For over a decade, one of the hottest fronts in the culture war has been the most unnecessary. So-called “wedding vendor cases” now include not only conscientious florists and photographers but also nuns operating parochial schools, churches running colleges, and charitable ventures facilitating adoption. The scenario always plays out the same. The service provider happily serves all people, regardless of their race, ethnicity, religion, sexual orientation, or gender identity. But a customer or employee demands that the service provider use his preferred pronouns or affirm that his same-sex relationship has the nature of a marriage, an act that would make the service provider complicit in what she understands to be a morally significant falsehood. There ensues the unvarying accusation: Discrimination!

　　The resulting conflict is often waged in a so-called “civil rights” or “non-discrimination” commission. This is a recent innovation, created by statute or local ordinance in many communities to investigate, prosecute, and adjudicate allegations of unlawful, private discrimination. In our law, such claims have always been tried by a jury. But these commissions do not use juries; the commissioners make their own findings and determinations. Indeed, commissioners often serve as investigators, prosecutors, judges, and juries.

　　For example, Colorado’s Civil Rights Division investigates discrimination allegations throughout the state. On its website, the Division promises to complainants, “Our staff assists aggrieved parties who want to file a formal complaint of discrimination with CCRD by drafting their allegations into a legal charge. The charge is served on the Respondent and the investigative process is initiated.” The Respondent receives no such assistance. The Division reports cases to the Civil Rights Commission, which is technically a separate entity but is overseen by the same department of state government. The Division and the Commission publish a joint annual report. The Commission has both rule-making and adjudication powers, including the power to compel the attendance of witnesses. Either the Commission or any single commissioner may initiate a case by filing charges. And the Commission’s attorneys prosecute the case on behalf of the complainant. The Commission provides no legal counsel to the accused.

　　This commission is inaptly named. Its mission is not to avoid but to find discrimination. And in the wedding vendor cases, it invents a discriminatory motive when the accused is innocent of any. It was no surprise when, in one high-profile case, the US Supreme Court admonished the Colorado Commission for its lack of neutrality.

　　Religious wedding vendors, churches, and nuns do not discriminate because of a person’s sexual orientation or gender identity. Their reason is to avoid communicating what they understand to be an important falsehood; it is not that the accuser identifies as gay or transgendered. Yet judges and discrimination commissions always find an illegal motive. They then heap fines and scorn on the school, nonprofit, order of nuns, or small business for refusing to participate in cultural confusion about marriage and human sexuality.

　　For example, Barronelle Stutzman, proprietor of Arlene’s Flowers, had long served Robert Ingersoll, knowing that he was in a same-sex relationship. The two became friends. When Ingersoll asked Stutzman to provide flowers for his same-sex wedding, she refused. Her religious convictions teach her that marriage is a man-woman union. In a suit that the Attorney General of Washington filed against Stutzman and her flower shop, a state trial judge acknowledged that it was undisputed that Stutzman served Ingersoll repeatedly over a nine-year period, “knowing both that Ingersoll was gay and that the arrangements were for Ingersoll’s same-sex partner.” Stutzman did not discriminate because of Ingersoll’s sexual orientation, which is what state law prohibits. Nevertheless, the judge refused to send the case to a jury and ruled that her conduct was discriminatory as a matter of law.

　　A civil jury is far more competent than a discrimination commission to adjudicate discrimination claims correctly as a matter of fact and law.

　　Discrimination commissions in Colorado, Massachusetts, New Mexico, and elsewhere have drawn the same conclusion from similar facts. These skirmishes are both unnecessary and constitutionally illicit. A civil jury is far more competent than a discrimination commission to adjudicate discrimination claims correctly as a matter of fact and law and to avoid zero-sum conflicts of constitutional rights. And both parties have a right to have the dispute tried to a jury, a right that the commission denies to them.

　　Trial by a jury in one’s community is one of the most important and fundamental civil rights of our legal and constitutional tradition. England’s repeated infringements of the right were a chief cause of the American Revolution. The right attaches not only to all criminal proceedings but also to all common-law causes of action. The Seventh Amendment to the US Constitution secures the right in “suits at common law,” and preserves the civil jury’s exclusive fact-finding power under the “rules of the common law.”

　　State constitutions also declare and secure the jury trial right. Many state constitutions stress that the right is “inviolate” and some include a jury trial clause in their due process provisions, making clear that the jury trial is a fundamental security for natural rights of life, liberty, and property. And they connect the right to common law rights and claims explicitly. For example, Maryland’s jury trial provision declares:

　　That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity.

　　Scholars disagree about the extent of nondiscrimination duties at common law. Some scholars assert that business owners who hold their premises, goods, or services open to the public have no right to refuse admission or service to anyone at common law. Justice Sotomayor endorsed that assertion in her dissent in 303 Creative LLC v. Elenis. But as I have shown in a lengthy examination of the question, the assertion is not true. Common law duties of nondiscrimination and the rights of businesses to exclude are more complicated and responsive to the lawful expectations of the parties, as I will explain below.

　　What is not controversial—what all the legal scholars and all the justices writing in 303 Creative agree is true—is that a cause of action alleging that a business or non-profit organization has discriminated unlawfully originates in the common law. The action is known as assumpsit. It is predicated on a property owner’s granting permission to customers to enter the business premises. Because it is a common law claim vindicating common law rights, both parties have a constitutional right to have the claim tried to a jury of their peers.

　　The common law recognizes different assumpsits, all tailored to the scope of different licenses. A person or business who undertakes to provide goods or services for another on an individual basis has made a special assumpsit. Examples are a lawyer taking on a client and a theater selling individual tickets to audience members. The customer’s license is unique to the individual customer and remains contingent on the will of the owner. If the owner revokes the license and the customer refuses to leave then the customer becomes a trespasser. As the US Supreme Court explained in Marrone v. Washington Jockey Club (1913), this license confers no property rights on the customer. “It is true that, if the contract were incidental to a right of property either in the land or in goods upon the land, there might be an irrevocable right of entry; but when the contract stands by itself, it must be either a conveyance or a license, subject to be revoked.”

　　The common law knows a different class of undertaking, known as a general or universal assumpsit. This class includes two types, common carriage and what we today call public accommodation. An offer of access, goods, or services in this class is held out to the public at large. The owner may terminate the license with respect to any particular potential customer, but only for what Blackstone called a “good reason.” If the provider refuses service or access on arbitrary grounds—for reasons not related to the goods or services offered— then he may be held liable.

　　Since the Civil War, many state legislatures and city councils have enacted statutes and ordinances codifying these common law doctrines. Today, most claimants in discrimination cases simply cite the relevant statute or ordinance as authority for their claim. But, as I showed in an earlier law review article, a nondiscrimination statute does not generate the rules against unreasonable discrimination. Rather, as the Michigan Supreme Court explained in an 1890 decision, the statute is “only declaratory of the common law”:

　　The common law as it existed in this State before the passage of this statute, and before the colored man became a citizen under our Constitution and laws, gave to the white man a remedy against any unjust discrimination to the citizen in all public places. It must be considered that, when this suit was planted, the colored man, under the common law of this State, was entitled to the same rights and privileges in public places as the white man, and he must be treated the same there; and that his right of action for any injury arising from an unjust discrimination against him is just as perfect and sacred in the courts as that of any other citizen.

　　As Blackstone explained a century earlier, an owner who holds out a universal assumpsit to the general public may refuse services as long as she offers some valid reason. And as the Michigan court observed, race is never a valid reason. With respect to the goods or services on offer, race is arbitrary. At common law, what other reasons are valid depends on the facts of the case. Thus, except in cases of racial discrimination, the reasonableness of the owner’s refusal is a question for the jury.

　　Modern non-discrimination statutes often add new categories of invalid motivations for a refusal of service: religion, sex, and sometimes sexual orientation and gender identity. Nevertheless, the right against discrimination remains a common-law right. And the ultimate question is the reasonableness of the refusal. Racial discrimination, for instance, is not made unreasonable because a statute makes it illegal: It is invalid because it is unreasonable. Nuns and florists often have good reasons to refuse to affirm controversial cultural assumptions about marriage and sexuality. But racial discrimination is always because of race. And race is not a good reason for any business decision.

　　Furthermore, in all cases of universal assumpsit, there is always the fact question of what the owner’s motivation was. To resolve that question requires credibility determinations and, above all, entering into the internal point of view of the nuns, church, family, or non-profit board who operate the public accommodation. Those too are jobs for a jury. So today, even where a statute authorizes a discrimination claim, it is the jury’s job first to find the business owner’s actual motivation as a matter of fact and, second to determine as a matter of law the validity or invalidity of the owner’s reason.

　　The right to a jury trial is guaranteed by both federal and state constitutions as a security for all natural and common law rights and in all suits at common law. A discrimination suit against the owner of a public accommodation is a suit at common law implicating both natural and common law rights. When discrimination commissioners adjudicate those suits and substitute their findings and conclusions for those of a jury, they infringe the jury trial right. The commissions are creating constitutional conflicts unnecessarily. And their conduct is itself unconstitutional.