Citigroup announced that it will “require new retail sector clients or partners to adhere to …. restrict the sale of firearms for individuals under 21 years of age.” But what if the retailer is in one of the states that generally ban age discrimination in public accommodations, and include 18-to-20-year-olds in that ban? (Some states only ban age discrimination against those 21 and above, or 40 and above; let’s set those aside.)
Any credit card companies that have such policies must exempt retailers’ actions in those no-age-discrimination states. When a law bans some action, it also usually (explicitly or implicitly) bans others from trying to cause that action. It’s a crime for you to kill someone (without adequate justification), so it’s a crime for me to try to pressure you into killing him. It’s a tort for you to libel someone (assuming you know the factual allegations you’re making are false and defamatory), so it’s a tort for me to offer you money to do so.
Likewise, generally speaking, for antidiscrimination law. Consider, for instance, Michigan law; the Elliott-Larsen Civil Rights Act (Mich. Comp. Laws. §§ 37.2301-.2304) bans age discrimination in retail sales, and § 37.2701 likewise provides that no person shall “[a]id, abet, incite, compel, or coerce a person to engage in a violation of this act” or “[w]illfully obstruct or prevent a person from complying with this act” or “interfere with a person in the exercise or enjoyment of … any right granted or protected by this act.” If a credit card company demands that stores illegally discriminate, then it’s inciting, compeling, and coercing violations within the meaning of the law, obstructing the stores’ complying with the law, and interfering with 18-to-20-year-olds’ enjoyment of rights granted by the law.
by Eugene Volokh
