Academic journal article Boston University Law Review

We Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom

Academic journal article Boston University Law Review

We Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom

Article excerpt

Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom-freedom to "go and come at pleasure" and to "buy and sell when they please"-would be left with "a mere paper guarantee" if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man.1

-Justice Potter Stewart

Jones v. Alfred Mayer Co. (1968)

Those who say "What's mine is mine, and what's yours is yours"; this is the average [type of person], though some say this is the type predominant in Sodom.2

-Pirke Avot (Ethics of the Fathers) 5:13


Two robots walk into a bar. I know, it sounds like a joke. But I am talking about the famous scene in Star Wars in which C-3PO and R2-D2 try to follow Luke Skywalker into a tavern. They are looking for a pilot who can take them to the planet Alderaan to fight the evil Emperor. Obi-Wan Kenobi and Chewbacca enter the bar with no problem but when Luke crosses the threshold with the androids, the barkeep stops them with a sneer. "Hey, we don't serve their kind here," he says to Luke, refusing to speak directly to the androids.3 "Listen, why don't you wait out by the speeder," Luke tells them, "we don't want any trouble."4

The scene is surreal. Moments before this act of exclusion, we are treated to the sight of many weird and wondrous beings filling the bar. They obviously come from different planets and are designed to intrigue and surprise us by their diversity. The scene is both familiar and strange. The band plays jazz we find familiar but the musicians look like praying mantises on steroids. It is our world and it is not our world. The camera moves to show us all kinds of creatures. In the face of the incredible multiplicity of beings of all sizes and shapes, the act of exclusion is at once familiar and shocking. At the same time, the gesture strikes the viewer as palpably absurd. Why admit the fellow who looks like the devil, the praying mantises, and the belligerent guy who starts a fight with Luke, but then draw the line at intelligent robots? Why would they, alone among the diverse clientele, be unwelcome? We realize we know nothing about the history and culture of a world that would be so welcoming to creatures that would surprise and frighten us while excluding androids we have come to view as our companions and comrades.

"We don't serve their kind here."5 This is a simple exercise of property rights. Or is it? Recently one of my students went to a club in Boston with two of his friends. The bouncer at the door would not let them in. "We don't want your kind here," he said, or something to that effect. It was Star Wars all over again. My student and his friends are Korean and that apparently bugged the bouncer. They were confused and asked him to explain and he said again that they were not wanted there. They asked to see the manager and, amazingly in this day and age, the manager backed up the bouncer. Not only did he not let them in, he used a racial epithet to express his animus toward Asians. It was 2013 and they were excluded from a bar in Boston because of their race.


We are here to celebrate the fiftieth anniversary of the Civil Rights Act of 1964, of which Title II was the public accommodations law. Congress passed that law about a month after my tenth birthday. Fifty years is a long time but we are not talking about ancient history here. I recall segregation; I recall the passage of the public accommodations law. And fifty years is apparently not enough to change our understanding of property-at least not completely. In recent months, we have seen much controversy over a baker who did not want to sell a wedding cake to a same-sex couple and a photographer who did not want to take photographs at a same-sex wedding.6 They claimed both expressive and religious liberty to justify denying services to paying customers and they also asserted the right to run their own businesses as they saw fit, retaining the right to exclude customers whose identity or lifestyle they found objectionable. …

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