Discrimination-Free Zones and Free-to-Discriminate Zones: Where Should Discrimination Laws Apply?
Introduction
Recent discrimination debates have focused on whom discrimination law protects,[1] what counts as wrongful discrimination,[2] and whether freedoms of speech or religion justify exempting some discriminators.[3] Another question once dominated discrimination debates[4] but has received less attention lately: where should we forbid discrimination?
Federal law sets a floor by banning discrimination in most housing, employment, education, voting, and places of public accommodation. However, it narrowly defines the last category to include only select places such as hotels, restaurants, and theaters, leaving most businesses free to discriminate against customers.[5] Some states adopt a similar stance, while others expand the places where discrimination is forbidden.[6]
This essay addresses the appropriate scope of public accommodation laws: where should we forbid discrimination? Section A explains that laws appropriately leave parts of our lives unregulated, allowing room for discrimination and expressions of disdain. Such spaces protect free association, religion, speech, and non-complicity. Section B argues that despite these considerations, public accommodation laws should apply to most commercial spaces. Combatting oppression and bolstering social cooperation requires that antidiscrimination law expand—not to encompass every area of life, but to include most commercial settings where speech, religion, association, and non-complicity have alternate (even if costly) paths for fulfillment. Section C considers circumstances where we might allow commercial discrimination, including mission-driven professions and some free speech cases. It rejects exemptions for religious vendors, such as bakers and web designers who want to avoid complicity with same-sex weddings.
A. Discrimination-Free Zones and Free-to-Discriminate Zones
Laws forbid discrimination in many areas, including employment, housing, education, some commercial transactions, and nearly all interactions with the government. Of course, even in these core areas, restrictions vary. We forbid discrimination nearly always based on race, national origin, religion, and gender, usually based on sexual orientation, age, and disability, and only occasionally based on political party or activities.
We ban discrimination in areas where dignitary and material benefits are essential to living well as an equal member of society (accounting for history and context). When correctly interpreted, these bans require more than equal prices and non-discriminatory rules; they also demand signs of equal courtesy and respect. For example, a restaurant or apartment complex could not post a sign saying, "We serve people of all races, but only under duress; we hate non-whites."[7]
Laws leave other aspects of our lives unregulated, permitting discrimination and expressions of disdain. These include most social interactions, including friendships, dating, and marriage. We even allow businesses to facilitate intimate discrimination. Many dating apps provide tools that screen for race, religion, and other generally protected traits.[8] Similarly, free speech rules resist antidiscrimination norms mandating respectful interactions. The Constitution protects most hate speech and disrespectful political speech. States that forbid bakers from denying a cake to a same-sex couple could not restrict the bakers' right to sign petitions or speak in public against same-sex marriage.
Discrimination laws leave areas unrestricted for several reasons. Regulations raise concerns about privacy and government overreach. In addition, discrimination's harm sometimes seems less urgent while interests in association, privacy, religion, or speech interests are pressing. For example, even states that define public accommodations expansively forbid discrimination primarily for sellers, not individual buyers.[9] Refusals to sell have long been used to oppress, causing symbolic and material harm, unlike refusals to buy, which have less often targeted oppressed groups.[10] Sellers often do not learn or suspect why buyers do not purchase from them, so dignitary harm is minimal. Buyers who communicate their reasons for not purchasing typically participate in boycotts, which serve speech and associational purposes. We protect such boycotts even when they are racially targeted.[11]
Similarly, we permit discrimination in friendship, dating, and marriage because the value of intimate association depends on freely choosing our intimates. Discrimination in these realms is sometimes not disdainful. Basing friendships on similar life experiences, including those connected to race and religion, need not rely on or convey contempt for other religions or races. Concerns about privacy, practical implementation, and government overreach counsel caution about such regulations.[12]
Of course, we might question the details of allowing discrimination by consumers and intimate partners. Consumer and seller boycotts have much in common (despite their different legal treatment). Consumer boycotts can harm vulnerable populations, and seller boycotts sometimes protect speech and association. Discrimination in friendship and family formation can reinforce harmful stereotypes and entrench financial disparities. However, even if these details are mistaken, discrimination law likely must leave some areas unregulated.
The law provides discrimination-free zones and free-to-discriminate zones. In discrimination-free zones, people must restrain discriminatory desires based on association, speech, religion, or non-complicity. They accept the risk of associating against their will, violating religious duties, silencing their demeaning speech, or compromising their integrity. These norms constitute a role-morality for employers, educators, government workers, and others operating in discrimination-free zones. Outside these zones, the opposite is true. People can indulge their discriminatory impulses. Their interests in association, religion, speech, and non-complicity will be protected against legal interference, even when exercised discriminatorily. When entering a free-to-discriminate zone, people risk discriminatory rejection and exposure to disdain.
Having distinct zones where we allow or forbid disdainful communication and discrimination is not an accident or a failing.[13] Cooperation in a pluralistic society requires that we usually treat each other as equals—each entitled to pursue lives following their values if that pursuit is consistent with similar rights for others. We support equal treatment and opportunity with rules against discrimination and expressions of disdain. At the same time, freedoms of expression, religion, association, and conscience require room for discrimination, including expressing disdain for people whose views or behavior we dislike. Having separate realms is not the only way to address these opposing pressures. However, it is one natural solution.
We create separate zones because always mandating equal treatment and respectful interactions would hobble free expression, religion, conscience, and association. Always favoring expression, religion, conscience, and association would undermine equality and respect. Any strategy to protect both values (zones, balancing, rules with exceptions, or other compromises) will demand sacrifices—sometimes requiring forbearance or withdrawal and other times risking disrespect, humiliation, and exclusion.
B. Favoring Nondiscrimination
The appropriate line between discrimination-free and free-to-discriminate zones is not self-evident. Should we treat most businesses as having the right to discriminate against customers, equating business-customer dealings with other free-to-discriminate zones such as speech and intimate association? There are good reasons to reject this view and instead ban discrimination in commerce unless such restrictions would excessively burden valuable pursuits.
One reason for expansive public accommodation laws is that discrimination exacerbates oppression and shows disrespect to its victims. The prevalent and humiliating practice of retailers surveilling shoppers of color has been widely documented.[14] Another reason is that maintaining cooperation and trust in a pluralist society is easier if we usually restrain our inclinations to express disdain for those with different backgrounds or moral views.
Liberalism requires the state to protect free expression and association, religious practice, and complicity avoidance. Nevertheless, the state should strongly prefer nondiscrimination as the better solution to conflicts between discrimination and these values when people can pursue goals such as non-complicity and speech without discrimination. Establishing broad realms where people interact as equals may help people live cooperatively.[15]
As noted above, interacting as equals requires more than allocating restaurant meals, jobs, and votes without regard to race and religion. In some settings, we must mask our contempt for people and their behavior. We would not think a restaurant complied with nondiscrimination norms if it served identical meals to all patrons at a uniform price but distributed a sign to tables occupied by members of some religious sects saying, "Enjoy your meal, you're going to hell." Equal treatment demands that we refrain from expressing targeted contempt in nondiscrimination zones.
Sustaining cooperation creates a state interest in minimizing the realms where we permit discrimination and expressions of contempt. We want citizens to think of one another as equals and treat each other as such. Declaring the impropriety of disdainful expressions and unequal treatment in many settings may help to persuade everyone that these should be our default way of interacting. Respect and cooperation are, like other virtues, partly habits. We become used to considering others as equals by treating them as equals and seeing others do the same. When we open large realms of interaction to exclusion and disdainful expression, we increase the chance that these become habitual, our usual way of interacting. The internet's apparent degradation of respectful interaction might hint at the dangers of expanded zones that welcome disdainful expressions. We should not demand civility everywhere; free expression demands room for incivility. However, broad realms reserved for respectful treatment may serve essential ends.
Promoting cooperation also argues against allowing many conscience-based exceptions to discrimination law. When we exempt people from legal obligations so they can live conscientiously, we give prominence to the idea that broad complicity stances are typical and that demanding sacrifices from others to avoid complicity is an entitlement. When both these feelings become widespread, social cooperation becomes more difficult. Those who most disdain others impose costs on those they disdain. Conflicts will increase, as will resentments at the lack of reciprocity.
I admit that these arguments are speculative. However, the issue they raise is pressing. We are increasingly polarized and inclined to demonize those who disagree. Encouraging contrary habits might be essential to protecting our fragile social bonds.
Nondiscrimination norms should not apply everywhere. Sometimes, contrary interests need protection, and sometimes, discrimination causes relatively little harm. However, this is rarely the case in commercial settings. Although there are exceptions (discussed below), modern sales of goods and services are usually impersonal; they do not implicate the seller's association, conscience, religion, or speech interests. Even for religious sellers, commercial transactions rarely seem to compromise their moral views. For example, stores such as Chik-Fil-A and Hobby Lobby, which have donated to conservative causes or objected to funding employee contraception, willingly sell to customers whose behavior their owners might condemn.
Indeed, the fact that transactions are usually impersonal renders discrimination in commercial settings worse. The indignity of being excluded based on one's identity or actions lies partly in the contrast to usual transactions. Being singled out in a realm where everyone is treated the same highlights the insult of exclusion.
C. When Should We Allow Discrimination to Protect Complicity Avoidance?
Not all businesses are typical. Some workers and owners claim that association, religion, speech, or non-complicity require them to discriminate. For example, some bakers do not want to provide wedding cakes, and some city clerks want to avoid issuing marriage licenses to same-sex couples.
I have argued elsewhere that we should enforce discrimination laws against vendors and workers who invoke such claims.[16] I made two points: first, we should sometimes exempt people from legal rules to help them avoid complicity with perceived wrongdoing. Non-complicity is a valuable component of living with integrity. Nevertheless, non-complicity rarely justifies discrimination. Vendors and government workers can usually avoid complicity without discriminating by changing jobs or business models. Although living with integrity might be costly, no one must sell wedding cakes or issue marriage licenses to live according to their values.
Second, relying on non-complicity to justify discrimination is singularly disrespectful. We often accommodate individual efforts to protect integrity. Examples include granting legal exceptions to facilitate religious practices (such as days off for Sabbath worship) or protecting non-complicity (such as allowing conscientious objectors to avoid non-combat military roles). However, these accommodations do not invoke or communicate demeaning views of the people whose interests they harm. By contrast, it is demeaning to ask someone to suffer discrimination so you can give effect to your view that their values are immoral. The insult is severe when the disdain communicated reinforces historical oppression.[17] It asks people to accept your disdain for them as a legitimate reason.
These arguments (from available alternatives and insulting justifications) might seem overbroad. Consider intimate association. If we reject vendor discrimination motivated by association or integrity, why should we permit people to discriminate when picking spouses? Imagine someone will not marry me because I am not Catholic or that I cannot date them because they use a dating app that excludes non-Catholic users. Being excluded from that marriage prospect or dating pool resembles being excluded from commercial transactions based on protected characteristics.
Intimate and commercial discrimination differ in several ways. First (as noted above), although intimate discrimination sometimes communicates contempt, it frequently does not. Many people seek partners of the same religion or race for reasons that imply no disrespect. They want to pursue a religious life together, bond over shared experiences, pass along family traditions, or help preserve an endangered group. These aims need not convey disdain or create an insulting social meaning.[18] Non-complicity is different. Discrimination based on non-complicity arises if people refuse to associate with me because they think my actions are sinful. If I regard these actions as central to my identity, even if they mean no disrespect, the social meaning of their exclusion conveys contempt.
Second, most vendors can avoid complicity without discriminating by changing jobs or business models. The vendor's non-discriminatory alternatives weaken justifications for discrimination. However, someone committed to marrying and raising children within their faith or race can achieve these goals only by discriminating.
Although we should not usually permit discrimination by vendors or government employees, even to avoid complicity, there are areas where discrimination to avoid complicity or pursue other values might be permissible. Here are four that deserve consideration:
1. Minimal Harm Cases
Protecting a clerk who does not want to issue same-sex marriage licenses typically imposes material and dignitary harm on same-sex couples. However, if the clerk can be reassigned to other duties without inconveniencing license applicants or informing the public, reassignment would cause little harm.[19]
2. Harm to People Not Thought Sinful
If a marriage license clerk opposed to same-sex marriage asks to trade jobs with a colleague who issues building permits, compelling the switch might be reasonable because it does not harm someone directly insulted by the non-complicity effort. We should not always resist harming people to help people avoid complicity. If the harm to the building permit clerk is minor and the job loss would be very harmful to the religious clerk, the imposition might be reasonable.
3. Mission-Driven Jobs
Some jobs advance missions. These jobs require more than loving one's work, such as a baker who finds joy in making wedding cakes. Mission-driven jobs advance religious, moral, or artistic values, often the same values underlying non-complicity concerns. Telling a mission-driven worker that they should change jobs to avoid complicity makes little sense if their values require discriminating and continuing to perform this job. If both complicity and changing jobs require abandoning one's core values, then changing jobs does not allow someone to live with integrity.[20]
To take an extreme example, we would not tell Catholic priests that if they cannot offer communion without discriminating against non-Catholics, they should pursue their religious goal in another job. The religious values to which they are committed require both being a priest and discriminating. So, the purported choice is a command to abandon those values.[21]
Other mission-driven jobs might also demand discrimination, such as targeted dating services and matchmakers (J-date for Jews, Mutual for LDS, and Black People Meet for African Americans). Of course, one can run such a service for reasons other than thinking that cross-racial/religious dating is wrong. However, one reason for matched dating is group preservation. Those who run these sites may think facilitating cross-racial or religious dating is complicit in harming the group and that running these sites is an act of group preservation.[22] Some charities might also share this feature. For example, religious schools might exclude children of non-adherents.
Jobs unconnected to religion can also be mission-driven (though they typically do not require illegal discrimination). For example, non-profit organizations might exclude employees who do not share their goals. Since few discrimination laws forbid discrimination based on political belief, they can often do so lawfully. However, employment discrimination based on political activity is illegal in some places.[23] In these states, excluding pro-choice employees from an anti-abortion organization or pro-life employees from an abortion-rights organization might count as mission-driven discrimination.
Many jobs have moral components. Medical professionals aim to save lives and give comfort; teachers disseminate knowledge or help the vulnerable. Some wedding vendors view their mission as supporting the sacrament of marriage. However, people doing most of these jobs could advance their moral aims in jobs that do not require discrimination or in ways other than through their work. It depends on context whether it is reasonable to ask someone who wants to discriminate and regards their work as mission-driven to change jobs and pursue their mission through alternate means.
We should not automatically permit conscience-based discrimination for mission-driven jobs. However, we cannot assume an option to preserve integrity without discrimination. When we forbid complicity-based discrimination for typical jobs, we ask people to accept sacrifices to maintain their integrity. When we forbid it for mission-driven jobs, we often ask people to sacrifice their integrity.
4. Non-Discrimination as Compelled Speech
Compelled speech is considered harmful because it violates a person's conscience. Banning discrimination raises distinctive speech concerns when the vendor's actions are expressive.[24]
Compelled speech problems take two primary forms. First, the government sometimes compels someone to speak or write words they do not believe. Saying or writing things one disbelieves constitutes an intimate form of hypocrisy. Constitutional law protects people from imposed communication, even people not involved in creative activities.[25] This imposed-communication branch of free speech applies only to written or spoken communication, not implied communication. It does not apply as strongly to commercial speech; we allow mandatory disclosures for health and safety and compelled speech to fulfill professional duties.
Second, sometimes laws require acts that distort speech, changing a message someone wants to convey rather than requiring speech by someone who might not want to speak.[26] The Constitution restricts government acts that change messages, whether the communication is overt or implied.
Other writers have explained why these coerced speech doctrines should not apply to most wedding vendors.[27] A general approach to compelled speech and anti-discrimination law can be enhanced by considering two connections between coerced speech and mission-driven work. First, the message-changing branch of coerced speech applies to many mission-driven jobs. If someone takes a job for moral or artistic purposes, losing control can change the message they want to convey. Cause lawyers, political speechwriters, and artists are good examples.[28]
By contrast, most wedding vendors do not take their jobs for moral or expressive reasons. Vendors who provide expressive products, such as website or invitation designers, do not regard their designs as communicating their ideas; their designs are unlikely to be perceived as expressing their ideas.[29] Although nondiscrimination rules might compel them to use their creativity to serve a cause they do not like, they had no message to be hijacked. As others have noted, coerced speech is different from forced creative work. Those not engaged in expressive acts, including wedding planners, bakers, and caterers, also devote creativity to their work.[30] However, compelling them to accept clients does not constitute compelled speech.
Second, coercing speech might be worse for mission-driven jobs. When people’s jobs are not connected to a mission, it might be more reasonable to ask them to change jobs if they object to the speech that the job requires.[31] Telling civil rights lawyers that they must work for a white nationalist client or stop practicing law puts them in a position somewhat like a priest. They have devoted their lives to a cause. Abandoning the cause by not practicing civil rights law undermines their effort to achieve their moral goals in the same way as ceasing to discriminate among clients. Both exit and compliance undermine their values.
For coerced speech claims made by people without mission-driven jobs, we should sometimes ask them to change jobs if they dislike required speech. If a court reporter refused to transcribe profane testimony because they believed it made them complicit in immoral goals, we would think they should find other work. We should take the same view about website designers who do not want to serve same-sex couples.
Some wedding vendors might claim to have mission-driven jobs. They support love, promote a holy institution, or regard their talents as a sign that God called them to do this work. Asking them to give up this mission if they want to live according to their values makes no more sense than asking a priest or cause lawyer for the same.
Most wedding vendors likely do not perform mission-driven work. However, when jobs are mission-driven, the legal system should respond by weighing interests. In comparable cases, this already happens. For example, when a feminist divorce lawyer refused to represent a male potential client, arguing that she had devoted her life to protecting women in the legal system, she was found to have violated the state's public accommodations law, which prohibited discrimination based on sex.[32] The court found that the state's interest in preventing discrimination outweighed the lawyer's interest in speech and association. By contrast, no state forbids discrimination in public accommodations based on political views.[33] So, lawyers, artists, and political speech writers can turn away potential clients for moral or political reasons.[34]
These rules represent a balance. Many public-interest lawyers and political speechwriters devote their careers to moral or political aims. Moreover, the harm of political discrimination by lawyers and speechwriters is not great. The harm of gender discrimination might be more severe, while the need to discriminate based on gender to advance moral causes might be rarer. A similar stance is appropriate for the few cases of wedding vendors who view their occupations as mission-driven.
Conclusion
Discrimination debates have rightly focused on which groups to protect, what constitutes discrimination, and whether there is ever a right to discriminate. This essay sought to revive and answer another question: the proper scope for discrimination law. Our laws create discrimination-free zones and free-to-discriminate zones. Providing both zones strikes a delicate balance, promoting equality and respectful interaction while making room for pursuits that can be inconsistent with these demands.
In setting boundaries between zones, we should apply nondiscrimination norms unless valuable goals, such as association, religion, speech, and non-complicity, cannot be pursued without discrimination. Because vendors can usually achieve these goals without discrimination (even if they must change jobs), we should extend public accommodation laws to include most businesses. However, some workers, particularly for mission-driven jobs, cannot achieve valuable ends without discrimination. These examples raise complex questions that require delicate balancing.
*Virginia S. and Fred H. Bice Professor of Law, University of Southern California. For helpful suggestions, I thank Jordan Barry, Robin Craig, Laura Fry, Ron Garet, Aya Gruber, Jeff Haas, Felipe Jimenez, Mugambi Jouet, Greg Keating, Erin Miller, Jeesoo Nam, Clare Pastore, Jonathan Quong, Stephen Rich, Daria Roithmayr, Marcela Prieto Rudolphy, Amy Sepinwall, Nomi Stolzenberg, and participants at the USC Center for Law, History, and Culture workshop.
[1] Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
[2] Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023).
[3] Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm., 584 U.S. 617 (2018); Fulton v. City of Philadelphia, 593 U.S. 522 (2021); 303 Creative, LLC v. Elenis, 600 U.S. 570 (2023).
[4] For accounts of this history, see Samuel Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stan. L. Rev. 1205 (2014); Christopher Schmidt, Rights, Dignity, and Public Accommodations, 38 L. & Hist. Rev. 599 (2020).
[5] 42 U.S.C. § 2000a(b). For a state example, see Fla. Stat. § 760.02 (2018). Tolerance of discrimination against customers does not extend to race discrimination. See 42 USC § 1981.
[6] For surveys of state laws, see Jeremy D. Bayless & Sophie F. Wang, Racism on Aisle Two: A Survey of Federal and State Anti-Discrimination Public Accommodation Laws, 2 Wm. & Mary Pol'y Rev. 288 (2011); Public Accommodations Laws: 50-State Survey, Justia, https://www.justia.com/civil-rights/public-accommodations-laws-50-state-survey/ (last visited Mar. 18, 2025); State Public Accommodation Laws, NCSL, https://www.ncsl.org/civil-and-criminal-justice/state-public-accommodation-laws (last visited Mar. 18, 2025).
[7] Federal courts have, regrettably, often failed to insist on equal courtesy as a requirement of equal treatment. See Suja Thomas, The Customer Caste: Lawful Discrimination by Public Businesses, 109 Cal. L. Rev. 141 (2021). Many state courts enforce equal courtesy requirements. See Elizabeth Sepper, The Original Meaning of “Full and Equal Enjoyment” of Public Accommodations, 11 Calif. L. Rev. Online 572 (2021).
[8] For a discussion of how dating apps might be changed to reduce the prevalence of discrimination, see Jevan Hutson, Jessie Taft, Solon Barocas, & Karen Levy, Debiasing Desire: Addressing Bias & Discrimination on Intimate Platforms, 73 Proc. of the ACM on Hum.-Comput. Interaction 731 (2018). We also allow discrimination in selecting roommates. Fair Housing Council of San Fernando Valley v. Roommate.com, 666 F.3d 1216 (9th Cir. 2012). On race, intimacy, and equality generally, see Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York Univ. Press, 2024).
[9] See Katharine Bartlett & Mitu Gulati, Discrimination by Customers, 102 Iowa L. Rev. 223 (2016).
[10] Consumer boycotts used for oppressive ends have occurred. See, e.g., Mark Silverman, The Effects of Racism and Racial Discrimination on Minority Business Development: The Case of Black Manufacturers in Chicago’s Ethnic Beauty Aids Industry, 31 J. Soc. Hist. 571 (1998). Consumer discrimination can cause significant harm in some markets. See, e.g., Tali Regev & Tamar Kricheli Katz, Biased Reputations: Using Cross-Listed Properties to Identify the Negative Effects of Race on Users’ Reputations on Airbnb, (Working Paper), https://ssrn.com/abstract=4278441; Benjamin Edelman & Michael Luca, Digital Discrimination: The Case of Airbnb.com (Harv. Bus. Sch. Working Paper No. 13-054, 2014), https://ssrn.com/abstract=2377353.
[11] Racially targeted boycotts were used in the civil rights movement. See Stacy Sewell, The "Not-Buying Power" of the Black Community: Urban Boycotts and Equal Employment Opportunity, 1960-1964, 89 J. African Am. Hist. 135 (2004). Racial tensions have sometimes led to African American boycotts of Korean-owned stores. See, e.g., John H. Lee & John J. Goldman, Boycott Puts Korean Stores at Center of N.Y. Race Strife, L.A. Times (May 20, 1990, 12:00 AM), https://www.latimes.com/archives/la-xpm-1990-05-20-mn-165-story.html. Challenges to consumer boycotts have usually failed on the ground that boycotts are protected speech. See NAACP v. Claiborne Hardware, 458 U.S. 886 (1982). Most Anti-BDS laws have been struck down on similar grounds. One exception was Ark. Times v. Waldrip, 37 F.4th 1386 (8th Cir. 2022).
[12] For a range of views on the morality of racial preferences in dating partners, see Elizabeth Emens, The State's Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307 (2009); Charles Mills, Do Black Men Have a Moral Duty to Marry Black Women?, 1994 J. Soc. Phil. 131; Raja Halwani, Racial Sexual Desires, in The Philosophy of Sex: Contemporary Readings 181 (7th ed. Lanham, Md, USA: Rowman & Littlefield 2017); Robin Zheng, Why Yellow Fever Isn’t Flattering: A Case Against Racial Fetishes, 2 J. Am. Phil. Assoc. 400 (2016); Amia Srinivasan, Does Anyone Have the Right to Sex, 40 London Rev. of Books 1 (Mar. 2018).
[13] Some libertarians question the legitimacy of all bans on private discrimination. For a discussion of varied libertarian stances, see David Bernstein, The Boundaries of Antidiscrimination Laws, in The Cambridge Handbook of Classical Liberal Thought 47 (Todd Henderson, ed. Cambridge University Press 2018).
[14] See, e.g., George Schreer, Saundra Smith, & Kristen Thomas, “Shopping While Black”: Examining Racial Discrimination in a Retail Setting, 39 J. App. Soc. Psych. 1432 (2009); Meirav Furth-Matzkin, Discriminatory Enforcement of Consumer Contracts: Evidence from the Retail Market, NYU Sch. of L., 2020. Admittedly, laws against retail discrimination are often unenforced. See Anne-Marie Harris, A Survey of Federal And State Public Accommodations Statutes: Evaluating their Effectiveness in Cases of Retail Discrimination, 13 Va. J. Soc. Pol’y & L. 331 (2006).
[15] See Seana Shiffrin, Democratic Law 46 (Oxford University Press 2021).
[16] Scott Altman, If Your Morals Make You Discriminate at Work, Change Jobs, Univ. S. Calif. L. Legal. Stud. (2024).
[17] Id.
[19] Sandra Fredman, Tolerating the Intolerant: Religious Freedom, Complicity, and the Right to Equality, 9 Oxford J. L. & Rel. 305 (2020).
[20] This argument presumes that religious, moral, and artistic goals (along with some others, such as intimate attachments) often matter more to people than other aims, even important aims such as job choice and where to live. In part, this is because many other aims can be pursued in alternate ways. Whether this assumption is valid has been challenged. Simon May, Exemptions for Conscience, in Religion in Liberal Political Philosophy 191–203 (Laborde & Bardon, eds. Oxford Univ. Press 2017).
[21] Admittedly, the permissibility of such discrimination by religions is subject to debate. See Clare Chambers, Sex, Culture, and Justice: The Limits of Choice 141 (Penn. State Univ. Press 2008); Lori Watson and Christie Hartley, Equal Citizenship and Public Reason: A Feminist Political Liberalism, 20 J. Moral Phil. 206 (2023).
[22] Some dating sites allow users to filter by race. However, these sorting mechanisms are not examples of their owners’ mission-driven aims. I am aware of one dating platform for whites, but its owners deny any racial-preservation aim. Alex Abad-Santos, Where White People Meet, the Controversial New Dating Site, Explained, Vox (Jan. 6, 2016, 9:40 AM) https://www.vox.com/2016/1/6/10720234/where-white-people-meet-explained.
[23] See, e.g., Cal. Labor Code §§ 1101–1102. For a discussion, see Eugene Volokh, Private Employees' Speech and Political Activity: Statutory Protection against Employer Retaliation, 16 Tex. Rev. L. Pol. 295 (2012).
[24] 303 Creative, LLC v. Elenis, 600 U.S. 570 (2023).
[26] Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000); Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995).
[27] Robert Post, Public Accommodations and the First Amendment: 303 Creative and 'Pure Speech', Univ. of Chi. Press J. 251 (2024). Amy Sepinwall argues that the baker in Masterpiece Cakeshop tried to invoke speech rights to protect non-speech interests in non-complicity. Amy Sepinwall, Free Speech and Off-label Rights, 54 Ga L.Rev. 463 (2020).
[28] In 303 Creative, the Supreme Court expressed concern about political speechwriters and artists.
[29] This idea might find doctrinal support. Courts have found that the First Amendment offers less protection when one acts as a conduit for the expression of others. Web designers and invitation printers are usually conduits for their clients' speech. See Post, supra note 27, at 16–19.
[30] Sepinwall, supra note 27, at 485.
[31] This argument diverges from legal doctrine, which might reject the idea that speech is uncoerced when someone can change jobs to avoid a speech mandate. In Wooley v. Maynard, the license plate motto case, the Supreme dismissed the idea that the speech was uncoerced because the litigant could forego driving. 30 U.S. 705, 715 (1977).
[32] Nathanson v. Massachusetts Comm. Against Discrimination, 16 Mass. L. Rtpr. 761 (2003).
[33] One exception is that Colorado’s public accommodation law forbids discriminating against people who support the anti-discrimination norms contained in the law. § 24-34-601(2.5). Some cities have the same view. Seattle Office for Civil Rights, Seattle Enforcement Categories, Seattle.Gov, https://www.seattle.gov/civilrights/civil-rights (last visited Mar. 18, 2025). Outside the US, some countries ban discrimination in public accommodations based on political opinion of the buyer. See, e.g., Northern Ireland Fair Employment and Treatment Act, §§ 3, 28.
[34] Additionally, speechwriters, filmmakers, and artists rarely hold themselves out as serving the public and are therefore not subject to public accommodations laws.