All the discussion of Title II of the 1964 Civil Rights Act has obscured the fact that public accommodations laws, especially at the state and local level, have expanded way, way, beyond their original purpose of ensuring that previously excluded minorities are served in restaurants, hotels, and the like. This has happened more via aggressive judicial interpretation of the language of these laws than from the laws themselves, which were phrased to not infringe unduly on private behavior.
For example, the Boy Scouts of America v. Dale case involved the courts of New Jersey declaring that the membership policies of the Boy Scouts violated the state’s ban on discrimination in places of public accommodation. This even though the membership policies of the Boy Scouts are clearly not a “place,” the Boy Scouts of America is not an “accommodation” in the the usual sense of the word, and the membership policies of private organizations are not “public.” (Chapters 7 & 8 of my You Can’t Say That! book deal with the use and abuse of public accommodations laws. Since the book is now available used on Amazon for literally a penny, interested readers have little excuse not to buy it.)
Besides that, the decline of the principle that a business owner has at least some right to exclude what he deems undesireables has led to some very bizarre cases, none more so than the one described below, which a VC commenter alerted me to.
Here’s the story, from a VC post from 2006:
There is a German restaurant called the Alpine Village Inn, in Torrance California. A group of four neo-Nazis went there to eat, each wearing a lapel pin with a swastika on it. The management asked them to take off the lapel pins. They refused. The management asked them to leave. They refused. The management called the police, who arrested them.
Then, remarkably, the Southern California ACLU gets involved, and sues the restaurant for calling the police on the Nazis! This much I’ve confirmed from media accounts.
According to the commenter who first alerted me to this story, “the defendants’ insurer eventually settled following unsuccessful pretrial challenges to the complaint, believing they could not prevail under California law!”I’m informed that the restaurant actually lost at trial, and the insurer refused to foot the bill for an appeal.The lawsuit was brought under California’s Unruh Act, which provides that “all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages facilities, privileges, or services in all business establishments of every kind whatsoever.” The California courts have held that the protected classes delineated by the Act are not exclusive; the Act also protects arbitrary discrimination by a business establishment based on similar characteristics to the above. Apparently, the insurer thought that “political views” was sufficiently similar to “religion” that the courts would likely rule against the insured. (This was, after all, the Rose Bird Court, which issued a series of absurdly broad and illogical rulings under the Unruh Act; in one of those opinions (Isbister) Bird personally gratuitously insulted a little old lady who donated money to a Boys’ Club as one of the “select few” who wish to be “insulated from the 20th century” because the Boys’ Club didn’t admit girls.)
There are several remarkable things about this story, which occurred in 1986. First, the ACLU of Southern California represented the Nazis, yet, at least by the late 1980s, this local ACLU branch was known as a vigorous proponent of hate speech regulations. How to square that circle, I don’t know. Perhaps the organization had a sudden and dramatic leadership shift. Perhaps the local ACLU leaders saw this as “discrimination based on ideology in public accommodations” and somehow didn’t notice it was also the suppression of hate speech. Perhaps they just had their heads up their behinds.
Second, why was the ACLU concerned about the rights of the Nazi patrons, but not the owners? Why didn’t the owners have a right to send a message that they disapprove of Naziism?Third, even accepting the absurd premises apparently underlying this lawsuit, that the Unruh Act somehow protects Nazis from discrimination in public accommodation, where was the discrimination here? The restaurant didn’t refuse to serve the Nazis, it simply refused to serve them so long as they were turning the restaurant into a forum for promoting their Nazi views by wearing swastikas. A restaurant couldn’t discriminate against Satanists, does that mean they are required to let the Satanists wear T-shirts showing Jesus being tortured by a gleeful Lucifer?
Fourth, under current hostile environment law, the restaurant could get in serious trouble for not ordering the Nazis to stop wearing the swastikas. Tolerating swastika-wearing patrons would be considering by some to be the creation of an “illegal hostile public environment” for Jews, Gypsies, and others.
If you’re familiar with my views on such issues, you know that I don’t think the restaurant owners can or should be forced to censor the Nazis’ expression of their views (unless the owners censor all points of view except Naziism, which could then be seen as their way of getting around the law and excluding Jews), but I also don’t think that the Nazis can or should have the right to impose their speech on the unwilling owners of the restaurant, who are acting not only on their own behalf, but as agents for their patrons.
Anyway, my jaw just dropped open when I read about this case, and it hasn’t closed yet.
How did a civil rights principle meant to aid African Americans and others who suffered grievous discrimination for generations come to protect the “right” of Neo-Nazis to parade their Nazi wardrobes in a privately owned restaurant against the wishes of management? The short answer is that legislation and its interpretation doesn’t develop from a coherent set of moral principles, but instead based on who is able to persuade the legislatures and the courts to adopt the principles they prefer. The principle involved in Alpine Village case appears to be hostility to the rights of private property owners, not “civil rights.”
Dave N. says:
Yes, an example of an absurd consequence of a law that was passed with the best of intentions — you know, one of those that was passed “for the children.”
May 25, 2010, 8:06 pmSteve says:
Fourth, under current hostile environment law, the restaurant could get in serious trouble for not ordering the Nazis to stop wearing the swastikas. Tolerating swastika-wearing patrons would be considering by some to be the creation of an “illegal hostile public environment” for Jews, Gypsies, and others.
Can you cite me a source for this “current law” that says a restaurant owner can get in “serious trouble” for creating an “illegal hostile public environment”?
I just did a Lexis search for the phrase “illegal hostile public environment” and was unable to find a single state or federal case using that phrase, so I’m a little confused.
May 25, 2010, 8:10 pmDavid Bernstein says:
Steve, our own Eugene is the leading expert on this. He actually calls it “hostile public accommodations environment.”
May 25, 2010, 8:15 pmShelbyC says:
If I was Jewish, and felt uncomfortable using a restaurant due to a hostile environment created by swastica wearing patrons, and walked into your office and ponied up a big retainer, I’ll bet you could cite such a source :-).
May 25, 2010, 8:18 pmDG says:
I hate California Nazis.
In all seriousness, they should have done what other restaurants do – spit in the schnitzel.
May 25, 2010, 8:22 pmSteve says:
If I was Jewish, and felt uncomfortable using a restaurant due to a hostile environment created by swastica wearing patrons, and walked into your office and ponied up a big retainer, I’ll bet you could cite such a source.
Well now I could, thanks to DB and EV. I think “under current law” is a breezy way to refer to an argument that has been accepted in a tiny handful of administrative agency decisions, but I think DB is right to call attention to the absurdity of holding a business liable for failing to do anything about a stray offensive remark.
May 25, 2010, 8:33 pmGuy says:
[T]his local ACLU branch was known as a vigorous proponent of hate speech regulations.
What was the nature of the “hate speech regulations” they support? I’m surprised to hear this because the ACLU largely opposes hate speech laws, though I suppose there may be variation among the local chapters.
A restaurant couldn’t discriminate against Satanists, does that mean they are required to let the Satanists wear T-shirts showing Jesus being tortured by a gleeful Lucifer?
Well, I would be surprised if, under the Unruh Act, a restaurant could prevent Christians from wearing T-shirts (or necklaces) showing Jesus being tortured on the cross. So the Act would seem to be fairly viewpoint and content neutral, at least.
As far as the the restaurant owners’ rights, my understanding of the theory of public accommodation laws is that when one opens your business to the public the state has the power to regulate that business and control whether you can selectively deny service to certain portions of the population. So the business owner simply has no right to express his or her views through discrimination, just as he would have no right to shout his or her views through a megaphone into his or her neighbor’s bedroom window at 2:00 AM under sound pollution/breach of the peace laws.
May 25, 2010, 8:33 pmKevin! says:
Clearly the law should be rewritten so that restaurant owners can discriminate against blacks again.
May 25, 2010, 8:55 pmlgm says:
DB, as a Jew, you probably know the doctrine often cited by very observant Jews to justify some of the more extreme things they do. They want a buffer between their practices and their most cherished principles. This way they won’t even come close to breaking the principles. In the same way, we can keep a big buffer around freedom of speech and equal protection. Some of the things we do might seem a little extreme, as in this case. But I prefer buffering around the principles to shaving them.
Also, there’s a certain humility lacking in your writing and the writing of others you cite. Opinions you disagree with are not absurd, even if you find them inexplicable. People misread, misremember, and even misreason without being idiots.
May 25, 2010, 8:56 pmAnderson says:
Yes, there’s nothing like a frivolous lawsuit to show that antidiscrimination laws are bunk.
The principle involved in Alpine Village case
What “principle” is this? The plaintiffs’ “principle”?
What kind of argument is that?
May 25, 2010, 9:04 pmGuy says:
The short answer is that legislation and its interpretation doesn’t develop from a coherent set of moral principles, but instead based on who is able to persuade the legislatures and the courts to adopt the principles they prefer.
In fact, I would say it seems to be the exact opposite, this is an example of the public accommodations laws being applied, in a principled fashion, broadly to every group. If the law were limited to which special interest groups are the most popular or for whom discrimination was thought to be most “evil”, one would not expect neo-nazi’s to be covered.
May 25, 2010, 9:04 pmnicehonesty says:
This statement by lgm is the funniest, most self-unaware thing I’ve seen written on VC since Anderson played the race card on Obama a few threads back.
May 25, 2010, 9:09 pmAnderson says:
Westlaw’s CA-CS-ALL shows nothing since 2002 with “unruh act” and “nazi!” in it.
The amusement value of frivolous cases is worth reading a blog like Overlawyered, but unless there’s some showing that some court actually bought the frivolous legal theory, citing such “evidence” of the overreach of antidiscrimination laws is weak, weak, weak.
May 25, 2010, 9:09 pmAnderson says:
since Anderson played the race card on Obama
Nicehonesty fails to live up to half his/her name, since the remark in question accused “most Americans” (later mitigated to “many”) of relative indifference to the fate of “brown Muslims” in detention indefinitely. This in response to Oren’s remark that my indignation was out of tune with most Americans.
(As repeatedly shown in that thread, Nicehonesty can’t read for shit, or simply can’t be troubled to try.)
May 25, 2010, 9:14 pmnicehonesty says:
May 25, 2010, 9:17 pmnicehonesty says:
Speaking of “read[ing] for shit”…
May 25, 2010, 9:18 pmSteve says:
The amusement value of frivolous cases is worth reading a blog like Overlawyered, but unless there’s some showing that some court actually bought the frivolous legal theory, citing such “evidence” of the overreach of antidiscrimination laws is weak, weak, weak.
Well, the “evidence” is that the defendant’s insurer supposedly settled because they felt they couldn’t possibly prevail under California law. The first part of that may be true but I wouldn’t accept the second part on some anonymous commentor’s say-so. And insurers settle a heck of a lot of frivolous cases, for what it’s worth.
Anyway, do folks remember a Kansas case EV blogged about a couple months ago, in which a college was forced to go to trial on a claim that they failed to warn students about an accused rapist living in a campus dorm, or somesuch? There was a frenzied discussion with the tone being, “now every landlord will have to change their practices,” “now every lawyer will have to advise their clients to worry about this scenario, etc.” The only thing is, the case in question was about 15 years old and appeared to be a complete one-off.
DB has more than just one anecdote to offer (he couldn’t have written a whole book otherwise), but the point remains the same. The fact that one trial court, 25 years ago, decided to uphold a bizarre legal theory at the motion to dismiss stage doesn’t really prove that we are living in a brave new world of unlimited liability. Indeed, the fact that 25 years have passed without the theory becoming widely adopted is pretty good evidence that we won’t be skiing this slippery slope all the way to the bottom.
May 25, 2010, 9:31 pmSplunge says:
my understanding of the theory of public accommodation laws is that when one opens your business to the public the state has the power to regulate that business
No restaraunt owner opens his business to the public. He makes contracts with certain members of the public — a certain service for certain remuneration — and they then become customers, privileged clients, and in no conceivable sense of the word “the public.”
May 25, 2010, 9:42 pmGuy says:
Well, that would be the counterargument. But like I said, the theory is that certain businesses (like restaurants and hotels) are by their nature intended for the general population. Ordinarily a restaurant owner has set prices for the goods and services provided which are not generally open to negotiation and which will be provided to any person who requests to enter such a contract, with few exceptions. Even in businesses where there is room for bartering, there are generally fixed procedures and policies that the business employs with respect to prospective customers to determine whether and how the contract is to be entered into.
In any case, If the state can require you to get a license for that business, or even to criminalize that business wholesale (as the state can with respect to most businesses since the end of the Lochner era) it’s not too much of a stretch to say that the state mandate that you adopt or not adopt certain policies as a condition of doing business.
In essence, your counterargument relies on the now largely abandoned theory of the “freedom of contract”.
May 25, 2010, 9:54 pmDangerMouse says:
You shouldn’t be surprised by the New Jersey Supreme Court. They’re so left wing that for the past several years they’ve been issuing decisions that basically tell people with dictionaries to pound sand. They permitted Dems to substitute Lautenberg in place of Toricelli, notwithstanding the clear 30 day prohibition in the statute. The Boy Scout case is, as you describe, another case of reading words like the Cheshire Cat.
It’s not necessarily that the public accommodation law is bad, it’s that a left-wing court will run with it to do anything they want. But that California law that you cite to is clearly nuts.
May 25, 2010, 9:56 pmKen Arromdee says:
I disagree. While Nazis are among the most “evil” groups, they’re also among the least threatening. There are a very small number of them, they rarely do anything physically violent, and there’s no chance that helping them get free speech will actually help Naziism get more popular.
The real test of whether these sort of laws are applied evenhandedly is whether they’re used to help groups which are disfavored by supporters of those laws, but which have some influence.
May 25, 2010, 10:00 pmGuy says:
I’m not sure I understand, I meant if they were only applied to groups who it is generally considered “evil” to discriminate against, it’s generally not thought to be evil to discriminate against neo-nazis.
I agree that the application to neo-nazis doesn’t prove too much, since it’s hard to take them seriously. A better test would be the application of such laws against, say, people or politicians who oppose gay marriage, or what-have-you.
May 25, 2010, 10:12 pmrpt says:
Wait until Christie cuts their budget! No more Westlaw.
May 25, 2010, 10:13 pmAnderson says:
Well, the “evidence” is that the defendant’s insurer supposedly settled because they felt they couldn’t possibly prevail under California law. The first part of that may be true but I wouldn’t accept the second part on some anonymous commentor’s say-so. And insurers settle a heck of a lot of frivolous cases, for what it’s worth.
Word. It is sooooo painful as an attorney to watch one’s client’s insurer settle an absolutely bogus case.
And FYI (For Y’all’s Information), none of the Unruh Act cases in 2002 or earlier upheld anything like the situation DB outlines.
May 25, 2010, 10:25 pmlgm says:
nicehonesty, it’s possible to be clear and direct without being insulting.
May 25, 2010, 10:29 pmTry it sometime. (pointless insult removed)Guy says:
And then there’s that crazy liberal position that thinks that Eleventh Amendment “principles” prohibit Congress from subjecting states to suits arising under federal law brought by it’s own citizens, even within the state courts… wait.
May 25, 2010, 10:32 pmGuy says:
Nicehonesty, I think Anderson’s point is that this is not a serious problem, I didn’t read him to be claiming this incident didn’t occur. So I don’t see what the relative dates have to do with anything.
May 25, 2010, 10:36 pmMark Field says:
This was not the rule at common law. Innkeepers were required to take every customer unless he could show good cause.
May 25, 2010, 10:37 pmDavid Schwartz says:
But it was always that civil rights of potential customers are more important than the rights of private property business owners. I think this absurd result flows from the very same principle, not from a lack of consistent principle. Largely because the principle is wrong (because, at least, it ignores whether the rationale is justifiable or not and instead focuses mechanically on its consequences), it can lead to both good and bad results.
May 25, 2010, 10:58 pmHans says:
Sadly, the hostile public accommodations environment concept is recognized by federal judges — not just a few administrative agencies — under California’s frightening Unruh Act, as is liability for speech by non-agents (which would include customers).
Two federal district court judges, Marilyn Hall Patel and Judge Carlos Moreno (now on the California Supreme Court) accepted it in allowing harassment claims against “public accommodations” (specially, schools, which qualify as public accommodations under the Act). See Davison v. Santa Barbara school district (decision by Judge Moreno in the F.Supp.2d) and the Nicole M. case (decision by Judge Patel in the F.Supp.).
These cases found liability for speech by students who, like customers, are non-agents.
These cases are in conflict with one state intermediate appellate court, the Brown v. Smith decision of the California Fourth District Court of Appeal, which refused to recognize a hostile public accommodations environment claim against a public accommodation (specifically, a landlord).
The California legislature later broadened the Unruh Act to explicitly create harassment liability under it, at least for harassment by agents of the public accommodation (whether it applies to customers is not clear, but generally harassment law reaches failure to regulate the conduct of even non-employees, like prisoners who harass female prison guards; the Eleventh Circuit recently upheld such a judgment against Alabama prisons for harassment by prisoners).
Go check Westlaw again, Steve and Anderson.
May 25, 2010, 11:10 pmERH says:
According to news reports from the time it appears the judge in the case made a finding of fact that the defendants were in violation of the law. “Judge Kurt J. Lewin ruled that the Alpine Village restaurant was in conflict with the First Amendment to the Constitution and state civil rights laws when it evicted the men two years ago. The four Los Angeles-area residents had been wearing swastika pins when they entered the restaurant during an Oktoberfest celebration.” Los Angeles Times March 11, 1988.
May 25, 2010, 11:12 pmDilan Esper says:
By the way, you can say what you want about the German restaurant case, but Boy Scouts v. Dale was a perfectly proper application of anti-discrimination law and was wrongly decided by the Supreme Court. The Boy Scouts were not a private club full of homophobes– they were a classic public accommodation– a youth group open to almost everyone which was so diverse that there’s no basis to claim that they were founded to spread a message of bigoted homophobia (it is clear, for instance, that the government can’t force the Klan to admit blacks).
If your big parade of horribles is that the laws that brought blacks economic opportunities also allowed gays to come out of the closet and participate in civic and economic life without having to conceal who they are, well, that’s one more instance of libertarians undervaluing the interests of historically oppressed groups.
May 25, 2010, 11:13 pmHans says:
For a discussion of additional ways in which hostile-environment and harassment restrictions violate the First Amendment, and how courts use inconsistent reasoning and flout statutory language to relentlessly extent the hostile-environment concept and make it ever more vague, see this commentary and this one.
As applied to movie theaters and comedy clubs, the hostile public accommodations environment harassment concept, used to crack down on sexual humor and themes, plainly violates the First Amendment. The same is true of its application to academic settings. See UWM Post, Inc. v. Board of Regents of Univ. of Wisconsin System, 774 F.Supp. 1163 (E.D. Wis. 1991) (invalidating hostile-environment speech code on free speech grounds, and rejecting Title VII hostile work environment analogy as basis for restrictions on student speech; “Title VII is only a statute, it cannot supersede the requirements of the First Amendment”).
May 25, 2010, 11:25 pmDilan Esper says:
As applied to movie theaters and comedy clubs, the hostile public accommodations environment harassment concept, used to crack down on sexual humor and themes
“Crack down”? You mean, “used in some individual cases to assert that expressive activity created a hostile work environment”.
And while I do think the First Amendment protects sexual humor and themes at work that do not rise to the level of severe or pervasive harassment, this idea that some horrible thing is happening if you don’t have the right to engage in sexist stag talk at work is silly. A lot of this stuff NEVER belonged in the workplace, whether or not it was actionable.
May 25, 2010, 11:43 pmNunzio says:
Dilan,
The Boy Scouts is only open to boys. Case was rightly decided. Just because it’s not as exclusive as Skull and Bones doesn’t mean they have to allow scout masters or members who disagree with its views.
May 26, 2010, 12:18 amChris Travers says:
What about Sisemore v. Master Financial (holding that the Unruh Act bars discrimination based on how property purchased will be used, in this case whether a home purchased will be used as a day care center)?
What about:
And
Seems it’s well established that discrimination against Neo-Nazis or KKK members is illegal in California.
May 26, 2010, 12:57 amChris Travers says:
See how easy it is to get from Dilan’s point to Justice Stevens’ viewpoint?
I do think it’s quite dangerous to posit that there is a right not to be offended (in the workplace or elsewhere). However, there’s a difference between being offended and being PERSONALLY harassed so as to try to drive a person away. When the harassment is personal and intended to end a person’s employment it is subject to regulation as conduct IMO.
May 26, 2010, 1:00 amChris Travers says:
It’s also worth noting that Dilan here is disagreeing not only with the US Supreme Court but also with the California Supreme Court which held (last year iirc) that the Unruh Act was not applicable to that organization.
May 26, 2010, 1:12 amKazinski says:
Dilan also ignores the fact that the Boy Scouts are not a place. Dilan doesn’t care how the law is twisted as long as the result matches his policy preference.
Now of course the US Supreme Court decided the case on different grounds, but it doesn’t absolve the NJ Supreme court from their willful misreading of the law.
May 26, 2010, 1:28 amReaderY says:
In the 21st century the Iowa Supreme Court has declared that the state has no interest in requiring “secular institutions” to admit girls.
Boys clubs, and for that matter restaurants, are every bit as much secular institutions as marriages are. Since the Iowa Supreme Court’s ruling was based squarely on secular institution status, it would appear the State of Iowa has no more right to discriminate against these secular institutions based on their having sex-based associational preferences than it does to discriminate against marriages.
In my view, the state has the power to declare same-sex preference immoral and prohibit it as such. And the principle is the same (so far as rational basis scrutiny is concerned) whether applied to restaurants or marriages. Of course legislatures can make distinctions, declaring the principle inapplicable to or counterbalanced by other considerations in some situations but not others. But courts shouldn’t constitutionalize or proclaim as universally correct the particular distinctions that their members of the moment happen to prefer.
May 26, 2010, 2:02 amBill Poser says:
Although in many cases I will agree that there is no call to impose on the rights of business owners to choose their clientele, it seems to me that in some cases privately owned businesses ought indeed to be considered public accomodations required to serve everyone without discrimination. This is when the choices available to potential customers are very limited. For example, if I am in New York city and encounter an Aryans-only or Muslims-only restaurant, this will have no real impact on my ability to obtain a meal since there are thousands of other restaurants available to me. If, on the other hand, I emerge from a long hike in a remote mountain hamlet with only one cafe and that cafe declines to serve me, I may be unable to eat for quite some time, with results ranging from minor inconvenience to serious discomfort and medical problems. It seems to me that it is reasonable to consider the single cafe in the remote community a public accomodation, obligated to serve all, but not the thousands of restauarants in New York.
May 26, 2010, 3:13 amDavid Schwartz says:
You’d be equally inconvenienced if the cafe wasn’t there at all. I don’t see how forcing the cafe to serve you if it is there without forcing it to be there helps you at all. Now, if the cafe made some sort of arrangement to serve you and then reneged on that arrangement, that would be actionable fraud.
What if a friend told you that cafe was there, but when you got there starving, it was closed for a month for renovations? Do we need a law prohibiting people from telling others about restaurants unless they also communicate the renovation schedule?
Sorry, the argument is ridiculous. If you came to rely on the restaurant being there without some reason to do so, you’re an idiot can could be screwed over 1,000 ways. If you stumbled on it by luck, you’re no worse off with it not serving you than it not existing.
May 26, 2010, 4:07 amDavidBernstein says:
No, a classic “place of public accommodation” is an inn (today, a hotel or restaurant). Various federal courts held that under federal law, the Scouts is not a place of public accommodation.
May 26, 2010, 4:25 amWhen Public Accommodation Laws | Little Miss Attila says:
[...] . . . go bad. [...]
May 26, 2010, 4:51 amA. Zarkov says:
Civil rights activism as applied to retail businesses has run amok in California. NOW tried to use Unruh Act to force cleaners to charge the same for a man’s shirt and a woman’s blouse. Jackie Speier introduced AB 2418 in 1994 to force equality in pricing. Of course Speier has never ran any kind of business in her life, being nothing but a life-long politician.
Small business owners know that there is no end to the foolishness of California courts and legislators, so often they don’t know what to do. They live in constant fear of getting sued for something. The manager of the Alpine Inn probably thought that allowing the Nazi customers to wear their lapel pins might get the restaurant into trouble, or least least cause a fuss. When you live in a nutcase of a state, you have to be prepared for anything.
May 26, 2010, 6:34 amAnderson says:
“Judge Kurt J. Lewin ruled that the Alpine Village restaurant was in conflict with the First Amendment to the Constitution
Then the honorable court was unaware that the First Amendment restricts governments, not persons.
A viewpoint more common among internet commenters than judges.
Tho Zarkov has a point re: “when you live in a nutcase of a state.”
… Re: Dale, I still remember my pet theory: that the case was really one about *expressive* association, with parents having the right to choose what sort of people would be entrusted with molding their children. However, the justices in the majority included several who view “expressive association” with disdain at best. So they decided the case under a theory that didn’t really make sense re: the Boy Scouts.
May 26, 2010, 7:31 amAnderson says:
Hey Poser, ever try to get a table at 7pm on Friday in midtown? ;)
May 26, 2010, 7:34 amPersonFromPorlock says:
As a matter of fact:
Just sayin’.
May 26, 2010, 7:45 amBlue Neponset says:
I for one think the benefits of the Civil Rights Act greatly outweigh its costs. If some restaurant has to serve Nazis in order to make sure some black dude isn’t lynched for eating a BLT at a lunch counter then I am OK with that.
The libertarian side of the scale here is woefully underweight. The problems for the Nazis and the Boy Scouts don’t come close to the problems solved by the CRA.
May 26, 2010, 8:32 amFredrik Nyman says:
I hope this is badly misreported; surely restaurant patrons have no constitutional rights vs. the restaurant.
May 26, 2010, 8:42 amAnderson says:
The libertarian side of the scale here is woefully underweight. The problems for the Nazis and the Boy Scouts don’t come close to the problems solved by the CRA.
But to repeat, the Nazis aren’t protected by the CRA; DB is simply fudging the issue by bringing up some wacky-ass state law and saying “see how terrible these laws are?”
And Dale involved a *state* “public accommodations” law.
… Sorry, btw, my memory screwed me up above. Dale WAS decided on “expressive association.” The right I referred to was “intimate association.” The problem was that it was difficult to make a “straight” case that BSA is an organization with the purpose of “expressing” anything, certainly not anything about homosexuality. Rather and obviously, its role is to form the character of boys, a classic “intimate association” case parallel to the choice of a child’s school.
Absurdly, the Court deferred to BSA’s own assertion of its “expressive policy” and took that as “expressive association.” How this prevents any organization at all from having an “expresive policy” against admitting blacks, Jews, or women, was left as an exercise for the reader.
Sorry to’ve botched that above, but I was trying to recall my “case note” from writing onto law journal, many moons ago.
… Stevens, J., dissenting:
The majority pretermits this entire analysis. It finds that BSA in fact ” `teach[es] that homosexual conduct is not morally straight.’ ” Ante, at 9. This conclusion, remarkably, rests entirely on statements in BSA’s briefs. See ibid. (citing Brief for Petitioners 39; Reply Brief for Petitioners 5). Moreover, the majority insists that we must “give deference to an association’s assertions regarding the nature of its expression” and “we must also give deference to an association’s view of what would impair its expression.” Ante, at 10. So long as the record “contains written evidence” to support a group’s bare assertion, “[w]e need not inquire further.” Ante, at 9. Once the organization “asserts” that it engages in particular expression, ibid., “[w]e cannot doubt” the truth of that assertion, ante, at 10.
This is an astounding view of the law. I am unaware of any previous instance in which our analysis of the scope of a constitutional right was determined by looking at what a litigant asserts in his or her brief and inquiring no further.
May 26, 2010, 8:55 ambill-tb says:
Yes, but the Democrats Jim Crow laws had gotten totally out of hand, and so it was necessary to pass the Civil Right’s Act to try and right the tilted ship. The Democrat’s Old South state deemed segregation was bad, and the only real remedy was ‘another law’.
But all you need do is examine today’s ‘no smoking craze’, where businesses are continually harassed with laws and ordinances, which have nothing to do with anything except forcing all businesses to conform to liberal dogma.
And that takes us full circle to why Democrats needed to pass Jim Crow segregation laws in the first place, doesn’t it.
Rand Paul was right. We should talk more about the Democrat’s love of slavery and segregation. Maybe clear up a few misconceptions in the process. The early 20th century progressives were rich with examples of Democrat’s race issues — Wilson was one of the biggest openly racist presidents ever.
History is your friend, we should not try and hide it.
May 26, 2010, 8:56 amSteven Willis says:
The “Boy Scouts,” which involves many separate entities, has female adult members and female youth members in Venture Crews – though it is only for youths 14 and older. OA has both male and female members. Cub Scouts, while limited to male youth members, opens its activities, including campouts and meetings to sibling, both male and female. You are partially correct: for the age group of 10 through 13, only males may be members. The Girl Scout organization, with which I am less familiar, is significantly more restrictive.
May 26, 2010, 8:58 amDavid Bernstein says:
Wacky-ass state law that applies to 14% or so of the U.S. population.
But the whole point is that the justifications provided for banning racial discrimination in places of public accommodation don’t apply to many of the other increasingly common (e.g., Boy Scouts) uses of public accommodations laws. It’s fine by me to focus on the fact that the underlying reason for our venture into p.a. laws was to ensure that “some black dude isn’t lynched for eating a BLT at a lunch counter;” despite Rand Paul, that use of the laws isn’t controversial, but in some states the laws threaten to the membership policies of all private membership organizations into “places of public accommodation” with grave implications for freedom of expression.
May 26, 2010, 9:01 amShelbyC says:
What if the workplace is a bar? Do you have the right to engage in sexist stag talk in a bar? If there are frequently customers who make baudy offensive jokes in a bar, it’s easy to see where someone who is offended by such would be subject to pervasive harassment. What if the workplace is my home?
May 26, 2010, 9:07 amyankev says:
Fixed that for you.
May 26, 2010, 9:15 amSteve says:
The Boy Scout case wasn’t about statutory interpretation or anything of the sort, it was about the extent to which Christians and Christian organizations have a right not to associate with homosexuals. You can’t ignore this context.
May 26, 2010, 9:16 amyankev says:
Like telling someone that “As a Jew” he should know that his argument is unsupportable, and then in the same post telling him that he lacks humility? Nice.
May 26, 2010, 9:20 amDarel Finkbeiner says:
(emph added)
DING DING DING DING DING!!! We have a winner!
We tried to have our laws and court decisions founded in such a way, but that fell out of style in the mid-20th century.
May 26, 2010, 9:20 amyankev says:
Ever hear of the undistributed middle? Allowing the restaurant to tell the Nazis to remove their insignia in order to be served is not going to lead to the lynching of some black dude.
May 26, 2010, 9:25 amjeffry house says:
Why do you think it’s odd that the ACLU intervened? You say they support hate-speech laws so why would they intervene here?
Maybe because there was no hate speech law in effect? Then they’d be, you know, defending peoples’ rights under the law as it is?
Anyway, here in Canada, we have hate speech laws, but no one is prevented from wearing a swastika, as long as they aren’t doing it while teaching high school.
May 26, 2010, 10:04 amMalvolio says:
You’re doing the math wrong. If there were a law forbidding (a) setting toddlers on fire and (b) calling Barack Obama “Sparky”, would you argue that the benefits of saving toddlers outweighs the costs of a minor First Amendment infringement? I hope not, I hope you can see that section (b) should be simply removed.
Ditto with the CRA — yes, its provisions forbidding government discrimination (the majority of the Act) were good and wholesome; the “public accommodations” section was not.
May 26, 2010, 10:06 amAnderson says:
it was about the extent to which Christians and Christian organizations have a right not to associate with homosexuals
??? The BSA is a Christian organization now?
May 26, 2010, 10:09 amBlue Neponset says:
Of course it isn’t, the point I was making is that there doesn’t seem to be much downside to the CRA. Having to serve Neo-Nazi’s spit-laden scrambled eggs is a small price to pay for outlawing a de facto caste system.
If the cases cited in the original post are the typical examples of the worst things to come from the CRA then there really is no contest here. The benefits of the CRA clearly outweigh the costs.
May 26, 2010, 10:28 amBlue Neponset says:
…and the Boy Scouts won their case. They can discriminate against homosexuals all they want. It seems to me, that is proof that the system is working properly when it comes to weeding out the overly broad laws.
May 26, 2010, 10:48 amSteve says:
The BSA is a Christian organization now?
Well, the majority of BSA troops are sponsored by Christian churches, and they have a pretty strong religious affirmation in their by-laws (“The Boy Scouts of America maintains that no member can grow into the best kind of citizen without recognizing an obligation to God.”) That doesn’t mean they exclude all non-Christians, of course, but they’re pretty explicitly organized around Christian principles. I believe agnostics and atheists are just as unwelcome as homosexuals.
Also, it seems difficult to dispute that the overwhelming majority of anti-gay animus in this country is Christian in origin.
May 26, 2010, 10:49 amyankev says:
No, but it is an organization that requires believing in G-d as a condition of membership, and movement’s founders were certainly Christians. The 12th of the Scout Laws is “A Scout is reverent,” and the Scout oath speaks of a duty “to G-d and my country.” There are also religious awards for Scouts of various faiths, and I was told once that they were a de facto if unoffical requirement for achieving Eagle Scout rank.
To many people, “Christian” is synonymous with traditional religion, though in fact the BSA has religious awards for Scouts of Hindu, Muslim, Ba’hai, Jewish and other non-Christian faiths.
May 26, 2010, 11:18 amyankev says:
No they can’t. They cannot e.g. refuse to hire a homosexual to work as a secretary, office manager, financial administrator or other position not requiring membership, if prohibited by law. Nor can they refuse to e.g. serve homosexuals at a pancake breakfast or similar fundraiser, bar them from attending a Scout-a-Rama, concert, parade or other event open to the public, or reject a child being raised by same sex partners.
The Scouts were not exempted from law except for the narrow exemption from having to accept homosexuals as members, just as they do not have to accept atheists or anyone else who does accept the values that Scouting wishes to encourage. Presumably they could reject anarchists for the same reason. I realize that to anyone who favors forcing a single set of governmentally approved values on everyone, this may look like discrimination.
May 26, 2010, 11:27 amyankev says:
Sorry, typed too hastily. Of course I meant
May 26, 2010, 11:29 amBlue Neponset says:
Point conceded. The BSA wants to discriminate a lot more than I originally thought.
May 26, 2010, 11:37 amKen Arromdee says:
Just remember this the next time the waiter is the one who’s the Nazi, the customer is the Jew, and the waiter spits in the customer’s food and gets away with it because the courts have ruled that the restaurant is obligated to serve all customers but it’s okay if they contaminate the food first.
May 26, 2010, 11:47 amChris Travers says:
However, the Unruh Act is what a lot of people WANT to see in public accommodations law. It’s interpreted to be a very, very simple rule:
When a business is open to the public, the business must serve all members of the public according to the same reasonable terms.
Now, whether “you must remove your swastika pins” is reasonable or not would seem to be a matter for a jury AFAICS, so the smart thing would be to settle. Like it or not, it does show what happens when one tries to reconcile equal protection under the laws with antidiscrimination law.
May 26, 2010, 11:53 amChris Travers says:
What’s an “Ayrans-Only” restaurant? One that only serves food to Indians and Iranians (including Pakistanis, Afghans, and Kurds)?
May 26, 2010, 12:00 pmB-Rob says:
The idea that public accomodations laws should be reconsidered because, in 1986, an insurer decided, before trial, to settle a case involving dissed Nazis . . . not sure if anything more need be said than that.
May 26, 2010, 12:00 pmAnderson says:
FWIW, Dale was trying to be an assistant scoutmaster, not a “member.”
I believe he’d been an Eagle Scout when he was a member.
May 26, 2010, 12:01 pmSteve says:
Now, whether “you must remove your swastika pins” is reasonable or not would seem to be a matter for a jury AFAICS, so the smart thing would be to settle.
Not a very hard question for the jury, though. Many insurers would not settle a silly claim like this for any kind of real dollars.
May 26, 2010, 12:21 pmjibjat says:
Shorter Bernstein:
If you force people to serve blacks in their restaurants, they’ll have to serve Nazis, too…..But I would have supported passage of the Civil Rights Act …
May 26, 2010, 12:23 pmChris Travers says:
I think the bigger issue is that this shows a potential flaw at least in the idea that arbitrary discrimination (in the eyes of the law) is a something to be punished as a general principle. This is an issue when cases come up where people are trying to pass laws protecting gays from discrimination, for example, and it’s somewhat separable from racial discrimination issues because of the historical element.
I guess the fact is that this is what WILL happen if one says that arbitrary discrimination should generally be unlawful, rather than that it should be lawful with some narrow and temporary exceptions designed to help us get past some very pernicious historical problems.
Also note that the Unruh Act predates the Civil Rights Act.
Note too that this is what you get when you have badly drafted, overly broad political laws. As a more recent example, I wonder if the Virginia law stating that people shall not be forced to purchase health care or coverage against their will would mean that courts would not have a right to intervene where a juvenile patient (say a Christian Scientist or a Jehovah’s Witness) refuses life-saving treatment….
May 26, 2010, 12:44 pmChris Travers says:
Would it be fundamentally different from requiring, say, observant orthodox Jews to remove head-coverings?
May 26, 2010, 12:50 pmyankev says:
They have not asked for a right to do anything more than choose whom to admit as members. Other than your own suspiscions and disagreement with what they consider moral or immoral, what is your basis for asserting that they would like to discriminate in hiring and in providing public accommodation?
May 26, 2010, 1:19 pmyankev says:
Not under any reasonable written statute interpreted by reasonable jurists, they wouldn’t — at least not Nazis sporting Nazi regalia.
The moreso if those laws are interpreted by jurists who lack the courage to grant pretrial dismissal when it is called for, or the wisdom to know when it is called for.
May 26, 2010, 1:23 pmptt says:
FWIW, I wouldn’t buy or build a “place” of accommodation either… if I could rent one from the county for $1/year…
May 26, 2010, 1:26 pmDavid Bernstein says:
They won 5-4, but worse than just having 4 dissents, just about the entire liberal commentariat thinks that Dale was not just wrong, but obviously wrong.
May 26, 2010, 1:28 pmyankev says:
I’m not sure I understand your analogy. Are you telling me that Nazis have a constitutionally protected religious belief that says they are not to eat while not wearing party regalia? Or are you telling me that Orthodox Judaism is a violent genocidal supremacist political movement whose members have historically used head coverings to symbolize its have been used as a symbol of its violent ideology? Or are you saying that a jury would be too stupid to know that the answer to both questions is no? Or that the jury would be too stupid to realize that in light of the answer to both questions being no, the comparison does not even rise to the level of specious?
May 26, 2010, 1:29 pmDavid Bernstein says:
Maybe you’re too busy prosecuting people for reprinting the Mohammed cartoons, fining individuals who express anti-gay sentiments, and so on.
May 26, 2010, 1:29 pmChris Travers says:
Well, the legislative history of the Unruh Act says otherwise. It was designed and intended to prevent any arbitrariness in services provided by businesses open to the public. It was intended to solidify into statute and extend a general common law doctrine.
In other words under the Unruh Act, if your business is open to the public, you MUST serve all members of the public equally and without any arbitrary terms. Like it or not, the act here worked as intended.
I dunno. In this case, the case shouldn’t have been dismissed because it was a fairly basic application of a statute used as intended to bring a lawsuit.
As I say, where’s a principled LEGAL line that can be drawn between requiring that, say, Neo-Nazis remove Nazi regalia, and requiring Orthodox Jews to remove Orthodox Jewish regalia (head coverings and the like)? I can’t see one that would pass muster under the 1st Amendment, but maybe I’m missing something.
May 26, 2010, 1:34 pmChris Travers says:
No. The Unruh Act is designed to prevent arbitrariness in serving the public. The categories listed in the Unruh Act were intended by the legislature quite explicitly to be quite non-exclusive. The idea was quite simply that if you open a business to the public, you can have general, neutral terms to offer service (no shirt, no shoes, no service for example), but you cannot be discriminatory in those terms, nor can you be arbitrary in enforcement of those terms.
So, if you are a bank, you can’t decide not to loan money to buy a house because that house will be used as a day care center. If your event is open to the public, you cannot kick out people just because they are police officers. So the question is given that, how do you draw a principled line?
Moreover, sometimes I use a swastika (by another, non-Sanscrit name) in religious ritual (as a Norse Neopagan). If you draw a religious line, then if I say the use of the swastika is religious, then what?
May 26, 2010, 1:40 pmAnderson says:
just about the entire liberal commentariat thinks that Dale was not just wrong, but obviously wrong
That’s why the “intimate association” argument is interesting — I think the outcome may’ve been correct, on that basis. Presumably parents are free to send their kids to schools that exclude gays, blacks, Jews, whomever; it’s no stretch to suppose that they can do the same with BSA-type organizations.
Of course, I dislike the BSA as a bigoted organization (whose bigotry ain’t solvin’ its pedophilia problem neither, fancy that). But such is the way of the world, my 14YO wants to be in it, so he’s in it.
May 26, 2010, 1:41 pmyankev says:
So your solution is to serve them but commit an actionable assault and a criminal battery? Other than cowardice, why not just clobber them? Legally it’s the same thing.
Actually, clobbering may be legally less of an offense — serving them adulterated or mislableled food would also be an administrative offense on both a federal and state level, and possibly local as well.
And please remember the issue is not refusing to serve them. The issue is conditioning service on their removing their Swastika pins. (If I were the customers, I might just be ornery enough to remove the pin, place my order, and put the pin back on when the order arrived, and refuse to pay if I was ejected.
May 26, 2010, 1:45 pmjosh says:
“They won 5–4, but worse than just having 4 dissents, just about the entire liberal commentariat thinks that Dale was not just wrong, but obviously wrong.”
“The entire liberal commentariat” consisting only of Finkelstein,Mersheimer and Walt, of course.
May 26, 2010, 1:46 pmyankev says:
Point taken. Make that a reasonably written and reasonably conceived statute.
May 26, 2010, 1:46 pmyankev says:
I assume that either you are speaking hypothetically, or that I misremember your saying that you are a convert to Judaism.
May 26, 2010, 1:49 pmCalderon says:
The ACLU has persistently argued that the BSA is a religious organization and so government support for it violates church and state. The ACLU claims to have had some success with that argument. (For source, go to the ACLU website and search on “Boy Scouts”)
May 26, 2010, 1:58 pmChris Travers says:
Not me. My father’s mother was Jewish but converted to Unitarianism and later Quakerism (after my parents got married and converted to Quakerism). I converted from Quakerism to Norse Paganism.
May 26, 2010, 2:04 pmChris Travers says:
So at least we agree that the Unruh Act is a bad idea :-)
May 26, 2010, 2:05 pmSteve says:
Presumably parents are free to send their kids to schools that exclude gays, blacks, Jews, whomever; it’s no stretch to suppose that they can do the same with BSA-type organizations.
There are schools that exclude blacks?
May 26, 2010, 2:07 pmdan says:
So many examples of DB’s faulty legal reasoning on this issue – is he being dishonest or just sloppy?
One example:
So we’re criticizing an interpretation of a N.J. STATE law based on other courts’ interpretations of a totally different FEDERAL law? Without even mentioning the distinction or any reason why they should be interpreted similarly?
Another:
As DB must know, “usual sense of the word” is a minor part of the statutory interpretation analysis. What is the legislative history and intent? (DB is silent) How is the term used in other related statutes. (Crickets.) Not only that, he’s not even clearly right about the “usual sense of the word” – here’s Mirriam Webster’s definition of “accommodation”:
So DB is criticizing a NJ court opinion based on his bald (and arguably incorrect) assertion of the “usual meaning” of a statutory term — in contrast to the opinion he criticizes, which goes on for pages providing a detailed analysis of the meaning of the term in the context of the legislative intent and history. See http://lawlibrary.rutgers.edu/courts/supreme/a-195-97.opn.html Sloppy? Or dishonest?
Similar error:
Again, here he’s referring to the UNRUH act, NOT the Civil Rights Act. Yet he provides no support whatsoever for his assertion that the UNRUH act was “meant to aid African Americans and others who suffered grievous discrimination.” Legislative history? Intent? Or just DB’s bald assertion about the purpose of the act?
Here’s a slightly different error – justifying criticism of the Unruh act based on unrelated effects of the NJ law:
The “Wacky-ass state law” is the Unruh act. And we have no examples on this board of THAT act being used to “threaten membership policies of private membership organizations.” Is DB arguing that because of on NJ state decision, every anti-discrimination law in the country, regardless of its text or intent or case law to the contrary, is a threat to membership organizations? Or is he just using dishonest rhetoric to tar the Unruh act by vague association with the NJ case?
May 26, 2010, 2:07 pmMalvolio says:
Well, your point suffers somewhat from the disability of being factually wrong. Neo-Nazis aside, complying with various anti-discrimination laws, dealing with law-suits, losing law-suits, training employees, hiring special “diversity” reps, all are a major expense for corporate America.
And I think your joke about spitting in Nazis’ food illustrates, vividly if not elegantly, how discrimination against actually unpopular minorities remains trivially easy, even as the laws make it a necessary but expensive procedure to demonstrate how you aren’t discriminating against the popular minorities.
Back when I worked for a large company, we had to go to “diversity training” — a group of experts from whiter-than-sour-cream central Washington flew to actually-diverse San Francisco to lecture us about how diversity of opinion wasn’t allowed.
The high point was when, in a list of crimes against diversity our employer had already committed was mentioned a supposed incident that the company had rented a hall for a press conference, and the owner of the hall was a “local hate group”.
That sounded fishy to me. You don’t usually think of the KKK, for example, as owning a lot of real estate and meeting venues, so I asked them for specifics. Turns out their “hate group” was a local Baptist church, which like most Baptist churches opposed gay marriage.
I should have sued.
May 26, 2010, 2:47 pmChris Travers says:
The ACLU tried to use the act (unsuccessfully) against the Boy Scouts a few years ago (well after Dale). However, more amusingly, the act was held to prevent the ACLU from preventing police officers from attending their public events.
May 26, 2010, 3:24 pmChris Travers says:
True. But given that Neo-Nazi groups probably don’t admit Jews or Blacks as members, would discriminating against Neo-Nazis disproportionately affect white people?
May 26, 2010, 3:25 pmjack says:
It’s funny that the same people who take the Catholic Church to task for covering up homosexual child abuse are willing to persecute the BSA for pre-emptorally trying to keep that sort of thing from happening in the first place.
One has to grant the premise that the Church, prior to the abuse happening, had no call to think that the various priests who committed the abuse would ever do such a thing.
And look where it got them.
This puts forth the notion that pre-emptive discrimination CAN be a good thing.
It may hurt the few homosexuals who seek positions within the BSA that put them in intimate contact with young boys, but it protects the young boys AND the BSA from the possible consequences.
May 26, 2010, 3:26 pmDilan Esper says:
It’s funny that the same people who take the Catholic Church to task for covering up homosexual child abuse are willing to persecute the BSA for pre-emptorally trying to keep that sort of thing from happening in the first place.
It’s funny how a bunch of gay bashers and homophobic bigots who have positions of authority in the Catholic Church turned out to be more concerned with opposing gay rights laws and equal treatment of gays and lesbians that didn’t harm them one bit than they were with protecting children (of either gender) from rape by priests which might have required that they make some uncomfortable admissions or further deplete an already depleted priesthood that has resulted from their idiotic teachings on sexuality.
But I know, it’s all the gays’ fault, right?
May 26, 2010, 4:01 pmSarcastro says:
I do love jack‘s facts. Can I choose them too? Reality is just too contrary at times!
1) All homosexuals cannot control their love of children!
2) The Catholic church acted quickly and properly once they caught pedophile priests doin’ their thing.
3) pre-crime policies are the way to go in America!
May 26, 2010, 4:02 pmyankev says:
So, DB gave an example that does not purport to be all-inclusive, and you accuse him of sloppiness or dishonesty because you can cite another example that still has nothing to do with a membership association? Or has the BSA now become a common carrier?
Having now looked at those pages, I get the distinct impression that it is the court that is being sloppy or dishonest. My favorite part was when the court said that the strongest evidence that the BSA is a “place” of public accommodation is the implied invitation that occurs every time a scout appears in public wearing the uniform. Gibberish does not magically become reasoning simply by virtue of taking up several pages.
May 26, 2010, 4:47 pmyankev says:
But the court found that being a scoutmaster or assistant scoutmaster was a perk of membership.
May 26, 2010, 4:50 pmdan says:
Proving my point by, in a few sentences, providing a more reasoned critique of the NJ case than DB has in his various posts on this subject.
May 26, 2010, 4:59 pmjeffry house says:
“Maybe you’re too busy prosecuting people for reprinting the Mohammed cartoons, fining individuals who express anti-gay sentiments, and so on.”
And maybe you are speaking of isolated, lower level cases that the courts eventually throw out.
And maybe the US version of freedom of speech is not the only one. It’s true that here, proclaiming that the Jews should be burned in ovens will get you a jail term. We’re unreasonable that way.
May 26, 2010, 4:59 pmDave N. says:
Let me get this straight (no pun intended). You don’t think Scouting has done anything to solve its pedophilia problem but you still allow your 14 yo son to participate?
Am I missing something in your argument?
May 26, 2010, 5:12 pmDave N. says:
I would note that despite Anderson’s snark, Scouting has addressed the problem of pedophiles infiltrating Scouting in order to molest boys. Amazingly, it is even set forth in detail on the Scouting website.
May 26, 2010, 5:17 pmBored Lawyer says:
I don’t know where “here” is for you, but don’t you think it is ironic that it is precisely in the U.S. that I as a Jew (and a yarmulka-wearing Orthodox Jew at that) feel safest? I travel around the country as part of my job, and have never felt the slightest bit of fear. To the contrary.
But last year, the Chief Rabbi of France warned his congregants and visiting tourists not to go out in the streets of France wearing noticeable Jewish attire.
Now I know France is not the U.S. in many other ways, but perhaps there is something to allowing freedom of speech and then letting the marketplace of ideas determine what’s what. In the U.S., anyone who espouses Nazi ideology is viewed as a crackpot by 99.9% of the population. In Europe, in contrast, perhaps govt. suppression leads some people to resentment and covert anti-Semitism.
May 26, 2010, 5:41 pmCJColucci says:
I’m curious to know more about the source, history, and legal status of the right of the owner or operator of a business that holds itself generally open to the public to decline to serve whomever for whatever reason. What have been the contours of this right in the past, say, at common law? Have there been state statutes (or parliamentary acts in Great Britain) codifying or limiting this right? Is there old case law on the subject? Is there something in the U.S. Constitution bearing on state regulation of this right, preferably something other than substantive due process? Where, exactly, does this right come from, and who says we have it? Obviously, even if there is no such right, there may be practical reasons not to bother regulating certain types of interactions, but was it ever the case (other than, perhaps, in medieval Iceland) that innkeepers, transportation providers, and the like, were generally free to reject just anyone’s custom whether or not society at large was willing to accept the basis for rejection as reasonable?
May 26, 2010, 5:42 pmJoseph Slater says:
Whether or not the New Jersey S.Ct. was correct in determining that the state civil rights law covered the Boy Scouts, that was not the issue the Supreme Court was addressing. The Supreme Court assumed the law did cover the Scouts. If you look at the issue the S. Ct. did address (whether the Boy Scouts had an “expressive purpose” of excluding gays that created a First Amendment right strong enough to trump the state law), how the majority handled that issue, and how the dissent rebutted the majority on that issue, you might get a better sense of why the “liberal commentariat” criticizes the majority’s reasoning. Jeez, a principled federalist might have a problem or two with that decision.
May 26, 2010, 5:43 pmChris Travers says:
And yet the most constant federalist on the court at the time (O’Connor) joined the majority opinion in full.
May 26, 2010, 5:57 pmyankev says:
Dale is not the main focus of this thread. I thought that DB summarized the absurdity of the NJ court’s position when he noted
May 26, 2010, 6:07 pmyankev says:
But not until the defendants had spent a great deal of time and money defending against the charges, and one publication, if I recall correctly, was driven out of business even though the speech at issue was ultimately vindicated.
Assuming of course that you are not an Imam or an anti-Zionist activist. Assembling a mob to physically attack pro-Israel speakers or to physically beseige and terrorize an outnumbered group of Jewish college students who are minding their own business in a cafeteria apparently will not result in sanctions of any kind.
How comforting to know that Canada vigourously combats the biggest threat of 20th century genocide while penalizing critiscism of 21st century genocide.
May 26, 2010, 6:14 pmdan says:
Which is why I pointed out that “usual sense of the word” is totally bogus argument in response to the NJ opinion, because “usual sense” of the word is totally irrelevant if the legislative history and intent conflict or if the statute itself provides evidence of a non-usual meaning. These are all factors the NJ took into account, and all factors that DB ignored.
Further, as I also pointed out, DB’s claim that the “usual sense of the word” is limited to hotels is not supported by dictionary definitions of the term.
So his analysis may convince people who want to believe the case is “absurd,” but it’s totally inadequate as a legal rebuttal to the NJ decision.
May 26, 2010, 6:31 pmptt says:
Yeah, and facing several lawsuits, they wouldn’t try to spin things as best they could.
The BSA has been very, very slow to address molestation, repeating many of the same mistakes the Catholic Church and other organizations made. They lag seriously behind other major groups that cater to children, like the GSA and Scouting For All. Also, like the RCC, they face crippling lawsuits.
And, like you and other posters, they continue to scapegoat gay men despite the fact that the abuse suffered by boy scouts who were molested came at the hands of married scout leaders and single scout leaders who dated women.
May 26, 2010, 6:50 pmDave N. says:
Um, please point to the language where I scapegoated anyone. Any post. Anywhere. I have NEVER said that pedophiles who prey on boys are necessarily homosexual. The studies I have read suggest that the vast majority are not.
I would further note that the policies I linked to have been official Scouting policy for at least 15 years.
But, hey, don’t let any of that get in the way of your self-righteousness.
May 26, 2010, 6:57 pmgrape_crush says:
Runyon v. McCrary?
May 26, 2010, 7:06 pmptt says:
Fifteen years isn’t that long ago and the policy still wasn’t fully implemented as of 2002 (there’s report somewhere on the BSA website talking about lack of compliance in some areas of the country — I’ve lost the link and their search engine sucks). Besides which, the policy only covers trips and outings. They are not doing all they can.
I’m sorry for directly including you in the scapegoating comment. You haven’t personally scapegoated gay men. You do point approvingly to a policy which does, but I shouldn’t have assumed you agree with it.
May 26, 2010, 7:28 pmyankev says:
I didn’t see anything in the opinion that suggested the legislature meant “place” to mean anything other than “place” or intended “place” to include the inside of a uniform. I think most people would consider the court’s reading to ignore the ordinary meaning of the word. And if I recall correctly, one tenet of statutory interpretation is that words are to be given their ordinary meaning absent clear legislative direction to the contrary. Thus, if a statute expressly defined place to include the inside of a uniform, or defined leg to include a tail, the court would be justified in so intrepreting it. There would be less justification if the statute defined leg to include an arm but was silent as to tails.
May 26, 2010, 7:35 pmyankev says:
Give me a break. It was never offered as a legal rebuttal to the NJ decision; it was an en passant summary (and a pretty accurate one at that) and nothing more. It is either sloppy or dishonest to say that DB was writing a brief, a legal meorandum, law review article or court opinion.
May 26, 2010, 7:38 pmyankev says:
And it was sloppy for me to leave the second “m” out of memorandum. Peccavi.
May 26, 2010, 7:41 pmChris Travers says:
“Freedom of speech is an American concept, so I don’t give it any value” — Dean Stacey, Human Rights Commission of Canada.
May 26, 2010, 7:50 pmDave N. says:
The policy also covers troop meetings and any other situation where an adult might have one-on-one contact with a Scout:
I am not sure what other policies you believe Scouting should adopt.
May 26, 2010, 8:19 pmDavid Bernstein says:
No, I’m not. Google Hugh Owens and Saskatoon Star Phoenix for just one example
May 26, 2010, 8:33 pmUriel says:
I have questions.
1. If you trespass on another’s land and the owner asks you to leave, but you don’t; is the ONLY recourse for the property owner to call the police?
2. If, let’s say, instead of calling the police, the landowner points a gun at you and tells you to leave or he’ll shoot you, and you then leave; do you have a valid reason to call the police to report the landowner? Has the landowner committed a crime?
3. Upon receiving such a call do the police have a valid reason to arrest, question, or even appear at the landowner’s home? Has the landowner committed a crime?
4. If the police arrive at the door of the landowner without a warrant, without reasonable suspicion of any crime, and without any valid reason, and the property owner tells them to leave, shouldn’t they? What if they refuse?
5. If the police arrive at your door to conficate your legally owned and registered firearm, and refuse to leave without it; what would you do? What can you legally do? What should you do?
These questions have a purpose.
Woman Shot Dead by Cops After Refusing to Answer Census Questions
http://www.appeal-democrat.com/articles/family-95100-city-woman.html
Penultimate question: How many other things can the police do to you, either in public or in your own home, leaving you with ZERO legal recourse to PREVENT them and leaving you at the mercy of a broken justice system controlled by leftists for any remedy? How many other things can trespassers, thieves, and bad men do to you on your own property with your ONLY legal recourse being to call the police? How many lame reasons and justifications are there for such things?
That question also has a purpose.
Lessons from the Death of Aiyana Stanley-Jones
How aggressive SWAT tactics contributed to the death of a 7-year-old Detroit girl.
http://reason.com/archives/2010/05/24/lessons-from-the-death-of-aiya
Last questions. Do we live under the RULE OF LAW? Does living under the Rule of Law necessarily mean living under justice or without tyranny?
May 26, 2010, 9:34 pmSteve says:
What disturbs me the most is that nothing surprises me anymore.
May 26, 2010, 9:34 pmmrbill says:
So…apparently Rand Paul was right.
May 26, 2010, 9:37 pmKingTaco says:
“The lawsuit was brought under California’s Unruh Act, which provides that “all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages facilities, privileges, or services in all business establishments of every kind whatsoever.” ”
I’m way late to the part, but I don’t get where ‘Nazi’ fit’s into any of the bold classifications. Except for religion, which is it’s own unique deal, all the categories are basically protecting an individual based on innate traits.
‘Nazi’ is a social/political group affiliation. To dress in regalia in public is a both a personal choice and a political statement. A person doesn’t choose to be black or disabled as they enter a restaurant, those are innate characteristics. I don’t see how gang/social/political affiliation plays into the intent, or crafting, of the law as quoted above.
May 26, 2010, 9:39 pmJ says:
Kind of off topic, but whatever the state’s other shortcomings, California’s reconfirmation system, which allows voters to fire Supreme Court justices (and get rid of lunatics like Rose Bird) is brilliant, and needs to be implemented at the federal level.
May 26, 2010, 9:43 pmPro Cynic says:
Um, your allusion fails because there is no right to smoke, expressed or implied, anywhere in the Constitution.
May 26, 2010, 10:24 pmChris Travers says:
The legislative intent was clear: that businesses should not be allowed to discriminate against people based on any arbitrary criteria, and that the list was by no means exhaustive. The Unruh Act was not intended to be a narrow set of protections but an extremely broad set of protections, and the courts have carried this out quite well.
May 26, 2010, 11:35 pmDesiderius says:
Pro Cynic,
“Um, your allusion fails because there is no right to smoke, expressed or implied, anywhere in the Constitution.”
Um, here it is.
May 26, 2010, 11:47 pmchiMaxx says:
This makes no sense. All the anti-smoking laws I’ve heard of are at the state and local level–and if the 10th Amendment has anything to say on the subject, it endorses the right of state and local governments to pass and enforce such laws.
May 27, 2010, 4:11 amJohn C. Randolph says:
If the Nazis really want to make a point, they should try wearing their swastikas in Germany. The German government doesn’t put up with that shit.
-jcr
May 27, 2010, 4:13 amVisitor Again says:
According to the commenter who first alerted me to this story, “the defendants’ insurer eventually settled following unsuccessful pretrial challenges to the complaint, believing they could not prevail under California law!”
Within a few days I also sent you an e-mail message in which I told you my memory was wrong on this one detail, that I had checked with a lawyer more closely involved with the case, that in fact the case went to trial and that a verdict against the restaurant was returned after trial, that the restaurant’s insurer decided not to foot the bill for an appeal because the amount of the damages awarded did not warrant it.
What upset me about the case was that anti-discrimination principles were read to include first amendment public forum principles so that a German-themed restaurant, the German owners of which strongly wished to avoid any association with Germany’s Nazi past, must put up with patrons who wear Nazi regalia inside the restaurant. Restaurants are supposed to be places where one can relax for a meal, perhaps even digest it, and their use as a forum for airing the most repugnant views undermines that very basic function.
May 27, 2010, 5:59 amiainswife says:
Personally, I see this as an opportunity to challenge California’s draconian anti-smoking laws. Similarly this could also result in a challenge to all “No Shirts, No Shoes, No Service” laws.
May 27, 2010, 9:30 amPro Cynic says:
Short answer: states can’t regulate speech (with certain limited exceptions) because of the First Amendment; they can regulate smoking because there is no amendment protecting smoking.
The Nazis’ conduct here would not be an issue without the First Amendment. But legislatures, courts and even the people at large look suspiciously at prohibition of speech, particulary when it seem arbitrary.
Now you can argue that this is not the government prohibiting speech, but a private business. Fine, except that California’s speech protections exceed those of the US Constitution, much to the dismay of malls.
If my understanding of the Nazis’ conduct is correct, they weren’t causing any trouble aside from wearing pins. The public accomodation doctrine at a philosophical level was intended to protect against previously discriminmated minorities, true, but at a practical level is was intended to protect the public and the business in preventing a crazy quilt (or “salad bowl”) of arbitrary business restrictions, which can have a chilling effect on free speech.
Example: would a business that refuses to serve those wearing swastika pins also refuse to serve those wearing Che Guevara T-shirts? I hate Che Guevara as much as the next guy and think people wearing his stuff are jerks, but they have a right to wear them if they choose. It’s not hurting anybody (unlike smoking). If they know businesses might turn them away for wearing Che Guevara T-shirts, they would not wear them. That is speech suppressed. Mind you, not wearing Che Guevara T-shirts is a good thing, but that doesn’t mean it should be mandated in a place of public accomodation.
For a more practical example, should a business in Boston be allowed to turn away a guy in a Lakers jersey? How ’bout someone wearing a Tea Party shirt to a business in San Francisco? Or someone just coming from an air show wearing a shirt showing the famous Stuka dive bomber, which usually had a swastika on the tail? Should potential customers have to consider all the possible restrictions a business might have on what messages they might be sending, intentionally or otherwise, before even venturing into one? Where does it end?
If you open a business, you must pretty much serve everybody. Any restrictions must be reasonable, non-discriminatory and non-arbitrary. That’s the intent of the public acommodation doctrine and the Unruh Act.
Now, whether they were actually written that way is another matter …
May 27, 2010, 9:42 amGW Crawford says:
If the JEWS really want to make a point, they should try NOT wearing their STARS OF DAVID in Germany. The German government doesn’t put up with that shit.
Wow, what a difference a few words make
I despise Naziism, much like I despise fascism, corporatism, communism, maoism, et al but I fail to see how wearing a tiny symbol violates the restaranteurs’ rights. I see young black men wearing anti-white shirts all the time and I just grit my teeth and walk away.
People simply have to grow some thicker skin
May 27, 2010, 9:45 amShelbyC says:
Per the OP (or somewhere nearby) the bolded classifications are non exaustive.
May 27, 2010, 10:37 amChris Travers says:
The problem is that at least in some states if you say the N-word in a restaurant, a black person overhears it, and the restaurant doesn’t kick you out, the black man can sue the restaurant for hostile environment discrimination in public accommodations.
May 27, 2010, 12:13 pmChris Travers says:
Sorry, couldn’t resist posting the first thing that came to mind:
‘It manus in gyrum: paulatim singula vires
deperdunt proprias; color est e pluribus unus,
nec totus viridis, quia lactea frusta repugnant,
nec de lacte nitens, quia tot variatur ab herbis.’
– Attributed to Virgil, poem named “Moretum”
(Now every time you see the “salad bowl” metaphor, you’ll think of a paste of cheese, garlic, and herbs, and how that relates to the “melting pot” image of the US.)
May 27, 2010, 12:17 pmyankev says:
Not that long ago, a cashier at a natural foods coop in California (University affiliated, I seem to recall) refused to ring up a customer’s purchase because she objected to the customer’s “I love Israel” (or words to that effect) T-shirt, which the cashier deemed racist. That matter was resolved privately, when the manager found some one else to ring up the order and aplogized to the customer. No action IIRC was taken against the cashier.
As you pointed out, CA takes a broad view of free speech rights, but didn’t the grandaddy CA. S. CT. decision, Lloyd v. Tanner, conclude that large shopping centers, though privately owned and managed, are the functional equivalent of a town square for first amendment forum purposes? It’s been a while since I looked at this issue, but I’m not sure that even CA goes so far as to mandate that all private businesses must allow unfettered free speech on their premises.
May 27, 2010, 12:18 pmyankev says:
Translation, please, for those of us who never got beyond
(Apologies for the emendation, but we all have our favorite middle eastern foods, and as Walt Kelly reminded us in Little Red Robbing Hood, de gustibus non est disputandum. )
May 27, 2010, 12:25 pmPro Cynic says:
Ah, I do love Caesar salad.
When “salad bowl” is used in a political and societal context, I tend to think of it as a negative, which is why I used it here. I prefer the “melting pot” concept to that of “salad bowl.” Too much like the former Yugoslavia.
May 27, 2010, 12:25 pmPro Cynic says:
I don’t think anyone claims there is an “unfettered right” to free speech at a private business. But this wasn’t 500 SEIU thugs on someone’s front porch. This was a few guys in a restaurant wearing pins.
The cashier at the Whole Foods was, in my opinion, flat out wrong and was making an active attempt to limit the speech of a customer. What next? Denying service to anyone wearing an anti-Obama T-shirt? That is a very, very subjective standard, one that I do not believe the free market is designed to handle or even capable of handling, since it subjects customers to an uniknown but ever changing standard, until everything is as bland as most of Whole Foods’ products.
Which is why the Civil Rights Act was needed in the first place.
Libertarianism is good so long as two rights don’t come into conflict. When they do, libertarianism has no means of resolving the conflict.
May 27, 2010, 12:32 pmGrant says:
By “the book is now available used on Amazon for literally a penny”, David Bernstein means “the book is available for $4,” since the $3.99 shipping charge is an unavoidable part of the price. But then, that’s the kind of accuracy I’ve come to expect.
May 27, 2010, 2:30 pmAnderson says:
at least in some states if you say the N-word in a restaurant, a black person overhears it, and the restaurant doesn’t kick you out, the black man can sue the restaurant for hostile environment discrimination in public accommodations
Cite, please.
May 27, 2010, 4:54 pmAnderson says:
You don’t think Scouting has done anything to solve its pedophilia problem
Didn’t say that, Dave. I said that excluding gays isn’t solving the problem. (Big surprise that, since most male-on-male pedophiles aren’t gay.)
News reports I’ve seen indicate that BSA has been rather sluggish with the problem.
As for my 14YO, I believe that the particular adults leading his troop are trustworthy, and I also believe that my kid is sufficiently instructed, etc., that no one is going to put anything over on him. I believe forcible rape is very rare in such situations, just as with the comparable Roman Catholic abuses.
May 27, 2010, 4:59 pmDavid Schwartz says:
Perhaps my change in emphasis makes it clearer. The list doesn’t reduce the scope of the words around it but increases it.
May 27, 2010, 5:05 pmChris Travers says:
Footnote 2 of EV’s paper on the subject is:
May 27, 2010, 6:51 pmChris Travers says:
The quote from “Moretum” is generally seen as the source of “e plurabus unum.” However “Moretum” is usually translated as “salad” but really is a sort of herbed cheese mixture made in a mortar and pestle. The quote talks about grinding the cheese and herbs together so that out of many, one color emerges.
Of all the obscure facts I have accomulated….
May 27, 2010, 6:54 pmUriel says:
Pro Cynic,
“Um, your allusion fails because there is no right to smoke, expressed or implied, anywhere in the Constitution.”
AAAAAAAAIIIIIIIIIIIIGHGHAAAAAGH!!!!!!!!
Runs screaming from the site.
Locke rolls in grave.
May 27, 2010, 10:05 pmel polacko says:
so you have to go all the way back to 1986 to find some aberrant interpretation of the law ? guess it’s not that much of a problem then. the so-called hate speech “regulations” are intended for the use of prosecutors to help define motive in the execution of a crime. i don’t see any criminal activity in this example..just some really bad taste. so, there’s nothing to be “squared”. i imagine the restaurant has served other patrons with highly unpopular political views or disturbing fashion senses. as long as these ‘nazis’ weren’t causing a ruckus, they should have been allowed to eat and then be on their merry way.
May 28, 2010, 1:56 amJerry says:
I think this is an interesting discussion, regardless, I feel compelled to point out this sounds like a sequel to one of the bestest Rockford Files ever.
http://www.google.com/search?q=rockford+polish+wedding
May 28, 2010, 4:24 amDavid Schwartz says:
Perhaps, but none of your examples involve two rights coming into conflict. The primary right involved here is the right of the grocery store owner to determine both the terms of employment and the terms of customer service in his grocery store. And there is the right of customers to choose to shop elsewhere. And, of course, his employees have the right to negotiate the terms of their employment and if those terms are not acceptable or not upheld, they can quit or, in more extreme cases, sue. How do you see these rights coming into conflict?
May 30, 2010, 5:40 pmchiMaxx says:
A couple of days late: Pro Cynic–My “that makes no sense” wasn’t directed at your comment but at Desiderius’s 10th Amendment retort.
Thanks for the short explanation of something I kind of vaguely understood, thought. It was good to have it fleshed out a little.
June 1, 2010, 4:24 amMalcolm Smith says:
All this discussion merely adds further evidence to my thesis that in America the lunatics are in charge of the asylum.
June 1, 2010, 6:21 amBusiness Retreat says:
Insane.
Didn’t this occur on private property though? You’d think the owners would have the ability to refuse / deny service to who ever they wanted…
June 25, 2010, 12:30 amHyman Diangelis says:
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June 29, 2010, 7:36 pm