Thou Shall Not Discriminate: A Proposal for Limiting First Amendment Defenses to Discrimination in Public Accommodations (Comment)

Discussess several current cases similar to Elane Photography. Part I discusses discrimination in public accommodations. Beginning with Romer v. Evans in 1995, this Comment follows the modern history of the fight for LGBT equality. Part II focuses on the reasons why states should limit First Amendment justifications for discrimination and prohibit discrimination in public accommodation based on sexual orientation and gender identity. New Mexico and California have already incorporated sexual orientation into their human rights statutes, but typically exempt religious organizations with ministerial positions from compliance. Tension between religious freedom and free speech and LGBT rights has bitterly divided the country in recent years. Same-sex marriage often takes center stage in the debate, but discrimination in public accommodations is becoming a hotly contested issue as well. On December 7, 2009, the Supreme Court granted certiorari to hear the case of Christian Legal Society Chapter of University of California v. Kane, a case involving a Christian student group's right to discriminate in choosing its members and officers based on their sexual orientation and religious views. Members of the group sought to exclude others who did not share their Christian beliefs, which violated the University of California's anti-discrimination policy. That case will be discussed in detail later on in this Comment, but, for now, it demonstrates that discrimination in public accommodations is a relevant issue for more than just the LGBT community