Balkinization: The "Safe Space for Whites" Restaurant, aka The Pickrick

The "Safe Space for Whites" Restaurant, aka The Pickrick

Mark Tushnet

John Inazu’s “Confident Pluralism” criticizes existing constitutional doctrine for reasons sketched in my prior post. Here I address another concern with his analysis.

In my view, the Court’s distinction between expressive and non-expressive associations was motivated by a concern that ordinary commercial enterprises would invoke the right to justify policies of racial (and, later, other) discrimination. (And even if not motivated by that concern, it is relevant to the construction of good doctrine.)

Consider, then, a restaurant owner who wants to discriminate against African-Americans. (When I teach this stuff, I use Lester Maddox’s “Pickrick Restaurant” as my example.) He claims that he wants to maintain a “safe space” for white people. And, he creates a “membership rewards” program, as have many restaurants, in which members pile up points for rewards – ten visits and you get a free dessert, for example. On Inazu’s account, I think, the restaurant owner has a good claim that he and his patrons are engaging in constitutionally protected association.

Of course that’s not the end of the analysis that Inazu prescribes. He allows infringements on the right of association to be justified by compelling government interests, and treats the interest in promoting racial non-discrimination as compelling. That, though, opens up some – to me – troubling possibilities, which are more or less explicitly raised in Justice Alito’s opinion for the Court in Hobby Lobby.

Shift the example to a “safe space for men” or “safe space for straights” restaurant. The question becomes, Is the government interest in promoting nondiscrimination on the basis of gender or sexual orientation compelling? In Hobby Lobby Justice Alito carefully (in my view) confined his response to the argument that the Court’s interpretation of the Religious Freedom Restoration Act would require the courts to provide exemptions from antidiscrimination laws to all who objected on religious grounds to complying with such laws, saying only that that wouldn’t be true with respect to the compelling interest in racial nondiscrimination, and saying nothing about the strength of the interest in other forms of nondiscrimination. (And, we know from other doctrine, the standard for determining when government action is unconstitutionally discriminatory is “compelling” for race, and something different for gender and sexual orientation, which suggests what the answer would be to the claim for a religious accommodation to nondiscrimination laws dealing which those categories.)

For myself, I find the prospect of doing comparative “compellingness” analysis quite unattractive – and, to some extent, inconsistent with Inazu’s prescription for tolerance and humility. That’s another reason, I think, for saying that, categorically, commercial enterprises cannot claim rights of association.

Posted 7:55 PM by Mark Tushnet [link]