I’m grateful to Kathryn Garza for excellent research assistance and to the participants in the University of Chicago Law School’s Legal Forum Symposium, What’s the Harm? The Future of the First Amendment, for their comments and suggestions. I thank Nika Arzoumanian, Rebecca Boorstein, Austin Kissinger, Daniel Simon, Anna Porter, James Gao, Rebecca Roman, Claire Lee, Qi Xie, and the rest of the journal staff for their superb organizing and editorial assistance.
For over a hundred years, the U.S. Supreme Court—and an array of state supreme courts—consistently rejected arguments that businesses open to the public have a constitutional right to provide less than the full and equal services required by antidiscrimination laws.1 The Supreme Court made clear that public accommodations law “does not, on its face, target speech or discriminate on the basis of its content.”2 First Amendment claims involving unusual applications of public accommodations law have sometimes met success.3 But the Court drew a sharp contrast between expressive associations—safeguarded from application of the law—and “commercial relationship[s] offered generally or widely”—entitled to no First Amendment protection.4 First Amendment claims from businesses failed, regardless of whether they were framed as rights of free speech, free association, or free exercise.5
But over the last decade, a movement for exemptions from antidiscrimination laws has taken hold.6 For-profit businesses refuse to take photos or videos, bake cakes, print invitations, rent accommodations, or arrange flowers for same-sex couples out of religion-based objections to same-sex relationships. While religion motivates business owners, public accommodations laws easily meet the Free Exercise Clause’s requirements of neutrality and general applicability.7 These laws were adopted to eradicate discrimination, not target religion, and are generally applicable, usually applying to every place open to the public.8 As a result, the question at the heart of these cases is whether cake baking, flower arranging, wedding hosting, or invitation lettering is speech. Objectors argue that requiring businesses to sell goods and services on equal terms to a same-sex couple compels them to speak in favor of the marriage.
Court after court rejected these arguments.9 But then, in 2019, the Court of Appeals for the Eighth Circuit and the Arizona Supreme Court became the first courts to hold that wedding businesses have a free speech (and free exercise) right to refuse service.10 Two justices of the U.S. Supreme Court, Thomas and Gorsuch, have indicated their agreement.11 In the near future, the Court will likely take up the issue. So—as this symposium asks—what’s the harm?
Thirty-five years ago, the Supreme Court instructed that “unique evils” inhered in discrimination in public commerce.12 In this essay, I evaluate what might be unique about public accommodations within the civil rights framework. As Part I describes, by inviting the general public, public accommodations generate expectations of service, expectations always realized by the in-group—often defined by race, religion, and gender—and sometimes denied to minorities. Unlike employment, housing, and other spheres of antidiscrimination, public accommodations operate according to accepted conventions of nonselectivity. The public expects businesses to deliver goods and services on a first-come, first-served basis, to charge the same prices, and to treat people with respect for their status as consumers.
As Part II argues, the status of consumer entitles would-be patrons to a modicum of respect for their dignity. By contrast to discrimination in employment and housing, discrimination in consumer goods imposes trivial monetary damages on any particular individual, even as it has large aggregate effects in the market. But, as the law governing public accommodations has understood, public-facing businesses have particular power to inflict damage to one’s status as a consumer and citizen. Under the common law, courts recognized dignitary damages in order to enforce businesses’ obligations to the public. Given the absence of significant money damages for failing to honor a movie ticket or sell a hamburger, dignitary damages provided an otherwise missing deterrent effect. They ensured marginalized groups would no longer have to participate in the performance of their own inferiority before the audience inherent to businesses that welcome the public.
The final two Parts sketch the import of the unique evils of public accommodation discrimination for free speech. Part III argues that this arena manifests unified conventions of the consumer marketplace. The law of public accommodations shapes a consumer capitalist market that operates with an ideal of neutrality toward identity traits and aspires to frictionless transactions and movement. The result is a consumer marketplace where people and money flow freely in low-information, low-stakes transactions.
Part IV indicates an overlooked asymmetry in the communicative potential of service and denial. Because of social expectations of service, a business communicates little, if anything, when it provides a good or service to any particular customer. The wedding vendor signals no approval of the person or the use of the goods by its service. By contrast, denial of service powerfully expresses that a person (or group) does not merit status as a consumer. The message conveyed by breaking uniform conventions of service does not depend on the artistic or bespoke nature of the product sold or the celebration of any particular event. Free speech claims built around denial of service cannot be so cabined.
Most spheres of life governed by civil rights laws—whether employment, housing, or credit—manifest selectivity. Consider employment, the focus of most antidiscrimination scholarship. Employers use discretion and often subjective criteria in choosing among applicants. They gather ample information, ranging from resumes and references to personality tests and credit checks. People find themselves denied jobs for an array of legitimate reasons—a lack of experience, bad interview, improper fit, or preference for alumni of the boss’s alma mater.
Our expectations of employment are rejection and disappointment or, at best, uncertainty about the direction of decision making. Applicants neither anticipate nor receive any response from many jobs to which they apply. Employers routinely reject applicants, deny promotions, and turn down requests for raises.
By contrast, public-facing businesses—from restaurants to grocery stores, from ballparks to theaters, from flower shops to bakeries—welcome all comers. People rarely offer their names, let alone personal details, in these places. The business tends to inquire only as to the method of payment. Customers rarely anticipate or receive rejection without good reason that the tables are booked or the tickets sold out. Even rejection often serves as invitation to reserve for a future date or to return for a later game.
Unlike employers, public accommodations do not have an interest in, or practice of, choosiness.13 The business is organized around abstract customers—any member of the public is welcomed to deal.14 This invitation generates expectations of service, expectations consistently realized by the in-group—whether white, male, or heterosexual—and sometimes denied to minorities. Over the twentieth century, the enactment and enforcement of public accommodations law secured consumer status for increasing numbers of people. Today, proprietors and consumers alike assume a convention of equal access.
Under the common law, the status as a consumer was closely linked to citizenship. Thus, after the Civil War, it briefly seemed that newly freed slaves would gain full and equal access to public businesses under the common law.17 The Mississippi Supreme Court, for example, observed that the common law had “always” demanded that inns, common carriers, and “public shows and amusements” be open to all “unless sufficient reason were shown.”18 During Reconstruction, state supreme courts often concluded that that even in the absence of a statute, black people were due equal treatment.19 And when the U.S. Supreme Court struck down the federal Civil Rights Act in 1883, it too assumed that state common law—and the duty of equal access it encompassed—would still govern.20 But as Reconstruction ended, legislatures in the South rejected the duty-to-serve rule in favor of a right, and eventually duty, of businesses to exclude black people.21 And in many states, courts came to interpret common law to permit segregation even by core common carriers like trains and inns.22
To be sure, minority groups were purchasers of goods and services. In some places, they had ample choices.25 Retail stores solicited the trade of black customers even in the Deep South.26 But service came with mistreatment and norms that gave priority to white customers. At other times, disfavored minorities were restricted to a market niche. For example, before the Civil Rights Era, Mexican, Asian, and Sikh farm laborers in California might frequent the one market willing to serve them, while otherwise encountering signs reading “White Trade Only.”27 Parallel markets sometimes developed as groups launched their own businesses. In South Texas, Mexicans could shop in “their own dry goods stores, grocery stores, meat markets, tailor shops and a number of other shops.”28 Minority groups had access to goods and services, but their status as consumer-citizens entitled to move and spend freely was denied.29
The importance of one’s status as a consumer grew over the twentieth century. As historian Lizabeth Cohen explains, engagement in commerce served as an increasingly important mark of citizenship as the United States became a “consumers’ republic.”30 After World War II in particular, ideals of economic abundance and democratic freedom aligned to create a civic responsibility of mass consumption.31 As histrion Thomas Sugure observes, “[a]ccess to consumer goods—the right to buy—was a defining characteristic of what it meant to be an American citizen.”32
The black civil rights movement against segregation in stores and restaurants claimed black people’s status as consumers. While it would eventually become viewed as a struggle for integration, “what first drove blacks who challenged discrimination in public accommodations after World War II was a demand for equality of access.”33 Some civil rights leaders explicitly sought to reclaim the antebellum view of the common law.34 Protestors targeted the theaters, restaurants, and pools that represented “the promise of American consumer culture.”35 They asserted “the right to eat and drink, to spend their money, where they pleased.”36
In this period, black activists and their allies secured the passage, amendment, and enforcement of city and state laws against public accommodations discrimination.37 And after sustained protests and bloody attacks, they won the passage of federal public accommodations law—Title II of the Civil Rights Act of 196438 —that would end consumer segregation in the South. As historian Louis Hyman explains, this movement proved so successful in part due to its inherently conservative claim of a right to spend money.39
Over the twentieth century, an increasing number of people—women, people with disabilities, and LGBTQ people—demanded this right and their status as consumers.40 They too secured legal reform. Today, nearly all states guarantee “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation” without regard to race, color, national origin, religion, sex, or disability.41 Many jurisdictions also reach gender identity and sexual orientation discrimination.42 Reinforced by these laws, shared norms today dictate that public businesses will serve the customer at the front of the line first. People anticipate being able to purchase goods in all shops, not just some shops.
Many antidiscrimination laws primarily safeguard access to economically important opportunities. Each individual transaction has economic weight—the job, apartment, loan, or insurance policy denied. Individual economic damages can be significant.
The individual injury of public accommodations discrimination, however, is not primarily economic. As defendants have often argued, not even “five cents damages” can be said to be inflicted by a restaurant that serves a black man the same food as his white friends, alone and in the kitchen.43 Or the movie theater that seats Mexican-Americans on one side.44 Even where service is denied altogether, the monetary loss seems trivial. The denial of a cake for a wedding, a lunch at the counter, or a drink at the bar imposes minimal cost. But as civil rights activist Ella Baker declared, this sort of discrimination is about “something much bigger than a hamburger or even a giant-sized Coke.”45
Denial of equal treatment in public accommodations expresses an ideology of a group’s inferiority, not merely an ordinary civil injury.46 The indignity—or humiliation—is different in kind from mere insult or hurt feelings. Following Martha Nussbaum, this conception of dignity is deeply tied to respect.47 When a business denies service or provides unequal treatment, it expresses disrespect for the would-be patron’s status as a consumer. As Deborah Hellman convincingly argues, wrongful discrimination, unlike differentiation, demeans its targets. It requires both expression—that the person is less worthy of equal respect—and power or status—that the person expressing disrespect is in a position to subordinate the other.48 In this regard, the publicness of the refusal further distinguishes public accommodations. Although some discrimination takes place one-on-one, the presence of an audience of strangers sets public accommodations apart from employment or housing. Before an audience of fellow citizens, the proprietor has the power to impugn the standing of a person to participate in public commerce.
Courts have long conceptualized the denial of equal access as a dignitary harm. In the late nineteenth century, courts recognized that granting a remedy for indignity inflicted by public accommodations was essential, because otherwise the plaintiff would receive mere contract damages—the cost of the ticket, for example—which would not adequately reflect the harm.49 One court summarized its state’s common law, “[e]very person . . . has a right to go to any public place, or visit a resort where the public generally are invited” with “freedom from insult, personal indignities, or acts which subject him to humiliation and disgrace . . . .”50 In carrying on business with the public generally, a proprietor assumed a duty to treat them with respect for their status as a paying customer.
Public accommodations statutes imported this commitment to consumer dignity. Leading the National Organization for Women’s campaign to prohibit sex discrimination by the many male-only public places of the late 1960s, Karen DeCrow wrote, “the most basic right of all may be the right to equal treatment in places of public accommodation. It means the right to human dignity, the right to be free from humiliation and insult, and the right to refuse to wear a badge of inferiority at any time or place.”51 In upholding Title II in Heart of Atlanta Motel, the Supreme Court emphasized that its “fundamental object . . . was to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access.’”52 Other courts describe “the injury to an individual’s sense of self-worth and personal integrity.”53
While incivility and disappointment are common in our society, public accommodations have particular power to inflict humiliation for three reasons. First, as common law often recognizes, commercial sellers have the upper hand in their relationships with customers.54 Their social role dictates that businesses take greater precautions than average individuals must.55 Free speech doctrine also approaches consumer-business relations with some awareness of power dynamics.56
Second, the practice of holding open an invitation to the public increases the likelihood of people encountering indignity unaware. As the Supreme Court has noted, public accommodations laws structure “an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.”57 The pervasive nature of public accommodations means consumers are vulnerable to discrimination in a way that is unrelenting. Whereas individuals apply to and interact with relatively few potential employers or even landlords, they routinely—even daily—enter businesses open the public. In the absence of equal access, members of marginalized groups face constant uncertainty about where, when, and how they will access goods and services. People can avoid associating with their enemies, but often will find themselves “invited to an establishment, only to find its doors barred to them.”58
Third, in public accommodations, the presence of an audience enhances the impact of the business’s denial of service. Surveying cases involving offenses to dignity, in 1938, Fowler Harper and Mary McNeely concluded that these denials involved almost uniformly incidents that occurred in public, including accusations of theft and ordering of patrons out of amusement parks, theaters, and trains—in front of an audience of other patrons.59 Adjudicating claims brought under both the common law and public accommodations statutes, courts often highlighted the size of the crowd of witnesses.60 The New York Court of Appeals, for example, said, “it is the publicity of the thing that causes the humiliation.”61
While the minority group invariably is called upon to perform, the conduct or speech compelled varies by time, space, and trait. As a black woman, prominent educator Mary Church Terrell describes being unable to eat in Washington, D.C., “from the Capitol to the White House” unless she “were willing to sit behind a screen.”69 At professional meetings in the 1960s, women of any race would need to peel off from their colleagues or subordinates to go to ladies’ entrances and elevators. Gays and lesbians performed the role of heterosexual and took care to wear a minimum number of articles of “gender appropriate” clothing so as to avoid scrutiny.
Unequal treatment by a business sends a message that the patron or would-be patron is not worthy of respect. At mid-century, Jewish groups worked to bar discriminatory signs, recognizing that “such words as ‘selected clientele’ connote in the public mind that colored persons, Jews and others who are not lily-white need not apply.”70 Two decades later, encounters with the many bars that banned unescorted women and the restaurants that excluded all women during businessmen’s lunch hours prompted “the realization that society thought—as one woman said—that ‘women don’t belong in the outside world.’”71 In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court likewise recognized that public accommodations discrimination treated gay couples “as social outcasts or as inferior in dignity and worth.”72 Disfavored groups not only saw their standing fall in a single business but also experienced “community-wide stigma.”73
Public accommodations thus have an inescapable power to demean would-be customers. The public marketplace contains retail, service, and amusement; it meets needs and wants for commerce and leisure. Where norms of equal access and first-come, first-served are not universally observed, marginalized people live with constant potential for discrimination. They risk conscription into a performance that signals their inferior standing and limited claim to consumption before an audience of their fellow citizens.
As the next two Parts explain, the market and dignitary functions of public accommodations laws help explain why doctrine has largely carved out these commercial spaces from the reach of free speech. Conventions of equal-access structure expectations such that service does not communicate a message to consumers and the broader public.
First Amendment theorists have often puzzled over the boundaries of First Amendment coverage. Speech in schools and public employment, for example, often lies outside the scope of free speech. In commercial settings, laws may target what otherwise might be thought to be covered speech, such as laws requiring disclosure and setting parameters for dealing. Dignitary torts allow plaintiffs to seek damages against speakers.79
Courts also have understood public businesses to play a distinct social role, requiring regulation that is largely shielded from First Amendment scrutiny. In Masterpiece Cakeshop, for example, Justice Kennedy distinguished public accommodations from realms of freedom of free exercise and expression. He observed that a clergy member would clearly be protected from performing a marriage for a couple, and religious organizations and individuals should be free to hold and “teach the principles that are so fulfilling and so central to their lives and faiths.”80 But the “general rule” was clear: “objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”81 As the Supreme Court held long ago, in this marketplace “open to the public to come and go as they please,” the state enjoys broad authority to create rights of public access on behalf of its citizens.82
While this article makes no pretense to theorize the First Amendment’s scope, it helps clarify why it is that public accommodations laws in particular have long enjoyed a peaceful coexistence with the First Amendment. Consistent with sociological accounts of First Amendment coverage, it argues that public accommodations operate according to fixed social conventions that require service and a modicum of respect from the business toward the consumer. As Amanda Shanor argues, the First Amendment tends not to reach where social norms are cohesive, rather than pluralist, and speech acts are “straightforward in their effect” on the audience.83 These criteria are particularly likely to exist within commerce. As Daniel Halberstam explains, whereas public debate allows for the construction and challenging of background norms and suffers no bounds, a commercial transaction “does not leave much room for cultural differences or diverging beliefs about the nature of the transacted deal.”84 Engaged in bargaining, the “speakers” seek an agreement, “ultimately objectified in a material transaction[;]” they do not explore each other’s beliefs.85 Constitutional and common law take buyer and seller to share a commitment to the rules governing commercial transactions.86
When consumers and proprietors meet in public accommodations—a subset of the commercial world—they too assume a single set of background norms and values. In this “predefined communicative project,”87 the public accommodation invites all the world to transact business. Because its purpose is to serve the public, equal access is intrinsic to the business. The baseline is that a business will serve “any member of the public who is willing to pay.”88 And, as Parts I and II explained, an expectation of service and respectful treatment attaches.
This taken-for-grantedness of the governing norms is central to the consumer market. Establishing discrimination is relatively straightforward as a result. Unlike in employment, proof that, for example, a black patron was turned away and a white patron was seated would suffice.89 In Romer v. Evans, the U.S. Supreme Court echoed this understanding of rights of equal access, describing them as “taken for granted by most people either because they already have them or do not need them.”90 Indeed, these norms are so uniform among the in-group that when a restaurant or store refuses to sell, consumers demand answers.
Public accommodations may be a space where the First Amendment’s hands-off approaches to commercial transactions and to common law torts, respectively, align. As Shanor explains, “the exclusion of common-law torts safeguards a space of cohesive social norms around what it means to treat others with dignity and respect.”91 For example, Robert Post argues that the tort of invasion of privacy, which has remained largely immune from the First Amendment’s reach, does not have purely individualist goals. The tort instead “safeguards rules of civility that in some significant measure constitute both individuals and community.”92 In other words, it redresses individual injury to personality and upholds the norms that generate the community. Common law torts built around equal access and dignified treatment share these functions, constructing a public space of consumption. Originating in these dignitary torts, public accommodations laws promote both individual remedy and market-wide structures.93
Unlike plural political debates, public accommodations manifest an orthodoxy of identity-neutral capitalism. Antidiscrimination laws in this area foster low-information exchanges: as a general rule, consumers do not have to provide qualifications to gain access to products. Nor do businesses need to know much about a consumer. Proprietor and patron interact as strangers. The consumer market functions in a race-, sex-, sexual orientation-, and other identity-trait neutral way.94 Ability to pay becomes the sole concern of the transaction.95 Dollars are exchanged seamlessly, anonymously, and without need for introducing search or information costs.
The dictates of service and dignity construct a uniform market of full—not just equal—enjoyment. As Hubert Humphrey described Title II, equality in public accommodations meant any customer could go to “the nearest soda fountain,” “the nearest restaurant” and take “his pick of the available motels and hotels.”96 More recently, dissenting from the Eighth Circuit’s opinion in Telescope Media v. Lucero, Judge Kelly explained: these laws do not aim to ensure “access to some places of public accommodation. They were passed to guarantee equal access to all goods and services otherwise available to the public.”97 Consumers anticipate freely moving and purchasing in all businesses open to the public. There is no room for pluralism as to these ground rules.
The unique nature of public accommodations law also adds to our understanding of the “major contest” in the wedding vendor cases—namely, whether the conduct of preparing a wedding service actually communicates anything to the public at large.98 Until 2019, court after court concluded that public accommodations law regulated wedding vendors’ conduct—the baking and sale of a cake, for example. That conduct was not “inherently expressive” so as to be entitled to full First Amendment protections.99 Regardless of whether the wedding vendors intended to convey a message through their conduct, viewers were unlikely to understand providing a good or service in commerce to express the vendor’s message about marriage.100 Courts worried that any other decision would license “a public accommodation that serves only opposite-sex couples” or other in-groups, and would generate intractable line-drawing problems. 101
But in 2019, in Telescope Media, the Eighth Circuit determined that commercial videography of opposite-sex weddings constitutes expressive conduct conveying the business’s own views that marriage is “a divinely ordained covenant” between a man and a woman.102 Requiring service for a same-sex couple—the court said—would instead compel the owners to speak favorably about same-sex marriage.103 The First Amendment thus barred the application of public accommodation law. The Arizona Supreme Court soon followed, granting a stationary company protection under the Arizona Constitution.104 Justices Thomas and Gorsuch have already expressed their opinion that the sale of custom wedding cakes is expressive conduct that antidiscrimination law cannot reach.105 The Supreme Court is likely to take up the issue in the near future.106
In this kind of litigation, courts have typically presumed a symmetry between the ability of service and denial to communicate. The Supreme Court of Washington, for example, noted that even the objecting florist admitted that service often did not communicate her endorsement of a wedding.107 She did not understand herself to endorse atheism or Islam by arranging flowers for an atheist or Muslim wedding. Likewise, the court said, refusal could occur for various reasons—ranging from religious objection to insufficient stock.108 To the court, service and denial were equally non-communicative.
The long-standing conventions governing public commerce, however, indicate an asymmetry in the expressiveness of service and denial. A public business fails to express any message, let alone a particularized one, through mere service, because we expect paying customers to be served. The audience of other patrons discerns no communication from a business pouring a coffee, selling a cake, or cutting a person’s hair. We take for granted that the first person in line will be served, and the wedding vendor will provide its usual goods if available.
The provision of service requires no reason giving. When a server brings a meal to a table, they don’t explain that it’s because “you seem like a nice Christian family.” When a photographer agrees to document a wedding ceremony, they don’t tell you that they support your wedding or opposite-sex weddings more generally. You understand that the price is right and the date is available.
The fact that a business sells an item to someone does not imply its endorsement. To be sure, serving a particular person might feel expressive of endorsement to the vendor—the baker, florist, etc. But to the majority in-group, service doesn’t communicate approval of the customer, of their use of the product, or much of anything else. With fleeting interactions, customers and businesses typically experience little intimacy and acquire little knowledge about one another.109 Even with wedding vendors hired for a special day in the lives of the celebrants, the duration of the relationship is quite limited in time, space, and depth. The offer to perform is made without exclusiveness, to one and all. Under these circumstances, the proprietor and customers are not associated with one another or united by any particular views.110 Whether or not the goods are artistic—a tattoo or handwritten invites—the public’s expectations and perceptions remain the same.111
To the extent service expresses anything, it might send the message that the customer is entitled to be treated like any other customer—as Sam Bagenstos has pointed out.112 As he notes, if this is right, then whenever a retail business provides a good, regardless of what is sold, it engages in expression. While Bagenstos sees this message as forceful, it seems muted in contemporary consumer marketplaces. When the social norm was to subjugate a minority group, a business that seated people side by side would indeed powerfully communicate a message of social equality both to the marginalized group and to the audience of consumers. After the enactment of civil rights protections, however, this same act might have expressed mere legal compliance. And with the passage of time and the shift in consumer expectations, service has come to reflect the background norm of treating consumers with dignity and respect. It signifies, as I have suggested, the intrinsic nature of a business organized around serving the public—namely, that all paying customers are served. With decades of experience of the Civil Rights Era settlement, to the extent that service communicates a message of equality, it does so in a whisper.
Denial, by contrast, communicates loudly to both the would-be consumer and a larger audience. Denied flowers for his wedding to Robert Ingersoll, Curt Freed understood the message that “our business is no longer good business.”113 Rejected by a bed and breakfast on their vacation, unmarried same-sex couple Diane Cervelli and Taeko Bufford heard that they were “inferior and unworthy of equal treatment in even a routine business transaction.”114 When a business open to the public turns a person away, it powerfully expresses—as these couples understood—that the person does not merit status as a consumer.
Nor does denial invite multiple interpretations as service does. While service requires no justification, denial calls for explanation. Because a refusal to serve or seat a patron is unexpected in light of social norms governing public businesses, it often prompts the would-be patron to demand a reason. The vendor must explain that stock is depleted, a table reserved, or the shop closed.115 In the absence of a reason that applies to all consumers, the message and meaning of denial is one’s inferiority in the consumer marketplace.116
Of course, the free speech claims in current litigation could be equally framed as either a denial or a provision of service. A wedding vendor could be said to engage in expressive conduct (or speech) through withholding a cake or invitations—sending a message that the would-be patron’s wedding is lesser. But objectors to same-sex marriage have explicitly framed their expression in terms of service to customers who they prefer not to serve. They argue that nondiscrimination requires them to speak in favor of same-sex marriage. On this construction, it is service to the couple—whether preparing a cake or arranging flowers—that communicates approval or endorsement.
The asymmetry between the messages of service and denial help explain this choice. While service might communicate quietly or not at all, denial as expression sends a clear message of gay inferiority. The desire to express that message would make these business owners less-than-sympathetic standard-bearers for the movement for exemptions from public accommodations laws.
Courts moreover might be more concerned about where exemptions framed to authorize denials of service would lead. Objectors paint their requested free speech exemption as “narrow,” applying only to the production of expressive or artistic services.117 But denial of goods and services—not just expressive goods—powerfully communicates in a way that the provision of even expressive goods does not. Under the conventions that govern the consumer market today, denial speaks louder than service.
The line between speech and conduct may not always be clear. But states have long required nondiscriminatory service by public accommodations. Such obligations have co-existed peacefully with West Virginia Board of Education v. Barnette’s invocation that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”118 The application of public accommodations laws to commercial sales of even expressive goods and services has not, pace the Arizona Supreme Court, “compel[led] uniformity of beliefs and ideas.”119 Indeed, public accommodations laws expressly leave the social, private, and political free of restraint. Business owners retain their “individual freedom of mind” and the component rights to speak and refrain from speaking.120 Only in the licensed, regulated, and surveilled commercial marketplace will duties of equal access apply.
Nor is public accommodation law aimed—as Justice Thomas opined—“to produce a society free of . . . biases” against the protected groups.121 Its overarching goal is to secure a consumer market of freely moving people and currency. Given power imbalances between business and individual consumers, it requires public-facing businesses to show a modicum of civility and respect for dignity of would-be patrons.
The expansionist project of free speech doctrine has public accommodations laws within its sights. If businesses prevail in their constitutional claims, a number of serious questions arise: What kind of a consumer market will we be left with? In the absence of a shared expectation of service, will we see contestation over norms of the consumer market as we did decades ago? Or will the market become balkanized with stores organized around specific religious or other values rather than abstract customers and their dollars? Will gay identity and relationships be sent back into the closet to be able to access consumer goods? And will other civil rights protections in employment, housing, and education remain unscathed? Is public accommodations discrimination sufficiently distinct in its focus on dignity and its impact on realms of shallow, transient, arms-length relations? Are its “evils” so “unique” that we might distinguish the rest of civil rights law?
What seems clear is that a constitutional privilege against public accommodations law would destabilize longstanding conventions of service and civility in the consumer marketplace. Exceptions—however the lines are drawn—would undermine an identity-neutral marketplace where dollars and people flow freely without the friction of information and search costs. They quite literally would reduce the space for individual dignity.