Law Office History and the Unrelenting Attack on Public Accommodations Law

In recent years, the cause of commercial liberty has found new life in litigation challenging public accommodations laws that prohibit discrimination by businesses on the basis of sexual orientation. Considerable scholarly attention has been paid to the use of the First Amendment as a liability shield in these cases, which have primarily been litigated on the terrain of free speech and religious liberty. But in amicus briefs filed in both cases that have reached the Supreme Court—303 Creative LLC v. Elenis and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—scholars who are skeptical of commercial regulation have also offered the more sweeping argument that the Court should “tie the legitimate goals of public-accommodation law directly to local scarcity.” On this view, only businesses with monopoly power can be subject to nondiscrimination rules, while non-monopoly businesses enjoy a constitutional right to refuse service as part of the “entrepreneurial liberty” guaranteed by the Fourteenth Amendment. This abstract has been taken from the author's introduction.