Academic

The logic behind applying Title II to privately owned places of public accommodation is that a business owner who opens his private property to operate this sort of business has a very limited interest in picking and choosing among the people he will serve.  The relationship that is established by serving a customer under these circumstances is highly attenuated and, as a consequence, being forced to serve all comers (a doctrine with deep roots in the common law of property in its treatment of so-called ?common carriers?) is barely an infringement of the liberty interests of owners.  If you don't want to interact with black people even in the shallow context of casual commercial interactions, don't open a restaurant or soda fountain.  Instead, open a private club, which the law exempts from its reach.

So far, so good.  Most of us (excepting Rand Paul and maybe the New York Times) understand that a restaurant or soda fountain is both a business and a public accommodation.  But Penalver?s analysis ignores a more difficult question: the line between ?public accommodation? and ?private club.?  That question has moved beyond the context of the Civil Rights Act of 1964 and occupies a key role in the broader clash between freedom of association and antidiscrimination law.  In the proceedings leading up to Roberts v. United States Jaycees, the Minnesota Supreme Court held that the Jaycees was a ?place of public accommodation? under Minnesota law.  In reaching this conclusion, the state court suggested that the Kiwanis Club probably wasn?t a place of public accommodation (a remarkable distinction endorsed by Justice Brennan?s opinion in Roberts).  In the state court decision preceding Boy Scouts of America v. Dale, the New Jersey Supreme Court concluded that the Boy Scouts was a ?place of public accommodation? under New Jersey law.  In Roberts and Dale, these conclusions facilitated further ambiguity brought about by the fuzzy categories of ?intimate? and ?expressive? association.  

Judicial opinions that employ awkward and ill-fitting labels like intimate association, expressive association, and public accommodation (when applied to groups rather than places) circumvent a meaningful inquiry into the underlying tensions between liberty and equality.  They avoid the hard questions of the meaning of public and private, the value of diversity, and the boundaries of freedom of association.  They represent a jurisprudence in which (to paraphrase Robert Cover) nobody risks anything or puts anything on the line, and we are all left wondering what comes next.