In this Article, I provide a comprehensive account of the role of religion in public accommodations laws. I analyze public accommodations statutes across the fifty states, identify their boundaries, and categorize their religious exemptions. In so doing, I interrogate and debunk misconceptions widely held even by legal scholars that: the Civil Rights Act is a representative public accommodations law; antidiscrimination obligations of retail establishments and social service providers are unusual or new; exemptions for religious entities or small businesses are common; and public accommodations laws have as their central aim remedying market exclusion.
Part I sets out the basic framework of public accommodations law. For-profit businesses—the baker, doctor, and wedding venue of ongoing debates over same-sex marriage refusals—are the prototypical public accommodations. Non-profit religious organizations similarly assume nondiscrimination duties when they serve the public. In what has been a stable public-private divide, the state regulates commercial and quasi-commercial entities in the interest of equality, while granting private associations license to discriminate.
Part II demonstrates that public accommodations laws typically do not offer religious exemptions. When exemptions specific to religion exist, they tend to be limited to a narrow range of activities of religious non-profits and to co-religionist favoritism alone. This structure of limited or no religious exemptions remained intact through the decades, but cracks have recently appeared in the façade as states adopted religious exemptions related to sexual orientation (rarely) and marriage (commonly).
Part III examines the purposes of public accommodations laws. Whereas proponents of religious exemptions frequently argue that such laws target only pervasive exclusion from the market, the text of the statutes sets out individual and societal interests far broader than material goods and target segregation and subordination within the market as well as exclusion from it. As a matter of textual analysis alone then, courts faced with claims for exemption under state religious freedom restoration acts must weigh exemption against interests in full and equal enjoyment of public life.
The Role of Religion in State Public Accommodations Laws,
St. Louis U. L.J.
Available at: https://scholarship.law.slu.edu/lj/vol60/iss4/6