A recent controversy involving Congressman Dan Goldman and a Brooklyn coffee shop seems to me to illustrate a problem that goes beyond public accommodations law, narrowly understood.
According to reports, Goldman visited Poetica Coffee with his young daughter. The shop later posted on social media that, had staff recognized Goldman, they would not have served him. The post objected to Goldman’s support for Israel, reportedly refunded his purchase, and told him not to return. Goldman, who is Jewish and known as a pro-Israel Democrat, has since lost his Democratic primary in New York’s 10th congressional district to a more progressive candidate. That result does not decide the legal issue, of course, but it does help explain the political context. Israel and Gaza have become intensely divisive issues, especially within the Democratic coalition.
The Department of Justice has announced that it is looking into whether the coffee-shop incident violated federal civil-rights law. The legal question is not straightforward. Public accommodations laws do not require businesses to serve everyone in every circumstance. They prohibit discrimination only on specified protected grounds—one of which is religion. Some jurisdictions protect political affiliation or political ideology in public accommodations as well, but federal law, New York State law, and New York City law do not.
So the legal question, if the matter ever became one, would be how to characterize the refusal. Was the coffee shop objecting to Goldman’s political views about Israel and Gaza? Or was it objecting to him as a Jew?Was this political hostility, antisemitism, or some mixture of the two? Those are not always easy distinctions. Views about Israel and Gaza often overlap with Jewish identity, but they are not the same thing. Many Jews disagree sharply about Israel. Many non-Jews strongly support Israel. Criticism of Israel is not itself antisemitic. But sometimes criticism of Israel does cross the line into hostility toward Jews as Jews.
The controversy also raises a broader civic issue. At their best, public accommodations laws reflect an important social norm: ordinary commerce should not become a place where every political and moral dispute gets fought to the end. A customer who enters a coffee shop is not asking the owner to endorse his views. He is asking to buy coffee. Ordinary commerce, in other words, depends on a certain bracketing of disagreement.
One way to think about this is through the old idea of doux commerce— gentle commerce—associated with Montesquieu and the French philosophes. The thought was that commerce could soften manners. It would not make people friends, but it might habituate strangers to deal with one another peacefully despite deep differences.
That norm has been tested in recent years in controversies involving LGBTQ rights and religious liberty. In cases like Masterpiece Cakeshop and 303 Creative, progressives generally emphasized equal access to the commercial marketplace, while religious conservatives argued that the issue was not status but message—not a refusal to serve gay customers as such, but a refusal to participate in expression celebrating a same-sex wedding. The Supreme Court has tried to preserve that distinction: public accommodations laws may prohibit status discrimination in ordinary goods and services, but the state lacks power to compel expression.
That distinction matters here. A coffee shop selling a cup of coffee is not creating a custom wedding cake or website. Selling someone coffee does not endorse his politics, religion, foreign-policy views, or anything else about him.
That, it seems to me, is the deeper point. Public accommodations law is not only a set of technical rules, though the rules matter. It also points toward a norm of civic peace. If every transaction becomes a chance to denounce, exclude, or punish, commerce loses its civilizing function. The coffee shop becomes another arena for total politics. And if ordinary service is reserved only for those whose views we approve, public life becomes impossible.
I discuss the controversy in a new Legal Spirits Short Take.
