Legal Commentary

Discrimination Against Nazis in Public Accommodations

By Eugene Volokh

A commenter suggested that a hypothetical involving a photographer who refuses to photograph a pro-Nazi ceremony was an ?absurd example,? apparently because of the absence of statutes that make it illegal to discriminate against Nazis.

Most jurisdictions don?t ban discrimination based on political affiliation, but some do. The D.C. antidiscrimination law to which I linked in an earlier post expressly bans discrimination based on political affiliation in public accommodations, with political affiliation defines as ?the state of belonging to or endorsing any political party.? It is thus illegal to discriminate against a person in public accommodation based on his he belonging to or endorsing the American Nazi Party. Perhaps one could argue that discriminating based on a person?s Nazi ideas isn?t the same as discriminating based on political affiliation, but I doubt that this would much impress a court that concluded (as the New Mexico court did) that discriminating in favor of legally recognized weddings (which under New Mexico law must be opposite-sex weddings) constitutes sexual orientation discrimination. Virgin Islands law does the same, as do the ordinances of Urbana-Champaign,

Seattle ordinances expressly bars discrimination in public accommodations based on ?political ideology.? Madison ordinances expressly bar discrimination based on ?political beliefs.? Other cities have similar bans.

The California public accommodation discrimination ban doesn?t expressly bar political affiliation discrimination, but it has been interpreted quite broadly, and has apparently led to an ACLU lawsuit against a restaurant that excluded a patron for wearing a swastika.

So bans on political affiliation discrimination in public accommodations aren?t common ? but they certainly exist, and it?s impossible to dismiss hypotheticals based on them as ?absurd.? And if the First Amendment is read as not protecting Elane Photography, it probably wouldn?t protect the speechwriter or press release writer who refuses to write for Nazis or Nazi events, either.

Full post as published by The Volokh Conspiracy on December 16, 2009 (boomark / email).