The Independent Institute

 
        

Oregon Judge Attacks Free Speech in Wake of Obergefell



In the wake of Obergefell, the outrageous U.S. Supreme Court decision finding that the traditional definition of marriage violates “due process,” Americans need to turn their attention to the dangers of overly broad state public accommodation laws. Christian business owners are especially burdened when individuals seeking to exercise a new “right” are deemed “suspect classes” and are thus entitled to heightened legal protection that appears to trump the First Amendment.

For example, Breitbart reports that Christian bakery owners in Oregon have just been hit with a gag order prohibiting them publishing any material indicating a refusal to bake cakes for same-sex weddings. Their speech is silenced contrary to the Bill of Rights. The bakers were also ordered to pay a gay couple $135,000 for mental anguish caused by the refusal to bake the cake. The Daily Caller has this article on the judge’s ruling.

Oregon law is a good example of the dangers to First-Amendment freedoms posed by state public accommodations laws.

Under Oregon’s statute “all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.”

The statute broadly defines a place of public accommodation as “Any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise.”

These statutes, rather than promoting freedom, serve to burden Christians and go far beyond the common law. Under the common law, the concept of public accommodation was circumscribed. The common law imposed a duty to serve all comers on businesses providing essential goods and services to travelers. This rule developed in light of circumstances where travel posed myriad dangers. A traveler denied access to an inn would be at the mercy of the elements, robbers, and hunger. Inns were havens, and usually the only available haven, where someone on a journey could obtain refreshment and shelter. Similarly, common carriers such as railroad companies usually enjoyed a monopoly on transportation services. If the carrier refused to sell a ticket to a traveler, then the wayfarer would be stranded and subject to many of the same indignities as a person denied access to the inn. Consequently, common carriers were cloaked with the public interest and were prohibited from discriminating.

The common law’s constraints on inn keepers and common carriers made sense. Travelers had nowhere else to turn for safety or passage. Hence, these few businesses cloaked with the public interest had to provide services to all. Early state and federal accommodation laws expanded the idea of the public’s interest, and specifically addressed the situation of the freedmen. In 1964, Title II of the federal Civil Rights Act did not stray far from its forerunners in the 1860s and 70s, and much like the old common law focused on businesses relating to interstate travel and restaurants.

But today under the law of many states, there is no limitation on what is a public accommodation. Every business finds itself in the position of the inn keeper of yesteryear. Moreover, the list of suspect classifications continues to expand. While the legislators were probably well meaning in enacting these broad statutes, the Oregon ruling and its statute should cause us to rethink the wisdom of labeling every business as a public accommodation. Actually, the First Amendment and common sense require that we do rethink these laws.

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