Even property law is sexy now. It is perhaps a measure of how thoroughly sexualized our culture has become that a subject that has caused countless first-year law students to nod off during 8:00 AM classes has been transformed into the latest front in the culture wars, a battleground between sexual expression and religious conscience.
Kansas, Arizona, Missouri, and Georgia have considered or are considering legislative measures designed to protect the liberty of property owners to obey conscience. Many responses to these proposals have been less than edifying: The return of Jim Crow! The abomination that causes segregation! A new religious right to discriminate! These inflated characterizations of the bills obscure a rather pedestrian fact, which many people on both sides of the issue have missed: The bills (mostly) restate existing property law. (Perhaps the commentators nodded off in property class.)
Initial reactions to the bills were notable for the confusion of the authors. Among those who expressed concern about the proposed laws, the loudest commentators have misunderstood the nature of the liberty being asserted; misunderstood the underlying dispute about the nature of marriage; misstated the religious and moral convictions at issue; and demonstrated blindness to, or ignorance of, the use of sexual preference to fuel a bourgeoning industry that employs non-discrimination laws to discriminate against religious observers.
Yet no source of confusion in this controversy is more unnecessary than the failure to understand the law. Except perhaps in one respect, the bills merely restate existing law governing public accommodations on private property. The common law, which has governed American life since settlers brought it here from England, has long maintained a moderate compromise between conflicting interests in private property that is held out for public use, such as a family business. The bills preserve that compromise.
The Right to Reasonable Exclusion
The most robust of all property rights is the right to exclude, which enables an owner to choose which friends, collaborators, and potential collaborators to include in the use of land and other resources. The right to exclude is derived from, and correlates with, the duty of self-exclusion. All of us have a duty not to trespass upon or take without permission things that do not belong to us. Except for extraordinary cases, such as strict necessity to save someone’s life, we are not free to disregard this duty. We simply owe it to all owners, whether or not we think we could put the property to better use than the owner.
The duty of self-exclusion, and the correlative right to exclude, insulate the owner’s reasoning from outside scrutiny. A person who encounters a house, a car, or a lawn, and who has no permission to enter, knows what he must do. He does not need to know anything about the owner’s plans for use of the house, car, or lawn. He does not even need to know the owner’s identity. He simply knows that he must not enter. Period.
Because the duty of self-exclusion is categorical in this way, the owner can use the resource for any reason, even for a reason that others might not value. Owners are not required to explain why they include some and exclude others. Private property enables them to pursue plans of action that outsiders might view as arbitrary or worthless. For this reason, the jurist William Blackstone called property (with some exaggeration) the owner’s “despotic dominion.” This dominion enables owners to include all those who might cooperate with the owner in advancing the owner’s plans and to exclude those who might frustrate or detract from those plans.
If a property owner opens his or her domain to the public as a bakery, for example, the owner does not thereby relinquish her right to exclude. Rather, the common law requires the landowner to have a reason for excluding. To be more precise, the owner must not exclude for no reason. (Because the party who believes that she has been unjustly excluded will often bear the burden of persuasion, an exclusion from a public accommodation on private property must not be unreasonable.)
Notice that this standard is open-ended. There is no conclusive, one-size-fits-all rule to govern exclusion from public accommodations. Judgment in these matters is left up to institutions and agents of private ordering—the property owner in the first instance; a jury in case of a dispute about the (un)reasonableness of the owner’s judgment.
Private Property and Non-Discrimination Laws
There is, of course, an important category of cases that have been removed from the judgment of private law institutions and placed into the realm of public law. To combat widespread racial discrimination, Congress and state legislatures promulgated rules in the latter half of the twentieth century that prohibit discrimination in public accommodations and large-scale residential leasing on the basis of race. (Other grounds for exclusion are also prohibited, especially discrimination on the basis of religion and ethnicity.)
In essence, these laws established a bright-line rule. Exclusion on the basis of race is always unreasonable, and therefore unlawful. These laws pick out motivations for exclusion that are never valid reasons. This wasn’t really a change in the law—it was never reasonable to discriminate on the basis of race—but rather a conclusive statement of what the law requires.
Which Reasons Count?
So, owners of public accommodations have remained free to exclude as long as they have a reason (or, as long as they do not exclude for no valid reason). But in recent months, judicial and administrative authorities in New Mexico and other states have interpreted their states’ non-discrimination laws to prohibit exclusion from public accommodations for reasons of the owners’ convictions about the nature and meaning of marriage, as Ryan Anderson and Leslie Ford point out here. The question is, therefore, whether a moral or religious conviction about marriage is a legitimate reason.
Many agents of public lawmaking have recently expressed the view that belief in marriage as the union of a man and a woman is irrational. So, it should go without saying that our public lawmakers cannot be trusted to answer the question even-handedly.
Fortunately, the common law does not entrust the judgment to public lawmakers. Indeed, except in those cases that are governed by express non-discrimination prohibitions, exclusion from public accommodations is not a question of public law, to be resolved once and for all with a single uniform rule. Instead, the law of public accommodations on private property resolves conflicts about exclusion on a standard of reasonableness, which is a question of fact. The law treats each case separately, on its own merits.
In our legal institutions, questions of fact are for juries to resolve. Juries are competent to make commonsense distinctions between reasonable and unreasonable exclusions from public accommodations on private property. Contrast two hypothetical cases. A couple engages in an innocent display of physical affection—kissing or holding hands—in a strip club. The proprietor asks them to leave. It would be reasonable for a jury to conclude that, in light of the owner’s plan of action for his property (displaying smut), his objection to the affection is not a real reason but rather a pretext.
Next imagine that the same couple engages in the same display in a daycare center operated by orthodox Jews. The owner asks them to leave. The owner reasons that its plans for its daycare center (the rearing and care of children within a distinct religious tradition) do not include explaining the concept of human sexuality to three-year-old children. Would it be irrational for a jury to affirm the owner’s judgment?
Unfortunately, some public lawmakers have arrogated to themselves the authority to decide these questions with uniform rules for everyone, despite the law. They have declared religious and moral convictions out-of-bounds. This arrogation of power forecloses the sort of commonsense distinctions that property law enables. Why is it unreasonable for a photographer to serve all people, including those who self-identify as homosexual, but to refuse to endorse by her conduct the claim that a same-sex commitment ceremony is, in fact, a wedding? If a jury or other competent fact-finder determines that the photographer has a sincere moral or religious conviction that marriage is the union of a man and a woman (and therefore does not include a same-sex couple, a polyamorous group, a polygamous family, and so on), then the photographer has a reason not to use her property (in this case, her camera and her business) to endorse what she believes to be a lie.
In one respect the bills under consideration do extend the law. They require any substantial burdens on the property owners’ religious exercise to survive strict judicial scrutiny. But many state and federal laws already extend this sort of prophylactic protection to religious exercise against overreach by state lawmakers. State Religious Freedom Restoration Acts and the federal Religious Land Use and Institutionalized Persons Act forbid state and local lawmakers from burdening religious exercise on private property without a compelling reason, and require any justifiable burden on religion to be the least restrictive possible. State lawmakers do well to track those rules.
State lawmakers should eagerly vindicate the principle that religious and moral reasons are legitimate reasons, and that property owners may act or refrain from action in obedience to conscience. If they cannot vindicate that principle, then not only religious liberty but also the very autonomy of private ordering is in jeopardy.