By Mike Dorf
(Updated at 10:12 am Eastern Time and again at 1:54 pm Eastern Time)
Later this morning, I'll be recording a discussion of the Elane Photography case for a National Constitution Center (NCC) podcast to be posted soon. By the time you read this post, the Supreme Court will likely have made an announcement either granting or denying cert in the case, so the discussion should be timely. (Update 1: The SCOTUS took no action on the case today, so a cert decision will come later.)
The discussion will be moderated by NCC President (and GW Law Prof) Jeff Rosen, and will include both me and U Chicago Law Professor Richard Epstein. Once it's ready, I'll post a link to the audio in an update to this post and, depending on how the discussion goes, I may have a follow-up post. (Update 2: Audio now available here.) Here I want to address an issue that I've been pondering in thinking about the discussion.
The format for the NCC program is a discussion, rather than a debate, but it's fair to say that Professor Epstein and I will have different views. My view, which I expressed in an amicus brief before the New Mexico Supreme Court, in a Verdict column, and in a prior post, is that, in general, commercial enterprises are not entitled to free speech exceptions to anti-discrimination laws that target discrimination, even though that means that in order to offer their services in the marketplace, business owners and their employees will sometimes need to engage in actions that communicate messages that they do not believe.
I simply don't see a good way to exempt wedding photographers opposed to same-sex marriage from a public accommodations law without thereby also entitling bakers, florists, invitation printers, bartenders, clothiers, and virtually all other service providers from such a law. Elane Photography's own reply brief seems to make this point unwittingly, offering "print shop professionals"--read, owners of Kinko's franchises--as an example of the sort of people who will face censorship if the New Mexico Supreme Court decision is allowed to stand. In an era when everything from toast to pencil sharpening can be called "artisanal", there is no principled way to hold the line at photographers. Indeed, the application of ordinary right-not-to-speak and right-not-to-associate case law to commercial public accommodations could give even non-artisanal service and product providers an exemption from anti-discrimination law, as they could argue that the required act of association itself compels them to "express" the repugnant view that they do not find such association objectionable.
To my mind, there are at least three possible doctrinal routes to the result that I favor. One would be to say that public accommodations laws, as applied to commercial enterprises, are narrowly tailored to advance a compelling interest in equality, and so that even assuming that such laws should be subject to the strict scrutiny that applies to full-on infringements on free speech, the infringement is justified. This was more or less what the Supreme Court said in the association context in Roberts v. United States Jaycees, when it upheld a sex discrimination ban as applied to a private association. Concurring in that case, Justice O'Connor offered a somewhat different view, arguing that the right of expressive (non)association is greatly diminished in the commercial context, and that approach could be extended to cases in which the objection is not to the message expressed by the compelled association itself but to the message expressed by the service or product provider's service or product. In one variant of this O'Connor approach, the fairly forgiving O'Brien test would apply. In another, there would be no free speech scrutiny at all, as the infringement would be deemed completely incidental. Either way, the application of the public accommodations law would be upheld.
Professor Epstein believes and has written that laws forbidding employment discrimination are wrongheaded. His views about public accommodations are more complex. In the book to which I just linked, he says that the original 1964 Civil Rights Act was justified in including a provision forbidding race discrimination in public accommodations because, he says, Jim Crow was a system of racial segregation that was entrenched through law and coercive social practices. Federal law was thus necessary, he says, to disentrench it. But in the absence of the sort of systemic public/private/social pro-discrimination partnership that was Jim Crow, his view about public accommodations appears to be more or less the same as his view of anti-discrimination law more generally: Namely, that law is unnecessary to combat discrimination because market forces will address it; an employer who does not discriminate based on race, sex, etc., will be able to draw from a larger pool of talent than one who does, and thus will enjoy an advantage in the marketplace. Likewise, a business that does not discriminate against customers based on illicit grounds will have more customers.
Although I disagree with his conclusion, I think that Epstein's market analysis is partly correct. But even accepting his framework, there are two important limits to the upshot of his argument.
First, in small homogeneous communities, there may be sufficiently few minorities and the majority "taste" for discrimination may be sufficiently large that members of protected groups really cannot find any service providers. The Volokh/Cato/Carpenter amicus brief in Elane Photography notes that there are over 100 wedding photographers in the Abuquerque Yellow Pages and asserts that "most wedding photographers would likely be happy to take the money of anyone who comes to them." I'm willing to concede that this is probably true, but Albuquerque is a city of over half a million people. The rest of New Mexico's over 2 million citizens live in towns and cities that are substantially smaller. The second largest city in New Mexico has less than a fifth of the population of Albuquerque. (NM population 2010 census data here.) The options for same-sex couples in the rest of New Mexico may be substantially more constrained.
Second, the point of public accommodations law is not just to ensure that everyone can find some service provider who doesn't turn him or her away based on forbidden grounds. After all, African Americans in the Jim Crow South could typically find some restaurants and motels that would take their money--but only at facilities that were segregated by race. Likewise, even in the heyday of the closet, LGBT Americans could go to specifically "gay bars" and the like. But that hardly excuses the racist or homophobic restaurateur or bar owner from operating a whites-only or straights-only business.
In short, one central feature of public accommodations law is to ensure that any citizen can get service at any business. Public accommodations laws serve to create and protect a form of economic citizenship, and not merely the kind of second-class economic citizenship that a regime of segregation affirms. For this reason, a legal regime in which exceptions to public accommodations laws are granted to expressive businesses would undermine such laws at their core, not their periphery.