We Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom

Abstract

As part of a symposium celebrating the 50th anniversary of the Civil Rights Act of 1964, this article considers the role of public accommodations law in a free and democratic society. Public accommodations law is fundamental to a society that ensures equal rights of access to both private property and the free market. A society that allows businesses to choose their customers because of race or other factors such as sexual orientation can result in a caste system that is as rigid as any such systems imposed by statutory regulations. That is why a statute that allows businesses to choose customers without limit (such as the law in effect to this day in Mississippi) should be deemed unconstitutional if it enables businesses to engage in invidious discrimination.

Racial discrimination remains a significant problem in public accommodations today even though it is (almost) universally deplored. We are, however, living through a time when discrimination on the basis of sexual orientation is being vigorously debated and religious reasons for such discrimination are commonplace. Sorting out the rights of patrons versus the rights of businesses requires a full understanding of the role of public accommodation law in ensuring that access to social and economic life not be denied on the basis of race or sexual orientation.

Keywords: public accommodation, civil rights, sexual orientation, discrimination, race, caste