A room for "Adam and Steve" at Mrs. Murphy's bed and breakfast: avoiding the sin of inhospitality in places of public accommodation.

Author:Forman, David M.
Position:III. A Growing Number of States Are Stepping in to Fill the Gap Left by the Failure to Include Sexual Orientation as a Protected Category Under Federal Law Prohibiting Discrimination in Places of Public Accommodation through Conclusion, with footnotes, p. 361-394
 
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  1. A Growing Number of States Are Stepping in to Fill the Gap Left by the Failure to Include Sexual Orientation as a Protected Category Under Federal Law Prohibiting Discrimination in Places of Public Accommodation

    Several years prior to her appointment as an EEOC Commissioner, Professor Feldblum began one of her articles with a hypothetical involving a B&B that refused to accommodate a same sex couple. (160) Based in part upon her experiences representing Catholic Charities USA for thirteen years, (161) Feldblum expressed sympathy for evangelical Christian couples who wish to exclude persons from their B&Bs on religious grounds. (162) Nevertheless, she concluded that society should come down in favor of gay people in this "zero-sum" game. (163) Feldblum explained that, "[o]nce individuals choose to enter the stream of economic commerce by opening commercial establishments, I believe it is legitimate to require that they play by certain rules." (164)

    Indeed, in United States v. Lee, (165) the United States Supreme Court held that "[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity." (166) Thus, prohibitions against discrimination in places of public accommodation because of sexual orientation do not force residential property owners to invite guests into their homes contrary to their religious consciences. Instead, these laws merely require that once a decision has been made to allow transient guests into one's home for commercial purposes, proprietors of these establishments may not discriminate against potential customers based upon their sexual orientation. Of course, federal law does not currently prohibit discrimination because of sexual orientation in places of public accommodation. (167)

    Title II of the Civil Rights Act of 1964, (168) expressly enumerates only four protected categories: race, color, religion, or national origin. However, a growing number of states (and localities (169)) have since included sexual orientation as a protected category in their respective public accommodation laws, (170) beginning with the State of Massachusetts in 1989 (171) and, most recently, the State of Maryland in 2009. (172) In addition to the District of Columbia, (173) a total of twenty-one states now include express prohibitions against discrimination because of sexual orientation in places of public accommodation. (174) Furthermore, in the context of legislation creating a commission to study, analyze, and recommend solutions to address various forms of discrimination, (175) the State of Wisconsin recently declared that sexual orientation "ought not to be made [a] test[] in the matter of the right of any person to ... enjoy the equal use of public accommodations and facilities[.]" (176)

    Five (177) of the twenty-one states mentioned above (in addition to counties and municipalities in other areas (178)) include an exception analogous to the so-called "Mrs. Murphy" exemption for proprietors of small transient accommodations under federal law, (179) further demonstrating the "place-based" nature of this ongoing Kulturkampf between religious freedom and civil rights.

    Thus, in the small minority of jurisdictions identified above that have adopted Mrs. Murphy exemptions (180) and in those states and localities that do not include sexual orientation as a protected category, the discriminatory vestiges of our federal public accommodations law continue to provide a safe haven for "Jim Crow's Other Cousin"--viz., discrimination against the LGBTQI community. (181) This state-by-state patchwork of civil rights laws reveals the "beachhead federalism" (182) that results from our ongoing Kulturkampf between religious convictions and equality for gays and lesbians. Beyond the day-to-day and legislative venues, this cultural performance also continues to play itself out in the courts.

  2. Enforcement of State Laws Prohibiting Discrimination Based on Sexual Orientation in Places of Public Accommodation Does Not Infringe Upon Religious Freedoms

    Legal prohibitions against discrimination because of sexual orientation do not force private property owners to invite guests into their homes contrary to their religious consciences. However, once a decision has been made to allow transient guests into a person's home for commercial purposes, the proprietor may not discriminate based upon his or her customers' sexual orientation. (183) Indeed, public accommodations are obligated to refrain from inflicting dignitary harm upon their prospective customers. (184)

    1. Analyzing B&B Owners' Prospective Claims Based Upon Intimate and/or Expressive Freedom of Association

      Some B&B owners presumably might argue that they engage in intimate and/ or expressive association with their customers for religious--if not also economic and cultural--purposes, (185) based upon a high degree of selectivity and seclusion from others in critical aspects of the commercial relationship. (186) Rather than violate their religious convictions, the proprietors of such establishments likely would accept any adverse economic consequences associated with such discriminatory conduct. (187) Although the Court has yet to address the constitutionality of this particular issue, it has provided a framework for analyzing freedom of association claims.

      In Roberts v. United States Jaycees, (188) the Court recognized a constitutionally protected freedom of association in two distinct senses: (1) intimate association, meaning "choices to enter into and maintain certain intimate human relationships"; and (2) expressive association, meaning "a right to associate for the purpose of engaging in those activities protected by the First Amendment--speech, assembly, petition for the redress of grievances, and the exercise of religion." (189) Both forms of association arguably could be implicated "when the State interferes with individuals' selection of those with whom they wish to join in a common endeavor[.]" (190)

      The Court limited the scope of its holding, noting that a broad range of human relationships are entitled to constitutional protection, (191) such as, personal affiliations surrounding the creation and sustenance of a family (including marriage, childbirth, the raising and education of children, and cohabitation with one's relatives), which by their nature involve the sharing of distinctly personal aspects of one's life. (192) These types of affiliations are relatively small and involve both a high degree of selectivity and seclusion from others in critical aspects of the relationship. (193)

      In determining whether a particular relationship is entitled to constitutional protection, the Court focused on: size, purpose, policies, selectivity, congeniality, and other pertinent characteristics in particular cases. (194) In this respect, the Court relied upon Justice Powell's concurring opinion in Runyon v. McCrary. (195) In the context of a racial discrimination claim under 42 U.S.C. [section] 1981, Justice Powell observed as follows:

      In certain personal contractual relationships ... such as those where the offeror selects those with whom he desires to bargain on an individualized basis, or where the contract is the foundation of a close association (such as, for example, that between an employer and a private tutor, babysitter, or housekeeper), there is reason to assume that, although the choice made by the offeror is selective, it reflects "a purpose of exclusiveness" other than the desire to bar members of the Negro race. Such a purpose, certainly in most cases, would invoke associational rights long respected. (196) Accordingly, the schools asserting free association rights in Runyon were not entitled to constitutional protection because:

      "[t]heir actual and potential constituency, however, is more public than private." ... The schools extended a public offer open, on its face, to any child meeting certain minimum qualifications who chose to accept. They advertised in the "Yellow Pages" of the telephone directories and engaged extensively in general mail solicitations to attract students. The schools are operated strictly on a commercial basis, and one fairly could construe their open-end invitations as offers that matured into binding contracts when accepted by those who met the academic, financial, and other racially neutral specified conditions as to qualifications for entrance. (197) To the extent that B&Bs in general are likewise "operated strictly on a commercial basis," and advertise their public accommodations to the public generally and widely, (198) they would not appear entitled to constitutional protection.

      For B&Bs that instead offer their accommodations by personal invitation, the issue becomes whether a relatively small commercial enterprise--e.g., boarding house, rooming house, or bed and breakfast establishment--represents the kind of close, personal association without discriminatory motives (199) that is sufficiently "private" and "selective" to enjoy constitutional protection (i.e., analogous to a private tutor, babysitter, or housekeeper hired under a personal services contract). (200) None of these private/selective examples are analogous to the transient accommodations provided by a bed and breakfast establishment. The personal affiliations inherent in contracting for the provision of services within a private home are clearly distinguishable from deciding to open up one's home to the public for commercial purposes. Moreover, the B&B proprietors' religious freedoms would not be substantially burdened by application of antidiscrimination laws. (201) For example, the owners could instead rent their rooms out to preferred tenants for periods of thirty days or more and rely upon Mrs. Murphy exemptions expressly included in federal and...

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