Conscience in Commerce: Conceptualizing Discrimination in Public Accommodations

According to much current law and theory, a public accommodation that offers a good or service to one customer cannot refuse to provide that same good or service to another patron simply because of the latter’s identity. Thus, in many jurisdictions, reception hall owners must rent their spaces to both a Black Baptist Church and the Christian Identity KKK, wedding vendors must sell their goods to a marrying couple no matter the sex of the couple’s members, and foster parent agencies must serve same- and opposite-sex parenting duos alike. Call the principle underpinning this policy the “Equal Access” principle: The principle holds that a vendor can choose the products he sells but not the customers he serves; equally, a public service agency can choose its portfolio but not its patrons. The principle lies at the core of recent cases in which religion and sexual orientation, or religion and gender identity, have clashed in public accommodations, and it is pervasive among commentators who seek to ensure that the retail sphere—whether commercial or charitable—remains a discrimination-free zone. This Article champions the egalitarian spirit of Equal Access, but it argues that the principle itself is unworkable, unreliable, and perhaps even incoherent. Equal Access permits impermissible discrimination and forbids refusals of service that in fact promote equality’s ends. Further, Equal Access derives support from a problematic conception of the retail sphere—one that sees commerce as amoral and so cannot even make sense of a vendor’s interest in exercising their conscience at work. In place of this morally neutered conception, this Article aims to vindicate a picture of the marketplace as richly moral. And in place of Equal Access, this Article aims to offer a more principled and nuanced account of when and why retail discrimination is impermissible. That account would forbid identity-based discrimination but permit refusals of service for projects that foster hate toward protected groups, even where the hate-based project is intimately linked to a protected characteristic (as with religious groups that mandate white supremacy). Far from perpetuating discrimination, these refusals instead promote anti-discrimination norms, and they help realize the vision of the morally inflected marketplace that this Article defends