The Right Side of History: Prohibiting Sexual Orientation Discrimination in Public Accommodations, Housing, and Employment
Wisconsin Journal of Law, Gender & Society, Vol. 31, No. 2, 2017
40 Pages Posted: 2 Feb 2017 Last revised: 9 Mar 2017
Date Written: April 20, 2016
This essay argues that the current legal framework prohibiting sexual orientation discrimination is seriously deficient and outlines several legal and political strategies to ensure robust protection against sexual orientation discrimination.
Part I outlines the current legal landscape for sexual orientation discrimination — within the realms of public accommodations, housing, and employment — taking into account federal statutes, state statutes, and relevant common law precedent. Part I emphasizes that federal statutes, most state statutes, and the common law of every state except New Jersey fail to explicitly prohibit sexual orientation discrimination in public accommodations, housing, and employment.
Part II introduces legislative arguments for state and federal lawmakers to establish a statutory framework with robust anti-discrimination protection. Part II offers a normative argument focusing on values like equal access to public markets, equal dignity of persons, individual autonomy, and religious liberty. Part II also proposes an economic argument focusing on considerations like participation in public markets, homelessness, healthcare, litigation, and corporate boycott.
Part III discusses legal arguments for courts to increase protection against sexual orientation discrimination through statutory interpretation and common law principles. Part III argues that sexual orientation discrimination invariably involves sex discrimination and statutes prohibiting sex discrimination should be interpreted as also prohibiting sexual orientation discrimination. Part III also argues that courts should formally renounce the discriminatory history of the predominant public accommodations common law rule and return to the original common law rule endorsed by the state of New Jersey, which prohibits arbitrary discrimination by all privately owned businesses open to the public. Finally, Part III contends that courts should extend the language and rationale of the New Jersey public accommodations rule to prohibit sexual orientation discrimination in housing and employment.
Keywords: LGBTQ, Equality, Anti-Discrimination, Public Accommodations, Housing, Employment
Suggested Citation: Suggested Citation