The unrelenting libertarian challenge to public accommodations law.

• Author: Bagenstos, Samuel R.
• Position: The Civil Rights Act at Fifty

INTRODUCTION I. THE EXPANDING TERRITORY OF "CIVIL RIGHTS," FROM RECONSTRUCTION THROUGH THE CIVIL RIGHTS ERA II. THE CONTEST TODAY A. Rand Paul and the Political Untenability of a Frontal Attack on Public Accommodations Laws B. Dale and the Expressive-Commercial Distinction C. Current Challenges to the Expressive-Commercial Distinction CONCLUSION INTRODUCTION

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in "place[s] of public accommodation," (1) was a remarkable success. Although Title II triggered the most controversy of all of the bill's titles as the Civil Rights Act proceeded through Congress--including objections from such notables as Robert Bork (2) and William Rehnquist (3) (pressed in Congress by Senators Barry Goldwater (4) and Strom Thurmond (5))--compliance, it is said, came quickly and easily once the Supreme Court upheld the law late in 1964. (6) Title II is now the one piece of the Civil Rights Act that everyone can support. Even Richard Epstein, in his book arguing for repeal of Title VII of the Civil Rights Act (which prohibits employment discrimination), offers supportive words for Title II's prohibition on discrimination by public accommodations. (7) And when a rare voice rises up to object to Title II--as Rand Paul did, briefly, while he was a candidate for Senate in 2010--the reaction is swift and comes equally harshly from left and right. (8) Title II seems to have traveled far. It began its life as the most controversial antidiscrimination provision, but it seems to have become the one island of consensus in the highly contentious debate over civil rights laws. (9)

But the consensus is illusory. Notwithstanding the swift reaction to Rand Paul's 2010 comments and Paul's own backtracking on the issue, (10) 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. To be sure, the language in which the controversy is expressed has changed. During Reconstruction, opponents of laws prohibiting discrimination by public accommodations argued that those laws impermissibly sought to extend equality beyond the sphere of "civil rights" to the sphere of "social rights." Two of the Supreme Court's key cases punctuating the end of Reconstruction--the Civil Rights Cases (11) and Plessy v. Ferguson (12)--relied on this civil-rights/social-rights distinction to bless discrimination by public accommodations. (13) By contrast, during the civil rights era, and continuing to today, opponents have framed their arguments in terms of property, contract, or freedom of association rather than in terms of civil rights and social rights. But the underlying concerns have been the same. Since the Reconstruction era, continuing through the civil rights era to today, public accommodations laws have triggered legal controversy over the extent to which antidiscrimination principles should penetrate into spaces that had at one time been understood as "private" or "social."

My suggestion that the legal controversy remains ongoing may be surprising. After all, Plessy is decisively confined to the constitutional anticanon. (14) And the Court has, to be sure, continued to reaffirm the state-action holding of the Civil Rights Cases. (15) But that decision's invalidation of the Civil Rights Act of 1875 has been completely displaced as a matter of reality--if not doctrine--by the Court's rulings upholding Title II of the Civil Rights Act of 1964 in the McClung and Heart of Atlanta cases. The adoption of the Fair Housing Act of 1968, (16) and the Court's subsequent expansive interpretation of Congress's power to enforce the Thirteenth Amendment in Jones v. Alfred H. Mayer Co., (17) would seem to have entirely laid to rest the civil-rights/social-rights distinction on which the Civil Rights Cases was based. (18) And the harsh reaction--even from leading libertarian legal scholars--to Paul's comments questioning Title II makes it appear that even skeptics of civil rights laws are unwilling to challenge these legal developments.

But, I shall argue, appearances are deceiving. Although the reaction to Paul's comments shows that skeptics of public accommodations laws are unwilling to attack Title II itself, the reasons for that unwillingness are essentially pragmatic. These skeptics appear to agree that laws prohibiting private businesses from excluding classes of customers violate libertarian principles, but they recognize that a frontal attack on Title II of the Civil Rights Act is a political nonstarter. (19) Instead, they have sought to retreat to safer political and legal ground from which to challenge the expansion of public accommodations laws to businesses and bases of discrimination not addressed by Title II. (20) This strategic retreat shows increasing signs of success. The Supreme Court's decision in Boy Scouts of America v. Dale (21) offered a tool to challenge public accommodations laws as violations of the First Amendment freedom of association. Initially, that tool was weakened by the prevailing reading of Dale as limited to cases in which a public accommodations law applies to a nonprofit, "expressive" association. That reading has essentially limited Dale to the fringes of public accommodations doctrine. It has kept free-association arguments from threatening the application of public accommodations law to for-profit commercial businesses. But ongoing legal developments--both in the area of public accommodations law itself and in the litigation surrounding the Affordable Care Act's "contraception mandate" (22)--are poised to undermine this expressive-commercial distinction. If these challenges succeed, Dale's freedom-of-association principles will threaten the core of public accommodations law--including, perhaps, Title II itself. Richard Epstein's contribution to this Symposium, which argues that "[t]he original justifications for [Title II] have become weaker" at the same time that "the scope of the law has become ever more extensive," is the perfect embodiment of the threat I describe. (23)

My argument proceeds as follows. In Part I of this Essay, I discuss 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, I argue that the same fundamental concerns motivated objections to public accommodations laws in both periods. In Part II, I turn to the current controversy. I begin by discussing the response to Rand Paul's 2010 comments and showing that Paul's libertarian opponents disagreed with him only on pragmatic--not principled--grounds. I then turn to an analysis of Dale and of the recent developments that promise to undermine the expressive-commercial distinction that has kept Dale from threatening the core of public accommodations law.

My main goal in this Essay is analytic and descriptive. I aim to show that although we no longer use the language of civil and social rights, the law of public accommodations discrimination remains preoccupied by the same sorts of questions that it once confronted using that language. Today's controversy regarding public accommodations laws is a controversy about whether the civil rights category should cede back some of the territory it once conquered from the category of social rights. Although I have my own normative views about that controversy, I hope that my analytic account is one on which participants on both sides of the debate can agree.

1. THE EXPANDING TERRITORY OF "CIVIL RIGHTS," FROM RECONSTRUCTION THROUGH THE CIVIL RIGHTS ERA

   From the moment the American civil rights project began, tension and conflict have existed regarding how broadly and deeply equality principles should extend into civil, economic, and social relations. During Reconstruction, these tensions and conflicts were expressed through the language of the tripartite theory of civil, political, and social rights. By the civil rights era of the mid-twentieth century, the language of the tripartite theory had largely dropped out of the mainstream discourse. But the same substantive tensions and conflicts continued. As the civil rights era proceeded, political and judicial actors expanded the domain of the equality principle more and more broadly. In so doing, Congress and the courts repeatedly overrode objections that the expanding civil rights laws intruded too deeply into private decisions--objections that would, a century earlier, have been framed in terms of the civil-rights/social-rights distinction. Although Congress and the courts overrode those objections, the objections never disappeared. Rather, the degree to which civil rights laws could properly intrude into the formerly "private" or "social" sphere remained contested from Reconstruction through the end of the civil rights era.

   In this Part, I introduce the conflict over the breadth of the civil rights project in the Reconstruction and civil rights eras. My aim is not to tell anything close to the entire history of this conflict. Instead, I aim to show that, in both periods, influential skeptics objected that the project of racial equality was improperly intruding on what should be understood as private choices; and to show that those objections, although expressed in the language of social rights during Reconstruction and of property, contract, and free association during the civil rights era, were substantively similar. My discussion in this Part thus provides important background for Part II of this Essay, which shows how the same conflict continues today.

   During Reconstruction, the conflicts over...