Free Speech

Can Places of Public Accommodation Exclude People Based on Their Politics?

It all depends on where you are.

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Generally speaking, private restaurants, hotels, and the like can't exclude people based on their race, sex, religion, national origin, and similar attributes. The Equal Protection Clause doesn't apply to private entities—but state and federal "public accommodation" statutes do.

The federal statute (Title II of the Civil Rights Act of 1964) is actually pretty narrow: It applies only to discrimination based on race, color, religion, or national origin (not sex or sexual orientation or gender identity or age, for instance), and it applies only to hotels, restaurants, entertainment venues, and some related businesses. (The Americans with Disabilities Act, which focuses on disability, covers many more businesses.) But many state laws are quite broad, both in the range of businesses they cover, and the range of bases for discrimination that they forbid.

But what about discrimination against Republicans or Democrats or people wearing NRA shirts or people who have expressed various political statements that a business owner dislikes? Generally speaking, such discrimination isn't forbidden by most such antidiscrimination laws (unlike political discrimination in employment, which is forbidden to some extent in about half the states). Still, several important cities, counties, and territories, and (to a narrow extent) one state do ban such discrimination, broadly or narrowly. It's also possible, though not certain, that California broadly bans at least some such discrimination as well.

In this post, I want to just lay out the prohibitions I've found so far, without opining on whether or not they are good ideas. For each provision, I'll indicate what sorts of political discrimination it forbids; some terms are well-defined in the provision, in which case I'll include the definition, and some are just left general (e.g., "political affiliation").

Note that

  • different laws may apply to different kinds of businesses, but I won't focus on that in this list (if you're interested in how broadly a law applies, you should read it directly);
  • it's not clear that these laws apply to any online platforms (in part because of 47 U.S.C. § 230, in part because of the Dormant Commerce Clause, and in part because of the uncertainty of their own terms)—for now, let's focus on them as they apply to physical businesses that are physically open to the public;
  • it's not clear to what extent some of these laws restrict businesses' discriminating based on what you say or display on the business's property, as opposed to businesses' discriminating against you because they don't like what you've said elsewhere.

[* * *]

D.C.: D.C. Code § 2-1401.02(25), -1402.31(a) ("political affiliation," defined as "the state of belonging to or endorsing any political party").

Maryland counties: Harford County (Md.) Code of Ordinances §§ 95-3, -6 ("political opinion," defined as "[t]he opinion of persons relating to government or the conduct of government or related to political parties authorized to participate in primary elections in the state").

Prince George's County (Md.) Code of Ordinances § 2-186(a)(3), (15), -220 (same as Harford County).

Howard County (Md.) Code of Ordinances § 12.201, .210 ("political opinion," defined as "the opinions of persons relating to: Government, The conduct of government, Political parties, Candidates for election, or Elected office-holders").

Chapel Hill (N.C.) area, near Durham: Orange County (N.C.) Code of Ordinances § 12-54 ("political affiliation").

South Florida areas: Miami Beach (Fla.) Code of Ordinances § 62-31, -87 ("political affiliation," defined as "ideological support of or opposition to, membership in, or donation of value to an organization or person which is engaged in supporting or opposing candidates for public office or influencing or lobbying any incumbent holder of public office on any single or number of issues which may be before any governmental branch").

Ft. Lauderdale (Fla.) Code of Ordinances §§ 29-2, -16 ("political affiliation," defined as "belonging to or endorsing any political party").

Broward County (Ft. Lauderdale, Fla.) Code of Ordinances §§ 16½-3, -34 ("political affiliation," defined as "belonging to or endorsing any political party").

Shreveport (La.): Shreveport (La.) Code of Ordinances §§ 39-1, -2 ("political or religious affiliations").

Illinois cities: Champaign (Ill.) Code of Ordinances § 17-3, 17-56 ("political affiliation," defined as "the state of belonging to or endorsing any political party or organization or taking part in any activities of a political nature.").

Urbana (Ill.) Code of Ordinances § 12-39, -63 (same as Champaign)

Michigan areas: Wayne County (Detroit, Mich.) Ordinance No. 2020-586 ("political affiliation").

Ann Arbor (Mich.). Code of Ordinances §§ 9:151, :153 ("political beliefs," defined as "[o]ne's opinion, whether or not manifested in speech or association, concerning the social, economic, and governmental structure of society and its institutions," "cover[ing] all political beliefs, the consideration of which is not preempted by … local law").

Lansing (Mich.) Code of Ordinances §§ 297.02, .04 ("political affiliation or belief").

Madison (Wisc.): Madison (Wisc.) Mun. Code §§ 39.03(1), (5) (same in relevant part as Ann Arbor).

Minnesota: Minn. Stats. § 604.12 ("wearing clothing that displays the name of an organization or association").

Seattle (Wash.): Seattle Mun. Code § 14.06.020-.030 ("political ideology," defined as "any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group," including "membership in a political party or group" as well as "conduct, reasonably related to political ideology, which does not cause substantial and material disruption of the property rights of the provider of a place of public accommodation").

Territories: P.R. Stats. tit. 33 § 4819 ("political ideas").

V.I. Stats. tit. 10 § 64(3) ("political affiliation").

California, maybe: Though the California public accommodation statute doesn't specifically list political affiliation as a forbidden category for discrimination, court decisions have read it as generally barring a wide range of "arbitrary discrimination," including—though in dictum—political discrimination. "As our prior decisions teach, the Unruh Act preserves the traditional broad authority of owners and proprietors of business establishments to adopt reasonable rules regulating the conduct of patrons or tenants; it imposes no inhibitions on an owner's right to exclude any individual who violates such rules. Under the act, however, an individual who has committed no such misconduct cannot be excluded solely because he falls within a class of persons whom the owner believes is more likely to engage in misconduct than some other group. Whether the exclusionary policy rests on the alleged undesirable propensities of those of a particular race, nationality, occupation, political affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary discrimination." Marina Point, Ltd. v. Wolfson, 640 P.2d 115, 117 (Cal. 1982) (emphasis added).

[* * *]

Note that in some instances the First Amendment might trump such laws, when the laws burden the business's own First Amendment rights, such as videographers' right not to be compelled to make videos with a message they disapprove of; compare laws banning discrimination in public accommodations based on religion or sexual orientation. But that is the exception, and wouldn't apply to typical businesses' refusals to deal.

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  1. Republicans seem severely worried about consequences for bigotry in modern America.

    Great!

    1. That’s right. Freedom of expression is only those who want to express good ideas. Punishment of bad ideas is entirely consistent with freedom of expression. The Hollywood 10 were just a bunch of whiners.

      1. Your freedom of expression does not entitle you to overcome Twitter’s preference to avoid bigotry with respect to its site. Similarly, this right-wing blog is entitled to censor liberals, as it repeatedly has done, and liberals have no right to reverse the decisions of the Volokh Conspiracy’s management in that regard.

        The scant legal veneer at this blog becomes thinner with each day.

        1. Twitter should be seized in civil forfeiture for the billions of federal crimes committed on its platform. Your vile profession needs to be cancelled. It is our mortal enemy.

        2. Yes, Twitter is immune, while a local cake baker who is barely able to make a living, should be sued into oblivion for refusing to bake a cake with a message he finds morally objectionable.

          1. Are you trying to argue here that anti-discrimination law is good, and political opinions (like support for insurrection and violence?) should be protected, or that anti-discrimination law is bad and food service providers should be able to ban people from shopping based on their race, religion, or sexual orientation?

            Twitter isn’t a “public accommodation” covered by the Civil Rights Act. So it gets to decide the rules for what can get you kicked off. The bakery is a public accommodation and cannot discriminate based on the protected classes listed in federal, state, and local law.

            (I’m not sure what you mean by “message” as there wasn’t any sort of “gay message” on the cake. He didn’t discriminate due to a message but based on the type of people the cake was purchased for.)

    2. We need a database of lawyers. When the name comes up at the supermarket checkout, the person should be expelled without its purchases. Lawyers should be shunned by all churches, clubs, restaurants, theaters. I have to think about whether they should be shunned in healthcare. Lawyers are the mortal enemies of all productive sectors of our economy. These should begin to push back.

      1. I am unaware of any state in which that would be illegal. But nobody does it. There are probably reasons for this.

      2. ” Lawyers are the mortal enemies of all productive sectors of our economy.”

        Even worse than the Internet rando with a keyboard and some skill at touch-typing?

        1. How does it feel to belong to an occupation that is 10 times more toxic than organized crime, destroying $2 million in economic every year you breathe?

    3. We are concerned over your own bigotry that you publicly display here.

      1. So long as you continue to comply with the preferences of your betters, buckleup, you get to whine and whimper as much as you like.

        1. Cancel the lawyer profession. Zero tolerance for your ilk.

          1. Serious question though. I don’t like lawyers much either, but aren’t they just a negative externality of rational rule-making, such that if you make rules, people will naturally arise to learn/interpret/manipulate them?

            1. The problem is that they’re a cartelized negative externality.

              1. Well, yea, they are organized and politicians only listen to the organized.

                But I don’t see them and the ABA as any worse, or better, than other organized groups like the NRA, or Planned Parenthood, or Agribusiness, etc. etc.

    4. “Republicans seem severely worried about consequences for bigotry in modern America.”

      Look at that amazing intellect, hardly working.

  2. This is just as dumb as the Christian baker refusing to bake a wedding cake for a non gay wedding (I consider weddings involving a woman and a man to be a “gay wedding” because in my experience those are the gayest weddings taking cues from homosexual trend setters in Manhattan and LA). People should accept money from lawful customers and not try to make running a small business even more difficult than it already is.

    1. Sometimes people have values that differ from others, and sometimes those values are in the small business.

      If you walk into an African American owned bakery, and ask for a special order cake depicting a lynching of an African American, should you be surprised if they say no?

      1. If the baker advertises that he bakes cakes celebrating lynchings then the baker must serve the customer. Don’t advertise products or services that you don’t want to sell…that’s small business 101. 😉

        1. So your contention is that if he advertised “cakes for all occasions” he’s stuck doing the lynch cake?

          1. If someone buys a cake from you and then takes it to a lynching, how is that any of your business?

            1. If someone says “I want to buy a custom cake from you so I can bring it to a lynching to celebrate”…would you still want to sell it to them?

              1. Wouldn’t that make you an accessory before the fact, in that you are helping him prepare for a crime? What if you also sold him the rope?

                1. Wouldn’t that make you an accessory before the fact,

                  No. This has been yet another episode of Simple Answers to Stupid Questions.

                  I think we need a spinoff show specifically for Dr. Ed, though. This has been yet another episode of Simple Answers to Stupid Questions Asked By Dr. Ed.

            2. If someone buys a cake from you and then takes it to a lynching, how is that any of your business?

              Clever. Reductio ad absurdum. Of course it could be your concern in not wanting your product to be seen at someth…

              Oh, wait. You are being serious.

              1. Meh, it’s a quite common hypothetical. If a Christian can be forced to bake a trans cake, can a Jewish bakery be forced to bake a cake with a swastika? This kind of stuff came up in the oral arguments when it Masterpiece Cake came before SCOTUS.

        2. Ducksalad makes the point nicely.

          If he advertised “cakes for all occasions” or just “cakes designed to order”…would he have to?

        3. “If the baker advertises that he bakes cakes celebrating lynchings then the baker must serve the customer. Don’t advertise products or services that you don’t want to sell…that’s small business 101.”

          If baking cakes in exchange for money offends your religious sensibilities, then perhaps “baker” isn’t the correct career field for you…

          1. That is a stupid thing to say.

          2. If baking cakes in exchange for money offends your religious sensibilities, then perhaps “baker” isn’t the correct career field for you…

            If government telling you you must give up your religious sensibilities in exchange for putting food in your mouth and a roof over your head seems a-ok to you, perhaps you need another look at the First Amendment.

            1. That seems to be the position here: That as soon as money changes hands, all your rights as an individual vanish.

            2. The government is telling you these things. It’s simply choosing to license or not license your business depending on whether you agree to the terms of the license. One doesn’t need the license in order to freely practice one’s religion. Nor is that particular license necessary in order to put food on the table. Unless there’s a religion that requires everyone to be a baker and discriminate against people?

          3. If the customer want a cake without a message, the baker should sell to all. S/he might even sell some decorating stuff so that the customer can add any message s/he wants.

            If the customer wants a message written by the baker, then I do not find the refusal to be offensive

            1. This is entirely too sensible to work.

      2. If you walk into an African American owned bakery, and ask for a special order cake depicting a lynching of an African American, should you be surprised if they say no?

        I like to think that you should expect “no” regardless of who owns the bakery.

        Further, if you get a “yes”, I want to know, because that’s a bakery that should be avoided.

        1. “I like to think that you should expect “no” regardless of who owns the bakery.”

          And then should your bakery be sued out of existence for discrimination?

          1. So you don’t understand public accommodation law.

            1. I don’t think you quite understand the court case here, and what was going on.

              1. My personal view is that gays should be allowed to marry but nobody should be required to bake them a cake. However, I don’t think the gay wedding cake is analogous to the lynching cake, and this is yet one more bad analogy that we’ve come to expect from some on the right.

                The gay wedding cake celebrates a wedding; the lynch cake celebrates a murder. Whatever may be your views of gay weddings, please tell me you at least understand the difference between a wedding and a murder.

                1. There isnt a difference between murder and gay marriage. To many both are evil and nothing that is to be celebrated. Perfectly reasonable a religious baker wouldn’t want to profit from either act.

                  1. That comment pretty much disqualifies you from being taken seriously, thank you very much. Will you at least acknowledge that gay marriage is legal and murder isn’t, which may be a basis for treating the two differently.

                    1. He didn’t say they were an equal evil, just that both were evil. Put on your logic cap, please.

                      Moreover, legal =/= moral. Would you be all in on slavery in 1861 in South Carolina, eh?

                    2. Don’t be obtuse. Morally speaking – both are evil to many people from many religions and should not be celebrated.

                    3. And I never said he said they were an “equal” evil. Still, comparing homosexuality to murder is outlandish enough to question someone’s judgment, or at least sense of proportion.

                      There are times when religion makes us better people, but this is not one of them. And the fact that someone’s bigotry has a religious basis makes it no less bigoted, otherwise we’d have to make a religious allowance for Jim Crow and the Inquisition, each of which was also founded on long standing religious tradition. (I was raised by white supremacists, there are about a dozen biblical passages that teach white supremacy, I can rattle off everyone of them because I was raised on them.)

                      That you are doing bad things in the name of religion makes them no less bad things. And yes, homophobia occupies the same moral plane as racism and religious intolerance, religious or not. Please stop pretending otherwise.

                    4. Wow, what a backtrack. Point is, they are both evil to a great number of people, making something legal doesn’t make it moral, and, moreover, you’re making yourself out such that it’s okay to compromise your values if it is, in someone else’s definition, a small evil. By your standards, you’d be comfortable with slavery. heh.

                      The Old Testament can be used to teach Jewish supremacy, and the devil can quote scripture in his defense. What’s your point, when bad things are done in the name of irreligion, namely godless communism, which killed tens of millions?

                    5. Every time you misquote me, and I correct you, you then claim I backtracked. No, it wasn’t a backtrack. You misquoted me and I corrected you. Also, I said nothing that even remotely hinted that making something legal makes it moral, that it’s OK to compromise your values if it is a small evil, or that I’m comfortable with slavery. All that straw you’re laying down is rapidly becoming a fire hazard. And by the way, do you really think a Soviet Union run by libertarian atheists would have looked the same as it did under Joseph Stalin? If not, then you agree with me that the issue was Stalin’s communism, not his atheism. Ayn Rand was an atheist; for all her faults I doubt she would have built concentration camps.

                      My original point is that the lynch cake/gay wedding cake is a bad analogy. The idea that two people publicly demonstrating that they love each other is analogous to a mob of racists committing cold hearted murder is simply ludicrous. You don’t even have to be pro gay to see that the two aren’t remotely comparable. It candidly reminds me of people on the left who analogize Christians to Nazis.

                      And from my statement that it’s a bad analogy, you’ve now got me defending slavery. Are you on drugs?

                    6. Your inability to understand a syllogism, and lack of reading comprehension skills culminate in a hell of a projection.

                      Let’s start again, with the crayons this time, on your behalf.

                      1) Something being legal does not mean it’s moral. Your wife cheating on you may be legal, but not moral. Saying that gay marriage is legal, and thus acceptable is making that argument.
                      2) Ergo, by comparison if slavery were legal, would you still be making that argument that slavery should be acceptable?
                      3) Further, you say that treating gay marriage and murder differently on that basis is correct, i.e. that one is legal and the other not.
                      4) However, for a large portion of society, they are both evil, even if one is an admitted greater evil AND legal.
                      5) Therefore, you’re making the argument that people who believe gay marriage is evil should ignore that evil because it’s a smaller evil than murder, it’s legal, and all because you and other say they should.

                    7. “However, for a large portion of society, they are both evil”

                      You seem to overestimate the number of bigots remaining in modern America. Even most people who claim religious belief are no longer ardent. bigoted gay-bashers.

                    8. mad_kalak, do not blame me for your own unclear thinking and writing, which seems to be endemic throughout your posting here. At least this time you tried to be clear.

                      Moral issues and legal issues are, as you point out, different issues. I was commenting on the legal issue — since gay marriage is legal and murder is not, perhaps the law should treat differently cake shop owners who bake a cake for one but not for the other. You then changed the subject from legal to moral, even though I was only addressing the legal issue. Do you understand how that works? On the *legal* question, the fact that one is legal and the other isn’t probably resolves the issue.

                      Now, if you want to talk about the moral issue instead — even though it has little to do with how the law should treat bakeries — fine, we can have that conversation. What other people have believed at other times and places is a huge hand-waving exercise in avoiding the issue. Even if I agreed that homosexuality is a bad thing, the idea that it occupies the same moral plane as murder is completely ridiculous. Now, from that, you jump to the unwarranted conclusion that I think it’s ok to tell people to ignore their beliefs if it’s a small issue. That conclusion does not follow from my premise, but it has some similarities, so here’s my actual view on it: The law cannot accommodate everybody’s religious belief because there is probably no law anywhere that someone somewhere doesn’t object to. So the question is whether *this particular* law should override *this particular* religious belief.

                      By the way, the “therefore” at the beginning of your Paragraph 5 is another conclusion that doesn’t follow from the premise.

                    9. Sure, I won’t blame you for your inability read and write clearly. It’s okay. Difficult issues get tangled up easily in people who are used to doublethink, because unconsciously, they expect everyone to have the same mental blockages as they do.

                      Ah, so you finally get the syllogism, that’s a start. However, what you’re missing is the it is a legal AND moral issue, simultaneously. Because the legal document that (sorta) runs our country, the constitution, has the 1st Amendment, which gives freedom of religion, and because religions dictate morals for adherents.

                      Therefore, when you have a law that says to adherents, who are given their freedom of religion also by law, that they must engage in evil, then we have a contradiction that has to be sussed out.

                    10. It’s not a syllogism. A syllogism has three parts, each of which is used twice. Yours has no such thing. You know the words without actually understanding them.

                      The problem, as I said, is that we can’t accommodate everybody’s religion. If your religion says you should hijack an airplane and fly it into the World Trade Center, it’s not going to be accommodated if we can help it. If your religion says you should practice pedophilia, you’re going to prison if you do. If your religion says you are excused from paying taxes, the IRS will ensure that you have a miserable life.

                      So, as I said before, the question is whether *this particular* religious conviction should override *this particular* law. Otherwise, nobody has to obey any law they don’t like. I could probably come up with a biblical case against speed limits if I set my mind to it.

                    11. Sorry, meant to say a syllogism has three *terms*, each of which is used twice, not three parts. Fingers got ahead of my brain. At any rate, your so-called syllogism doesn’t qualify for that reason.

                    12. I think the lynching analogy is bad as there are too many practical differences for the point to be precise. Especially since it involves murder, and the first legal obligation that baker would have is to call the cops.

                      Maybe this one is a better analogy. Say there’s a bakery that advertises cakes for celebrations such as weddings, birthdays, and picnics. Some Klan members walk in and say they want a cake for a picnic. Don’t worry, they aren’t going to kill anyone or break any laws. They are just going to do a re-enactment of a CLASSIC picnic, where they hang a black mannequin in effigy. All perfectly legal fun, and absolutely within the framework of the services the Baker advertises.

                      The Baker says, I don’t sell cakes for THOSE kinds of picnics. The Klansman retorts that the Baker down the street said he doesn’t do THOSE kinds of weddings. Why should there be a legal difference?

                      And to be clear, I do think the Baker down the street is a bigoted fanatic for refusing to sell a cake for a same sex wedding, but I take the libertarian position that he should legally be able to do so. I also think this Baker should be able to legally refuse this Klan member his request.

          2. And then should your bakery be sued out of existence for discrimination [for refusing to bake a cake for a lynching]?

            Refusing to assist in a crime does not strike me as discrimination of the basis of political belief.

            1. And yet….In 2012, when the original case took place…gay marriage was illegal in Colorado…

              But refusing to sell a cake for a gay marriage, in 2012, in colorado, was viewed as “discrimination”

              1. It was not illegal for a same-sex couple to have a wedding ceremony. It was only that the state would not recognize the relationship as “civil marriage.”

                1. Oh, tedious wordplay is it now? Can I play?

                  Celebrating a lynching isn’t illegal either….

                  1. It’s not wordplay. Lynching is illegal. A same-sex wedding was not. Celebrating an illegal act (lynching) is not the same as celebrating a legal act (same-sex wedding).

                    Now, if you want to roll the tape back to 1967 when miscegenation was illegal (Virginia criminalized interracial marriages before Loving), then refusing to sell a cake for an interracial wedding would not be discrimination prior to Loving.

        2. In Oaktown, you’s expect a lot more forceful answer than “no” in Your Black Muslim Bakery (a real business)

  3. “Durham (N.C.) area: Orange County (N.C.)

    The Durham, NC area is located in Durham County. Orange County contains Chapel Hill, home to the UNC and its various sporting teams.

    1. I just meant that Orange County is in the general neighborhood of Durham, but I appreciate that it’s better to be clearer; revised accordingly.

    2. Stupid, time wasting lawyer nitpicking. Nitpicking should be criminalized, and lawyers doing it should go to prison.

      1. Why are you nitpicking the nitpick with your comment? That seems like a meta nitpick and the fine should be doubled.

        1. Sorry, jail sentence should be doubled. For a moment I forgot that you were meta unreasonable with your punishment for nitpicking.

  4. Of course the other issue is that some 400% of the population is a member of a protected group, with the public accommodation having the burden of proving that the discrimination wasn’t on the basis of basis of the protected status.

    That isn’t always an easy thing to do….

    1. ” the public accommodation having the burden of proving that the discrimination wasn’t on the basis of basis”

      That second-level basis is always the hardest to root out.

    2. If someone brings an anti-discrimination complaint, they have the burden of showing that they are a member of a protected group. The burden then shifts to the defendant to articulate (not prove, just articulate) a legitimate, non-discriminatory rationale for its decision. The plaintiff then has the burden of showing that the proffered reason was a pretext.

      If you think defendants can’t come up with non-discriminatory rationales, then you need to get out more.

  5. Ask anyone who wants to exclude people for being racist, if they believe only white people can be racist. If they say yes, then they are violating equal protection laws. They’ve admitted that race is part of the reason for their exclusion.

  6. If I remember correctly, the gay cake case isn’t entirely settled yet.

    1. Okay the lynching is a crime; so the baker can refuse that.
      Let’s say the customer wants the message to read “Happy Birthday, Retard”
      Does the baker with the autistic kid get to refuse to provide that cake?

      1. I think so because it appears refusing to bake that cake doesn’t discriminate against any protected group.

  7. this showcases the idiocy of title 2 of the Civil Rights act. The govt decided that sellers could not discriminate (i.e. not sell) to buyers based on certain govt selected attributes. Why not just say sellers have to sell to buyers as long as they can provide an accepted medium of exchange at the market price? Or say, sellers can discriminate all they want…its a free country. Now we have this wacky situation where buyers can discriminate but sellers sort of can and sort of can’t and the govt gets to decide. I understand the rational…it wasn’t enough to just get rid of govt discriminating or passing laws forcing people to. It was about outcomes…in the early 60’s the vast majority of Americans thought it was wrong to deny service to blacks at a counter..so this was put in. But in hindsight it was a poor compromise. Either force sellers to sell or get out of voluntary transactions. Libertarians would come down that govt has no right to tell a seller who to sell to in a free society…but that obviously is very emotional to many given the history here.

    1. Generally speaking, sellers do sell to whoever can pay. We can generally count on the self-interest of sellers not to turn down money. Generally. But we have had experience of particular problems caused by sellers not selling to certain classes of people. This was a problem. Green Books and all that. We legislated to deal with the problem that existed.
      To be sure, that method leaves sellers free to engage in certain other types of discrimination. In most places, for example, a milliner can refuse to sell hats to Republicans. But, as far as we can tell, there is no actually existing problem with involuntarily bareheaded Republicans. Occasional quirky milliners, if any exist, are not now a problem that needs to be addressed, and there is no point in ginning up the public force to deal with it.
      Maybe one day that will change. If it does, the law will address it. That may not be theoretically tidy and logical. It just works.

      1. what is the difference if you don’t want to sell based on political views versus skin color? Seriously you are discriminating…why should the govt get involved at all? in a free society why does govt need to the final decider of who a seller decides to sell to? history is a sunk cost…so please don’t go down the road that its based on past issues…that opens the door to govt doing whatever it wants. Either you say sellers can discriminate all they want or they can’t period. not this or that….

        1. Because having entire groups of people shut out of the economy is not just bad for them, but bad for everyone else too. Discrimination has costs, and not just for those being discriminated against.

          1. And you decide what the “costs” are and the “solutions”? in a free society it isn’t about outcomes that make you feel good but ensuring our natural rights are not infringed. Again why should the govt decide that sellers have to sell to some people but can deny to others based on anything? Either remove title 2 or re-write it to say sellers can’t discriminate under any circumstances…

        2. You wanted to know why things are as they are rather than tied up in a neat little theoretical package. I explained why, I think, that is. I don’t see anything in what you say that disputes my explanation. You’re just repeating the question.

          1. No your living in never never land that is based on feelings not logic. Either you are for liberty or not..either you believe two individuals have to both agree for a trade to take place…or not.

            1. Titus, the world I live in is the world that actual people, not disembodied logical abstractions, live. You know, reality. I understand that you have a view of what ought to be the case, and a seemingly simple and logical formula for why this ought to be so. But nobody, or almost nobody, is buying it. That sounds much more like “never never land” to me.
              And you have yet to dispute my account of why things are the way that, despite your seeming objections, they manifestly are. So you’re re-repeating yourself.

      2. And it doesn’t work or we wouldn’t be ripping each other’s hearts out nationally on this issue. For that matter the part of the CRA where govt decides on a private company’s make-up based on “disparate impact” the most illogical argument ever. Its selectively applied again for govt desired outcomes not liberty. How do you say? Ok if we apply disparate impact to other groups and sectors we would see massive proportional imbalances…should they all be “corrected.” I’d start with Catholics and Italians and Irish at Ivy Leagues or the Media or Hollywood or Investment Banking..hell the Biden Administration…oh don’t want to go there? I wonder why..you start this insanity and guess why eventually the wokes will come for your tribe/group as well..it will never end.

  8. Don’t really understand the logic behind why some attributes get to be sacred and inviolable and others don’t when it comes to business choice. I mean if you follow the prevailing currents of opinion in neuroscience, do you really have a choice to switch up your genuine political views whenever you feel like it? And we all know how malleable gender is supposed to be these days. So by their own rules we should be free to discriminate by sex all we want while it should be hands off on whether you are a liberal/conservative.

    1. “Don’t really understand the logic behind why some attributes get to be sacred and inviolable and others don’t when it comes to business choice.”

      There isn’t a logic behind it, because it’s based on politics, constituent client groups, and with a dash of path dependency; thus it was not designed as a coherent system some some sort of rational order.

      1. I think this is descriptively accurate, but I’m not sure whether you think you’re describing a bug or a feature.

        1. Just describing the sausage-making that goes into law-making in general, as applied to this situation. It’s neither a feature, nor a bug, but something intrinsic to the process.

  9. Practically speaking, how do you ‘prove’ that you were discriminated on the basis of political ideology?

  10. At what point, I don’t know what it is, does network effects and / or cartel like behavior change the analysis?

    That is, if one used car dealership refuses to sell a car to me, that is a minor harm to me. If Every Ford, GM, Fiat, Honda and Toyota dealership refuse, that is a bigger harm.

    And if twitter, facebook, google, & amazon decide to ‘ban’ a customer, doesn’t this move from ‘it’s just my private business decision’ and become Trust like / Cartel like business decision?

    I mean if one of 20 local bakeries doesn’t want to serve a customer, not biggy. If 20 of 20 decide to freeze them out (or all credit card & banks and legal but ‘unwoke’ businesses)

    I just don’t think we can always treat an independent local business, with Marriott, Amtrak, Delta, Citi, Comcast, Google, Walmart or Amazon.

    I just am not sure how to quantify / give real, actionable guidance.

    Other than, damn people are dumb and mean and trying to force people to be smart and nice is harder than teaching pigs to fly.

  11. What of cases in which a person’s political stance is directly harmful to the business?

    Let’s suppose I run a restaurant. I serve alcohol there, and alcohol sales make up a very significant part of my profits. A group of local activists is campaigning, with some effect, to restrict alcohol sales in a way that would cut deeply into my profits.

    Under many of the laws that Volokh describes, it looks as though I can’t refuse service to leaders of this campaign. I have to grit my teeth and serve them, even though they’re working hard against my interests.

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