The Unrelenting Libertarian Challenge to Public Accommodations Law

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in places of public accommodation, was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Essay begins by discussing the controversy in the Reconstruction and civil rights eras over the penetration of antidiscrimination principles into the realm of private businesses' choice of customers. Although the controversy was discussed in the earlier era in terms of civil versus social rights, and in the later era in terms of property, contract , and association, the same fundamental concerns motivated objections to public accommodations laws in both periods. The Essay then turns to the current controversy. It begins by discussing Rand Paul's 2010 comments questioning whether public accommodations laws are consistent with libertarian principles as well as the harsh response those comments drew from prominent libertarian commentators. It shows that Paul's libertarian opponents disagreed with him only on pragmatic—not principled—grounds. The Essay then turns to an analysis of Boy Scouts of America v. Dale and of recent developments that promise to undermine the expressive-commercial distinction that has kept Dale from threatening the core of public accommodations law. Thanks to the participants in the Symposium, particularly my fellow panelists Richard Epstein and Richard Ford and moderator Mark Kelman, for their comments and suggestions. Thanks as well to participants in faculty workshops at Columbia Law School and the Sandra Day O'Connor College of Law at Arizona State University, to the students in my mini-seminar on libertarianism and civil rights, and, as always, to Margo Schlanger for helpful conversations about this project.