Marty Lederman writes: "1. Could a state prohibit private
discrimination "on a public sidewalk" generally? Well, no legislature
would ever do so, because we are nowhere near any sort of social
consensus that legislatures should start regulating the choices we make
in our everyday interactions, on the sidewalks or in our homes -- even
where they might be a consensus that some such choices are invidious.
"Law does not, in our legal culture, commonly deal with dinner
invitations and the choice of children's back-yard playmates." Charles
Black, 81 Harv. L. Rev. at 102. Thus, I don't think any of us will live
to see the answer to Marc's question (could a state prohibit private
persons from discriminating against others on a public sidewalk?) -- the
constitutional question will not arise because there is unlikely to be
any such statute."
I'm puzzled by Marty's confidence here, and his conclusion that
the hypothetical -- a prohibition on religion-based approaches in public
places -- is so outlandish as not to be worth confronting. America is a
nation of many jurisdictions, some of which have taken very broad
approaches to antidiscrimination law. Washington, D.C. bans
discrimination based on "matriculation"; Wisconsin and New York bars
discrimination based on conviction record; Cincinnati bans
discrimination based on Appalachian regional origin; Illinois and
Madison, Wisconsin bars discrimination against people unfavorably
discharged from military service. These might sound like weird hypos --
but some places that endorse broad antidiscrimination principles are
willing to restrict people's choices in all sorts of ways.
Likewise, most places in the country probably wouldn't bar the
Boy Scouts from discriminating based on sexual orientation; but the New
Jersey Supreme Court did. Most places probably wouldn't apply public
accommodation laws to parade organizers; but the Massachusetts Supreme
Judicial Court did. Parks are often considered places of public
accommodation, and Ross v. Chicago Park District found that the creation
of a hostile environment in a park was prohibited by the Chicago public
accommodation ordinance. (The hostile environment there was created by
park employees, but just as employers are liable for hostile
environments created by coworkers and patrons, so owners of places of
public accommodation may be liable for hostile environments created by
fellow patrons. Neldaughter v. Dickeyville Athletic Club, Wisc. Labor &
Indus Rev. Comm'n, Case No. 9132522 (May 24, 1994); see also D'Amico v.
Commodities Exchange, Inc., 1997 N.Y. App. Div. LEXIS 506.)
Now indeed many legislatures, courts, or human rights
commissions might be reluctant to ban discriminatory approaches by
speakers to people on public sidewalks -- but that's partly because such
bans would normally be thought of as unconstitutional. If Marty is
right that they are constitutional in K-12 schools, then I can certainly
see a Washington, D.C., Wisconsin, New York City, Boston, New Jersey or
some other jurisdiction realizing that such bans are a good way to go
after unpopular speakers that express allegedly bigoted -- or for that
matter annoyingly religious proselytizing -- views, and implementing
such a ban.
So Marty, can you please indulge us: Say that a legislature
bars people from approaching anyone in a public place based on the
person's race, religion, sex, national origin, age, disability,
citizenship status, conviction record, military membership, military
discharge status, political affiliation, matriculation, appearance, or
Appalachian regional origin and engaging in offensive conduct (including
speech) towards the person being approached. This prohibition is
applied to a Christian group that approaches people -- on a sidewalk or
in a park -- dressed as orthodox Jews to offer them proselytizing
pamphlets, to an atheist group that approaches people who are going to
church to offer them "religion is the opium of the masses" pamphlets, or
to Cantwell, who only approaches people who he thinks aren't already
Jehovah's Witnesses. Constitutional?
Eugene
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