Accommodating the public sphere: Beyond the market model

Minnesota Law Review

Volumn 85, Issue 6, 2001, Pages 1591-1637

  Hunter, Nan D ^a  

^a BROOKLYN LAW SCHOOL   (United States)

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EID: 0042306172     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (237)

1. 120 S. Ct. 2446 (2000).
2. Dale v. Boy Scouts of Am., 734 A.2d 1196, 1211 (N.J. 1999), rev'd & remanded, 530 U.S. 640 (2000).
3. ROBERT H. MACüONALD, SONS OF THE EMPIRE: THE FRONTIER AND THE BOY SCOUT MOVEMENT, 1890-1918, at 7 (1993).
4. Brief for Respondent at 2, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699), available at 2000 WL 340276. The Boy Scouts of America (BSA) is intertwined with government agencies and the recipient of preferred treatment in many ways. See id. at 3. In addition to sponsoring troops, military units designate personnel to participate in scout activities and furnish facilities for use by the BSA. See id. Off-duty personnel are specifically granted the right to wear a Boy Scout uniform, the only civilian organization statutorily listed. 10 U.S.C. §772(j)(l) (1994). Other federal agencies are also authorized to furnish supplies, services, and transportation for BSA use. 10 U.S.C. §§2544(a), (d) (1994). Involvement by state and local government is also extensive, resulting in numerous efforts to rescind such involvement since the Supreme Court's decision in Dale.
5. Dale, 734 A.2d at 1200.
6. BOY SCOUTS OF AMERICA, COMPANY CAPSULE, at http-y/www.hoovers. com/co/capsule/2/0,2163,56152,OO.html (last visited Mar. 2,2001).
7. BOY Scours OF AMERICA, SCOUTMASTER HANDBOOK 251-52 (1990)
8. [hereinafter HANDBOOK]; FOUNDERS OF SCOUTING AND THE BOY SCOUTS OF AMERICA, at http://www.bsa.society.org/factsheets/02-211.html (last visited Mar. 5, 2001) [hereinafter FOUNDERS].
9. See HANDBOOK, supra note 7, at 251-52; FOUNDERS, supra note 7.
10. See HANDBOOK, supra note 7, at 251-52; FOUNDERS, supra note 7.
11. See HANDBOOK, supra note 7, at 251-52; FOUNDERS, supra note 7.
12. See HANDBOOK, supra note 7, at 251-52; FOUNDERS, supra note 7.
13. See generally TIM JEAL, THE LIFE OF LORD BADEN-POWELL (1990);
14. MACDONALD, supra note 3; MICHAEL ROSENTHAL, THE CHARACTER FACTORY: BADEN-POWELL AND THE ORIGINS OF THE BOY SCOUT MOVEMENT (1986).
15. See MACDONALD, supra note 3, at 16-19; DAVID I. MACLEOD, BUILDING CHARACTER IN THE AMERICAN BOY: THE BOY Scours, YMCA, AND THEIR FORERUNNERS, 1870-1920, at 133-34 (1983); ROSENTHAL, supra note 12, at 3.
16. MACDONALD, supra note 3, at 118-44.
17. Id.
18. Mat 153-57.
19. JEAL, supra note 12, at 372-73;
20. MACDONALD, supra note 3, at 13, 26;
21. MACLEOD, supra note 13, at 136-37;
22. ROSENTHAL, supra note 12, at 197-200.
23. Emblematic of concern about feminization and the effects of effete urban life was a popular reaction to the trial and conviction, a decade earlier, of Oscar Wilde for gross indecency. See MACDONALD, supra note 3, at 16.
24. Wilde and other 'decadent' fin de siede poets and artists had seemed to threaten an entire culture with their self-indulgence and effeminacy. Their antithesis was the ideal soldier living simply, ignorant of art and intellectual matters, disciplining his mind and body and placing his love of country above all else.... And when such fears in Britain were at their height during the disastrous Boer War, no soldier epitomized that saving manly spirit more perfectly than R. S. S. Baden-Powell. JEAL, supra note 12, at 570.
25. BOY SCOUTS OF AMERICA, HISTORICAL HIGHLIGHTS: 1910s, at http://www.bsa.scouting.org/factsheets/02-511/1910.html (last visited Mar. 2, 2001) [hereinafter HISTORICAL HIGHLIGHTS: 1910S].
26. 36 U.S.C. §§21-29 (1994). Its original charter stated that the purpose of the Boy Scouts was "to promote ... the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues." 36 U.S.C. §23 (1994). Pursuant to this charter, the BSA files an annual report with Congress. 36 U.S.C. §§28, 1103 (1994). Among the rights granted under it is the right to bring or remove litigation to federal district courts, regardless of whether there is diversity of citizenship or a federal question in the claim. 36 U.S.C. §22 (1994).
27. See HISTORICAL HIGHLIGHTS: 1910S, supra note 18.
28. See id.
29. See BOY SCOUTS OF AMERICA, HISTORICAL HIGHLIGHTS: 1990S, at http://www.bsa.scouting.org/factsheets/02-511/1990.html (last visited Mar. 5, 2001).
30. MACLEOD, supra note 13, at xv, 45 (internal quotation and citation omitted).
31. ROSENTHAL, supra note 12, at 253-63,267-78.
32. As to equality based on gender, of course the Boy Scouts is, by definition, only for boys. Baden-Powell responded to the interest of girls in a parallel program, which he designed with home and family as the chief components of female citizenship, and to which he gave a different name, Girl Guides. JEAL, supra note 12, at 469-77.
33. He tapped first his sister, and then his wife, to lead the Girl Guides. Id. The first executive director of the BSA, James W. West, strongly opposed formation of the Girl Scouts of America, although the Girl Scout program was also highly gendered. MACLEOD, supra note 13, at 5051, 183-84.
34. One point on which the organizations differ currently is their policy on discrimination based on sexual orientation: the Girl Scouts' policy prohibits such discrimination. See SCOUTING FOR ALL, at http^Avww. Scoutingforall.org/aaic/122601.shtml (last visited Mar. 9, 2001) ("Other major youth organizations, such as Girl Scouts of America,... do not have policies against gays or lesbians.").
35. HISTORICAL HIGHLIGHTS: 1910s, supra note 18.
36. BOY SCOUTS OF AMERICA, HISTORICAL HIGHLIGHTS: 1950s, at http://www.bsa.scouting.org/factsheets/02-511/1950.html (last visited Mar. 5, 2001).
37. BOY SCOUTS OF AMERICA, HISTORICAL HIGHLIGHTS: 1970s, at http://www.bsa.scouting.org/factsheets/02-511/1970.html (last visited Mar. 5, 2001).
38. WILLIAM D. MURRAY, THE HISTORY OF THE BOY Scours OF AMERICA 206 (1937).
39. Id. at 203.
40. Id. at 229.
41. Id. at 63. Part of the British Scout oath and law dropped by the Americans read, "A SCOUT IS A FRIEND TO ALL, AND A BROTHER TO EVERY OTHER SCOUT, NO MATTER TO WHAT SOCIAL CLASS THE OTHER BELONGS.... A Scout must never be a SNOB." Id. at 61;
42. see also MACLEOD, supra note 13, at 137,176.
43. MURRAY, supra note 29, at 388.
44. Id. "In negotiations with ethnic groups, Boy Scout officials showed little sympathy for immigrants' desires to preserve their culture." MACLEOD, supra note 13, at 215.
45. See MACLEOD, supra note 13, at 194-95, 198 (describing the relationship of the early BSA to the Jewish community).
46. ROSENTHAL, supra note 12, at 268.
47. Id. at 267-78.
48. RIACLEOD, supra note 13, at 212-14; MURRAY, supra note 29, at 38889.
49. MURRAY, supra note 29, at 388-89.
50. Id. at 285.
51. See id.
52. Schwenk v. Boy Scouts of Am., 551 P.2d 465, 469 (Or. 1976).
53. Other than Dale, the primary challenge based on sexual orientation grounds was Curran v. Mount Diablo Council of the Boy Scouts of America, first filed in 1981 and decided on statutory grounds seventeen years later. 952 P.2d 218, 236 (Gal. 1998) (holding that the BSA is not a public accommodation).
54. Three additional cases raised sex discrimination claims. See Yeaw v. Boy Scouts of Am., 64 Gal. Rptr. 2d 85, 88-89 (1997) (holding that the BSA is not a public accommodation); Mankes v. Boy Scouts of Am., 137 F.R.D. 409, 411-12 (S.D. Fla. 1991) (holding no subject matter jurisdiction); Quinnipiac Council, Boy Scouts of Am. v. Comm'n on Human Rights & Opportunities, 528 A.2d 352, 360 (Conn. 1987) (holding that the Boy Scout Council is not excluded from public accommodations law, but that not allowing a female scoutmaster is not a discriminatory practice). Three others were brought by atheists, alleging discrimination based on religion. See Randall v. Orange County Council, Boy Scouts of Am., 952 P.2d 261, 266 (Cal. 1998) (holding that the BSA is not a public accommodation); Seabourn v. Coronado Area Council, Boy Scouts of Am., 891 P.2d 385, 406 (Kan. 1995) (same); Welsh v. Boy Scouts of Am., 993 F.2d 1267,1275 (7th Cir. 1993) (same).
55. 120 S. Ct. 2446 (2000).
56. Id. at 2458.
57. Id. at 2457.
58. Id. at 2449.
59. Id. at 2452.
60. Id. at 2453 (quoting Reply Brief for Petitioners at 5, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699)).
61. Id.
62. Id. at 2454.
63. Id. at 2452 (emphasis added).
64. Id. at 2453 (emphasis added).
65. Id. at 2457 (emphasis added).
66. Brief for Petitioners at 3, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699), available at 2000 WL 228616.
67. Dale, 120 S. Ct. at 2458.
68. See infra note 76 and accompanying text.
69. Dale, 120 S. Ct. at 2449.
70. See BOY SCOUTS, at http://www.scouting.org/boyscouts/index.html (last visited Mar. 5, 2001) (indicating that only boys aged eleven through seventeen can be scout members).
71. Dale v. Boy Scouts of Am., 706 A.2d 270, 294-95 (1998) (Landau, J., concurring and dissenting), affd, 734 A.2d 1196 (N.J. Aug. 4, 1999), rev'd & remanded, 530 U.S. 640 (2000).
72. See Brief for Petitioners at 20-25, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699), available at 2000 WL 228616.
73. 515 U.S. 557 (1995).
74. Id. at 580-81.
75. Boy Scouts of Am. v. Dale, 120 S. Ct. 2446,2448, 2454 (2000).
76. The Dale Court's citations to Hurley were similar to the way the Court in Hurley had cited the earlier expressive association cases as informing, but not determining its conclusion. Hurley, 515 U.S. at 580.
77. Dale, 120 S. Ct. at 2454.
78. Id. at 2455.
79. Id.
80. Id. at 2458.
81. Id. at 2455.
82. 427 U.S. 160 (1976).
83. Id. at 176-77.
84. Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1137 (9th Cir. 2000), cert, denied, No. 00-499, 2001 WL 137665 (Feb. 20, 2001); Smith v. Fair Employment & Hous. Comm'n, 913 P.2d 909, 913 (Gal. 1996); Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 276-77 (Ala. 1994); McCready v. Hoffius, 593 N.W.2d 545, 545 (Mich. 1999).
85. Boy Scouts of Am. v. Dale, 120 S. Ct. 2446, 2459 (2000) (Stevens, J., dissenting).
86. Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) (holding that the club's reasons for its exclusion policy were not substantive enough); Rotary Int'l v. Rotary Club, 481 U.S. 537 (holding that the club had to admit women since it would not significantly burden the interests they presented); N.Y. State Club Ass'n v. City of New York, 487 U.S. 1 (1988) (holding a law forbidding discrimination could be applied to the clubs because it did not significantly infringe on their associational rights).
87. Dale, 120 S. Ct. at 2470 (Stevens, J., dissenting).
88. Id. (Stevens, J., dissenting).
89. Id. at 2473 (Stevens, J., dissenting).
90. Id. at 2476 (Stevens, J., dissenting).
91. Id. (Stevens, J., dissenting).
92. Id. at 2479 (Souter, L, dissenting).
93. Nan D. Hunter, Expressive Identity: Recuperating Dissent for Equality, 35 HARV. C.R.-C.L. L. REV. 1,4-17 (2000).
94. Id. at 17.
95. See Brief for Petitioners at 27, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699), available at 2000 WL 228616.
96. See Reply Brief for Petitioners at 3-4, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699), available at 2000 WL 432367.
97. Boy Scouts of Am. v. Dale, 120 S. Ct. 2446, 2453 (2000) (quoting Reply Brief for Petitioners at 5, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699)).
98. Bowers v. Hardwick, 478 U.S. 186 (1986).
99. Romer v. Evans, 517 U.S. 620 (1996).
100. Dale, 120 S. Ct. at 2452.
101. Mat2458.
102. Id. at 2454 (internal quotation and citation omitted).
103. Id. (emphasis added).
104. Id. at 2455.
105. Id. at 2472 (Stevens, J., dissenting).
106. See Brief for the Respondent at 33, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699), available at 2000 WL 340276.
107. See Kinga Borondy, Seminar Addresses Needs of Homosexual Teens, STAR-LEDGER (NEWARK), July 8,1990, at 11.
108. Dale, 120 S. Ct. at 2473-74 (Stevens, L, dissenting).
109. The reference to "remain[ing]" an activist, id. at 2454, appears to refer to statements Dale made when interviewed by the press concerning this litigation. The Court does not cite to any evidence of activism after college, but the Boy Scouts' briefs refer to statements made by Dale to the press after filing the complaint in his lawsuit Brief for Petitioners at 9-10, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699), available at 2000 WL 228616; Reply Brief for Petitioners at 9, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699), available at 2000 WL 432367. In a true catch-22, bringing the lawsuit seems to have weakened his case. In any event, the only factors properly to be considered are those upon which the Boy Scouts had based his expulsion in 1990.
110. Dale, 120 S. Ct. at 2478 (Stevens, J., dissenting).
111. Gayle Rubin, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality, in PLEASURE AND DANGER: EXPLORING FEMALE SEXUALITY 267, 278-79 (Carole S. Vance ed., 1984).
112. Petition for Writ of Certiorari at 18, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699).
113. Dale, 120 S. Ct. at 2465 (Stevens, J., dissenting).
114. 468 U.S. 609 (1984).
115. Id. at 640.
116. Id. at 628.
117. See, e.g., Andrew Jacobs, Victory Has Consequences of Its Own, N.Y. TIMES, June 29, 2000, at A28;
118. Darragh Johnson, Scouts' Use of Schools Under Attack, WASH. POST, Oct. 4, 2000, at Al;
119. Eric Lipton, Local Scouting Board, Calling Gay Ban 'Stupid,' Urges End to National Policy, N.Y. TIMES, Feb. 27, 2001, at B3;
120. Kate Zernike, Scouts'Successful Ban on Gays Is Followed by Loss in Support, N.Y. TIMES, Aug. 29, 2000, at Al.
121. Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 581 (1995).
122. N.Y. State Club Ass'n v. City of New York, 487 U.S. 1,13 (1988).
123. The record is considerably less than clear on this aspect of the Boy Scouts' policy. At oral argument, counsel for the Boy Scouts represented that the organization would exclude any adults, including heterosexuals, who communicated approval of homosexuality directly to troop members. See Transcript, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699) [hereinafter Transcript], available at 2000 U.S. TRANS LEXIS 44, at *11-*12, *19. However, counsel also acknowledged that he had "no information" on whether a heterosexual who had spoken approvingly of homosexuality in a public forum such as the press, which was the only instance of Dale's having so spoken, would be excluded on that basis. Id, at *13. Nor, apparently, has any heterosexual man ever been excluded on the ground of living with a woman prior to marriage. Id. at *7-*8. The dissent focused on the fact that the Boy Scouts permitted religious groups that did not condemn homosexuality to act as troop sponsors (and presumably convey that view to troop members in a religious context). Boy Scouts of Am. v. Dale, 120 S. Ct. 2446, 2462-63 (2000) (Stevens, J., dissenting). The majority pointedly stated that any difference in how heterosexuals expressing approval of homosexuality were treated was "irrelevant" to their holding. Id. at 2454. As Justice Ginsburg noted, the case was decided on cross-motions for summary judgment; there was never a trial as to the facts of how the Boy Scouts dealt with these situations. Transcript, supra, at *41.
124. See supra note 76 and accompanying text.
125. Boy Scouts of Am. v. Dale, 120 S. Ct. 2446, 2455-56 (2000).
126. There is a voluminous literature on the concept of civil society. For an excellent compilation of the legal ramifications of this discussion, see generally Symposium, Legal and Constitutional Implications of the Calls to Revive Civil Society, 75 CHI.-KENT L. REV. 289 (2000).
127. Alfred Avins, What Is A Place of "Public" Accommodation?, 52 MARQ. L. REV. 1,68 (1968).
128. 42 U.S.C. §2000a (1994).
129. 42 U.S.C. §12181 (1994).
130. 42 U.S.C. §2000a(b) (1994).
131. 42 U.S.C. §12181 (1994).
132. See Lisa Gabriella Lerman & Annette K. Sanderson, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N.Y.U. REV. L. & SOC. CHANGE 215,290-91 (1978).
133. See id.
134. See id.
135. ALASKA STAT. §18.80.210 (LEXIS 2000); ARK. CODE ANN. §16-123-107(a) (LEXIS Supp. 1999); GAL. ClV. CODE §51 (West 1982); COLO. REV. STAT. §24-34-601(2) (2000); CONN. GEN. STAT. ANN. §46a-64 (West Supp. 2000); DEL. CODE ANN. tit. 6, §4504(a) (Michie 1993); D.C. CODE ANN. §1-2519(a) (LEXIS 1999); FLA. STAT, ANN. §509.092 (West 1997); HAW. REV. STAT. §489-3 (1993); IDAHO CODE §67-5901(2) (Michie 1995); 775 ILL. COMP. STAT. ANN. §5/1-102 (West 1993); IND. CODE ANN. §22-9-2 (Michie 1997); IOWA CODE ANN. §216.7 (West 2000); KAN. STAT. ANN. §44-1009(0(1) (2000); KY. REV. STAT. ANN. §344.145 (Michie 1997); LA. REV. STAT. ANN. §51:2247 (West Supp. 2000); ME. REV. STAT. ANN. tit. 5, §4592 (West 1989); MD. ANN. CODE art. 49B, §5 (1998); MASS. GEN. LAWS ANN. ch. 272, §98 (West 2000); MICH. COMP. LAWS ANN. §37.2302 (West 1985); MlNN. STAT. §363.03 (2000); Mo. ANN. STAT. §213.065(1) (West 1996); MONT. CODE ANN. §49-2-304 (1999); NEB. REV. STAT. §20-134 (1997); N.H. REV. STAT. ANN. §354-A:17 (1995); N.J. STAT. ANN. §10:5-4 (West 1993); N.M. STAT. ANN. §28-1-7 (Michie Supp. 2000) (to be repealed July 1, 2006); N.Y. EXEC. LAW §296 (McKinney 1993); N.D. CENT. CODE §14-02.4-14 (1997); OHIO REV. CODE ANN. § 4112.02(G) (Anderson 1998); OKLA. STAT. ANN. tit. 25, §1402 (West 1987); OR. REV. STAT. §30.670 (1988); 43 PA. CONS. STAT. ANN. §953 (West 1991); R.I. GEN. LAWS §11-24-2 (1994); S.D. CODIFIED LAWS §20-13-23 (Michie 1995); TENN. CODE ANN. §4-21-501 (1998); UTAH CODE ANN. §13-7-3 (1999); VT. STAT. ANN. tit. 9, §4502 (1993); VA. CODE ANN. §2.1-716 (Michie 1995); WASH. REV. CODE ANN. §49.60.215 (West 1990); W. VA. CODE ANN. §5-11-9(6) (Michie 1999); Wis. STAT. ANN. §106.52 (West Supp. 2000); WYO. STAT. ANN. §6-9-101 (Michie 1999).
136. GAL. ClV. CODE §51 (West 1982) (Curran v. Mount Diablo Council of the Boy Scouts of America, 952 P.2d 218 (Cal. 1998), interpreted separate public accommodations law to bar sexual orientation discrimination); CONN. GEN. STAT. ANN. §46a-81c (West 1995); D.C. CODE ANN. §l-2519(a) (LEXIS 1999); HAW. REV. STAT. §368-1 (1993) (limiting the provision to entities receiving state financial assistance); MASS. GEN. LAWS ANN. ch. 272, §98 (West 2000); MlNN. STAT. §363.03 (2000); N.H. REV. STAT. ANN. §354-A:17 (LEXIS Supp. 2000); N.J. STAT. ANN. §10:5-4 (West 1993); R.I. GEN. LAWS §11-24-2 (2000); VT. STAT. ANN. tit. 9, §4502 (1993); Wis. STAT. ANN. §106.52 (West Supp. 2000).
137. ALASKA STAT. §18.80.210 (LEXIS 2000); COLO. REV. STAT. §24-34-601(2) (2000); CONN. GEN. STAT. ANN. §46a-64 (West Supp. 2000); DEL. CODE ANN. tit. 6, §4504(a) (Michie 1993); D.C. CODE ANN. §l-2519(a) (LEXIS 1999); FLA. STAT. ANN. §760.07 (West 1997); HAW. REV. STAT. §368-1 (1993) (limiting the provision to entities receiving state financial assistance); 775 ILL. COMP. STAT. §5/1-102 (2000); MD. ANN. CODE art. 49B, §5 (1998); MICH. COMP. LAWS ANN. §37.2302 (West 1985); MlNN. STAT. §363.03 (2000); MONT. CODE ANN. §49-2-304 (1999); N.H. REV. STAT. ANN. §354-A:17 (1995); N.J. STAT. ANN. §10:5-4 (West 1993); N.Y. EXEC. LAW §296 (McKinney 1993); N.D. CENT. CODE §14-02.4-14 (1997); OR. REV. STAT. §30.670 (1999); 43 PA. CONS. STAT. ANN. §953 (West Supp. 2000); TENN. CODE ANN. §68-i4-602(b) (1996) (limiting the provision to innkeepers); VT. STAT. ANN. tit. 9, §4502 (1993); VA. CODE ANN. §2.1-716 (Michie 1995).
138. 15 U.S.C. §1691(a) (West 2000). The Act states, "It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction-(1) on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract)." Id.
139. Aaron v. Ward, 96 N.E. 736, 737 (N.Y. 1911); Bowlin v. Lyon, 25 N.W. 766, 767-68 (Iowa 1885); see also Avins, supra note 114, at 7;
140. Earl M. Maltz, "Separate but Equal" and the Law of Common Carriers in the Era of the Fourteenth Amendment, 17 RUTGERS L.J. 553, 554 (1986);
141. Max W. Turner & Frank R. Kennedy, Exclusion, Ejection, and Segregation of Theater Patrons, 32 IOWA L. REV. 625, 626 (1947).
142. Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283, 1303-31,1345-48 (1996).
143. Id. at 1372-73,1390-1412.
144. Bell v. Maryland, 378 U.S. 226, 292-95 (1964) (Goldberg, J., concurring); ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION 231 (1988);
145. John P. Frank & Robert F. Munro, The Original Understanding of "Equal Protection of the Laws," 50 COLUM. L. REV. 131, 147-49 (1950);
146. Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1119-20 (1997);
147. Mark Tushnet, The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. DuBois, and Charles Hamilton Houston, 74 J. AM. HIST. 884, 886-90 (1987).
148. MILTON R. KONVITZ & THEODORE LESKES, A CENTURY OF CIVIL RIGHTS 94-98 (1961).
149. McCrea v. Marsh, 78 Mass. (12 Gray) 211, 212-13 (1858); accord Buenzle v. Newport Amusement Ass'n, 68 A. 721, 722 (R.I. 1908); Taylor v. Cohn, 84 P. 388, 389 (Or. 1906); Greenberg v. W. Turf Ass'n, 82 P. 684, 685 (Cal. 1905); Horney v. Nixon, 61 A. 1088, 1089 (Pa. 1905); Aaron, 96 N.B. at 737; Bowlin, 25 N.W. at 767-68.
150. 1865 Mass. Acts 277. In 1866, Massachusetts adopted a separate statute that in effect repealed the limitation by forbidding racial discrimination in "any ... public place of amusement." 1866 Mass. Acts 252. The two statutes were later replaced by a more comprehensive legislative scheme proscribing discrimination in public places. 1885 Mass. Acts 316. For a succinct summary of the Massachusetts code provisions, see Bryant v. Rich's Grill, 103 N.B. 925, 926-27 (Mass. 1914), and Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 571-72 (1995).
151. Act of March 1,1875,18 Stat. 335,336.
152. The Civil Rights Cases, 109 U.S. 3, 20-26 (1883). Freed from federal law, southern states enacted Jim Crow laws, affirmatively requiring segregation, a downward spiral that reached its doctrinal nadir when the Court upheld a mandatory segregation statute inPlessy v. Ferguson, 163 U.S. 537, 552 (1896).
153. The Civil Rights Cases, 109 U.S. at 22.
154. Id.
155. Id. at 24.
156. Id. at 39-40 (Harlan, J., dissenting).
157. Id. at 56 (Harlan, J., dissenting).
158. Id. at 59 (Harlan, J., dissenting).
159. 163 U.S. 537, 552 (1896).
160. Id. at 544.
161. See id. at 555 (Harlan, J., dissenting).
162. Id. at 556 (Harlan, J., dissenting).
163. T. Alexander Aleinikoff, Re-Reading Justice Harlan's Dissent in Plessy v. Ferguson: Freedom, Antiracism, and Citizenship, 1992 U. ILL. L. REV. 961, 976.
164. See Plessy, 163 U.S. at 559.
165. Turner & Kennedy, supra note 126, at 631 n.22.
166. See Patterson v. McLean Credit Union, 491 U.S. 164,188 (1989).
167. See generally Univ. of Ala. v. Garrett, 121 S. Ct. 955 (2001); United States v. Morrison, 529 U.S. 598 (2000). The exact boundaries of this limitation, however, remain in dispute. See generally Robert C. Post & Rêva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441 (2000).
168. See The Civil Rights Cases, 109 U.S. 3,18-19 (1883).
169. Civil Rights Act of 1964, Pub. L. No. 88-352, §201, 78 Stat. 241, 243.
170. See HUGH DAVIS GRAHAM, THE CIVIL RIGHTS ERA: ORIGINS AND DEVELOPMENT OF NATIONAL POLICY 1960-1972, at 90-93,127-33 (1990); DONALD G. MORGAN, CONGRESS AND THE CONSTITUTION: A STUDY OF RESPONSIBILITY 295, 297-98, 306-09 (1966); DENTON L. WATSON, LION IN THE LOBBY: CLARENCE MlTCHELL, JR.'S STRUGGLE FOR THE PASSAGE OF CIVIL RIGHTS LAWS 563-70 (1990).
171. See GRAHAM, supra note 152, at 128.
172. See WATSON, supra note 152, at 567. ADA counsel Joseph Rauh relied primarily on Shelley v. Kraemer, 334 U.S. 1, 20-21 (1948) (holding state court enforcement of restrictive covenants to deny access to property based on race violates equal protection), and Burton v. Wilmington Parking Authority, 365 U.S. 715, 726 (1961) (holding lessees of state property must comply with the proscriptions of the Fourteenth Amendment). See id. These legislative arguments were formulated in the summer of 1963. In June 1964, the Supreme Court announced its holding in Bell v. Maryland, deciding whether enforcement of a trespass law against lunch counter sit-in demonstrators violated the Fourteenth Amendment. 378 U.S. 226 (1964). The Court reversed the conviction on the ground that Maryland's subsequent adoption of a state public accommodations law had abolished the crime of which Bell, the petitioner, had been convicted. Id. at 238-42. By so ruling, the Court sidestepped the opportunity to address whether state action to enforce a property owner's exclusion based on race violated the Fourteenth Amendment. Chief Justice Warren, to-gether with Justices Douglas and Goldberg, concurred in the judgment but would have reached the merits and held that the Fourteenth Amendment extended "the traditional rights of access to places of public accommodation ... to Negroes." Id. at 316 (Goldberg, J., concurring). In a separate concurrence, Justice Douglas argued that "the right to be served in places of public accommodations is an incident of national citizenship." Id. at 250 (Douglas, J., concurring). Justices Black, Harlan, and White dissented, arguing instead that it was permissible for the state to enforce the wishes of a private property owner to exclude persons based on race. Id. at 318 (Black, J., dissenting). The Bell decision came too late to influence the text of the 1964 Civil Rights Act.
173. GRAHAM, supra note 152, at 91-92, 127-28; MORGAN, supra note 152, at 300-02, 308-09; WATSON, supra note 152, at 565-66.
174. See GRAHAM, supra note 152, at 92-93. More prosaically, but perhaps of equal importance, basing the bill on the Commerce Clause ensured that it would be sent to a Senate committee chaired by a bill supporter rather than to the Judiciary Committee chaired by Senator James Eastland of Mississippi. See id. at 81, 90.
175. See Civil Rights Act of 1964, Pub. L. No. 88-352, §201(b), 78 Stat. 241, 243.
176. Id. §§201(b)(1)-(4).
177. Id. §201(b)(2).
178. See Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 438-39 (1973); Daniel v. Paul, 395 U.S. 298, 307-08 (1969); United States v. Slidell Youth Football Ass'n, 387 F. Supp. 474, 482-83 (E.D. La. 1974); Miller v. Amusement Enters., Inc., 394 F.2d 342, 349 (5th Cir. 1968) (en bane); Lerman & Sanderson, supra note 119, at 222;
179. see also generally Donald T. Kramer, Annotation, Validity, Construction, and Application of §201 (3) and Related Provisions of the Civil Rights Act of 1964 (42 USC §2000a(b)(3)), Prohibiting Discrimination or Segregation in Motion-Picture Houses, Theaters, Concert Halls, Sports Arenas, Stadiums, or Other Places of Exhibition or Entertainment, 1 A.L.R. FED. 415 (1971 & Supp. 2000).
180. I do not mean to imply, however, that completely equal access has been achieved anywhere in the United States, even as to everyday retail sales. See generally Regina Austin, "A Nation of Thieves": Securing Black People's Right to Shop and to Sell in White America, 1994 UTAH L. REV. 147 (discussing African-Americans' attitudes toward commerce in modern America).
181. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 251 (1964).
182. The Heart of Atlanta Motel, Inc., Court, in a nod to those who defended the Act on other grounds, acknowledged that Congress was also legislating on a moral basis and declared that this component of legislative purpose did not invalidate the Act. Id. at 257.
183. Non-profits that were engaged in selling products or running recreational facilities were generally covered. See Civil Rights Act of 1964, Pub. L. No. 88-352, §§201(b)(D-(4), 78 Stat. 241, 243. Membership clubs, which were exempt from coverage, id. §201(e), became a frequent sticking point, see infra text accompanying notes 168-179.
184. S. REP. NO. 88-872, at 3 (1964). In addition, all such establishments had to be shown to have an impact on interstate commerce. Id. at 3-4.
185. See, e.g., Heart of Atlanta Motel, Inc., 379 U.S. at 252-57.
186. Lerman & Sanderson, supra note 119, at 264.
187. Roberts v. U.S. Jaycees, 468 U.S. 609, 626 (1984).
188. Id. at 625-26.
189. Id. at 625.
190. Id. at 626.
191. Id. at 632-35 (O'Connor, J., concurring).
192. Id. at 635-38 (O'Connor, J., concurring).
193. Id. at 640 (O'Connor, J., concurring).
194. Id. at 636 (O'Connor, J., concurring).
195. Id. at 639 (O'Connor, J., concurring).
196. Id. at 639 (O'Connor, J., concurring).
197. 487 U.S. 1,18 (1988).
198. Id. at 20 (O'Connor, J., concurring).
199. In addition to the Boston litigation, which ended with Hurley v. IrishAmerican Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995), there were years of litigation concerning the New York City St. Patrick's Day Parade. E.g., Irish Lesbian & Gay Org. v. Giuliani, 918 F. Supp. 732 (S.D.N.Y. 1996); Irish Lesbian & Gay Org. v. Bratton, 882 F. Supp. 315 (S.D.N.Y. 1995); Olivieri v. Ward, 801 F.2d 602 (2d Cir. 1986). In addition, other groups of lesbians and gay men have sought recognition in the celebrations of minority communities to which they belong. E.g., KEITH BOYKIN, ONE MORE RIVER TO CROSS: BLACK AND GAY IN AMERICA 176-78 (1996) (describing an African-American community parade in Chicago).
200. I take the phrase "discursive space" from Madhavi Sunder, Authorship and Autonomy as Rites of Exclusion: The Intellectual Propertization of Free Speech in Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 49 STAN. L. REV. 143,144 (1996).
201. 517 U.S. 620, 635-36 (1996).
202. Id. at 631.
203. 515 U.S. 557, 573 (1995).
204. Id. at 580.
205. Id.
206. 120 S. Ct. 2446, 2455-56 (2000).
207. See supra text accompanying notes 172-77.
208. Dale, 120 S. Ct. at 2456.
209. This bright line might, however, not be as bright as it first appears. Under its current interpretation, California's public accommodations law will reach a boys club, a country club, and a non-profit homeowners association, but not the Boy Scouts. In Curran v. Mount Diablo Council of the Boy Scouts of America, the California Supreme Court ruled that the statute did not cover the Boy Scouts because the Boy Scouts were primarily social and expressive with only a few auxiliary commercial or business functions. 952 P.2d 218, 238 (Cal. 1998). Treating the Boy Scouts, which proclaims itself "open to every boy," as not a public accommodation was limited to its membership decisions and policies; the court acknowledged that other organizational activities such as a retail store might produce a different result. Id. In Warfield v. Peninsula Golf & Country Club, the court found that a private country club with highly selective membership criteria was a public accommodation based on the fact that non-members could use club facilities on a daily fee basis, a source of club income that benefited members. 896 P.2d 776, 792-93 (Gal. 1995). Girls won the right to join a Boys Club on the ground that it was open to any boy for a nominal fee and operated a large recreational facility in Isbister v. Boys' Club of Santa Cruz, Inc., 707 P.2d 212, 217-18 (Gal. 1985) (en bane). These decisions are difficult to reconcile: To put it bluntly," one justice wrote, "the law is a mess." Curran, 952 P.2d at 260 (Brown, J., concurring). The decisions illustrate the complications that can arise from the interpenetration of market and non-market functions within a single non-profit entity. Warfield would suggest that if any function were classifiable as a public accommodation, then the entire entity would be covered, including the membership policies. The Curran court, on the other hand, treated the two functions as independent, implying that the organization would be classifiable as a public accommodation for some of its activities, but not for others.
210. JüRGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE: AN INQUIRY INTO A CATEGORY OF BOURGEOIS SOCIETY 2, 23, 30 (Thomas Burger trans., 1989) (1962);
211. Jürgen Habermas, Further Reflections on the Public Sphere, in HABERMAS AND THE PUBLIC SPHERE 421, 453 (Craig Calhoun ed., 1992).
212. JüRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 360-61 (William Rehg trans., 1996).
213. See generally Nancy Fraser, What's Critical about Critical Theory?, in FEMINISTS READ HABERMAS: GENDERING THE SUBJECT OF DISCOURSE l, 1-55 (Johanna Meehan ed., 1995).
214. Indeed, the Court once held that movies lacked First Amendment protection as expression because they were nothing more than business enterprises. Mut. Film Corp. v. Indus. Comm'n, 236 U.S. 230, 244-45 (1915).
215. Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 561-62 (1995).
216. Sunder, supra note 181, at 145.
217. Jürgen Habermas, The Public Sphere, in CONTEMPORARY POLITICAL PHILOSOPHY: AN ANTHOLOGY 105, 105 (Robert E. Goodin & Philip Pettit eds., 1997).
218. MARY P. RYAN, Civic WARS: DEMOCRACY AND PUBLIC LIFE IN THE AMERICAN CITY DURING THE NINETEENTH CENTURY 8 (1997).
219. I agree that his work could use a "more pragmatic temper regarding plurality and difference." William E. Forbath, Habermas's Constitution: A History, Guide, and Critique, 23 LAW & SOC. INQUIRY 969,1012 (1998).
220. Jane S. Schacter, Romer v. Evans and Democracy's Domain, 50 VAND. L. REV. 361, 399-403 (1997).
221. Id. at 389-98.
222. Id. at 399.
223. Id.
224. Id.
225. There is an argument that full and meaningful citizenship requires not merely opportunity for economic advancement, but an assurance of economic security. British sociologist T.H. Marshall developed a theory of "social citizenship" that stresses the indispensability of "social rights" such as a basic living standard, housing, and health care. See generally T.H. Marshall, Citizenship and Social Class, in CONTEMPORARY POLITICAL PHILOSOPHY: AN ANTHOLOGY 291, 291-319 (Robert E. Goodin & Philip Pettit eds., 1997). The theory provides an alternative frame for critiquing the shortcomings of formal, legalistic definitions of citizenship. See id.
226. 347 U.S. 483 (1954).
227. KONVITZ & LESKES, supra note 130, at 157.
228. The legislative histories of particular laws may vary, and subsequent amendments may have altered the text in ways that would affect whether this interpretive approach would be appropriate.
229. For a comprehensive political and historical analysis of the development of the concepts of citizenship and "civic identity" through 1912, see generally ROGERS M. SMITH, Civic IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997).
230. 83 U.S. (16 Wall.) 36, 77, 79-81 (1873).
231. Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863, 926 (1986) (The framersQ [of the Reconstruction Amendments'] understanding of citizenship involved an important distinction between fundamental and nonfundamental rights.... [Controversial rights [such as access to public accommodations] ... were nonfundamental rights of state citizenship and were within the jurisdiction of the states."). As to federal law, they were secured not directly by, but through, the equal protection clause of the Fourteenth Amendment. See id.
232. See supra text accompanying notes 197-99.
233. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 513-14 (J.P. Mayer ed., George Lawrence trans., 1969) (1835).
234. 347 U.S. 483 (1954).
235. 518 U.S. 515 (1996).
236. 517 U.S. 620 (1996).
237. See supra note 76 and accompanying text.