Title II of the Civil Rights Act is turning 50 this year. Yep, that makes it officially middle-aged. It is not a young law anymore, nor is an old law. Middle-aged seems apropos for this law.
The law is still being argued and debated about its application. For example, I have argued recently, police departments have an affirmative duty under Title II of the Civil rights Act and the Americans with Disabilities Act to make reasonable accommodations during investigations for those who they know ahead of time suffer from serious mental illnesses.
As with any anniversary, it is a good time to be retrospective. While I don’t agree with all the conclusions this article makes, I think it is a good timely critical analysis of a perhaps under-recognized piece of legislation in present day society.
On its fiftieth anniversary, Title II of the Civil Rights Act of 1964 enjoys widespread social support on all sides of the political spectrum. That support is fully deserved to the extent that the nondiscrimination in public accommodations provisions offset the monopoly power of common carriers and public utilities, or neutralize the abusive application of public power and private violence to sup-press the free entry of firms that would otherwise target minority customers in competitive markets.
The subsequent expansion of Title II’s nondiscrimination principle becomes much more difficult to justify, however, when applied to normal businesses when segregationist forces no longer hold sway. In particular, these principles are suspect when applied to membership organizations that care about their joint governance and common objectives. In these cases, the principles of freedom of association should constitutionally protect all groups, even those that do not fall under the uncertain rubric of expressive associations.
The application of the modern antidiscrimination rules for public accommodations to Christian groups who are opposed to gay marriage on moral principle represents a regrettable inversion of the original purpose of Title II, using state power to force these groups to the unpalatable choice of exiting the market or complying with these modern human rights laws that prohibit any discrimination on grounds of sexual orientation. These rules should be struck down even if the other antidiscrimination prohibitions represent a group of settled expectations that no one today wishes to overturn.
Richard A. Epstein, Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right, 66 Stan. L. Rev. 1241.