Introduction
Addressing the nation in 1963, President Kennedy declared that “the right to be served in facilities which are open to the public . . . [is] an elementary right.”2 Over sixty years later, this right appears to be at risk. The last few years have seen high-profile challenges to antidiscrimination laws by entities seeking to deny equal service to queer persons based on the religious affiliations of the entity or its owners.3 Rather than rejecting such challenges as it had in the past,4 the Supreme Court appears to be considering a new path.
In the fall of 2022, the Court declined to stay a New York trial court’s injunction against Yeshiva University (YU).5 The injunction ordered the university to recognize YU Pride Alliance — a group of queer and allied undergraduate students — on the same terms as other student groups.6 The Court’s denial of a stay was not particularly remarkable. In a rather dry paragraph, the Court explained that YU had failed to exhaust its avenues in state court for relief from the nonfinal order.7
Far spicier was Justice Alito’s dissent. Joined by Justices Thomas, Gorsuch, and Barrett, Justice Alito framed the case in dire terms: New York City had “impos[ed] . . . its own mandatory interpretation of scripture”8 and forced a religious institution “to instruct its students in accordance with” that interpretation.9 The reality is not so neat. YU Pride Alliance brought its challenge under New York City’s public accommodations law, which makes it unlawful for a provider of public accommodations to discriminate on the basis of sexual orientation.10 According to the dissent, however, the injunction struck at the heart of the First Amendment’s Free Exercise Clause.11
Describing why the university would likely succeed on the merits, Justice Alito relied on the fact that the law did not include benevolent orders in its definition of public accommodations.12 New York law defines these orders as nonprofit societies “formed, organized and carried on solely for the benefit of [their] members[,] . . . operating on a lodge system and having a representative form of government.”13 By Justice Alito’s account, their exclusion rendered the provision neither neutral nor generally applicable.14 Instead, the law treated “a vast category of secular groups more favorably,”15 triggering strict scrutiny and earning YU an exemption from the law.16
Justice Alito’s rationale would transform public accommodations law. His approach abandoned a central component of the Court’s new test for religious exemption claims, the so-called “most-favored-nation” theory.17 Under the doctrine, a law is not neutral or generally applicable, and therefore triggers strict scrutiny, “whenever [it] treat[s] any comparable secular activity more favorably than religious exercise.”18
This approach, at least in the form adopted by the Court,19 functions through equal-value determinations, in which judges evaluate whether a nonregulated establishment implicates the government interest underlying the regulation of religious exercise. If such an establishment exists, the regulation is subject to strict scrutiny review as a potentially unconstitutional burden on free exercise. This process helps restrain courts from invoking strict scrutiny against all regulations by narrowing the universe of comparable secular entities to those that are relevant to the regulation under review.
The equal-value comparison is crucial to a workable most-favored-nation approach. By encouraging judicial sensitivity to the broader legal landscape, equal-value determinations help guard against both incidental antireligious discrimination and craftily worded laws burdening free exercise. A focus on equal value also ensures that litigants cannot wield the Free Exercise Clause to circumvent a law that effectively targets government interests in nondiscriminatory ways. A most-favored-nation approach without equal value, on the other hand, could allow clever litigants to gain religious exemptions when a category of entity — one that doesn’t implicate the government interest triggering the regulation — remains unregulated.
Should the Court eliminate the test’s equal-value component, the effects could prove momentous. Were the Court to apply this pared-down most-favored-nation test, every public accommodations law in the country, including Title II of the Civil Rights Act of 1964,20 may become subject to religious exemptions. The importance of robust public accommodations laws and the history of sincere religious objections to antidiscrimination policies counsel in favor of a different outcome.
This Note shows the impact such an approach would have on the effectiveness of public accommodations laws across the United States. Part I provides background on public accommodations laws and recent developments in free exercise doctrine. Part II traces the development of the most-favored-nation doctrine and highlights the importance of equal value within that framework. Building on this analysis, Part III explores the implications of Justice Alito’s lightened version of the most-favored-nation doctrine. Using the facts of Yeshiva University v. YU Pride Alliance21 as a comparator, the Part exposes how such an approach would undermine longstanding precedents and threaten the broad coverage of laws prohibiting discrimination by businesses and other public establishments.
An analysis of equal value’s role within the most-favored-nation approach is particularly warranted now that two Justices have authored minority opinions eliminating equal value from the test.22 Many scholars have written about the emergence of the most-favored-nation doctrine and its potential impact on free exercise jurisprudence.23 However, while some have acknowledged the role equal value plays, none have fully explored the implications of a most-favored-nation doctrine devoid of equal value.
A majority of the Court has yet to embrace this mode of analysis. As recently seen in 303 Creative LLC v. Elenis,24 other First Amendment doctrines like compelled speech and expressive association provide avenues for the Justices to avoid such a destructive decision.25 Enterprising lawyers, including YU’s, may nonetheless force the Court to decide a free exercise challenge head on.26 The rise in free exercise challenges to antidiscrimination laws27 and the increasing public support for such exemptions28 warrants a clear-eyed assessment of such a shift.
I. Background History of Public Accommodations Laws and Free Exercise Jurisprudence
A. Access to Public Accommodations in the United States
1. Access to Public Accommodations Before 1964. — Different legal regimes have governed access to public accommodations in the United States. At common law, operators of common carriers had no right to refuse service on the basis of a person’s race, religion, or national origin.29 The first national public accommodations legislation came with Congress’s passage of the Civil Rights Act of 1875.30 The Act enshrined many of the protections that Congress would enact nearly a century later in Title II of the Civil Rights Act of 1964.31 In relevant part, the 1875 Act required the “full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances . . . and other places of public amusement.”32 Unlike its civil rights–era successor, however, the 1875 Act did relatively little to change facts on the ground. Enforcement of the 1875 Act was stymied — despite robust implementation requirements33 — by absentee leadership in Washington,34 a lukewarm judiciary,35 and widespread disapproval among whites.36 The Supreme Court ultimately struck down the public accommodations provisions in the 1883 Civil Rights Cases.37
Exclusion and segregation in public accommodations became the rule in much of the country.38 With the Court’s blessing of “separate but equal” accommodations in 1896,39 establishments across the United States offered differential service to customers of disfavored racial, ethnic, and religious backgrounds, when they provided such service at all.40
2. Title II, Public Accommodations Access, and Their Impact on National Life. — With the passage of the 1964 Civil Rights Act, certain public accommodations were again required to serve the public on a nondiscriminatory basis. Title II of the Act guarantees to all, irrespective of race, color, religion, or national origin, “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation,”41 which includes places of lodging, places of entertainment, food-service establishments, and gas stations.42
Title II played a key role in creating the public landscape people have come to expect.43 The Kennedy Administration considered passage of the Civil Rights Act and its public accommodations provision as critical to the realization of a more just society that lived up to its stated values.44 That the Senate debate over the Act lasted longer than any other in history45 speaks to the effect lawmakers expected it to have.
Although quantifying Title II’s effects has proven difficult,46 its importance and impact are clear. At the time of its passage, neither the economic harm from sit-ins, boycotts, and other protests nor the growing recognition that “desegregation actually proved to be a good business move”47 had pushed recalcitrant establishments to end their discriminatory policies.48 To compel compliance, the Justice Department brought ninety-three cases for the provision’s violation in its first three years alone, and numerous private suits were brought as well.49
Today, some scholars contend that social and economic changes have rendered Title II unnecessary.50 What data exist from newer online entities — which are not yet subject to public accommodations laws in many jurisdictions51 — paint a different picture. These online platforms facilitate services, like transient lodging, that are otherwise covered by public accommodations laws.52 Yet user reports53 and empirical analyses54 reveal that people regularly face discrimination and even outright exclusion when using the services that these platforms provide.55
Preventing this type of discrimination also serves a central role in the maintenance of a just society. Unlike in areas such as housing and employment, where rejection is routine, people do not expect “choosiness” from public accommodations.56 As Professor Richard Epstein notes, “most serious commentators had little doubt about the moral imperative behind passage of Title II”57 at a time when “it was difficult, if not impossible, for [Black] citizens to secure food, transportation, and lodging when traveling from place to place.”58 These denials of service deprived people of their personal dignity,59 inflicted harm far beyond any momentary deprivation,60 and caused serious economic damage both individually and societally.61
B. Recent Developments in Free Exercise Jurisprudence
The past three decades have seen repeated shifts in the Supreme Court’s approach to free exercise challenges. In the decades before 1990, laws imposing more than an incidental burden on free exercise had to be justified by a “compelling state interest”62 under the rule announced in Sherbert v. Verner.63 The reality, however, never aligned with that stringent standard.64 In the 1990 case Employment Division v. Smith,65 the Court announced a formal return to the pre-Sherbert rule that a “neutral law of general applicability”66 was not subject to free exercise challenges.67 Justice Scalia, writing for the Court, interpreted Sherbert as applying to cases “where the State has in place a system of individual exemptions”68 but not to “generally applicable prohibitions of socially harmful conduct.”69 The Smith rule continues to govern but has become increasingly embattled.70
In the midst of battles over restrictions on businesses and private gatherings during the COVID-19 pandemic, the Court adopted a new approach to religious exemption claims.71 This approach, which scholars have dubbed the “most-favored-nation” theory of free exercise, centers on the idea that “[t]he constitutional right to free exercise of religion is a right to be treated like the most favored analogous secular conduct.”72 The name comes from international law, where a “most-favored-nation” provision in a treaty binds one state to treat the other state, “its nationals or goods, no less favorably than any other state, its nationals or goods.”73 Of course, the “other state” isn’t necessarily apparent in religious exemption cases; judges must decide to what they’re comparing the challenged law.74
Many courts and scholars using the most-favored-nation approach have relied on the principle of “equal value” to make these determinations.75 In the free exercise context, equal value means that “secular exemptions are comparable if and only if they implicate the government’s interest in the same way as the claimed religious exemptions.”76 When courts find such comparability, they deem the law to lack general applicability and apply heightened scrutiny. The test doesn’t do away with Smith;77 strict scrutiny continues to apply only when a law lacks neutrality or general applicability. Instead, the most-favored-nation approach raises the bar for general applicability: “[E]ven with statutes that make no mention of religion,” judges must determine “whether the decision-maker paid too little attention to religious liberty.”78
II. The Most-Favored-Nation Approach and the Role of Equal-Value Determinations
A. The Promise of the Most-Favored-Nation Doctrine
Professor Douglas Laycock first applied the concept of the “most-favored nation” to free exercise in an article penned in the wake of Smith.79 The basic concept, as outlined above, is that religious conduct should be treated at least as well as analogous80 secular conduct. First, a judge must identify the government’s interest in the regulation burdening religious exercise.81 Next, they must survey the universe of unregulated entities or activities to determine whether any implicate that same interest — that is, they must rely on equal value.82 This comparison stage forms the crux of the test in its prototypical format.83 From Laycock’s initial articulation of the approach to the present, most judges and scholars looking for appropriate comparators have employed some form of equal-value analysis.84
A reliance on equal value best positions the most-favored-nation test to fulfill its promise: preventing discrimination and especially inadvertent or well-disguised discrimination against religious exercise.85 Even detractors of the most-favored-nation theory correctly identify what may be its greatest attribute.86 The test, through a focus on equal value, “reach[es] beyond malice to include selective sympathy and indifference.”87 It therefore addresses some of the most compelling critiques of the Smith framework from both the left and the right.88 The test extends greater protections to disfavored or overlooked religious minorities while still ensuring that religious exercise enjoys heightened solicitude under our laws,89 reflecting long-standing cultural and legal norms.90
On a practical level, equal-value determinations help judges identify under- and overinclusive laws. Then-Judge Alito demonstrated this in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,91 the first federal appeals court decision to rely on the most-favored-nation theory.92 In that case, the Newark Police Department maintained a policy that its officers could not grow beards absent a qualifying medical condition.93 The prohibition applied to Sunni Muslim officers who asserted a religious obligation to grow beards.94 The interest behind the policy concerned uniformity of appearance among officers to ensure they were “readily identifiable” to members of the public, didn’t “undermine public confidence,” and could maintain “morale and esprit de corps.”95 Judge Alito correctly pointed out that bearded officers with medical exemptions also implicated these interests.96 The law, in other words, was either underinclusive, and the same interests should have prevented medical exemptions, or overinclusive, and those interests should have permitted exemptions for the Muslim men.
But equal-value analysis also restrains the most-favored-nation doctrine by preventing overzealous invalidation of general laws. Without equal value, judges applying the most-favored-nation framework could “look[] at whether a law has any exceptions at all, and, if religious reasons are not among those exceptions, automatically appl[y] strict scrutiny.”97 Courts could even invoke strict scrutiny when a government merely could have created exemptions but didn’t do so.98
Identifying the government’s interest in regulating a particular religious activity or entity is likely the most crucial step when relying on equal value. To the extent that a consensus exists around how to identify the pertinent interest, it begins with the government’s own assertions.99 The litigation context in which these claims arise forces government litigants to “elaborat[e] the important interests that the challenged law allegedly serves” in ways they think will “motivate courts.”100 This process certainly opens the door to personal biases and political preferences seeping into the analysis, with judges retrofitting a government interest to fit a preferred analogue.101 But ignoring equal value removes even these semiobjective boundaries.102
A most-favored-nation approach with no equal-value analysis would result in heightened scrutiny for nearly every pertinent challenge. One need not speculate to see this. To date, Justices Alito and Kavanaugh have each authored a dissent whose analysis rested on a most-favored-nation approach without equal value.103 Unsurprisingly, both opinions were able to identify some unregulated set of establishments. Justice Alito pointed to the fact that the law under review didn’t cover benevolent orders;104 however, he neither addressed the interests embodied in the law nor analyzed the ways in which such orders did or did not implicate those interests.105 Justice Kavanaugh boasted that analogousness was irrelevant; the fact that any entity was subject to a more lenient standard should trigger strict scrutiny.106 Equal value, on the other hand, helps ensure that thoughtfully tailored laws, ones that address particular interests without purposefully or inadvertently targeting religious exercise, can remain whole and serve their intended function.
More than thirty years ago, the Smith Court explained why automatic strict scrutiny for free exercise claims would court political and legal dysfunction.107 Even Smith’s detractors have acknowledged the challenges that would attend across-the-board heightened scrutiny in the religious exemption context.108 The problem with automatic strict scrutiny is its very rigidity; that is, absent judicial disingenuousness,109 it would guarantee a system of religious exemptions unlike anything else in our constitutional system.110
B. The Most-Favored-Nation Doctrine Goes Viral at the Supreme Court
In the midst of the COVID-19 pandemic, the most-favored-nation approach made its Supreme Court debut.111 Justice Kavanaugh’s lone dissent in an early COVID-related order outlined the premise, his opinion replete with citations to Laycock and Fraternal Order of Police.112 A mere four months later, the Court decided Roman Catholic Diocese of Brooklyn v. Cuomo113 using what appeared to be the most-favored-nation theory.114 The case concerned a challenge by a Catholic diocese and a synagogue to New York’s emergency COVID measures.115 The per curiam opinion began its discussion by comparing the restrictions on houses of worship to those on other establishments.116 The analysis focused on the existence of less regulated “nonessential” entities that implicated the government’s interest in maintaining public health at least as much as the religious institutions did.117 These included campgrounds, chemical-manufacturing facilities, and a Target store,118 all of which were “treated less harshly than” nearby houses of worship.119 While the Court didn’t explicitly lay out the most-favored-nation test, the decision embraced it in its “actual operation.”120
Soon thereafter, the Court decided another COVID-restrictions case, Tandon v. Newsom,121 using the methodology of the most-favored-nation doctrine and spelling out the precise approach. Tandon involved a challenge to California’s COVID restrictions as applied to at-home religious services.122 The per curiam opinion systematically laid out the Court’s new free exercise approach, explaining that: (1) strict scrutiny is triggered when regulations “treat any comparable secular activity more favorably than religious exercise,” and (2) comparability for such purposes is determined by “the asserted government interest that justifies the regulation at issue.”123
The opinion stressed that comparable secular activities must be identified using only the rationale underpinning the regulation.124 In Tandon, that meant focusing on the government’s interest in “reducing the spread of COVID,” the rationale behind California’s regulations.125 Other potential concerns, such as the reasons for which people gathered at certain locations, were inappropriate to consider since they lay outside the specific regulatory motivation.126
III. The Most-Favored-Nation Doctrine Meets Public Accommodations Law
The Supreme Court has not decided a religious challenge to a public accommodations law since embracing the most-favored-nation theory.127 The methodology that the Court laid out in Tandon,128 however, aligned closely with descriptions by the theory’s scholarly proponents.129 As noted above, this included using equal value as the sole determinant for comparability of religious and secular activities.130 Laycock and his coauthor, Professor Steven Collis, penned perhaps the most developed articulation of the most-favored-nation approach131:
We must look to the reasons the state offers for regulating religious conduct and then ask whether it permits secular conduct that causes the same or similar harms. . . . The secular conduct may be quite similar to the prohibited religious conduct . . . [o]r the conduct itself may be substantially different; it is still analogous if it harms or undermines the same or similar government interests.132
Notably, this distillation of the most-favored-nation doctrine places equal value at its center. This Part highlights the importance of equal value when applying the most-favored-nation theory to public accommodations laws.133 First, it reviews the government interests in various public accommodations regimes and the different policy considerations they reflect. It then uses the YU Pride Alliance dissent as a “test case” to demonstrate the relevance of these differences in a world without meaningful equal-value analysis.
A. Different Public Accommodations Laws Reflect Particular Government Interests
Public accommodations laws broadly protect members of the public from discriminatory treatment.134 Such laws share many common features. These similarities, however, can mask important differences. For instance, the category of “public accommodations” is usually understood “to refer to places other than schools, workplaces, and homes.”135 But, in eleven states, the public accommodations law explicitly covers schools.136 And, while states like Virginia and Michigan use similar language to describe public accommodations,137 they draw different lines when defining which places are “in fact open to the public.”138
1. The Scope of the New York City Human Rights Law139 (NYCHRL) and the Interests It Pursues. — The NYCHRL, like most other public accommodations laws,140 includes a definition of a “place or provider of public accommodation.”141 The definition it provides is quite expansive.142 However, it includes the following qualification:
Such term does not include any club which proves that it is in its nature distinctly private. . . . For the purposes of this definition, a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state . . . is deemed to be in its nature distinctly private.143
Public accommodations, by their very name, concern entities that hold themselves open to the public. Whether societies like those excluded from the NYCHRL can still be private therefore warrants exploration.
The public (or private) status of large fraternal organizations is not a new debate in public accommodations law.144 Depending on the wording of the relevant statute, state courts have come out on both sides.145 To avoid any doubt, some jurisdictions simply state that benevolent orders are not public accommodations because they don’t exist to serve the general public.146 The statutory grounds on which judges have relied when including such clubs as public accommodations, however, suggest that these entities are still not inherently public.147 Rather, they are covered only insofar as they implicate the government interest behind a particular statute.148
In the case of the NYCHRL, the classification of benevolent groups as private fits within the broader context of the law. In 1984, New York City amended its human rights law to help women and minorities advance professionally.149 To that end, the City Council held extensive hearings150 to ensure that the amended law targeted all entities where business activity took place or gatherings aiding professional advancement might occur.151 The city issued detailed legislative findings152 and included summaries of those findings within the text of the law.153 The City Council’s determination not to include benevolent orders stemmed from the fact that, by law,154 they did not implicate the city’s interest.155 That is, the state laws governing their incorporation prohibited them from being sites for business meetings.156 The Supreme Court heard a challenge to the NYCHRL’s benevolent-order classification in 1988 and found that “[t]he City Council’s explanation for exempting benevolent orders . . . from Local Law 63’s coverage reflects a view that these associations are different in kind.”157
The NYCHRL’s classification of educational institutions, including private universities, as public accommodations also stems from a well-documented and carefully tailored amendment to the law. Like most public accommodations laws,158 the NYCHRL at one time excluded schools from its public accommodations provisions.159 In 1991, however, the City Council chose to eliminate that exclusion due to the city’s “overriding interest in routing out discrimination from its schools.”160 The change came as part of a broad overhaul of the NYCHRL161 motivated by the steep increase in bias-motivated violence around the city.162 Testifying about the bleak situation, the city’s Commissioner on Human Rights maintained that conditions at educational institutions, along with issues in employment, housing, and lending, were to blame for the worsening conditions in the city.163 The inclusion of educational institutions, including universities, as public accommodations was intended to reduce feelings of alienation and experiences of prejudice within those establishments. By ensuring equal access to the tangible and intangible benefits that schools provide, the law aimed both to improve students’ subjective experiences and to position them to succeed professionally.
2. The Scope of Title II and the Interests It Pursues. — Title II presents the clearest example of a public accommodations law tailored to address particular interests. Nearly every state’s public accommodations regime covers retail establishments.164 Title II does not.165 This doesn’t suggest a proretail bias on Congress’s part or indicate a shortcoming in the law’s scope. It instead reflects the reality that the provision pursues different interests than do the laws of most states.
Title II’s lack of coverage for retail stores is hardly surprising given its history. Congress enacted the provision pursuant to its powers under the Commerce Clause and drafted the law to target those establishments where discrimination most hampered interstate commerce.166 The provision was still an explicit antidiscrimination measure.167 Its narrow scope simply indicates the interest it furthers.168
B. YU Pride Alliance and Equal Value
Justice Alito’s dissent in YU Pride Alliance implicitly invoked the most-favored-nation theory developed in Catholic Diocese and Tandon. He declared that the NYCHRL “treats a vast category of secular groups more favorably than religious schools like Yeshiva.”169 To support this claim, he cited the fact that the law did not cover “corporation[s] incorporated under the benevolent orders law or described in the benevolent orders law.”170 Because YU was denied a religious exemption while “exemptions [were] afforded to hundreds of diverse secular groups,” the NYCHRL was not neutral and generally applicable and was therefore subject to strict scrutiny review.171 There’s just one problem with this analysis: the NYCHRL doesn’t contain exemptions to its public accommodations provisions like those described. The law’s scope was simply tailored to meet specific goals.
Of course, a law’s framing can’t alone determine the interests it addresses without welcoming legislative gamesmanship. Its scope can still be under- or overinclusive relative to other implicated activities or entities. The archetypal example involving free exercise is Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.172 In that case, the City of Hialeah had passed four ordinances that collectively outlawed ritual animal sacrifice.173 The city claimed that its actions were justified by its interests in safeguarding public health and preventing animal cruelty.174 The regulations, however, failed to encompass numerous activities “that endanger[ed] these interests in a similar or greater degree”175 than the prohibited religious sacrifices.176 As Lukumi shows, a law’s definitional purview cannot stand in for a meaningful comparison between its scope and the interests it addresses.177
Unlike in Lukumi, however, the NYCHRL’s scope does — or at least arguably does — align with the relevant government interests. As the previous section shows, public accommodations laws can look quite different from one another for legitimate policy reasons. The YU Pride Alliance dissent made much of the statute’s failure to cover benevolent orders.178 The dissent boldly asserted that exempting YU from the law’s purview would do no more to “undermine the policy goals of the NYCHRL” than the law’s own exclusion of fraternal orders.179 Absent was any mention of what those goals were or how those groups implicated them. Without considering the interests embodied in the NYCHRL, the dissent had no ability to consider equal value. And, without equal value, what remained of the most-favored-nation test was strict scrutiny, since some category of entity was unregulated.
A meaningful consideration of equal value in YU Pride Alliance would have looked quite distinct from Justice Alito’s dissent. The NYCHRL is known for being one of the most expansive laws of its kind.180 Therefore, the first step in the analysis would entail an assessment of the city’s interest in regulating universities as public accommodations.181 The Tandon per curiam, as well as leading scholars,182 suggests that the government’s asserted interest should guide judges.183 However, unlike in the COVID-19 cases, where hasty decisionmaking and unknown science made it difficult to pinpoint the interest reflected in particular regulations, no such difficulty existed in YU Pride Alliance. The City Council drafted detailed reports explaining each change to the NYCHRL.184 In relevant part, those included ensuring nondiscriminatory access to all locations where business activity took place and reducing prejudice at institutions affecting residents’ job prospects.185 These rationales map rather cleanly onto the scope of the law.
At the second step, the Court would have inquired into how the NYCHRL treated other public accommodations included in the law or establishments not subject to the law but implicating the same regulatory interest. The NYCHRL doesn’t include tiers of regulation for different public accommodations,186 so, barring unequal application of the law, no public accommodations in the city are treated better than YU. Furthermore, the broad language of the law187 and its explicit requirements regarding judicial construction188 suggest the unlikelihood of unregulated establishments implicating the city’s interest. Of course, that would be a question to resolve over the course of litigation. But, without more information, the equal-value analysis suggests an absence of unregulated secular analogues.
Justice Alito ignored equal value and therefore missed the factors indicating alignment between the interests embedded in the NYCHRL and its regulatory scope. The YU Pride Alliance dissent pointed to the law’s lack of coverage for benevolent orders. These entities, however, weren’t classified as public accommodations specifically because they didn’t implicate the city’s interest, a conclusion previously reached by the Supreme Court.189 That is, these societies are prevented by law from being sites of even informal meetings and professional advancement, and, as noncommercial actors closed to the public,190 they do not give rise to the economic and dignitary harms that the law targets.191
Universities, on the other hand, squarely implicate the interests reflected in the NYCHRL. The city’s interest in nondiscriminatory environments, including educational ones, centers around creating a sense of communal belonging and ensuring equal access to the resources that city residents need for future success.192 The YU Pride Alliance plaintiffs detailed the ways in which YU’s actions caused subjective harm and deprived them of resources and experiences that help other students succeed in school and after entering the city’s workforce.193 As they explained:
Plaintiffs have experienced feelings of isolation, fear, and rejection. . . . These deprivations . . . contribute to a campus environment that prevents students from having full and equal access to a successful college experience[,] . . . [including] allowing students to build leadership and civic engagement skillsets, develop peer and mentoring networks, and experience belonging and support.194
The plaintiffs also laid out in detail the factors that made YU a public, rather than “distinctly private,”195 entity. These included the university’s role vis-à-vis its student public,196 its public-facing mission, its dynamic relationships with employers throughout the city, and its deep engagement with the local community.197 This cursory analysis points to the importance of equal value. Without it, the critical differences between a university and a benevolent society — differences that directly relate to the law under review — can go unnoticed.
C. Implications for Other Jurisdictions
Two Justices have now penned opinions using a most-favored-nation approach without equal value, and two others have signed on to such an opinion. Given how recently the Court adopted the most-favored-nation approach to free exercise claims, it may continue to tweak the doctrine.198 Were one of the Justices opposed to equal value to hold the key swing vote in a case or to author an opinion that otherwise appeals to their colleagues, equal value could easily drop from the Court’s analysis. This prospect holds ominous implications for public accommodations laws like Title II.
Soon after the passage of the 1964 Civil Rights Act, the Supreme Court had occasion to review a covered establishment’s challenge to the Act’s application. In Newman v. Piggie Park Enterprises, Inc.,199 the proprietor of several South Carolina restaurants that discriminated against Black patrons claimed that Title II violated his First Amendment right to free exercise.200 The district court acknowledged that the defendant’s “religious beliefs compel him to oppose any integration of the races whatever.”201 The court nonetheless held that “[t]he free exercise of one’s beliefs . . . is subject to regulation when religious acts require accommodation to society,”202 and, therefore, the defendant lacked “a constitutional right to refuse to serve members of the Negro race . . . upon the ground that to do so would violate his sacred religious beliefs.”203 The Supreme Court found the free exercise defense unavailing204 and directed the trial judge to award the cost of attorney’s fees to the plaintiffs.205
The future of Piggie Park becomes uncertain if the Court does away with equal value as part of its most-favored-nation approach. Take, for example, the Supreme Court’s landmark ruling in Heart of Atlanta Motel, Inc. v. United States.206 For decades, the case has embodied the notion that businesses included in Title II’s definition of “public accommodation” cannot escape the law’s reach.207 Title II, however, is a uniquely narrow public accommodations law: entire categories of business, including some central to the concept of a “public accommodation,” do not fall within its reach, and even those included, like hotels, have carveouts.208
Title II’s scope and explicit carveouts make it easier to see what a most-favored-nation doctrine lacking equal-value analysis would look like. The suggestion here is not that a future challenge to Heart of Atlanta Motel would prevail without equal value. However, taking seriously a most-favored-nation test without equal value, such a challenge would be possible. If, for instance, a hotel owner held a sincere religious objection to queer couples sharing a room, what would prevent them from arguing that the exemption for small-scale, owner-occupied establishments209 treats a secular rationale like privacy in one’s home more favorably than a religious one? Meaningful equal-value analysis would likely find that the government’s interest in regulating a hotel isn’t implicated by a boarding house, especially given Title II’s focus on regulating interstate commerce. Allowing litigants to trot out establishments that serve dissimilar public and economic roles — and are therefore regulated separately — to force exemptions creates a religious trump card to skirt the law.
Conclusion
The number of high-profile cases seeking religious exemptions from antidiscrimination laws is increasing.210 With the Court’s embrace of the most-favored-nation theory, such cases will now be reviewed under that doctrine. For the moment, the Court’s most-favored-nation doctrine includes equal value. But two Justices have written opinions dispensing with equal-value determinations — one of which explicitly disavowed such considerations — and two others have signaled their readiness to do so. Fortunately, a majority of the Court has yet to abandon the equal-value prong that makes the most-favored-nation approach viable. Recognizing the centrality of equal value can protect critical public accommodations laws from increasing attacks and safeguard the nondiscriminatory public spaces most Americans take for granted.