Discrimination, Private Liberty, and Public Accommodations Law

In 303 Creative LLC v. Elenis, a fiercely divided Supreme Court opined that commercial vendors enjoy First Amendment protections to decline to serve customers, even where such a choice is prohibited by state public accommodations regimes. In identifying a clash between personal liberty and state instruction, the decision could radically reshape the public accommodations statutory regime, which prevents discrimination against customers from minority and vulnerable groups. Standard constitutional interpretation cannot explain 303 Creative, and existing doctrinal and scholarly frameworks will struggle to integrate the decision into the already convoluted narrative of public accommodation law. This Article is the first to identify the unifying theme of public accommodation law from the post-Reconstruction era to 303 Creative: whether commercial activity is a domain of private liberty that protects against state intrusion or, conversely, a shared social practice that is legitimately shaped by collective political decisions. When the Supreme Court characterizes commercial activity as a domain of private liberty, as it did in 303 Creative, the Court’s enforcement of personal rights curtails the scope and effect of public accommodations legislation. When the Court characterizes such activity as a shared public project, as it did during the Civil Rights era, the Court authorizes the legislature to robustly enforce the public accommodations regime and advance anti-discrimination. The judicial classification of commercial society has wider-reaching consequences for constitutional interpretation. The most controversial decisions of the Roberts Court—such as the deregulation of campaign finance and the limitation of governmental regulatory authority over employers—are grounded in the theory that commercial activity is a domain of private liberty that deserves rights-based protections. This conclusion and the competing view that the government has broad authority to curate commercial and economic affairs both seek moral legitimation from the principle of political autonomy. To effectively advance this principle of autonomy, the Supreme Court should classify commercial activity based on actors’ contextual social power.