Re: Separation Story: In Answer to Kelly's Question

In his post Separation Story, Kelly asked me to recap a conversation we had on the changing deference granted between public accommodation and private association within American constitutional interpretation. The change for Kelly's specific example of hotel operators and their ability to turn away people based on personal beliefs or preferences came when Congress passed the Civil Rights Act of 1964, which expanded the common carrier rule to prohibit racial discrimination in access to public accommodations, such as buses and hotels. [1] The Supreme Court upheld the Civil Rights Act of 1964 as a valid exercise of congressional power under the commerce clause in the case Heart of Atlanta Motel v. United States (1964).

The Civil Rights Act and subsequent judicial rulings fundamentally altered the relationship betwene public accommodation and private association. The modern test for classifying an orgnaization as a private association is whether the organization in question exists solely for the benefit of its members, such as a church. See the Supreme Court decisions of New York State Club Association v. City of New York (1988) (where the Court decided that male-only clubs were a public accommodation) and The Boy Scouts of America v. Dale (2000) (where the Court decided that the Boy Scouts were not a public accommodation) for additional Supreme Court deliberation of this point.


[1] So You Want to Live in a Free Society (5). Thanks to Elizabeth Anderson at Left2Right for the tie of the Civil Rights Act's racial discrimination ban to the common carrier rule. Anderson's article has some insightful generalizations of this principle as well that could well be the paradigm to think of many of today's unresolved debates.