The Right to Discriminate in Historical Perspective

By Professor Christopher Schmidt

Earlier this week, the U.S. Supreme Court denied certiorari in a New Mexico case involving a photography business that refused to take pictures at a same-sex commitment ceremony. This act of discrimination, according to the state human rights commission, ran afoul of the New Mexico public accommodations law. The couple who owned the photography company claimed that a legal requirement to serve same-sex customers in this context infringed their First Amendment rights. Their argument, in essence, was that in certain circumstances they had a right to discriminate.

These kinds of claims of a right to discriminate have a long history in this country, although they have been conspicuously unsuccessful in the U.S. Supreme Court. As far as I can tell, the first time the Supreme Court squarely faced the question of whether an anti-discrimination law unconstitutionally infringed someone’s individual liberty was in 1945. Railway Mail Association v. Corsi involved a New York state law that prohibited racial discrimination in unions. A union of postal clerks claimed that this law infringed their property and liberty of contract rights, as well as their “social rights.”

“There will always be discriminations,” the union’s brief explained. “We discriminate in the method of our religious worship. We discriminate in the choice of our friends. We differ in our tastes and likes, and yet nothing can be done about this for it is beyond regulation in the absence of a binding grant from us to our form of government.... This is a personal and constitutional right beyond the power of legislation.” The Supreme Court summarily rejected this argument as having “no constitutional basis.” After Corsi, this basic premise, that the Constitution does not protect an individual’s right to discriminate, was repeatedly reaffirmed in the courts, always in similarly summary fashion.

The legal challenges to the pubic accommodations provision of the Civil Rights Act of 1964 gave federal courts another opportunity to consider whether the Constitution protected an individual’s right to discriminate. Challengers to the law pulled out all the stops in this one: they claimed that the federal requirement that restaurants and hotels serve all comers, regardless of race, impinged their due process rights to liberty and property. In the case of Katzenbach v. McClung, lawyers for Ollie McClung, owner of a Birmingham restaurant, argued that “it is a part of a man’s civil rights that he be at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice.”

In Heart of Atlanta Motel v. United States, Moreton Rolleston, Jr., owner of the Atlanta motel, proposed a more eclectic constitutional basis for his claimed right to discriminate. The Civil Rights Act not only violated his due process rights, he argued, it also amounted to an uncompensated taking of property in violation of the Fifth Amendment and it also constituted—wait for it—involuntary servitude in violation of the Thirteenth Amendment.

“To deprive a person of this basic right to pursue his calling ... unless he furnishes labor or services for certain individuals for whom he does not desire to work is obviously coercion if not outright punishment,” he wrote in his brief for the Supreme Court. “When an individual is either coerced into working for another or punished for failure to do so, the inescapable conclusion is that such employment amounts to involuntary servitude.” That’s right, someone asked the Supreme Court to find the most significant civil rights legislation of the twentieth century violated the amendment that abolished human bondage. This was not a winning argument. (Strikingly, the Thirteenth Amendment claim had some traction outside the courts. New York Times columnist Arthur Krock insisted the argument was worth considering, citing as support a widely published libertarian scholar by the name of Alfred Avins.) In both the McClung and Heart of Atlanta cases, the justices easily brushed aside the claim that a federal public accommodations law unconstitutionally infringed individual liberty rights. After all, the federal law largely mirrored state laws that had been on the books (if chronically underenforced) since the late nineteenth century.

When it came to antidiscrimination law applied to racial discrimination, the Supreme Court has never recognized a claimed right to discriminate. This held even when, beginning in the 1960s, the preferred constitutional basis for such claims shifted from the due process clause and the Thirteenth Amendment to the First Amendment. The Constitution “places no value on discrimination,” explained Chief Justice Warren Burger in a 1973 opinion involving all-white private schools. “Invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections.”

The debate over the right to discriminate has been replayed every time antidiscrimination laws place new restrictions on private actors. Campaigns against other forms of discrimination, such as sex and sexual orientation, stirred new efforts to defend private discriminatory choice. In Roberts v. Jaycees (1984), the Court rejected a private club’s challenge to a state antidiscrimination law that would require it to open its doors to women. The Jaycees claimed that the non-discrimination requirement infringed their First Amendment right to free association. Although the Court recognized that the First Amendment indeed protects the rights of certain organizations to select their membership as they see fit, it concluded that the Jaycees did not fit this criteria.

But then in the 2000 decision in Boy Scouts of America v. Dale, the Court upheld, for the first time, a claimed right to discriminate. When New Jersey attempted to apply its law prohibiting organizations from discriminating based on sexual orientation to the Boy Scouts, which sought to exclude a gay scoutmaster from the organization, a divided Supreme Court held that such a requirement would violate the Boy Scouts’ First Amendment “right of expressive association.”

And this brings us to Elane Photography’s effort to defend its choice to refuse service to a lesbian couple because it would violate the owners’ right to free expression. The New Mexico Supreme Court rejected this argument. To the argument that certain creative professions should not be constrained by public accommodations laws, the court explained that “Courts cannot be in the business of deciding which businesses are sufficiently artistic to warrant exemptions from antidiscrimination laws…. Such an exemption would not be limited to religious objections or to sexual orientation discrimination; it would allow any business in a creative or expressive field to refuse service on any protected basis, including race, national origin, religion, sex, or disability…. Such a holding would undermine all of the protections provided by antidiscrimination laws.”

The U.S. Supreme Court’s refusal to hear this case is far from the end of the line for this latest iteration in the history of the right to discriminate claim. Even as gay rights activists succeed in restricting the sphere of legally and socially acceptable discrimination, a commitment to the right to discriminate persists. The resolution of this civil rights battle, like all others, will come from the messy dynamic of constitutional contestation, inside and outside the courts, in which any effort to expand government protection of the right to nondiscriminatory treatment will have to come to terms with the right to discriminate.

[Note: This post draws on my previously published essay, “Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement,” which was published in Sally Hadden and Patricia Minter eds., Signposts: New Directions in Southern Legal History (University of Georgia Press, 2013).]