Prohibiting Sexual Orientation Discrimination in Public Accommodations: A Common Law Approach

Although forty-five states have enacted statutes prohibiting discrimination in so-called “public accommodations”—broadly defined as those businesses offering “lodging, food, entertainment, or other services to the public”—the statutes of only twenty-one states and the District of Columbia explicitly prohibit sexual orientation discrimination by these businesses; the gay populations of twenty-nine states thus live without any affirmative statutory protection from discrimination in commerce. This Comment addresses the failure of these states to include gay people among those classes of persons protected by their public accommodations statutes. The presumption today is that businesses in twenty-nine states can discriminate against gay people with impunity—“that businesses, as property owners, have the right to exclude non-owners unless that right is limited by statute” and “to refuse to contract with anyone with whom they do not wish to deal unless required to do so by express statutory command.”

But the right to exclude is subject to certain limitations. For public accommodations, the right to exclude historically has been counterbalanced by a common law duty to serve. Over the course of the twentieth century, however, the common law duty to serve fell into disuse and was replaced by state and federal public accommodations statutes that prohibit businesses from denying service to statutorily defined protected classes. Because public accommodations statutes have come to supplant the common law duty in our modern legal consciousness, many now believe—mistakenly, I argue—that these statutes are the sole source of law proscribing discrimination in commerce, and that if these statutes do not specifically enumerate a class or characteristic as among those protected, then businesses may discriminate against that class or characteristic with impunity.

Recent scholarship has largely focused on proposals to expand state antidiscrimination statutes to encompass sexual orientation discrimination; political advocacy groups’ goals are similarly defined. But this Comment rejects the notion that gay people’s only hope for legal protection lies in statutory law. That certain states have not yet decided to extend statutory protection to gay people does not mean that those individuals are necessarily without legal recourse if a business should deny them service, or that enacting statutes is the only way to provide protection. As discussed above, a business’s right to exclude historically has been counterbalanced by a common law duty to serve. Claims based upon the foundational principles of this common law duty may offer gay people immediate protection against discrimination in states whose legislatures have failed to provide such protection expressly. This Comment argues that even in states that have not proscribed sexual orientation discrimination affirmatively by statute, such discrimination is nonetheless illegal as a violation of businesses’ common law duty to serve—and to not exclude arbitrarily—all customers.

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