Public Accommodations Parlance

Anxieties linger in the interstices of public accommodations law. 303 Creative LLC v. Elenis is the latest in a string of First Amendment cases that call into question the common law duties underpinning public accommodations doctrine. Many commentators have speculated about the decision’s immediate implications. But criticism of the decision is incomplete. This Note takes 303 Creative as a welcome opportunity to reevaluate basic assumptions about how property law operates in relation to constitutional norms. Beginning with the provocative assertion that no legal axiom is infallible, this Note examines permutations of public accommodations and First Amendment law as rhetorical threads in a complex web of doctrinal analysis. Though 303 Creative is good law, it is still important to isolate and analyze these threads. This Note seeks to orient future discourse about how they are—or should be—woven together.

“If there is current life in doctrinalism, it is in doctrinalism as process and change, which entails some loosening of the [E]xclusivity [A]xiom and some recognition of the porosity of property categories.”

—Carol Rose¹Carol M. Rose, Canons of Property Talk, or, Blackstone’s Anxiety, 108 Yale L.J. 601, 618 (1998).

Introduction

Shortly after the Supreme Court released its decision in 303 Creative LLC v. Elenis,²303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023).
the owner of a hair salon in Traverse City, Michigan declared that she would not serve certain LGBTQ+ patrons. She wrote on Facebook: “If a human identifies as anything other than a man/woman please seek services at a local pet groomer. You are not welcome at this salon. Period.”³The author removed her post from Facebook. A local news station captured images of the post before it was taken down. Jodi Miesen & Jacob Johnson, Traverse City Hair Salon No Longer Servicing Certain LGBTQ Members, 9&10 News, (July 11, 2023 2:58 PM) https://www.9and10news.com/2023/07/11/traverse-city-hair-salon-no-longer-servicing-lgbtq-members [perma.cc/K7FM-T5YG].
While 303 Creative does not explicitly license this behavior,⁴303 Creative, 143 S. Ct. at 2318. The salon owner cannot invoke the First Amendment to seek exemptions from generally applicable laws. See Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) (enforcing a generally applicable public health regulation against a bookstore does not raise a cognizable First Amendment claim); Emp. Div. v. Smith, 494 U.S. 872 (1990) (concluding that neutral, generally applicable laws generally do not burden Free Exercise). But see Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022) (reformulating Smith by announcing a history and tradition test for Free Exercise claims).
both the case and the comment signify an alarming truth: Businesses may refuse to serve LGBTQ+ patrons.⁵Isaac Saidel-Goley & Joseph William Singer, Things Invisible to See: State Action & Private Property, 5 Tex. A&M L. Rev. 439, 441 (2018); see also infra Section II.F.

Property doctrine regards this situation as uncontroversial. This is because property owners enjoy a right to exclude anyone from using, accessing, or interfering with their property.⁶E.g., Restatement (Fourth) of Property § 1.2 (Am. L. Inst. 2021); see also 63C Am. Jur. 2d Property § 1 (2024); 73 C.J.S. Property §§ 1, 3 (2024) (citing cases).
Many consider the right to exclude to be “one of the most treasured” rights in a property owner’s proverbial bundle of sticks.⁷Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982). The bundle of sticks metaphor is Wesley Newcombe Hohfeld’s. Anna di Robilant, Property: A Bundle of Sticks or a Tree?, 66 Vand. L. Rev. 869, 871 (2013); see infra Section III.A.3.
Because it permeates nearly every discussion of these rights, property law depends on the stability of this rhetorically appealing account of exclusion—that property owners must have a clear-cut, absolute right to exclude. ⁸See Shyamkrishna Balganesh, Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions, 31 Harv. J.L. & Pub. Pol’y 593, 610–17 (2008) (identifying four formulations of the right to exclude); Rose, supra note 1, at 601–02 nn.2 & 4.
An oft-repeated corollary, framed as an exception to the rule, runs as follows: At common law, proprietors who open their businesses to the public are generally required to serve all those who seek their services.⁹Joseph William Singer, No Right to Exclude: Public Accommodations and Private

Property, 90 Nw. U. L. Rev. 1283, 1291 (1996).
The scope of this apparently bedrock assertion, though, is unclear. When business owners’ legitimate exclusionary interests conflict with the public’s interest in accessing goods and services, who wins, and why?

The apocryphal tale that property doctrine tells about exclusion fails to answer these questions. Tensions between rights of access and exclusion are not insolvable. But only exclusivity enjoys hallowed status.¹⁰Thomas W. Merrill infamously characterized “the right to exclude” as the “sine qua non” of property. Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 730 (1998); see also Balganesh, supra note 8, at 596 (“The idea of exclusion, in one form or the other, tends to inform almost any understanding of property . . . .”).
In Blackstonian propertyspeak: Owners may subjugate “the external things of the world” to their “sole and despotic dominion.”¹¹2 William Blackstone, Commentaries *2.
In plain English: Property owners exercise absolute command over their property. The matrix of entitlements that animates real property law requires that this is true.¹²See James Y. Stern, The Essential Structure of Property Law, 115 Mich. L. Rev. 1167, 1169–70 & nn.5–10 (2017). See generally Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972) (analyzing entitlements as a function of property, liability, and mixed rules); Balganesh, supra note 8, at 607–10 (explaining how the Calabresi-Melamed method of analysis illuminates the right to exclude).
Thus, the right to exclude is an indispensable cog in the machinery of property law.¹³See Rose, supra note 1, at 601–03 & n.4 (explaining disparate scholars’ reliance on Blackstone’s definition of exclusive dominion); see also Stern, supra note 12, at 1169–70 & nn.5–10 (surveying “competing versions of exclusivity” in contemporary property literature).

Or so the story goes. Carol Rose famously destabilized this narrative.¹⁴See discussion infra Section III.A; see also Rose, supra note 1, at 602.
Exclusive possession is a “trope,”¹⁵Rose, supra note 1, at 631. She argues that this trope has three functions. It “make[s] complex systems of rights intelligible by the Cartesian practice of division and separate analysis; . . . suggest[s] the unique motivating power of self-interest . . .; [and] can extend personal dignity and efficacy even to the powerless.” Id.
she contended—one of the canonical strategies that theorists use to understand property. Other scholars followed suit.¹⁶See Joseph William Singer, Entitlement: The Paradoxes of Property 6 (2000); see also Kevin Gray & Susan Francis Gray, Private Property and Public Propriety, in Property and the Constitution 11, 15 (Janet McLean ed., 1999).
Some have suggested radical revisions to the law; others have countenanced more modest adjustments.¹⁷See, e.g., Jessica A. Shoemaker, Fee Simple Failures: Rural Landscapes and Race, 119 Mich. L. Rev. 1695, 1746–56 (2021) (reforming the fee simple).
But however ahistorical,¹⁸Historians, too, resist expedient refashioning of common law doctrine. See, e.g., Brief of Legal Historians as Amici Curiae in Support of Respondents at 26, Cedar Point Nursery & Fowler Packing Co. v. Hassid, 141 S. Ct. 2063 (2021) (No. 20-107) (identifying multiple historical episodes by which “expansions of the right to exclude have . . . undermined human freedom”).
anxiety-provoking,¹⁹Rose, supra note 1, at 605.
or downright defective²⁰See Amnon Lehavi, The Construction of Property: Norms, Institutions, Challenges 49 (2013) (“To the extent that a theory is tested in its capability to explain the modes of operation of the object it seeks to portray . . . then reducing property to the right to exclude simply comes short.”).
Blackstone’s chronicle may be, it persists.²¹See, e.g., Cedar Point, 141 S. Ct. at 2072. For a fuller discussion of Cedar Point, see Cynthia Estlund, Showdown at Cedar Point: “Sole and Despotic Dominion” Gains Ground, 2021 Sup. Ct. Rev. 125, 136–44 (chronicling the resurgence of Blackstonian thought as a deregulatory force in modern takings jurisprudence).

The same canonical slippage appears in public accommodations law. Repeating a generally accepted rule is one feat; distilling its meaning vis-à-vis contemporary legal norms is another. The Supreme Court has been quick to claim that public accommodations law has a “venerable history” in common law tradition.²²E.g., Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 571 (1995).
What weight does this indeterminate assertion carry? The answer may depend on the claim. One prospect is particularly alarming: Judicial discretion can be dangerous when LGBTQ+ rights are on the line.²³See infra notes 117–123 and accompanying text.

Working against the Blackstonian grain, scholars following Rose’s path now resoundingly and regularly challenge his exclusivity aphorism.²⁴See supra notes 16–17.
Not so for public accommodations law, which has avoided a similarly intense scholarly spotlight. A sustained critique of the supposedly stable assumptions that underpin modern public accommodations doctrine does not yet exist. This Note does not attempt to account for the discrepancy in scholarly engagement. Rather, it argues that a fulsome critique of public accommodations doctrine is sorely needed in the wake of 303 Creative for two reasons.

First, for all the criticism that the decision has engendered, few commentators have interrogated the peculiar role that common law history played in the Court’s analysis. Contemporary invocations of common law doctrine remain a hodgepodge of handpicked, carefully curated narratives.²⁵See Anita S. Krishnakumar, The Common Law as Statutory Backdrop, 136 Harv. L. Rev. 608, 656 (2022) (analyzing the Court’s “ad hoc” invocation of common law doctrine to interpret statutes).
303 Creative is no different. On one hand, the Court declared that equal access to public accommodations is “vital . . . in realizing the civil rights of all Americans.”²⁶303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2314 (2023).
On the other, the Court eroded these rights. It did so of its own accord—neither lower court contemplated the public accommodations statute’s common law credentials.²⁷See infra note 203 and accompanying text for a fuller explanation of the lower courts’ analyses.
Absent a critical reflection on how history and tradition have animated similar legal disputes, criticism of the decision is incomplete.

Second, if it is true that property law is both “idea and institution”²⁸Laura S. Underkuffler-Freund, Property: A Special Right, 71 Notre Dame L. Rev. 1033, 1038 (1996).
—that it provides the constitutive rules fundamental to fashioning social relations—we must account for its operation with reference to contemporary constitutional norms.²⁹See generally Don Herzog, More Laws, Less Freedom, in A Little Book of Political Mistakes (2020), https://little-book-of-political-mistakes.pubpub.org/pub/l8t49l2w/release/1 [perma.cc/G9TP-E7CP].
In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., the Court conceded that the “ultimate point of forbidding acts of discrimination toward certain classes is to produce a society free of the corresponding biases.”³⁰Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 578 (1995).
Since then, the Court has located certain LGBTQ+ rights in constitutional jurisprudence.³¹Lawrence v. Texas, 539 U.S. 558 (2003), overruling Bowers v. Hardwick, 478 U.S. 186 (1986) (criminalizing same-sex intimacy); Obergefell v. Hodges, 576 U.S. 644 (2015) (legalizing same-sex marriage).
But whether and how queer people can navigate public spaces remains a point of contention³²Compare Mary L. Gray, Out in the Country: Youth, Media, and Queer Visibility in Rural America 88–89 (2009) (queer infrastructure in rural Kentucky), with Christina B. Hanhardt, Safe Space: Gay Neighborhood History and the Politics of Violence 10 (2013) (urban gay neighborhoods). For legal reference points, see, for example, Gifford v. McCarthy, 23 N.Y.S.3d 422, 426–29 (App. Div. 2016) (upholding a state administrative finding that operators of a wedding venue had illegally discriminated against a lesbian couple).
—even more so in a politically antagonistic environment. To demonstrate, state lawmakers introduced at least 510 anti-LGBTQ+ bills during the 2023 legislative session alone.³³This is more than double the number of anti-LGBTQ+ bills introduced during the 2022 legislative session. Annette Choi, Record Number of Anti-LGBTQ Bills Were Introduced in 2023, CNN (Jan. 22, 2024, 5:04 PM), https://www.cnn.com/politics/anti-lgbtq-plus-state-bill-rights-dg/index.html [perma.cc/ZU4U-B3JR]; Mapping Attacks on LGBTQ Rights in U.S. State Legislatures in 2023, ACLU (Dec. 21, 2023), https://www.aclu.org/legislative-attacks-on-lgbtq-rights-2023 [perma.cc/U554-VPBG]. For context, more anti-LGBTQ bills were introduced during 2023 than between 2018 and 2022. Ella Ceron, 2023 Is Already a Record Year for Anti-LGBTQ Bills in the US, Bloomberg (Mar. 8, 2023, 2:53 PM), https://www.bloomberg.com/news/articles/2023-03-08/2023-is-already-a-record-year-for-anti-lgbtq-bills-in-the-us [perma.cc/LM6V-4TQF]. See Scott Skinner-Thompson, Trans Animus, 65 B.C. L. Rev. 965 (2024) for an exhaustive analysis of this legislation.
What, then, does 303 Creative portend for constitutional principles that safeguard LGBTQ+ rights?

This unexamined question is worth answering. The way we explicate the law—how we disentangle its idiosyncrasies and articulate its cardinal functions—matters.³⁴Why bother inquiring at all? This is the fundamental question posed by Sara Ahmed in What’s the Use?: On the Uses of Use (2019). The book’s Introduction and Chapter Three (discussing, inter alia, Virginia Woolf and Jeremy Bentham) were particularly informative for this Note.
Rose’s critique of Blackstone is still imperative despite the esteem that the Commentaries on the Laws of England enjoys. Questioning dogma is a daunting but worthwhile task. Up against the leviathan of Blackstone’s Commentaries, Rose demands more than mere intellectual inquest. “[I]f there is current life in doctrinalism,” she writes, “it is in doctrinalism as process and change, which entails some loosening of the [E]xclusivity [A]xiom and some recognition of the porosity of property categories.”³⁵Rose, supra note 1, at 618 (emphasis added).
It is time, now, for scholars to untether public accommodations law from its presumably stable hinges.

This Note does just that. Heeding Carol Rose’s call to scrutinize seemingly incontrovertible doctrinal assumptions,³⁶Id.
this Note recasts public accommodations law as a dynamic assemblage of social relations, fraught with anxiety and riddled with unresolved tensions. It is only through fastidious analysis of those aspects of public accommodations law we take for granted that we can respond to issues involving contemporary constitutional norms. Put differently: We should deconstruct the doctrine to scrutinize its constituent parts—even and especially the unstable parts—before assembling the whole anew.

History is the natural starting point for this analysis. In Part I, I chart the lineage of contemporary public accommodations statutes back to their early modern English predecessors. I return to Rose in Part II. After briefly summarizing her arguments and terminology, I explain how her insights translate to public accommodations law. I then suggest my own terms modeled after her clarion call for intellectual skepticism of property law’s underpinnings. In Part III, I demonstrate how these principles animate contemporary legal disputes. Specifically, I show how this framework materializes in First Amendment jurisprudence as a series of rhetorical moves. I end with a critique of 303 Creative. The decision calls into question the antidiscriminatory impulses of public accommodations law, leaving contemporary statutes in limbo, all while telling a dubious tale about the utility of public accommodations law.

I. Historical and Legal Background

Understanding the breadth of common law duties is crucial to make sense of their circumscription. In this Part, I trace the evolution of public accommodations law from its origins to the present day. First, I provide a high-level summary of public accommodations doctrine. I then explain how common law duties materialized in English jurisprudence. Moving across the Atlantic, I illustrate how state and federal statutes later incorporated these duties. I briefly map key doctrinal inflection points onto important developments in late nineteenth-century America. I show how, after Reconstruction, the movement toward codifying common law principles gained traction in the mid-twentieth century. Finally, after describing congressional power to enact federal antidiscrimination statutes, I describe the current state of the law.

A. Explanation: Overview of Public Accommodations Law

The right to exclude may nominally be the most important stick in the property owner’s bundle, but it is not absolute.³⁷See Gregory S. Alexander, The Right to Exclude, in Property and Human Flourishing 169, 169 (2018); see also Marsh v. Alabama, 326 U.S. 501, 506 (1946).
The scope of this right depends in part on its holder. It also depends on the characteristics of the property being held. While certain kinds of property are public, private areas that open themselves up to the public are not ipso facto public property. Public accommodations law elucidates the contours of this distinction. Broadly speaking, the law imposes two duties on certain public-facing establishments³⁸Unless exempted by statute, these duties apply to privately-owned spaces that serve and are generally open to the public. See, e.g., 42 U. S. C. § 2000a(b) (covering hotels, restaurants, gas stations, movie theaters, concert halls, stadiums, arenas); 42 U.S.C. § 12187 (exempting private clubs, religious organizations, and places of worship).
: a duty to serve any person and a duty to charge reasonable rates.³⁹For the purposes of this Note, I focus solely on the former. These duties are often justified because public accommodations are effective monopolies. For a foundational work in this regard, see Bruce Wyman, The Law of the Public Callings as a Solution of the Trust Problem, 17 Harv. L. Rev. 217, 232–40 (1904). But see Charles K. Burdick, The Origin of the Peculiar Duties of Public Service Companies: Part III, 11 Colum. L. Rev. 743, 746–48 (1911); Biden v. Knight First Amend. Inst. at Columbia Univ., 141 S. Ct. 1220, 1223 (2021) (Thomas, J., concurring) (“[G]overnments have limited a company’s right to exclude when that company is a public accommodation . . . . regardless of the company’s market power.” (citations omitted)).
In essence, public accommodations doctrine instrumentalizes a capacious principle: All citizens are entitled to full and equal enjoyment of goods and services.

First Amendment jurisprudence affirms the virtues of this principle.⁴⁰See infra Part III.
States have a compelling interest “of the highest order” in ensuring full and equal access to the market.⁴¹Roberts v. U.S. Jaycees, 468 U.S. 609, 624, 628 (1984) (citing Runyon v. McCrary, 427 U.S. 160, 175–76 (1976)).
Consequently, they must “guarantee all citizens access to places of public accommodation.”⁴²Bell v. Maryland, 378 U.S. 226, 296 (1964) (Goldberg, J., concurring) (emphasis added).
States enjoy broad authority to “create rights of public access on behalf of its citizens.”⁴³Jaycees, 468 U.S. at 625.
And they have. Since codifying the common law rule, states have enacted and amended public accommodations laws to incorporate developing social norms.⁴⁴See infra Section II.F.
Subject to constitutional limitations,⁴⁵E.g., Shelley v. Kraemer, 334 U.S. 1, 22 (1948).
states may “protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public.”⁴⁶Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1721 (2018).

B. Emergence: Common Law Duties

The duty to serve all customers arises from the “good old [English] common law.”⁴⁷Bell, 378 U.S. at 296. See generally 1 Thompson on Real Property § 7.02 (David A. Thomas ed., 2023) (describing each state’s reception of English common law).
Traditionally, this obligation did not bind all businesses. The “general requirement to serve all comers”⁴⁸Biden v. Knight First Amend. Inst. at Columbia Univ., 141 S. Ct. 1220, 1222 (2021) (Thomas, J., concurring).
applied only to a subset of vendors: so-called common carriers.⁴⁹A common carrier is a person or entity who “holds [themselves] out to carry goods for everyone as a business.” Ingate v. Christie (1850) 175 Eng. Rep. 463, 463 (N.P.). Scholars have estimated that the phrase “common carrier” first appeared in the sixteenth century. Joseph H. Beale, Jr., The Carrier’s Liability: Its History, 11 Harv. L. Rev. 158, 164 (1897).
Service providers—victuallers,⁵⁰A victualler is “the keeper of a restaurant or tavern.” Victualler, Merriam-Webster, https://www.merriam-webster.com/dictionary/victualler [perma.cc/5HSA-RQ6S].
farriers,⁵¹A farrier is “a person who shoes horses.” Farrier, Merriam-Webster, https://www.merriam-webster.com/dictionary/farrier [perma.cc/8YJL-HAFH].
and tailors, to name a few—conventionally fell within its purview.⁵²Charles K. Burdick, The Origin of the Particular Duties of Public Service Companies: Part I, 11 Colum. L. Rev. 514, 522 (1911).

Covered businesses could be liable for arbitrarily withholding service. Imagine journeying through the English countryside in 1835. If your horse were to lose a shoe, a smith⁵³A smith is “a worker in metals.” Smith, Merriam-Webster, https://www.merriam-webster.com/dictionary/smith [perma.cc/7GKR-JPRY].
could not refuse to reshoe it.⁵⁴See Lane v. Cotton (1701) 88 Eng. Rep. 1458, 1464–65 (KB) (Holt, C.J., dissenting); see also Burdick, supra note 52, at 529 (citing 2 Matthew Bacon, A New Abridgement of the Law, 152).
Say you were to seek refuge in a nearby inn. It is midnight on a Sunday; the innkeeper and his family would likely be sound asleep. Inconvenient as your visit may be, the innkeeper legally could not turn you away.⁵⁵See Rex v. Ivens (1835) 173 Eng. Rep. 94 (N.P.); see also Singer, supra note 9, at 1304 (citing White’s Case, 2 Dyer 343 (1586), which held that innkeepers cannot unreasonably refuse to house travelers if the inn is not full); Lane, 88 Eng. Rep. at 1464–65 (stating that an “action will lie” against an innkeeper who refuses to house a guest when his inn is not full).
When this exact situation occurred, an English court held the reticent innkeeper liable. “The innkeeper,” it reasoned, “is not to select his guests.”⁵⁶Ivens, 173 Eng. Rep. at 96.

Common law courts had recognized the duties imposed on public accommodations for centuries.⁵⁷The first action against an innkeeper most likely occurred in the fifteenth century. See Beale, supra note 49, at 164.
The 1701 case Lane v. Cotton epitomizes English courts’ posture.⁵⁸Lane, 88 Eng. Rep. at 1458 (holding a postmaster not liable for miscarriage of a package).
This case is most famous for its dissent. Analogizing a postmaster to a common carrier, dissenting Chief Justice Sir John Holt reckoned that “where-ever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office.”⁵⁹Id. at 1464 (Holt, C.J., dissenting). Eo ipso means “by that fact alone.” Eo ipso, Merriam-Webster, https://www.merriam-webster.com/dictionary/eo%20ipso [perma.cc/9MAZ-5FX7].
Holt, thus, cast the duty to serve broadly. In his mind, engaging in “trade which is for the public good”—here, delivering mail—triggers common carriers’ duty to serve.⁶⁰Singer, supra note 9, at 1306.
Only a few years later, Holt’s view became the law.⁶¹See id. (citing Gisbourn v. Hurst (1710) 91 Eng. Rep. 220 (KB)).
Blackstone, too, came around.⁶²A common carrier must “be answerable for the goods he carries.” 3 Blackstone, supra note 11, at *164. For a fuller discussion of Blackstone’s position, see Singer, supra note 9, at 1309.

Holt’s dissent has become a metonym for the common law duty to serve. American jurists began citing Holt at the end of the nineteenth century.⁶³See United States v. Thomas, 82 U.S. 337, 344 (1872).
Excerpts of his dissent still appear regularly in cases involving public accommodations issues.⁶⁴E.g., Lombard v. Louisiana, 373 U.S. 267, 277 (1963) (Douglas, J., concurring); Reitman v. Mulkey, 387 U.S. 369, 386 (1967) (Douglas, J., concurring); Bell v. Maryland, 378 U.S. 226, 297 n.17 (1964) (Goldberg, J., concurring); Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 571 (1995); 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2325–26 (2023) (Sotomayor, J., dissenting).
Short of explicit citation, echoes of his reasoning can be heard in cases from the Civil Rights movement⁶⁵See Marsh v. Alabama, 326 U.S. 501, 506 (1946) (“The more an owner, for [their] advantage, opens up [their] property for use by the public in general, the more do [their] rights become circumscribed by the statutory and constitutional rights of those who use it.”).
and more modern disputes involving queer rights.⁶⁶See Hurley, 515 U.S. at 578.

C. Expansion: Reconstruction

The earliest American public accommodations statutes proliferated during the late nineteenth century.⁶⁷See Singer, supra note 9, at 1374–75.
Both state and federal statutes targeted racial discrimination in places of public amusement.⁶⁸Before the Civil War, state common law “required all businesses that held themselves out as open to the public to serve anyone who sought service.” Saidel-Goley & Singer, supra note 5, at 451.
Massachusetts was the first state to enact such a law.⁶⁹Hurley, 515 U.S. at 571.
In 1865, the Massachusetts legislature passed a bill that criminalized “distinction, discrimination, or restriction on account of color or race” in “any licensed inn, in any public place of amusement, public conveyance or public meeting.”⁷⁰Act of May 16, 1865, ch. 277, 1865 Mass. Acts 650; see also Singer, supra note 9, at 1357–58.
Over the next three decades, the legislature amended the statute to include theaters, skating rinks, and barber shops.⁷¹Francis H. Fox, Discrimination and Antidiscrimination in Massachusetts Law, 44 B.U. L. Rev. 30, 59 (1964).
Massachusetts made the “entire statute . . . more comprehensive and forceful”—in part by adding a civil remedy—in 1895.⁷²Id.
With this development, Massachusetts consumers of all races could vindicate their right to access places of public accommodation.

Other states followed suit.⁷³E.g., Ferguson v. Gies, 46 N.W. 718, 720 (Mich. 1890).
For example, in 1888, New York’s highest state court upheld an analogous public accommodations statute against claims that it infringed on personal property rights.⁷⁴People v. King, 18 N.E. 245, 248 (N.Y. 1888).
Pursuant to the statute, privately owned entertainment venues could not exclude “any citizen by reason of race, color or previous condition of servitude.”⁷⁵Id. at 422.
Covered establishments were functionally no different from common carriers. Because the venues were subject to a comprehensive licensing regime to which the state could attach reasonable conditions, the statute did not infringe on property owners’ liberty by mandating equal access.⁷⁶Id. at 427.

Southern Reconstruction administrations passed similar bills.⁷⁷E.g., Decuir v. Benson, 27 La. Ann. 1, 5 (1875).
In 1873, the Supreme Court of Mississippi upheld a statute guaranteeing all citizens “equal and impartial enjoyment of any accommodation . . . furnished by common carriers.”⁷⁸Donnell v. State, 48 Miss. 661, 680–81 (1873).
Demonstrating the breadth of the common-carrier designation, the Court likened private entertainment venues to innkeepers. “[A]ll who applied for admission to the public shows and amusements”—like travelers seeking refuge in an inn—”were entitled to admission.”⁷⁹Id.
Parroting Chief Justice Holt, the Court maintained that common law rules “have a special application” to places of public amusement that “sustain a quasi public relation to the community.”⁸⁰Id.

Similar federal progress paralleled these state efforts.⁸¹See Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (1866); Enforcement Act of 1870, ch. 114, 16 Stat. 140 (1870); Act of Feb. 28, 1871, ch. 99, 16 Stat. 433 (1871); Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13 (1871); see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 665–95 (1978) (construing § 1 of the Ku Klux Klan Act, codified as amended at 42 U.S.C. § 1983, to create a right of action against municipalities and local government bodies); Baxter v. Bracey, 140 S. Ct. 1862 (2020) (Thomas, J., dissenting from denial of certiorari) (recounting the broad strokes of Reconstruction).
On the heels of passing the Thirteenth Amendment, Congress endorsed the nation’s first federal civil rights statute.⁸² . Congress passed the Amendment on January 31, 1865. Robert L. Kohl, The Civil Rights Act of 1866, Its Hour Come Round at Last: Jones v. Alfred H. Mayer Co., 55 Va. L. Rev. 272, 273 & n.10 (1969). It was ratified in December of 1865. Id. at 276.
Introduced by Senator Lyman Trumbull in January 1866, the Bill provided that citizens of “every race and color” possess certain inalienable rights.⁸³Civil Rights Act of 1866, 14 Stat. at 27.
It also imposed penalties for liberty deprivations⁸⁴Id. §§ 2, 6.
and vested federal courts with jurisdiction to hear these claims.⁸⁵Id. §§ 3, 10.

Just two years later, the Fourteenth Amendment became law. Echoes of the 1866 Bill can be heard most clearly in Section 1.⁸⁶Section 1 of the Fourteenth Amendment provides that:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV, § 1; see also Kohl, supra note 82, at 272 (describing the ongoing relevance of the 1866 Bill).
Contemporaries understood the egalitarian language of the Fourteenth Amendment to provide a “legal basis for securing equal access to public accommodations.”⁸⁷A.K. Sandoval-Strausz, Travelers, Strangers, and Jim Crow: Law, Public Accommodations, and Civil Rights in America, 23 L. & Hist. Rev. 53, 58 (2005).
At the time of ratification, “it still was believed that the common law provided protection against private interference with individual rights.”⁸⁸Erwin Chemerinsky, Rethinking State Action, 80 Nw. U. L. Rev. 503, 515 (1985).
Whereas the common law furnished remedies for private rights violations, the Fourteenth Amendment constrained state governments from infringing on individual liberties.⁸⁹Id. at 515 & n.54.

Gaining momentum from the ratification of the Fifteenth Amendment, Congress shortly thereafter passed the Civil Rights Bill of 1875. That Congress was willing and able to pass landmark civil rights legislation—despite outright hostility from the other two branches⁹⁰The thirty-ninth Congress overrode President Andrew Johnson’s veto by a margin of 33-15 in the Senate and 122-41 in the House of Representatives. U.S. Senate, Vetoes, 1789 to Present: Andrew Johnson § 61, https://www.senate.gov/legislative/vetoes/presidents/JohnsonA.pdf [perma.cc/BF88-VL8L]. The Supreme Court evinced its hostility in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (enslaved party), superseded by constitutional amendment, U.S. Const. amend. XIV.
—initially heralded progress for federal codification of civil rights.⁹¹See generally George A. Rutherglen, Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866 (2013); Act of Mar. 1, 1875, ch. 114, § 1, 18 Stat. 336 (1875).

D. Erosion: The Civil Rights Cases and the State Action Doctrine

The political and judicial backlash was swift.⁹²Innumerable scholars have illustrated this backlash with far richer detail. For a paradigmatic history of the political machinery animating this change, see C. Vann Woodward, Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction (Oxford Univ. Press 1991) (1951). Eric Foner’s most recent book, characterizes this period of history as one marked by failed promises of equality. Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (2019).
Overruling the Act in the Civil Rights Cases, the Court held that the Fourteenth Amendment’s Equal Protection Clause does not empower Congress to outlaw private racial discrimination.⁹³The Civil Rights Cases, 109 U.S. 3, 25 (1883); see also Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323, 1336–39 (1952) (explaining the disastrous consequences of the Civil Rights Cases in more depth).
Assailing the majority’s characterization of the Equal Protection Clause as “plainly repugnant” to its purpose, dissenting Justice John Marshall Harlan foresaw the disastrous consequences of this precedent.⁹⁴The Civil Rights Cases, 109 U.S. at 26, 54 (Harlan, J., dissenting).

The Court’s holding in the Civil Rights Cases catalyzed the subsequent erosion of civil rights. First, the Civil Rights Cases created the legal space for Jim Crow to thrive. While the Court nominally recognized the common law duty to serve,⁹⁵Id. at 25 (majority opinion).
it functionally enshrined legal white supremacy by abdicating the duties imposed by the Fourteenth Amendment. The erosion of federal nondiscrimination laws was explicitly targeted at oppressing Black Americans.⁹⁶See generally Singer, supra note 9, at 1283. For an exegesis of Jim Crow-era racial violence, see generally Margaret A. Burnham, By Hands Now Known: Jim Crow’s Legal Executioners (2022).
Second, the Court announced the state action doctrine. At its simplest, the doctrine shields private instances of discrimination from constitutional scrutiny, limiting the scope of the Constitution to protect against only discriminatory government conduct.⁹⁷The Civil Rights Cases, 109 U.S. at 11; see also Chemerinsky, supra note 88, at 507–19 (chronicling the origins of the state action doctrine).
The Court reasoned that “[i]ndividual invasion of individual rights is not the subject-matter” of the Fourteenth Amendment⁹⁸The Civil Rights Cases, 109 U.S. at 11.
—only “[s]tate action of a particular character . . . is prohibited.”⁹⁹Id.

The doctrine is flawed. Many scholars have pointed out how confusing it is.¹⁰⁰Christopher W. Schmidt, On Doctrinal Confusion: The Case of the State Action Doctrine, 2016 BYU L. Rev. 575, 576–77 & nn.3–5 (2016) (“The state action doctrine has been labeled ‘a murky borderland of law,’ ‘a self-contradictory invention,’ ‘a continuing doctrinal anachronism.’ ” (footnotes omitted)).
Some challenge its underlying assumptions and historical veracity.¹⁰¹E.g., Kenneth W. Mack, Civil Disobedience, State Action, and Lawmaking Outside the Courts: Robert Bell’s Encounter with American Law, 39 J. Sup. Ct. Hist. 347, 349 (2014) (arguing that the doctrine was incoherent from the very beginning).
Others advocate for its demise.¹⁰²See Chemerinsky, supra note 88, at 550–56. Contra Lillian BeVier & John Harrison, The State Action Principle and Its Critics, 96 Va. L. Rev. 1767 (2010) (defending the doctrine).
Even sitting Supreme Court justices have decried its incongruity.¹⁰³Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632 (1991) (O’Connor, J., dissenting); Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) (citing Kotch v. Bd. of River Port Pilot Comm’rs, 330 U.S. 552, 556 (1947)).
And yet, the state action doctrine persists. Paired with the Supreme Court’s exceedingly narrow interpretation of the Reconstruction Amendments, the doctrine shielded systemic racism from legal scrutiny through the 1950s.¹⁰⁴“ ‘Separate but equal’ and ‘no state action’—these fraternal twins have been the Medusan caryatids upholding racial injustice.” Charles Black, Jr., Foreword to “State Action,” Equal Protection, and California’s Proposition 14, 81 Harv. L. Rev. 69, 70 (1967).

E. Enhancement: Federal Statutory Protections

Though the Court has meaningfully restricted Congress’s ability to enforce the Reconstruction Amendments, federal statutes now ensure that a broader class of people can access places of public accommodations. Nearly a century passed before the Court upheld a federal nondiscrimination statute.¹⁰⁵Scholars suggest various reasons for this delay. See, e.g., Elizabeth Sepper, Free Speech and the “Unique Evils” of Public Accommodations Discrimination, 2020 U. Chi. Legal F. 273, 276–79 (2020) (summarizing Lizabeth Cohen and Thomas Sugure’s seminal works on this period of history).
Beginning in the 1960s, Congress embraced its expansive authority to recognize and protect constitutional rights pursuant to its enforcement powers under Section 5 of the Fourteenth Amendment—even within the prohibitory confines of the state action doctrine.¹⁰⁶See U.S. Const. amend. XIV, § 5; Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (Thirteenth Amendment); Shelley v. Kraemer, 334 U.S. 1 (1948) (Fourteenth Amendment); South Carolina v. Katzenbach, 383 U.S. 301 (1966) (Fifteenth Amendment).

In City of Boerne v. Flores, however, the Court limited Congress’s Section 5 power to remedying concrete constitutional violations.¹⁰⁷City of Boerne v. Flores, 521 U.S. 507, 519 (1997); see also Jennifer Mason McAward, The Scope of Congress’s Thirteenth Amendment Enforcement Powers After City of Boerne v. Flores, 88 Wash. U. L. Rev. 77 (2010).
Congress exceeds its mandate, the Court held, when it tries to rewrite the substance of the Fourteenth Amendment.¹⁰⁸Boerne, 521 U.S. at 508.
Preventative rules may constitute remedial action.¹⁰⁹Id. at 530.
But any prophylactic means must be “congruen[t] and proportional[]” to remedying the actual constitutional injury.¹¹⁰Id. at 520.

Boerne notwithstanding, the inviolability of property cedes, for now, to limited civil rights interests embodied in two federal statutes: Title II of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Together, these statutes categorically prohibit places of public accommodation from discriminating against patrons based on race, color, religion, national origin, or disability.¹¹¹42 U.S.C. §§ 2000a, 12181 (2023). The list of public accommodations covered by the Americans with Disabilities Act (ADA) is far longer than entities named in Title II. Public accommodations covered by the ADA include: bakeries, grocery stores, banks, barber shops, gas stations, pharmacies, medical offices, museums, libraries, zoos, private schools, homeless shelters, and gyms. Id. at § 12181(2)(7).

F. Existing Legal Landscape

Today, every American is nominally entitled to full and equal enjoyment of goods and services provided by places of public accommodation. At the same time, federal law does not bar the owner of a hair salon, like the one in Traverse City, from refusing to cut a transgender patron’s hair because they are transgender.¹¹²See supra Part I.
In other areas of law, such as employment, private actors cannot discriminate based on gender identity or sexual orientation.¹¹³See, e.g., Bostock v. Clayton Cnty., 590 U.S. 644 (2020) (holding that discrimination based on sexual orientation or gender identity in employment settings is unlawful sex discrimination under Title VII).
But public accommodations law is not so generous. That no federal law protects LGBTQ+ patrons from discrimination in public accommodations is largely attributable to the limitations imposed by the state action doctrine. In the absence of applicable federal law, state statutes delineate the contours of queer patrons’ rights to access places of public accommodations.

States provide a patchwork of protections. Only about half of LGBTQ+ Americans live in states with public accommodations laws that protect them.¹¹⁴Nondiscrimination Laws: Public Accommodations, MAP (Aug. 8, 2024), https://www.lgbtmap.org/equality-maps/non_discrimination_laws [perma.cc/YU54-ZETJ].
The remainder of queer Americans—approximately ten million people¹¹⁵Jeffrey M. Jones, LGBT Identification in U.S. Ticks Up to 7.1%, Gallup (Feb. 17, 2022) https://news.gallup.com/poll/389792/lgbt-identification-ticks-up.aspx [perma.cc/ZR3L-GSLC] (stating that 7.1% of 333 million Americans, or 23.64 million, identify as LGBT).
—live in states with no such protections, meaning they are not guaranteed access to places of public accommodation. All told, of the forty-five states with public accommodations statutes, twenty-two do not protect against discrimination based on sexual orientation or gender identity.¹¹⁶State Public Accommodation Laws, NCSL (June 25, 2021), https://www.ncsl.org/civil-and-criminal-justice/state-public-accommodation-laws [perma.cc/2QM6-6PPS]; Alaska Stat. § 18.80.230 (2023); Ariz. Rev. Stat. Ann. § 41-1442 (2017); Ark. Code Ann. § 16-123-107 (2021); Fla. Stat. § 760.08 (2023); Idaho Code § 67-5909 (2020); Ind. Code § 22-9-1-2 (2022); Kan. Stat. Ann. § 44-1001 (2021); Ky. Rev. Stat. Ann. §§ 344.120, 344.145 (West 2018); La. Stat. Ann. § 51:2247 (2023); Mo. Rev. Stat. § 213.065 (2021); Mont. Code Ann. § 49-2-304 (2021); Neb. Rev. Stat. § 20-134 (2024); N.D. Cent. Code. § 14-02.4-14 (2024); Ohio Rev. Code Ann. § 4112.02 (West 2024); Okla. Stat. tit. 25, § 1402 (2024); 43 Pa. Cons. Stat. § 953 (2020); S.C. Code Ann. § 45-9-10 (2024); S.D. Codified Laws § 20-13-23 (2024); Tenn. Code Ann. § 4-21-501 (2024); Utah Code Ann. § 13-7-3 (West 2024); W. Va. Code § 5-11-2 (2024); Wyo. Stat. Ann. § 6-9-101 (2024).

Protections vary among the states that statutorily bar discrimination based on gender identity or sexual orientation. Three states protect patrons from discrimination based on sexual orientation but not from discrimination based on gender identity.¹¹⁷775 Ill. Comp. Stat. 5/1-102 (2024); Wash. Rev. Code § 49.60.215 (2022); Wis. Stat. § 106.52 (2019–2020).
Seventeen states protect against both sexual-orientation and gender-identity discrimination.¹¹⁸ Conn. Gen. Stat. §§ 46a-81d, 46a-64 (2022); Del. Code Ann. tit. 6, § 4504 (2019); Haw. Rev. Stat. § 489-3 (Cum. Supp. 2021); Me. Rev. Stat. Ann. tit. 5, § 4591 (2013); Md. Code Ann. § 20-304 (2021); Mass. Gen. Laws, ch. 272, § 98 (2021); Mich. Comp. Laws Ann. § 37.2302 (West 2023); Minn. Stat. § 363A.11 (2022); Nev. Rev. Stat. § 651.070 (2017); N.H. Rev. Stat. Ann. § 354-A:17 (2022); N.J. Stat. Ann. § 10:5-12(f)(1) (West 2013); N.M. Stat. Ann. § 28-1-7 (2022); N.Y. Civ. Rights Law § 40-c (McKinney 2019); R.I. Gen Laws § 11-24-2 (2002); Vt. Stat. Ann. tit. 9, § 4502(a) (2020); Va. Code Ann. § 2.2-3904 (2022) (protecting sexual orientation and gender identity).
Courts have circumscribed public accommodations laws in three states—including, of course, Colorado.¹¹⁹ Colo. Rev. Stat. § 24-34-601 (2022), abrogated by 303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023); Iowa Code § 216.7 (2022) (recognized as unconstitutional by Vasquez v. Iowa Dep’t of Hum. Servs., 990 N.W.2d 661 (Iowa 2023)); Or. Rev. Stat. § 659A.403 (2021), abrogated by Green v. Miss U.S. of Am., LLC, 52 F.4th 773 (9th Cir. 2022) on as-applied First Amendment grounds.
In states that do not expressly prohibit discrimination based on sexual orientation or gender identity,¹²⁰This is a factual, not a normative, distinction. That many of the states lacking affirmative protections are rural, stereotypically “red” states does not mean that queer people cannot or do not live there. The specter of metronormativity—the idea that queer people can only reach self-actualization in urban spaces—haunts narratives of rural queer life. It comes about as a “story of migration from ‘country’ to ‘town’ . . . [during] which the [queer] subject moves to a place of tolerance after enduring life in a place of suspicion, persecution, and secrecy.” J. Jack Halberstam, In a Queer Time and Place: Transgender Bodies, Subcultural Lives 67 (2005). But the persistent myth that queer life is inherently worse in rural spaces has been thoroughly rebutted by feminist scholars. See Carly Thomsen, Visibility Interrupted: Rural Queer Life and the Politics of Unbecoming (2021); Scott Herring, Another Country: Queer Anti-Urbanism (2010). But see Halberstam, supra, at 22–46 (2005) (meditating on the brutal murder of Brandon Teena in rural Nebraska).
the full panoply of state power allows property owners to refuse LGBTQ+ patrons service.¹²¹Such property owners may vindicate their rights in a trespass action, because the law infers damage from “every [intentional] direct entry upon the land of another.” Jacque v. Steenberg Homes, 563 N.W.2d 154, 160 (Wis. 1997).

II. Axiom and Anxiety

Predicting the plight of state statutes in the wake of 303 Creative is not my aim. Rather, I interrogate the underlying anxieties as discursive formations.¹²²Michel Foucault invented the term “discursive formation” to delineate the bounds of his inquiry into the history of medicine. Michel Foucault, The Archaeology of Knowledge and the Discourse on Language 38 (A.M. Sheridan Smith trans., Pantheon Books 1972) (1969). See generally Michel Foucault, Stan. Encyc. of Phil., https://plato.stanford.edu/entries/foucault/#ArchGene [perma.cc/LN2C-4CA8]. I extrapolate from Foucault’s analysis a searching method of identifying and scrutinizing rhetoric.
This approach aims to destabilize the doctrine, as Carol Rose did in Canons of Property Talk. Rather than casting doubt on the continued existence of public accommodations law, I am interested in fashioning rhetorical tools to guide future inquiry.

The key insight is this: The ways we talk about property reveal fundamental anxieties about how the law distributes entitlements. These canonical strategies of property talk can be prescriptive—this is my land—or proscriptive—get off my land. Either way, speaking in terms of “entitlements” is a common way to understand how property law allocates power. Justifying certain entitlements, like the right to exclude, can be tricky. This dilemma begets anxieties.¹²³See infra Section III.A.
I show that scrutinizing doctrinal anxieties helps us understand how they animate public accommodations law. This task requires us to understand their origin and scope. I focus on the origins in this Part. I will demonstrate the scope in subsequent illustrations.

I begin this Part by summarizing and illustrating Carol Rose’s insights from Canons of Property Talk. I then translate these concepts into public accommodations law. Just as exclusive possession entails “Ownership Anxiety” surrounding the “Exclusivity Axiom”—both terms Rose coined, explained below—public accommodations law has anxieties and axioms of its own. The analogy is not perfect; some major differences make a perfect translation impossible. But the taxonomic exercise is still valuable, if not only as a method of understanding, but also as a mode of critique.

A. Exclusive Possession

Carol Rose argues that Blackstone’s Commentaries—often cited to support the assertion that property owners exercise exclusive dominion over real property and, thus, enjoy the right to exclude—surfaces anxieties about the thing it purports to describe. She does so by explaining the metaphoric, rather than literal, quality of Blackstone’s words. Ultimately, she calls into question the supposed finality of exclusive dominion.

Exclusivity Axiom. Blackstone established what Rose calls the “Exclusivity Axiom”: The notion that humans wield “sole and despotic dominion” to the “total exclusion” of all others.¹²⁴2 Blackstone, supra note 11, at *2.
According to Rose, that the oft-quoted passage precedes a slew of anxiety-ridden sentences¹²⁵Id. (“[W]e seem afraid to look back to the means by which [property rights are] acquired, as if fearful of some defect in our title . . . .”).
shows that the proposition lacks foundation in natural law.¹²⁶Rose, supra note 1, at 604. “Natural law” runs deep in Western political and legal philosophy. It can be understood as a theory that posits a universal set of moral standards inherent in all humans. These rules arise from nature, rather than from manmade law. See generally John Finnis, Natural Law and Natural Rights (Paul Craig ed., 2d ed. 2011).
Many scholars, Rose included, have persuasively buttressed this claim with extensive historical research.¹²⁷See Richard A. Epstein, The Utilitarian Foundations of Natural Law, 12 Harv. J.L. & Pub. Pol’y 713 (1989) (situating Blackstone in natural law theory); Carol M. Rose, Possession as the Origin of Property, 52 U. Chi. L. Rev. 73 (1985) (same); Michael Lobban, Blackstone and the Science of Law, 30 Hist. J. 311 (1987) (situating Blackstone in English legal tradition and critique).
But this much was evident even to Blackstone—one need look no further than the text directly following the influential passage to understand why: “[T]here is no foundation in nature or in natural law,” he wrote, “why a set of words upon parchment should convey the dominion of land.”¹²⁸2 Blackstone, supra note 11, at *2.

Failing to read the Axiom in context obfuscates the nuances inherent in Blackstone’s position. An axiom by its nature presents itself as unquestionable. But read properly, the Exclusivity Axiom borders on the ironic. The notion of property law as exclusive dominion, then, is no more than a trope—a rhetorical device describing a Platonic distribution of entitlements rather than the actual state of the law.¹²⁹Rose, supra note 1, at 603.
That the Axiom persists in “meditations, transmutations, and fulminations” is a testament to its utility as a legal fiction.¹³⁰Id. at 604.
While it is evident that Blackstone “struck a central nerve” in property dialogue, the Axiom may be untenable precisely because it is an axiom.¹³¹Id.
Axioms, even if accepted as true for the sake of argument, are not facts. Nonetheless, the Axiom remains alluring because of—or perhaps in spite of—its simplicity.

Ownership Anxiety. It is not difficult to see how the Axiom splinters under pressure. Rose deems “Ownership Anxiety” the “skeleton in property’s closet.”¹³²Id. at 605.
At its simplest, this concept can be described as “anxiety over the foundations for existing distributions.”¹³³Id.
The Ownership Anxiety emerges from the Exclusivity Axiom’s indifference toward existing entitlements.¹³⁴Id.
The law is quick to grant title to land—to quite literally entitle—but property law does not ask landowners to reflect on why they can own land in the first place.

The Ownership Anxiety fixates on this ambivalence. If we accept Blackstone at face value, dominion merely describes the character of exclusive possession. Independently, the Axiom does not mandate a certain distribution of property rights. Nor does it say how distributions should be allotted. The Anxiety surfaces as a series of basic questions about ownership entitlements that the Axiom alone fails to answer.

Illustration. Suppose that Anna owns Greenacre¹³⁵Generally, property scholars say “Whiteacre” or “Blackacre” to denote a hypothetical estate. These terms are laden with racial violence and conquest—topics that are under-acknowledged in property casebooks and scholarship. Accordingly, I use “Greenacre” instead. For an exhaustive discussion of this issue, see K-Sue Park, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, 131 Yale L.J. 1062, 1071–72, 1089–91 (2022).
in fee simple.¹³⁶1 Patton and Palomar on Land Titles § 203 (3d ed. 2023).
Assuming that the Exclusivity Axiom is true—that she can and does own Greenacre—the character and scope of her ownership are still unclear. In my view, the unanswered questions fall into three categories:

Epistemic: How do we know that Anna owns Greenacre?

Methodological: How did she come to possess it?

Existential: Why can she own it? Can she articulate any principled justification for her ownership?

These questions are answerable, but merely stating the Axiom does not suffice.

Rights and their correlative duties are bound up in this enterprise, too. Only if Anna’s exclusive possession is axiomatic do others owe her a duty not to trespass on her land. To fully understand how exclusive possession operates, we must account for Anna’s property relations to others, and vice versa. Why does a third party, Vronsky, not own Greenacre?

Here is where Hohfeldian theory—axiomatic in its own right—kicks in. Hohfeld posits that property rights have “jural correlatives.”¹³⁷Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30 (1913). Hohfeld never defined “jural correlatives” outright—the term appears once in his seminal article. See id. To the contrary, he decries attempts to define legal relations as “unsatisfactory, if not altogether useless,” opting for an illustration instead. Id.
The correlative to a claim is a duty.¹³⁸Id.
In property law, when one claims ownership of land, others are duty-bound to respect that ownership. Applying Hohfeld to this illustration, Anna’s ownership deprives all others of dominion over the property. Her right to Greenacre is in rem; as a landowner, Anna has a right against the world.¹³⁹For deeper explorations of the substance of in rem rights, see Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 Yale L.J. 357, 360–64 (2001); Balganesh, supra note 8, at 596; Albert Kocourek, Rights in Rem, 68 U. Pa. L. Rev. 322 (1920). But see Christopher M. Newman, Hohfeld and the Theory of In Rem Rights: An Attempted Mediation, in Wesley Hohfeld A Century Later 273 (Shyamkrishna Balganesh, Ted M. Sichelman & Henry E. Smith eds., 2022).
As a member of that world, Vronsky owes a duty to Anna. The specific duty, of course, is not to disturb Anna’s absolute dominion. The Hohfeldian axiom is thus formulated as follows: Because Anna owns Greenacre, Vronsky has a “correlative (and equivalent)” duty to Anna not to trespass on Greenacre.¹⁴⁰See Hohfeld, supra note 137, at 30–32. But see J.E. Penner, The “Bundle of Rights” Picture of Property, 43 UCLA L. Rev. 711, 728–29 (1996) (questioning Hohfeld’s characterization of in rem rights as merely an aggregation of in personam rights).

B. Public Accommodations

Public accommodations law raises knottier issues. For one, its ongoing utility is up for debate. Its substance is too. To some, public accommodations are a quintessential real property issue beholden to black letter law. This way of envisioning the law centers the place of transaction. Physicality—the empty room waiting to be filled at the proverbial inn—is paramount. The innkeeper and her guests know the expectations associated with their transaction; the law simply asks that proprietors provide equal service, blind to race, color, creed, and the like. Through this lens, contemporary public accommodations laws codify the common law duty to serve and no more.

On the other end of the spectrum is a far more radical proposition: that the law can and should do better. In this view, law and social progress are symbiotic. Envisioning the law this way hones in on the intricacies of human behavior associated with each transaction. By binding private business owners, public accommodations laws mark the outer bounds of acceptable behavior. They incentivize inclusivity and punish discrimination.¹⁴¹See Andrew Koppelman & Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association 1–24 (2009); see also discussion supra Section II.A.
There is something dignitary at stake that justifies the continued expansion of public accommodations law.¹⁴²See Saidel-Goley & Singer, supra note 5, at 503–04 (claiming that because “[h]uman beings are entitled to dignity,” granting a license to exclude based on sexual orientation is “characteristic of a society that does not treat persons with equal concern and respect”).
Proponents of this view may view courts as an instrument to serve “human values.”¹⁴³ . See State v. Shack, 277 A.2d 369, 372 (N.J. 1971) (declining to impose trespass liability for what may otherwise be considered a violation of the landowner’s right to exclude). Shack represents a body of property law that allows the justifications underpinning public accommodations law to bleed into other invocations of the right to exclude. In essence, it imposes a duty on private property owners even when their property is not a public accommodation: real property owners cannot exclude people arbitrarily when their property is open to the general public. See id. To the Shack Court, title to real property “cannot include dominion over the destiny of persons the owner permits to come upon the premises.” Id. Equitable access to privately owned places of public accommodation constitutes a countervailing public policy concern that may alter traditionally cut-and-tried trespass claims analysis. See id.; see also Uston v. Resorts Int’l Hotel, Inc., 445 A.2d 370, 375 (N.J. 1982) (holding that, because a hotel opened its premises to the public, it had “no right to exclude people unreasonably”).

Access Axiom. As I see it, the analog to the Exclusivity Axiom is a proprietor’s duty to serve all comers as formulated by Chief Justice Holt. This duty generally obligates businesses holding themselves out to the public to serve the public and refrain from arbitrarily denying service. Restating this principle from the customer’s perspective: When a business opts to serve the public, members of the public have a right to access its services. I call this the Access Axiom.

The Access Axiom is an apt analog to Rose’s Exclusivity Axiom. Both have a terse finality about them. Both, too, are outcrops of eighteenth-century English jurisprudence—Chief Justice Holt’s dissent is authoritatively cited just as Blackstone continues to be.¹⁴⁴See supra note 64 (cases citing Holt, C.J.).
These principles are the sine qua non of their respective doctrines. Returning to the ownership illustration: No cause of action could be brought to bear against Anna unless her possession is exclusive. Here, without the codified duty to serve all customers, the law would have little to say about refusing to rent a room to a customer because of their race or gender.

This analogy falls short of accounting for the Exclusivity Axiom’s metaphoric quality. The common law duty to serve is substantive, unlike the trope of exclusive possession. The former, in the context of public accommodations law, affirmatively prescribes certain conduct. The latter, in the context of property law, is merely descriptive. But because both Axioms function similarly, I find the limited analogy to be a useful analytical tool.

Operational Anxiety. Public accommodations law also has a skeleton in its closet. Just as the Exclusivity Axiom does not counsel any specific distribution of entitlements, the mere existence of a duty to serve does not explain how the duty operates. Absent a clear account of how the duty is supposed to operate, reasonable minds may disagree over its scope. I call this ambiguity the Operational Anxiety.

Illustration. Let us assume that a business owner, Jo, is bound by a public accommodations statute, and Amy is a customer seeking service. The epistemic and methodological questions can be resolved primarily by consulting the text of the statute. To resolve the epistemic question—how do we know Jo must serve Amy?—we must determine if the statute applies to Jo’s business. To resolve the methodological question—how did Jo become bound by the duty to serve?—we can either consult the legislative history of the statute or recount the long history described in Part II.

The existential questions are more perplexing. Whereas the foundations of private property ownership are not changing any time soon, the 303 Creative Court called into question the Access Axiom that animates public accommodations statutes. Because these statutes depend on the continued operation of the Access Axiom, accounting for the state’s posture toward these statutes is crucial. Depending on the viewer’s perspective, the existential question can be phrased in at least three ways:

State-centric: How can the state justify a statutory regime that requires Jo to serve Amy?

Customer or public-centric: How can Amy justify her purported right to access Jo’s business?

Proprietor-centric: What justification can Jo offer to warrant an exemption from her statutory obligation to serve Amy?¹⁴⁵Cf. Margaret Jane Radin, Property and Personhood, 34 Stan. L. Rev. 957, 1010 (1982).

These questions can be adjusted to pinpoint the specific kind of discrimination at issue in 303 Creative. Assuming that Jo offers bespoke services and Amy is a customer possessing a protected characteristic, how can Colorado justify its statutory requirement that Jo serve Amy? Can Amy explain her underlying right to access Jo’s services? Alternatively, can Jo secure an exemption?

The obvious answer to the first two questions is that public accommodations statutes incorporate egalitarian principles. Through statutes, the state effectuates a compelling interest: equal access to the marketplace.¹⁴⁶See Brief on the Merits for Respondents at 10, 37–38, 303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023) (No. 21-476) (arguing that Colorado “has a compelling interest in ensuring equal access to publicly available goods and services” and that the Supreme Court has consistently recognized this compelling interest since at least the mid-twentieth century).
This justification has traditionally prevailed in court.¹⁴⁷Id.
To illustrate, the Supreme Court has lauded the “fundamental object” of Title II of the Civil Rights Act: to “vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’ ” ¹⁴⁸Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 250 (1964) (internal citation omitted).
Rejecting an as-applied First Amendment challenge to a state antidiscrimination law, the Supreme Court in Roberts v. United States Jaycees reasoned that “surely [stigmatic harm is] felt as strongly by persons suffering discrimination on the basis of their sex as by those treated differently because of their race.”¹⁴⁹Roberts v. U.S. Jaycees, 468 U.S. 609, 625 (1984).
Businesses denying prospective patrons goods or services based on a protected characteristic “relegate[] [the victim to] ‘second-class citizenship.’ ”¹⁵⁰Bell v. Maryland, 378 U.S. 226, 271 app. I (1964) (Douglas, J., concurring in part).
The denial thus enacts stigmatic harm.¹⁵¹See generally Douglas Nejaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516, 2566–78 (detailing the material and dignitary harms imposed by accommodating religious-based conscience claims).
By mandating that Jo serve everyone, the state seeks to minimize potential harm to Amy. To be served by Jo, Amy need only state that she is a member of the public seeking to avail herself of Jo’s services. Her sex and race are doctrinally unrelated to her intended transaction with Jo.

These principles appear to be lost in translation when “sex” and “race” become sexual orientation and gender identity.¹⁵²Professor Carlos A. Ball recently argued that after 303 Creative, conservative Supreme Court justices will distinguish between sincere, reasonable exemptions from public accommodations laws and those grounded in bigotry and prejudice. Carlos A. Ball, First Amendment Exemptions for Some, 137 Harv. L. Rev. F. 46, 46–47 (2023). Refusing service to same-sex couples appears to qualify as the former; race and sex discrimination as the latter. Id. at 47–52. This distinction lends credence to the notion that discrimination against LGBTQ+ customers may, when sincere and reasonable, be permissible.
The phenomenology of stigmatic harm is outside the scope of this Note. But anti-LGBTQ+ animus is far from anachronistic.¹⁵³See generally Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (2009). For more recent incursions into queer legal history, see, for example, Kate Redburn, The Visibility Trap, 89 U. Chi. L. Rev. 1515 (2022) (reviewing Anna Lvovsky, Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life Before Stonewall (2021)).
Denial of service based on perceived or actual gender identity or sexual orientation occurs today and imposes uniquely pernicious injuries.¹⁵⁴See Bell, 378 U.S. at 271 app. I (1964) (Douglas, J., concurring in part) (arguing that the denial of service because of who one is unjustly relegates people to “second-class citizenship,” creating both economic and dignitary harms distinct from harms inflicted by insulting speech alone).
Indeed, the specific harm brought about by unequal access to public accommodations is quantifiable. An alarming proportion of LGBTQ+ Americans have experienced mistreatment in public accommodations.¹⁵⁵Harassment, hostility, and physical harm fall disproportionately on transgender people. The most recent data available indicates that one-third of transgender people have experienced mistreatment when accessing public accommodations. Nearly one third of 28,000 transgender respondents to a national survey reported experiencing mistreatment in public accommodations because of being or being perceived as trans. Sandy E. James et al., Nat’l Ctr. for Transgender Equal., The Report of the 2015 U.S. Transgender Survey 212–14 (2016), https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf [perma.cc/R247-GKZ4]. The National Center for Transgender Equality conducted a similar survey in 2022, though the full results are not yet publicly available. Sandy E. James, Jody L. Herman, Laura E. Durso & Rodrigo Heng-Lehtinen, Nat’l Ctr. for Transgender Equal., Early Insights: A Report of the 2022 U.S. Transgender Survey (2024), https://transequality.org/sites/default/files/2024-02/2022%20USTS%20Early%20Insights%20Report_FINAL.pdf [perma.cc/PRV8-H836]. Data suggest that filing rates of complaints based on gender identity and sexual orientation are on par with complaints of race and sex discrimination. Christy Mallory & Brad Sears, UCLA Sch. of L., Williams Inst., Evidence of Discrimination in Public Accommodations Based on Sexual Orientation and Gender Identity: An Analysis of Complaints Filed with State Enforcement Agencies, 2008–2014 (2016), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Public-Accommodations-Discrimination-Complaints-2008-2014.pdf [perma.cc/E7UZ-MSTZ].

Returning to the final existential question: can Jo secure an exemption from her statutory obligation to serve Amy? After 303 Creative, the resounding answer seems to be yes—if the First Amendment is involved.

III. Case Studies in First Amendment Law

Before us are near-diametric visions of public accommodations law: to some, public accommodations law has gone too far. Others maintain that the law has not gone far enough. These competing views have paradigmatically played out in First Amendment jurisprudence. The predominant view, embodied by the 303 Creative majority, is that public accommodations law demands too much.¹⁵⁶See infra Section III.B.

To establish a baseline against which 303 Creative can be measured, I spotlight two cases that involve public accommodations law, First Amendment challenges, and unsuccessful queer litigants.¹⁵⁷I will analyze Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557, 571 (1995), and Boy Scouts of America v. Dale, 530 U.S. 640 (2000). These cases are certainly not the extent of available data points. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018).
Briefly, I summarize the First Amendment dimensions of these cases. I then explain how the Court broached the axioms and anxieties permeating both. I end with a criticism of 303 Creative. I aim to illustrate how drastically the decision departs even from doctrine that upheld LGBTQ+ exclusion.

Innumerable critiques of the cases I discuss already exist.¹⁵⁸See, e.g., Koppelman & Wolff, supra note 141; Taylor Flynn, Don’t Ask Us to Explain Ourselves, Don’t Tell Us What to Do: The Boy Scouts’ Exclusion of Gay Members and the Necessity of Independent Judicial Review, 12 Stan. L. & Pol’y Rev. 87 (2001) (mounting a legal critique of Dale). But see Catherine J. Ross, The Real and the Phantom 303 Creative: Which Is More Dangerous?, Geo. Wash. L. Rev. on Docket (July 25, 2023), https://www.gwlr.org/303-creative-elenis-response [perma.cc/66GT-MNMT] (cautioning against hastily drawn conclusions).
Rather than adding my voice to a crowded field, I explain how the 303 Creative Court instrumentalized the aforementioned axioms and anxieties to conclude that Colorado’s statute is indefensibly attenuated from its common law origins.

A. Public Accommodations in Hurley and Dale

While acknowledging that such statutes are well within the state’s power to enact,¹⁵⁹Roberts v. U.S. Jaycees, 468 U.S. 609, 625 (1984) (“A State enjoys broad authority to create rights of public access on behalf of its citizens.” (citing PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81–88 (1980))). The Hurley Court conceded that the statute—a prophylactic measure to deter status-based discrimination—was not “unusual in any obvious way.” Hurley, 515 U.S. at 572.
the Court has curtailed states’ attempts to broaden public accommodations laws. In Hurley and Dale, the Court rebuffed state high courts’ attempts to apply public accommodations laws to associations.¹⁶⁰Hurley, 515 U.S. at 581; Dale, 530 U.S. at 661.
Both defendant groups sought to exclude openly queer participants, and the Court interpreted the First Amendment to effectuate those wishes.

1. Associational Freedom

The groups’ successes can be attributed to the robust “right” to associational freedom afforded to them by the Court. The First Amendment does not expressly grant such a right, though the Court has long embraced it.¹⁶¹See, e.g., Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 548 (1987). See generally John D. Inazu, The Strange Origins of the Constitutional Right of Association, 77 Tenn. L. Rev. 485 (2010).
The scope of this right—and the level of scrutiny it deserves—is unclear.¹⁶²In Dale, for instance, the Court required the state to offer a compelling interest to weigh against the burden on freedom. 530 U.S. at 658–59.
But the “right” to associational freedom at least nominally guarantees private associations the ability to control their membership through exclusion.

Freedom to associate is not unfettered.¹⁶³See Jaycees, 468 U.S. at 623; Dale, 530 U.S. at 640–41.
The Court has, for example, required private organizations to admit women.¹⁶⁴Rotary Club, 481 U.S. at 544, 548–49. For a fulsome account of “sex” in public accommodations law, see Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78 (2019). See also Justin Hansford, The First Amendment Freedom of Assembly as a Racial Project, 127 Yale L.J. F. 685 (2018) (offering a historical and contemporary critique of First Amendment jurisprudence as inadequately protective of racial dissent).
Still, state action infringes on associational freedom when it hinders a private group’s ability to advocate for its viewpoints. Viewpoint-based speech restrictions are presumptively invalid and must survive strict scrutiny.¹⁶⁵See, e.g., Police Dept. of Chi. v. Mosley, 408 U.S. 92, 95 (1972) (citing cases that state this general principle).
Few restrictions meet this high bar,.¹⁶⁶The Court has occasionally departed from the strict scrutiny requirement. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46–48, 52 (1986) (upholding a facially content-based ordinance because it was designed to combat “unwanted secondary effects,” not “to suppress the expression of unpopular views.”); Reed v. Town of Gilbert, 576 U.S. 155, 183 (2015) (Kagan, J., concurring) (“Our cases have been far less rigid than the majority admits in applying strict scrutiny to facially content-based laws.”).
And it’s high for a reason—the First Amendment is designed to keep the state from defining the contours of acceptable speech. The Court grafts the First Amendment’s aversion to viewpoint discrimination onto the “right” of associational freedom. Once the Court determines that a group engages in expressive association, it asks whether state action “significantly affect[s]” the group’s ability to advocate certain viewpoints.¹⁶⁷Dale, 530 U.S. at 641.

When associational freedom is cast broadly, both hurdles are relatively easy to clear. This was the case in both Hurley and Dale. Hurley arose from an Irish-American heritage association’s decision to exclude an organized group of LGBTQ+ Irish-Americans from its annual parade.¹⁶⁸Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 560–61 (1995).
Both the trial court and Supreme Judicial Court of Massachusetts determined that the denial violated Massachusetts’s public accommodations statute.¹⁶⁹Id. at 561–66. The law prohibited “any distinction, discrimination or restriction on account of . . . sexual orientation . . . relative to the admission of any person to, or treatment in any place of public accommodation, resort or amusement.” Mass. Gen. Laws ch. 272, § 98 (1992).
The Supreme Court interpreted a parade not as an ad hoc group of people “march[ing] from here to there,” but as a group of marchers, however disparate, “making some sort of collective point.”¹⁷⁰Hurley, 515 U.S. at 568.
Assuming that “every participating unit affects the [overall] message [being] conveyed,”¹⁷¹Id. at 572.
the Court determined that the presence of the LGBTQ+ contingency in the parade would indefensibly undermine the parade organizers’ ” collective point.”¹⁷²Id. at 574–75.

The Dale Court was similarly solicitous about associational freedom. Upon learning that Scoutmaster James Dale was an “avowed homosexual,” the Boy Scouts revoked his membership.¹⁷³Boy Scouts of Am. v. Dale, 530 U.S. 640, 644 (2000).
In a letter, the Scouts informed Mr. Dale that their “standards for leadership . . . specifically forbid membership to homosexuals.”¹⁷⁴Id. at 665 (Stevens, J., dissenting) (internal citation omitted).
The New Jersey Supreme Court held that the Boy Scouts acted illegally by discriminating against Mr. Dale because of his sexuality.¹⁷⁵Id. at 646 (majority opinion).
It surmised that an association “need not associate for the purpose of disseminating a certain message,” nor must group members agree on the content of a message that their association sends.¹⁷⁶See id. at 641.
A group must “merely engage in expressive activity that could be impaired” by qualifying state action.¹⁷⁷See id. (emphasis added).
Private associations enjoy a degree of flexibility when asserting their right to exclude unwanted members. Even if the group’s reasoning is inconsistent,¹⁷⁸Id. at 651 (internal citations omitted).
once a court determines that some associational interest exists, the court credits the association’s stated interest in exclusion. Justice John Paul Stevens vociferously rejected this approach. Dissenting in Dale, he implored the Court to “inquire whether the group is, in fact, expressing a message (whatever it may be) and whether that message (if one is expressed) is significantly affected.”¹⁷⁹Id. at 686 (Stevens, J., dissenting) (emphasis added).
Justice Stevens would not have given the Boy Scouts’ post hoc justification for excluding Dale so much deference.¹⁸⁰Id. at 680, 686.
But, inconsistencies notwithstanding, Dale remains good law.

2. Compelled Speech

Generally, courts reduce the no-compelled-speech principle to the following three maxims: the right to speak infers a corollary right to refrain from speaking,¹⁸¹See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 645 (1943); Wooley v. Maynard, 430 U.S. 705, 714 (1977).
the state cannot compel private actors to speak on its behalf,¹⁸²See 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2312 (2023) (citing cases).
and the state cannot require private associations to alter the content of their speech to appease outsiders.¹⁸³See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 568–70, 576 (1995); see also Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 63–65 (2006).
These oversimplifications gloss over perennial issues in First Amendment law, such as delineating speech from conduct¹⁸⁴United States v. O’Brien, 391 U.S. 367 (1968), is the seminal case used to tease out this distinction. Speech and action are not readily distinguishable; to say something is to do something, and vice versa. Laws of all kinds invariably burden activities thought to be covered by the First Amendment. E.g., Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986). But “conduct can[not] be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” O’Brien, 391 U.S. at 376. The O’Brien Court formulated a test to address this tension: courts will ask whether the government has an important or substantial interest in expression and if the restriction is no greater than necessary. Id. at 377. For a relevant application of O’Brien, see Rumsfeld, 547 U.S. at 65–68.
and crediting misattribution worries.¹⁸⁵See, e.g., Hurley, 515 U.S. at 575 (postulating how the inclusion of queer marchers would “likely be perceived”).
Moreover, the Court has not articulated a cogent method to analyze compelled speech cases.¹⁸⁶Compare Barnette, 319 U.S. at 624, 630 (collision with rights of others), with Boy Scouts of Am. v. Dale, 530 U.S. 640, 658–59 (2000) (interest in freedom of expression versus state nondiscrimination interest).

Still, private associations receive robust constitutional protections under the aegis of the no-compelled-speech principle. Likening the Council to a maestro composing a score, the Hurley Court intuited that applying the public accommodations law would “essentially requir[e] [the Council] to alter the expressive content of their parade.”¹⁸⁷Hurley, 515 U.S. at 572–74.
By requiring the parade organizers to include the LGBTQ+ group in the parade, then, Massachusetts unconstitutionally compelled the Council’s speech.¹⁸⁸Id. at 572–73.

3. Axiom and Anxiety

Returning, now, to the public accommodations laws at issue. The Operational Anxiety—doctrinal uncertainty about how the duty to serve is supposed to operate—materialized as a series of rhetorical moves. First, the Court in both cases disposed of epistemological and methodological concerns. Lower courts had resolved the epistemological question by finding that both entities fell within the purview of their respective states’ public accommodations law.¹⁸⁹Id. at 563; Dale, 530 U.S. at 644, 646.
In overturning those decisions, the Supreme Court took issue with the lower courts’ methodology.¹⁹⁰Dale, 530 U.S. at 654–56 (disagreeing with the lower court’s conception of associative freedom on three grounds).
The Dale Court chided the New Jersey Supreme Court’s unwieldy statutory construction;¹⁹¹Id. at 657.
the Hurley Court did not agree with the Massachusetts Supreme Judicial Court’s unusual application of the law.¹⁹²Hurley, 515 U.S. at 572–73.

Then, the Court in both cases pitted the public accommodations laws’ nondiscrimination principles against First Amendment jurisprudence. Even though antidiscrimination laws are “textbook viewpoint neutral” conduct regulations that should avoid First Amendment scrutiny,¹⁹³Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 694–95 (2010).
the Court held that the laws unconstitutionally burdened both groups’ associational freedom. In Dale, the Court openly set “the associational interest in freedom of expression . . . on one side of the scale, and the State’s interest on the other.”¹⁹⁴Dale, 530 U.S. at 658–59.
That queer participants sought to “equally express[]” themselves in the parade seemed to work against them.¹⁹⁵Hurley, 515 U.S. at 570. See generally Scott Skinner-Thompson, The First Queer Right, 116 Mich. L. Rev. 881 (2018).

Above all, the Anxiety surfaced as a cautionary tale of the Access Axiom gone awry. Praising the “venerable” history of public accommodations law, the Hurley Court invoked Chief Justice Holt to characterize the common law duty.¹⁹⁶Hurley, 515 U.S. at 571.
It conceded that Massachusetts’s public accommodations law was fashioned to provide “what the old common law promised to any member of the public wanting a meal at the inn . . . [that] they will not be turned away merely on the proprietor’s exercise of personal preference.”¹⁹⁷Id. at 578.
But the Court ultimately concluded that the line between a business owner’s personal preference and invidious discrimination is thin. The Council maintained that it did not intend to exclude openly queer participants because of their sexuality; rather, the admission of an LGBTQ+ group in the parade would send a message that the Council would prefer not to endorse.¹⁹⁸Id. at 572.
At the end of the day, the Court could not reconcile the state court’s “peculiar” application of public accommodations law. ¹⁹⁹Id.

The cautionary tale is more acute in Dale. The Court opined that public accommodations law, originally enacted to equalize access to “traditional places of public accommodation,” had been stretched beyond its breaking point.²⁰⁰Boy Scouts of Am. v. Dale, 530 U.S. 640, 656–57 (2000).
That New Jersey enumerated over fifty places of public accommodation nearly guaranteed a “conflict between state public accommodations laws and the First Amendment rights of organizations.”²⁰¹Id. at 657.
According to the Court, the “extremely broad” list of covered entities indicated that the legislature expanded the statute beyond the common law duty to serve.²⁰²Id. at 656–57.

B. Public Accommodations in 303 Creative

The Court made its argument in 303 Creative by synthesizing the Access Axiom and Operational Anxiety in three rhetorical moves. First, it minimized the Axiom and amplified the existential Anxiety. Second, like the Dale and Hurley Courts, it told an apocryphal tale of the Axiom—and its antidiscriminatory aspirations—gone awry. Finally, it positioned public accommodations doctrine as David against the First Amendment’s Goliath. The upshot is that, after 303 Creative, public accommodations statutes that affirmatively protect sexual orientation and gender identity exceed the outer bounds of acceptable antidiscrimination law. Too far attenuated from the common law duty to serve, statutes with such antidiscriminatory force stretch the Axiom beyond its breaking point. The First Amendment is a rhetorically potent nail in the common law coffin.

The Court in 303 Creative took a harsher tack than it did in Dale or Hurley. Rather than merely expressing anxiety or chiding a lower court’s application of state public accommodations law, it lamented the unwieldy nature of the statute itself. The case was procedurally distinct from its predecessors. For one, 303 Creative involved a pre-enforcement—rather than an as-applied—challenge. It also arose through federal courts. The District of Colorado granted summary judgment for the state; the Tenth Circuit affirmed.²⁰³303 Creative LLC v. Elenis, 405 F. Supp. 3d 907, 912 (D. Colo. 2019); 303 Creative LLC v. Elenis, 6 F.4th 1160, 1168 (10th Cir. 2021). Ms. Smith brought a Free Exercise claim based on allegedly hostile remarks that members of the Colorado Civil Rights Commission made about certain religious beliefs about marriage. The district court dismissed this claim as inapposite to her pre-enforcement challenge. 303 Creative LLC v. Elenis, 405 F. Supp. 3d 907, 911 (D. Colo. 2019) (citing Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1729–30 (2018)). The Tenth Circuit agreed. It ultimately found that, because Colorado’s statute was neutral and generally applicable, Ms. Smith’s Free Exercise claim failed. 303 Creative LLC v. Elenis, 6 F.4th 1160, 1183 (10th Cir. 2021) (“[L]aws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable.” (internal citations omitted)).
Neither felt the need to rehash the common law duty to serve.

This is where the Supreme Court began. First, the Court narrowly cast the underlying duty to serve. While acknowledging the common law duty, the majority only vaguely conceded that “the common law sometimes impose[s] [nondiscrimination duties] on common carriers and places of traditional public accommodation.”²⁰⁴303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2314 (2023) (emphasis added) (citing Dale, 530 U.S. at 656–57). The Court did not attempt to define “traditional” places of public accommodation. Id.
Picking up where Dale left off, the Court then painted a picture of an unwieldy statutory scheme: In 1885, Colorado’s public accommodations statute enumerated only “a short list of entities,” whereas its modern law covers all places of business.²⁰⁵Id.
The Court made no attempt to account for the difference. Nor did the Court address how the enactors of the original law understood the scope of common law obligations.²⁰⁶Compare Colo. Rev. Stat. § 24-34-601(2021) (defining a public accommodation as “any place of business engaged in any sales to the public”), with Saidel-Goley & Singer, supra note 5, at 451 (explaining that state common law “required all businesses that held themselves out as open to the public to serve anyone who sought service”) (emphasis added) (quoting Singer, supra note 9, at 1292).
The comparison nonetheless implied that, by developing to encompass more kinds of businesses, the modern statute had gone too far. In stark contrast, the majority applauded the development of First Amendment jurisprudence to apply to emergent forms of media and corporate entities.²⁰⁷303 Creative, 143 S. Ct at 2312 (citing cases involving a flag, video games, parades, and movies).

Finally, the Court adopted the familiar move of pitting the public accommodations law against the First Amendment. The Court characterized the two as on a collision course of dramatic rhetorical proportions: “[W]hen Colorado’s public accommodations law and the Constitution collide, there can be no question which must prevail.”²⁰⁸Id. at 2306, 2315.
Placing the First Amendment “right” front and center, the majority cast Hurley and Dale as protecting “an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply ‘misguided.’ ”²⁰⁹Id. at 2311–12 (citing Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 574 (1995)).
In turn, the Court likened applying Colorado’s public accommodations law to requiring students to recite the Pledge of Allegiance.²¹⁰Or at least the most rhetorically potent line of it. 303 Creative, 143 S. Ct. at 2313 (citing W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 626–29 (1943)).
The legitimate state interest in ensuring equal access to the market—however necessary,²¹¹See supra notes 23, 152–155 and accompanying text.
noble,²¹²See supra notes 149–151 and accompanying text.
or settled²¹³See supra notes 40–43, 146–149; see also Brief of Amicus Curiae American Bar Association in Support of Respondent at 13, 303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023) (No. 21-476) (discussing how drastically petitioner’s argument departs from settled doctrine).
—balked in comparison.

Conclusion

By stripping public accommodations laws of their valiant antidiscriminatory ends, the Supreme Court has empowered lower courts to depict them as too attenuated from their common law predecessors. Apprehension about the scope of the law surfaces as a series of unanswerable questions. Under what circumstances might a business refuse to serve a customer? Can the state legislate to guarantee that all customers are treated equally? The answer cannot simply be that there is a common law duty to serve. Undoubtedly this is true. But something curious lies below the surface of this statement—a series of unexamined assumptions that is worth examining.

Now is the time to examine these assumptions and their concomitant anxieties. The vernacular of public accommodations law is bound to change following 303 Creative—the decision could signify (or precipitate) a new nadir for equal rights. Put differently, the doctrine’s antidiscriminatory aspirations may buckle under the weight of these burgeoning anxieties. None of these trepidations are novel. But unlike other topics in property law, public accommodations law has not attracted ample scholarly attention.

Carol Rose urges us to hold even the most elemental legal precepts up to the light.²¹⁴Rose, supra note 1, at 297.
Leaving no stone unturned, she demonstrates how shrewd criticism of seemingly obvious tenets of property law yields deeper appreciation for their ongoing utility. As the discourse surrounding public accommodations law evolves, it is crucial to understand how rhetorical strategies operate to destabilize its foundations. Examining our collective assumptions about what the law is—or what it should be—is a form of understanding. We should not stop performing this intellectual exercise, not only because it is inherently valuable, but also because how we talk about public accommodations law may well shape its future.

* J.D. Candidate, May 2025, University of Michigan Law School. Thank you to Professor Emily Prifogle for thorough, formative, and insightful comments and conversations; to Professors Don Herzog and Chris McCrudden for reading portions of early drafts; to the Volume 122 Notes Office Editors, especially Kassie Fotiadis and Katie M. Osborn, for cordial and constructive criticism; to Jax Ingrassia and Elena Schultz for their astute input; to my parents, whose support I cherish; and to my cat, for occasionally napping on the warm keyboard of my laptop.