Prohibiting sexual orientation discrimination in public accommodations: a common law approach.

Author:Courtney, Paul Vincent

INTRODUCTION I. THE ORIGINS AND DEVELOPMENT OF THE COMMON LAW DUTY TO SERVE A. English Origins 1. The Economic Theory 2. The Conduct Theory B. American Deviation and Development II. THE RISE OF STATE PUBLIC ACCOMMODATIONS STATUTES III. THE PROBLEM OF SEXUAL ORIENTATION DISCRIMINATION A. The Contours of Modern Sexual Orientation Discrimination B. Sexual Orientation Discrimination in Practice IV. THE ROLE OF A REVIVED COMMON LAW DUTY TO SERVE A. Common Law Conformity B. An Independent Cause of Action 1. The Defendant Is a Business that Holds Itself Out as Open to the Public 2. The Defendant Has Denied Service to the Plaintiff for an Arbitrary Reason 3. The Defendant Intentionally Caused the Plaintiff to Suffer Direct Dignitary Harm 4. Remedies C. The Challenge Posed by a Politicized Judiciary CONCLUSION "The common law like its English king never dies, it persists from age to age, and though the instance of its rules may be seen to change as old conditions pass away and new conditions arise, its fundamental principles remain."

--Bruce Wyman (1)


In May 2014, Collin Dewberry and his partner, Kelly Williams, went to breakfast at Big Earl's Bait House and Country Store in Pittsburg, Texas. (2) On their way out of the restaurant, their waitress--the daughter of the restaurant's owner, Earl Cheney--asked the men not to return. (3) "We don't serve fags here," she allegedly told them. (4) Mr. Cheney did not deny that the incident occurred but claimed that what his daughter actually said was "we just don't like fags." (5) He explained that the men had violated the restaurant's policy because their legs were touching--their sexual orientation itself was not an issue, he claimed. (6) "She told them the rules are on the door and it says 'Welcome to Big Earl's where men act like men, women act like ladies, no saggy pants and we reserve the right to refuse service to anyone.'" (7) Mr. Cheney claimed that "plenty of" gay people eat at Big Earl's and that he has no problem serving gay customers who adhere to the establishment's rules. (8) "You're welcome to come and eat, but a man act [sic] like a man and a woman act [sic] like a woman," he explained. (9) "[A] man's supposed to stand up and be a leader. He's not supposed to be a woman. He's not supposed to come in here in a dress." (10)

The experience of Messrs. Dewberry and Williams illustrates the nuanced way in which businesses discriminate against gay people in modern society. Today's sexual orientation discrimination does not target gay people categorically but rather singles out "the subset of the group that fails to assimilate to mainstream norms." (11) Mr. Cheney claims to have no issue with gay people--so long as they comport themselves according to heterosexual norms and present themselves as straight. Of course, saying that it is okay to be gay--but not to behave in any manner that could be perceived as gay--is essentially a demand that gay people remain closeted if they wish to avoid discrimination. (12) This regime of forced compliance with heterosexual norms harms human dignity and autonomy because it denies "individuals the freedom to elaborate their authentic selves." (13) And it harms not only the immediate victims of discrimination--people such as Messrs. Dewberry and Williams--but also every person who, fearing discrimination, forces himself to comply with heterosexual norms and suppresses his true identity. (14) One of the greatest evils of modern-day sexual orientation discrimination is thus that so much of it goes unnoticed.

Messrs. Dewberry and Williams were apparently left without legal recourse. To be sure, their story got media coverage, (15) and Internet users exacted revenge on Big Earl's Yelp page. (16) But Texas law appeared to provide them no remedy: Texas is one of only five states that has no statute prohibiting discrimination in so-called "public accommodations" (17)--broadly defined as those businesses offering "lodging, food, entertainment, or other services to the public." (18) Federal law was also unavailing, as the federal public accommodations statutes do not cover sexual orientation discrimination. (19)

Although forty-five states have enacted public accommodations statutes, the statutes of only twenty-one states (20) and the District of Columbia (21) explicitly prohibit sexual orientation discrimination; the gay populations of twenty-nine states thus live without any affirmative statutory protection from discrimination in commerce. This Comment addresses the failure of these states to include gay people among those classes of persons protected by their public accommodations statutes. The presumption today is that businesses in twenty-nine states can discriminate against gay people with impunity--"that businesses, as property owners, have the right to exclude non-owners unless that right is limited by statute" and "to refuse to contract with anyone with whom they do not wish to deal unless required to do so by express statutory command" (22)

Indeed, the right to exclude others has long been a fundamental notion of property. (23) Sir William Blackstone described "the right of property" as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." (24) Blackstone's formulation has become embedded in our conception of "property rights in the abstract, centered around the in rem right to exclude," (25) and the association between property and exclusion has come to pervade modern legal thought. (26) One scholar has gone so far as to argue that the exclusionary right "is the sine qua non of property." (27)

But the right to exclude is subject to certain limitations. For public accommodations, the right to exclude historically has been counterbalanced by a common law duty to serve. (28) Over the course of the twentieth century, however, the common law duty to serve fell into disuse and was replaced by state and federal public accommodations statutes that prohibit businesses from denying service to statutorily defined protected classes. (29) Because public accommodations statutes have come to supplant the common law duty in our modern legal consciousness, many now believe--mistakenly, I argue--that these statutes are the sole source of law proscribing discrimination in commerce, and that if these statutes do not specifically enumerate a class or characteristic as among those protected, then businesses may discriminate against that class or characteristic with impunity. (30)

Recent scholarship has largely focused on proposals to expand state antidiscrimination statutes to encompass sexual orientation discrimination; (31) political advocacy groups' goals are similarly defined. (32) But this Comment rejects the notion that gay people's only hope for legal protection lies in statutory law. That certain states have not yet decided to extend statutory protection to gay people does not mean that those individuals are necessarily without legal recourse if a business should deny them service, or that enacting statutes is the only way to provide protection. As discussed above, a business's right to exclude historically has been counterbalanced by a common law duty to serve. Claims based upon the foundational principles of this common law duty may offer gay people immediate protection against discrimination in states whose legislatures have failed to provide such protection expressly. This Comment argues that even in states that have not proscribed sexual orientation discrimination affirmatively by statute, such discrimination is nonetheless illegal as a violation of businesses' common law duty to serve--and to not exclude arbitrarily--all customers.

Part I explores the background of the common law duty to serve, beginning with its roots in English common law and tracing its evolution--or perhaps more appropriately, regression--in the American courts in the nineteenth and early twentieth centuries. Part II offers a brief discussion of the rise of public accommodations statutes in the late nineteenth and mid-twentieth centuries, which provides a likely account for the duty's lack of development over the past century. Part III explains modern-day sexual orientation discrimination, which is often directed not at all gay people but rather only at those gay persons who deviate from heterosexual norms. Part III hypothesizes that, today, this discrimination is perhaps most likely to occur in the market for commitment ceremony and wedding-related services. Noting that twenty-nine states lack statutory protection from sexual orientation discrimination in public accommodations (often because the legislature lacks the political will to extend protection to gay people), Part III highlights the acute need for a revived common law duty. Finally, Part IV discusses the role that the common law could play in such states. First, courts should follow the canon of statutory construction that requires them to read statutes in conformity with common law principles, unless and until the legislature has expressed an explicit intent to abrogate the common law. The argument for reading public accommodations statutes in light of the principles of the common law duty to serve is especially strong in those states whose statutes, in addition to enumerating protected classes in their text, guarantee a right of nondiscrimination that is generally applicable to all persons. Because such statutes essentially codify the common law duty, they should be construed as imposing a ban on all arbitrary discrimination coextensive with the duty, or at the very least should be read in light of their common law background to prohibit discrimination against groups similar in nature to those specifically enumerated as protected classes. More ambitiously, Part IV argues that where courts are unwilling to extend the protections that the legislature has...

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