Religion Clause linked to a case from Hawaii where a court held that a Bed & Breakfast’s decision not to offer accommodations to a lesbian couple violated state law. There have been a rash of similar cases, including one Eugene Volokh has been involved with in New Mexico, involving a photographer who refused to photograph a gay wedding.

One fact that distinguishes the B&B case from the photography case is that the inn is a common carrier. I was taught that at common law, common carriers were not allowed to discriminate or turn customers away.

Does anyone know how this doctrine impacted civil rights cases? Homer Plessy was most certainly turned away from riding in the segregated train car. Of course a constitutional claim was brought, but was there also a claim brought under the common law?

Relatedly, does anyone know if suits against Hearts of Atlanta Motel or Ollie’s BBQ were based on the common law common carrier doctrine? I did a quick search for “common carrier” and Katzenbach and got bupkis. I gather both of these were test cases for the validity act of the Civil Rights Act, but I imagine that the common-carrier doctrine would have been a more narrow grounds to resolve this issue.

Update: A Professor friend adds on Facebook:

Common carrier law did not prohibit discrimination based on conduct. A man and his mistress could most certainly be refused accommodation in the same room. Christians were allowed to run businesses based on Christian principles.

Of course, this raises the entire status/conduct distinction, that has been so prominent in debates over same-sex marriage.