III. A Growing Number of States Are Stepping in to Fill the Gap Left by the Failure to Include Sexual Orientation as a Protected Category Under Federal Law Prohibiting Discrimination in Places of Public Accommodation
Several years prior to her appointment as an EEOC Commissioner, Professor Feldblum began one of her articles with a hypothetical involving a B&B that refused to accommodate a same sex couple. (160) Based in part upon her experiences representing Catholic Charities USA for thirteen years, (161) Feldblum expressed sympathy for evangelical Christian couples who wish to exclude persons from their B&Bs on religious grounds. (162) Nevertheless, she concluded that society should come down in favor of gay people in this "zero-sum" game. (163) Feldblum explained that, "[o]nce individuals choose to enter the stream of economic commerce by opening commercial establishments, I believe it is legitimate to require that they play by certain rules." (164)
Indeed, in United States v. Lee, (165) the United States Supreme Court held that "[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity." (166) Thus, prohibitions against discrimination in places of public accommodation because of sexual orientation do not force residential property owners to invite guests into their homes contrary to their religious consciences. Instead, these laws merely require that once a decision has been made to allow transient guests into one's home for commercial purposes, proprietors of these establishments may not discriminate against potential customers based upon their sexual orientation. Of course, federal law does not currently prohibit discrimination because of sexual orientation in places of public accommodation. (167)
Title II of the Civil Rights Act of 1964, (168) expressly enumerates only four protected categories: race, color, religion, or national origin. However, a growing number of states (and localities (169)) have since included sexual orientation as a protected category in their respective public accommodation laws, (170) beginning with the State of Massachusetts in 1989 (171) and, most recently, the State of Maryland in 2009. (172) In addition to the District of Columbia, (173) a total of twenty-one states now include express prohibitions against discrimination because of sexual orientation in places of public accommodation. (174) Furthermore, in the context of legislation creating a commission to study, analyze, and recommend solutions to address various forms of discrimination, (175) the State of Wisconsin recently declared that sexual orientation "ought not to be made [a] test in the matter of the right of any person to ... enjoy the equal use of public accommodations and facilities[.]" (176)
Five (177) of the twenty-one states mentioned above (in addition to counties and municipalities in other areas (178)) include an exception analogous to the so-called "Mrs. Murphy" exemption for proprietors of small transient accommodations under federal law, (179) further demonstrating the "place-based" nature of this ongoing Kulturkampf between religious freedom and civil rights.
Thus, in the small minority of jurisdictions identified above that have adopted Mrs. Murphy exemptions (180) and in those states and localities that do not include sexual orientation as a protected category, the discriminatory vestiges of our federal public accommodations law continue to provide a safe haven for "Jim Crow's Other Cousin"--viz., discrimination against the LGBTQI community. (181) This state-by-state patchwork of civil rights laws reveals the "beachhead federalism" (182) that results from our ongoing Kulturkampf between religious convictions and equality for gays and lesbians. Beyond the day-to-day and legislative venues, this cultural performance also continues to play itself out in the courts. …