Joseph W. Singer, Religious Liberty & Public Accommodation: What Would Hohfeld Say?, in Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries (Shyamkrishna Balganesh, Ted M. Sichelman & Henry E. Smith eds., 2022).
Abstract: Hohfeld had (at least) three major insights: (1) freedom to do something is different from having the right to limit the free actions of others; (2) property entails a bundle of rights that can be disaggregated in various ways; (3) freedom from regulation is not a self-regarding act because it makes others vulnerable to the effects of one's actions. These insights are useful in analyzing recent disputes in public accommodations law. Can public accommodations engage in statutorily-prohibited discrimination when service violates the owner's religious beliefs? This question entails understanding about the substantive norms of businesses open to the public and the appropriate scope of religious liberty. But before addressing the substantive issue, we face a problem of conceptualization. What rights are actually at stake in these kinds of cases? That is where Wesley Hohfeld's analytical scheme of legal rights is helpful. Claims of religious liberty may either be Hohfeldian privileges (freedom to act without legal constraint) or Hohfeldian claim-rights (legal claims to the aid of the state in constraining the free actions of others). When a hotel refuses to serve a customer, it is seeking both the freedom to deny service (which makes customers vulnerable to being told they are unwelcome) and the right to exclude the customer (which entails a duty to stay off the property without the owner's consent). Hohfeld distinguished these types of legal entitlements and argued that a privilege to express distaste for the customer's being or "lifestyle" is logically different from having a legal right to prevent the customer from entering the store. And both of those are distinguishable from granting the customer the Hohfeldian power to demand service (with a corresponding obligation on the store to sell its goods or services to the customer) or granting the store owner an immunity from being compelled to provide such service (which corresponds to a vulnerabilty on the customer's part since the customer needs to call ahead to see if she will be able to obtain service). All this matters because claims of religious liberty usually entail claims to have the right to control the behavior of others. The same is true of those who claim they have a right to free access to public accommodations; those claims entail an obligation on stores to provide service. Neither side is actually asking to "just be left alone." That means that neither side is actually talking about freedom from regulation; each is demanding a legal rule that affects and regulates the behavior of others and the state must make a choice between these conflicting entitlements. Choosing whether a public accommodation can deny service to customers to whom the owner objects requires, as Hohfeld said, a judgment of "justice and policy." It cannot be decided as a logical deduction from the abstract concept of freedom or religious liberty.