Prior to 1964, there was a doctrine that "public accommodations" had to serve all customers, in large part because those customers had no or little choice but to deal with the government or business.
On Sunday, October 21, 2018, 3:16:37 PM PDT, Marina Brown <catskillmarina AT gmail.com> wrote:
On 10/21/18 6:05 PM, jim bell wrote:
>How about looking at actual law rather than what some ideologue
says ? "The goyim know" is a nazi site.
>The question at hand appears to be whether wedding photography is a
public service or accomodation.
I don't think it can properly be labelled a "public service", unless some governmental or quasi-governmental entity provides it.
The term "public accomodation" began to be abused in about 1964.
Prior to 1964, there was a doctrine that "public accommodations" had to serve all customers, in large part because those customers had no or little choice but to deal with the government or business. There were very few "public accommodations". Utilities, ferries, motels on highways, etc. And that made sense.
But the 1964 Civil Rights Act decided that it was okay for governments to force businesses to not discriminate, analogous to the fact that prior to 1964, many governments REQUIRED businesses to discriminate ("Jim Crow Laws"). As a libertarian, I cannot abide such control by government. Also, I am quite confident that in the situation where government neither required nor prohibited businessess from engaging in discrimination, very few businesses would engage in any such discrimination unless the public considered it reasonable. ("No shirt, no shoes, no service").
A 1968 law article.
"Under English common law, it was the duty of-a common carrier to
serve all persons 5 without imposing unreasonable conditions.6 The
English courts considered that "a person [who] holds himself out to
carry goods for everyone as a business . .. is a common carrier,"' and
that any member of the public may create a, contract with the carrier
by accepting its general offer.8 The rule remains the same today.9
Wherever English common law was exported, the rule that carriers
had to serve the public without unreasonable discrimination went with
it. The rule is therefore found in cases from Australia," Burma,1
Canada,12 India,13 Ireland,' 4 and New Zealand. 15 An early South African
case held that since a public utility must serve the whole public,
an electric tramway could not refuse to carry non-Europeans,"8 although
a later case held that race was a reasonable ground for refusal
to carry passengers.7
From its earliest days, American law followed the English ruleI
that railroads and ,other common carriers were legally bound to carry
all persons and could not unreasonably exclude anybody, but they had
power to make reasonable regulations and discriminations, and excludepassengers on reasonable grounds. 9 Even before the Civil War the
Illinois Supreme Court had pointed out that ferrymen were common
carriers because '!he enjoys'a franchise-a special privilege, which is
granted to 'him in 'conseqfience of his superior qualifications to fill a
public trust. 2 0 ° That court also pointed'out that "railroads are .'. common
highways ... in the sense of being compelled to accept of each and
all, and take'and catry to the extent of their ability."21'
The rule remains unchanged to the present time. Thus it has been
held that because of the special privilege of a monopoly franchise given
to a common carrier to peiform a service for the public,22 the carrier,
like other public utilities, cannot abandon its service without permission
of the authorized governmental commission.2 3 Thus, a recent case has
noted- "This duty of a common carrier to meet the needs of the public
arises from its acceptance and enjoyment of the' powers and privileges
granted by'the State and endures 'so long as they' are retained."24 A
distinguishing hallmark of common ;carriers is the obligation to carry
all persons without unreasonable discrimination.2 5 Conversely, a carrier which reserves the right to pick and choose its passengers is not a common
carrier.26 Thus, common carriers of passengers could not engage
in racial discrimination merely by virtue of common law or statutory
rules prohibiting unreasonable discrimination, entirely aside from any
special statute banning racial discrimination.17
Under English common law, a similar rule applied to innkeepers,2
who were likewise bound to accommodate all travelers, unless they had
reasonable cause to refuse.2 9 The rule was similar in Scotland, although
there hotels could pick the class of guests they chose to accommodate."
Cases to the same effect are found in Australia,3' Canada, 32 Ireland,33
and South Africa. 34 Thus, when a Negro sued a London hotel for refusing
him accommodations, he was allowed to recover on the theory
that such discrimination was simply one of the many types of unreasonable
discrimination, and no special consideration was paid to the fact
that racial discrimination was involved. 35 The Lord Justice-Clerk of the
Scottish Court of Session observed in a similar case:
It is obvious that the defenders are not entitled to exclude the
pursuer from their hotel because he is a Jew; and it would have
made no difference, in my opinion, had it been proved that he is
a Jew of German origin. An individual is not responsible, and
ought not to be made responsible, for his ancestry. 3"
[end of long quote]