Transphobia and ignorance. Those are the explanations being peddled for why the people of Houston, by a vote of 61 percent to 39 percent, rejected an overly broad public-accommodation ordinance. The ignorant masses, it is said, believed the Houston Equal Rights Ordinance (“HERO”) would give male sexual predators access to women’s bathrooms and thus disallowed a step forward for equality.
Of course, an alternative theory is worth exploring. Could the people of Houston have realized that in 2015 discrimination is not rampant in their city and consequently that there is no need to enshrine 15 “protected characteristics” into law? Perhaps they have seen how broad public-accommodations laws in other places have had unintended effects, such as requiring Christian small-business owners with fervent religious convictions to bake wedding cakes for homosexual couples.
HERO lists the following as protected characteristics: sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity, or pregnancy. (Four of these — race, color, religion and national origin — are already covered by federal public-accommodations law).
HERO sweepingly defines a place of public accommodation as “every business with a physical location in the city, whether wholesale or retail, which is open to the general public and offers for compensation any product, service or facility.” So if someone in Houston takes a cent for a good or service, he’s covered by the ordinance.
HERO goes far beyond the common-sense approach that the common law took to public accommodations. The common law imposed a duty to serve all comers on businesses providing essential goods and services to travelers. This rule developed when travel posed myriad dangers. A traveler denied access to a medieval inn would be at the mercy of the elements, robbers and hunger. Inns were havens, usually the only available haven where someone on a journey could obtain refreshment and shelter.
Similarly, common carriers such as railroads usually enjoyed monopolies on transportation. If the carrier refused to sell a ticket to a traveler, he would be stranded and subject to many of the same indignities as a person denied access to an inn. Consequently, common carriers were cloaked with the public interest and were prohibited from discriminating.
The common law’s constraints on innkeepers and common carriers were prudent in light of the times. Travelers had nowhere else to turn for safety or passage. Hence, these few businesses cloaked with the public interest had to provide services to all.
In the United States early state and federal accommodation laws expanded the idea of the public’s interest, and later specifically addressed the situation of the freedmen. In 1964 Title II of the federal Civil Rights Act stayed close to its forerunners of the 1860s and 1870s, and much like the old common law focused on businesses relating to interstate travel and restaurants.
Under HERO, however, every business finds itself in the position of the innkeeper of yesteryear. This list of protected characteristics is a haphazard something-for-everyone approach. For the Right the authors threw in active-duty military personnel and veterans, for the Left, gender identity.
In the Houston City Council’s findings for HERO no evidence was presented that Houstonians bearing any of the 15 protected characteristics are being turned away from restaurants, bars, hotels or any other place of business. The findings failed to explain why the City Council included any of the 15 protected characteristics in the ordinance.
HERO is really a zero. Rather than being universally condemned, the people of Houston should be applauded for their rejection of an ordinance that took a shotgun approach to a “problem” that has not been shown to exist. The ordinance unnecessarily attempted to turn from the voluntary principle of society to coercion, which should never replace freedom absent an overwhelming showing of necessity. On this point, the Houston City Council failed miserably.
