Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.So it was for the elevation of grain, or the streetcar fare, or insurance. But the message on a wedding cake? Clarice Feldman suggests that the common carrier obligation, or the public accommodation concept, has limits. There's ample linkage to other commentary, then this conclusion.
Congress and state legislatures should determine that except for a limited number of businesses -- hospitals, hotels, and restaurants, public transport, educational institutions and such -- private businesses are not public accommodations. Anti-discrimination laws should be applied only in those few cases where everyone needs reasonable access. Why should the government be involved at all in the business of florists, bakers, photographers, and catering services, including those by pizza parlors? Is the right to be free from offense not trumped by more significant constitutional rights, which would not be subject to shifting tides of either judicial or legislative fashions?Perhaps. Here's Professor Munger, stating the strong form of the common carrier obligation. Professor Henderson is not so sure.
Maybe we take it as given that when a business is open, it's open to all comers, but maybe we shouldn't take it as given. I don't see the implied contract.Yes, as commenters on those posts have noted, there's the "We reserve the right to refuse service" option; expanding, there's the "No Shirt, No Shoes, No Service" common at places that don't offer much service even to those properly clad, and the more upscale "Business Attire Required."
On the other hand, there is a way out of the apparent "implied contract." That way is to make the implied contract the default. That is, unless the business states differently, there is an implied contract. I don't think that's as good as my solution of complete freedom of association, but it's not terrible. Then a business can say, "We reserve the right not to deal with heterosexuals" or "we reserve the right not to deal with homosexuals" or "we reserve the right not to deal with black people" or "we reserve the right not to deal with people who hate black people." That business would then take the risk of losing customers who disagree. And so be it.