of religion.

The two cases raise an interesting question about the degree to which restrictions on the right to pick and choose among customers inappropriately burden a business owner's legitimate autonomy, whether conceived as religious or expressive freedom.  Implicit in both the baker and the photographer's argument is that requiring a business owner to provide a good or service to someone of whom he disapproves (either because of that person's conduct or identity) improperly forces him to identify with or endorse the customer in question.  In assessing that argument, I think it is helpful to consider how the law has traditionally defined the rights of owners to select among their customers.  As it turns out, for most of the history of the common law, owners of businesses who have held themselves out as open to the public have had quite limited rights to arbitrarily refuse service to customers who have presented themselves as willing patrons.  This is a valuable and important principle to affirm.  I'll explain why below the jump.

Before the American Civil War, it was understood that at least certain business owners had a duty to serve anyone who sought their services and was able to pay. The precise reach of this duty is a matter of some disagreement.  Blackstone described the law in 1765 as follows: ‘‘if an inn-keeper, or other victualler, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveler.’’  Writing in 1911, Professor and future dean of the Cornell Law School, Charles Burdick, described the duty of the “inn-keeper, or other victualler” of which Blackstone spoke as merely illustrative of a broader duty owed by “anyone who held himself out [as open to the public] to serve all who might apply.” 

The duty to serve reached back as early as the fourteenth century, and required any business – known as a “common” or “public” calling – that held itself out as open to the public to serve any member of the public who applied. The distinction the law drew was between someone who practiced a calling on a “common” basis (i.e., putatively open to all who applied) and someone who practiced a particular calling only on a case-by-case basis.  The duty to serve applied to the former, and not the latter, but it extended beyond the modern categories of common carriers and innkeepers and encompassed other businesses as well.  Burdick describes tailors, farriers (horse-shoers) and even surgeons as "common" in the relevant sense.  The limitation of the duty to serve to the categories of innkeepers and common carriers is a later development.

Early U.S. cases affirmed the obligation on public accommodations to serve the public. The usual justification for this obligation was the broad assumption underlying the traditional law of “common callings” that an owner assumes public duties by hanging a sign holding himself out as open to the public.  Although before the Civil War cases affirming the duty to serve the public involved innkeepers and common carriers, as Joe Singer has observed, only one pre-Civil War case held that other types of establishments (in that case, a store) were free to choose their customers at will, and that case may rest on fairly narrow grounds, since the patron had gotten into a physical altercation with the owner.  The notion that -- with the exception of inkeepers and other narrow exceptions -- business owners who hold themselves out as open to the public nonetheless retain a right to exclude arbitrarily seems to be a product of the Civil War era, and seems to be linked with a desire to preserve the prerogative of business owners to exclude black patrons.  Although critics of the Civil Rights Act of 1964 (an its state-law analogs) characterize it as rolling back rights of private ownership, it would be more accurate to say that civil rights laws (partially) restored the status quo that prevailed through most of the history o the common law.

 I think the cases involving gay couples show the wisdom of the common law in limiting the discretionary power of business owners to turn away willing and nondisruptive customers on an ad hoc basis.  The reason is not just the harm this kind of exclusion does to the dignity of the people turned away.  That is surely part of the story, and that dignitary harm should not be understated.  Importatly, though, the broad rule protects the shop owner as well, by making the provision of service a normatively thin act.  If owners are required to serve all who present themselves, then the act of service communicates no signal of endorsement of the customer or of the group to which the cusomter belongs or of the customer's lifestyle.  A message of endorsement crucially depends on imbuing that act of serving the customer with a meaning that is only possible if the act is within the owner's discretion.  Creating a robust right of access therefore protects the dignity of prospective customers while minimally intruding on the expressive freedom of owners by emptying the most acts of service of expressive meaning.

Now, pointing to the dotrine of common callings does not answer the question of what to do with the photographer or the baker.  But it provides a useful way of reframing the question:  are the businesses in question the sort that hold themselves out as open to the public at large such that requiring them to serve is not properly construed as requiring them to endorse or cooperate with the identity or actions of their customers?  If so, then it seems appropriate to treat as insubstantial the burden imposed on owners by using the state antidsicrimination law to force them to provide the service (whether sounding in expressive or religious freedom).  I think the bakery fairly easily fits within the common callings doctrine.  The photographer is a trickier case, because of the personal and somewhat more customized nature of the service rendered.  And so it seems appropriate to me that the courts and commentators appear to be taking the photographer's claim fairly seriously.


Posted by Eduardo Penalver on June 12, 2013 at 04:08 PM | Permalink


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What if the practitioner, instead of being a photographer, gives Brazil waxes, massages, or surrogate sex? May they discriminate on the basis of sex or sexual orientation or should they take all comers?

Posted by: jimbino | Jun 13, 2013 2:01:42 PM

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