Bans on Political Discrimination in Places of Public Accommodation and Housing

Abstract

In several major cities and counties, in some territories, perhaps in the whole states of California and Montana, and to a small extent in Minnesota, private businesses may not discriminate against patrons based on certain kinds of political activities. In most of these jurisdictions (plus in South Carolina) it’s also illegal to discriminate based on political activities in housing (and sometimes in commercial real estate transactions). Some of these bans are narrow, just protecting the decisions to belong to or support a political party. Others are broader, applying to political advocacy more generally, including political advocacy on the business’s premises.

This article describes such rules, and the cases that have been decided under them, so as to better understand the options that legislators have chosen with regard to this question, especially when evaluating similar new proposals. This may be particularly helpful given the interest in using public accommodations law as a model for limiting social media platforms’ ability to block users based on their speech or political ideology.

And it’s also helpful to see these rules when considering the implications of certain readings of public accommodation law more broadly. Say, for instance, that courts conclude that a wedding photographer has no First Amendment right to refuse to photograph a same-sex wedding in a state with a ban on sexual orientation discrimination by public accommodations. A photographer would then have no First Amendment right to refuse to photograph a Nazi or Communist event in a jurisdiction with a ban on political discrimination by public accommodations. Indeed, briefs and an opinion in such cases have drawn this analogy.

Keywords: Free Speech, First Amendment, Public Accommodations, Civil Rights