| Alan Dershowitz, the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School, has threatened to sue a vendor at a Martha’s Vineyard famers’ market over the latter’s refusal to sell him a half-dozen pierogies. Professor Dershowitz almost certainly has no legal case under federal or Massachusetts law. However, if the esteemed legal scholar who heroically declined to remove his underwear while receiving a massage at Jeffrey Epstein’s home had sought his dumplings in one of the states that forbid political opinion discrimination by places of public accommodation, he might well have a winning argument. This undoubtedly silly incident thus raises an important and surprisingly difficult question: Should the law forbid merchants who hold themselves out to the public from denying service based on the political viewpoint of prospective customers? |
| The Facts and the Law |
| According to Professor Dershowitz himself, the vendor at the West Tisbury Farmers Market refused to sell him any pierogies because, in the words of the vendor, “I don’t approve of your politics. I don’t approve of who[m] you’ve represented. I don’t approve of who[m] you support.” When asked by Professor Dershowitz for more specifics about the nature of the disapproval, the vendor reportedly said “I’m not going to tell you. I just don’t like your politics.” |
| The police were subsequently called and, although the incident ended without any violence, there remains the threat of litigation. That threat is hollow. |
| A pierogi vendor at a farmers’ market is almost certainly a “place of public accommodation” under federal law and Massachusetts law. Indeed, in addition to permitting civil liability, Massachusetts law even provides for criminal punishment of up to a year in prison for refusal to serve a potential customer based on illicit discrimination. Yet not all forms of discrimination are illicit. The principal federal public accommodations law forbids discrimination based on “race, color, religion, or national origin.” The Massachusetts version repeats those forbidden grounds and adds sex, gender identity, sexual orientation, and disability. Neither body of law forbids a place of public accommodation from discriminating based on a customer’s politics. |
| Might Professor Dershowitz be able to claim religious discrimination? He is an outspoken supporter of Israel, including its current tactics in Gaza. If the pierogi vendor’s unspoken reason for not serving Professor Dershowitz is disapproval of any support for Israel, and if that disapproval is in turn rooted in antisemitism, that could be a basis for a successful federal or state discrimination claim. |
| However, there is no evidence for that supposition and substantial evidence to the contrary. For one thing, even if the pierogi vendor’s chief disagreement with Professor Dershowitz concerns Israel’s conduct of the Gaza war or its policies regarding Palestinians, that, by itself, is not a sufficient basis to infer antisemitic motivation. Moreover, Professor Dershowitz’s ardent support for Israel long predates his having become persona non grata on Martha’s Vineyard, which appears to have resulted from his “ties to the Trump administration.” In any event, the pierogi vendor said that his refusal to provide service was based chiefly on the people Professor Dershowitz has represented—a list that includes Donald Trump (during impeachment proceedings), Jeffrey Epstein, and O.J. Simpson. One might think that it is unfair to shun a lawyer because of the clients he chooses to represent, but it is not illegal—under state or federal law. |
| Professor Dershowitz nonetheless reportedly said: “It’s illegal. I’m a professor of constitutional law, and I know the law of Massachusetts very well.” Unless that law contains secret provisions, he does not. |
| Should the Law Forbid Political Opinion Discrimination? |
| Although Professor Dershowitz does not have a viable lawsuit against the pierogi vendor, maybe the law should be changed to permit people to sue when they are denied service based on their politics. Indeed, in some jurisdictions they already can. For example, the human rights law of the District of Columbia lists “political affiliation” among the grounds upon which discrimination is forbidden. California’s Unruh Civil Rights Act has been construed to forbid all arbitrary discrimination, which the state supreme court has said (in a case involving a different issue) includes “political affiliation.” Is that approach better? |
| There are pros and cons to forbidding merchants from denying service based on politics. On the pro side, one might think that everyone should be able to participate in the market to the same extent as everyone else. Political affiliation is not an immutable characteristic in the way that race is, but so what? Increasingly, politics are central to Americans’ identity in the way that other characteristics are. And given high degrees of political polarization corresponding to geographic lines, millions of people find themselves in places where they are at risk of being shunned. Without a prohibition on political-affiliation discrimination, conservatives living in blue enclaves and liberals living in red ones could find it difficult to obtain the goods and services they need. |
| However, even in these polarized times, it is hardly clear that we need laws forbidding political affiliation discrimination. Cases like the Dershowitz pierogi contretemps are highly unusual—perhaps because merchants are profit maximizers who generally do not care about their customers’ politics. |
| To be sure, one can take that argument too far. In the past and even to this day, some conservatives have opposed laws banning race discrimination and other forms of invidious discrimination on the theory that it is economically irrational for businesses to discriminate. Yet rational or not, racism, homophobia, and other prejudices persist and sometimes result in discrimination against customers. |
| If the only objection to laws barring political affiliation discrimination were that such laws are unnecessary, a prudent legislator might vote to enact such a law anyway on the ground that even if it prevents only an occasional case of unfair discrimination, it exacts no substantial cost. But that is not true. Proof of discrimination will typically turn on intent, which could require substantial factfinding and thus exact costs in the form of expensive litigation. |
| Meanwhile, a case can be made for a right to discriminate based on political affiliation. Suppose that instead of Alan Dershowitz, the vendor had been confronted with a neo-Nazi with swastika tattoos or a hooded Klansman. |
| Granted, selling pierogies almost certainly does not count as “expressive” within the meaning of a term that the Supreme Court left undefined in its 2023 decision that expressive businesses have a First Amendment right to refuse service that would implicate them in messages they do not wish to convey. Thus, a statutory prohibition on political affiliation discrimination by public accommodations would not run afoul of constitutional rights in most circumstances. |
| Even so, we might think that vendors and their employees have a strong interest in being able to withhold service. They might understandably feel very uncomfortable providing goods and services to people holding reprehensible views. And while it might be tempting to think the law can carve out an exception from antidiscrimination law for views that are truly beyond the pale—such as the pierogi-seeking neo-Nazis and Klansmen in my hypothetical example—such a carveout would itself violate the First Amendment as viewpoint discrimination. |
| Accordingly, most U.S. jurisdictions have reached the same conclusion as have the United States Congress and the legislature and courts of Massachusetts—that public accommodations law should not ban political affiliation discrimination. In other words, they have concluded that Professor Dershowitz is not only wrong about what the law is but also wrong about what it should be. |
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