No Freedom to Discriminate

The US Supreme Court seems poised to end state bans on gay marriage in the few states that still do not permit it. Under the 14th amendment, states are not allowed to deny “equal protection of the laws” to any person. As distinctions between traditional marriage and same-sex marriage wither under scrutiny, state bans on same-sex marriage become ever more apparently a bald denial of equal protection, and will very likely be declared unconstitutional by the Court when it renders its decision in the coming months.

But just as one form of discrimination is about to be stamped out, another is trying to emerge. Such discrimination occurs in a commercial setting – when, for instance, a gay couple goes to a baker for a wedding cake, and the baker refuses. (This is analogous to racial discrimination from the Jim Crow era, when a black person seeking a room in a whites-only hotel could be turned away by the manager.) Unlike bans on gay marriage, which are perpetrated by the government, this form of discrimination is committed by private citizens – and there’s no federal law against it.

While the Bill of Rights and the 14th amendment secure individual rights against federal, state and local governments, they are generally inapplicable to the rights we hold with respect to each other. That’s why the US needed the Civil Rights Act of 1964 to end apartheid. Under federal law, before the Civil Rights Act, the proprietor of a shop could turn away any prospective customer or employee for any reason whatsoever. One could choose to serve and-or hire blacks only, whites only, Catholics only, Jews only, etc. – and the US Constitution had (and still has) nothing to say about it. While the Constitution forbids governments from maintaining whites-only buses, or blacks-only universities, it allows private parties to do as their conscience (or lack thereof) dictates. It is because of the Civil Rights Act – not the Constitution – that private parties cannot discriminate on the basis of “race, color or creed” in the course of operating a business.

While red states lag far behind blue states in virtually every socioeconomic measure, they are great innovators of bigotry and intolerance. The Supreme Court’s unfortunate decision in Hobby Lobby gave conservatives a new not-so-bright idea. The Court held that closely-held corporations can refuse to provide their employees with health insurance coverage for birth control, if doing so ran afoul of their “religious beliefs.” In other words, a corporation’s Constitutional “religious freedom” takes precedence over a federal law requiring them to provide insurance coverage for family planning.

Enter the “Religious Freedom Restoration Acts” (RFRAs) now working their way through state legislatures across the country. On their face, they seem innocent – as was the original RFRA passed by Congress in 1993, and signed into law by Bill Clinton. The idea was to give people the right to refuse certain impositions on the part of the government, when they conflicted with their religious beliefs. But a few red states got the notion to expand the application of these laws to private parties as well. And so if a gay couple asks a baker to bake them a cake, the baker might be able to rely on a state RFRA to refuse. The analog to Hobby Lobby is unmistakable, as it should be. Conservatives thought they found a new lipstick for their pig: by dressing up bigotry in the garb of religious freedom, maybe they could sneak it past the courts, and engender a whole new era of discrimination.

Indiana and Arkansas seemed bent on passing RFRAs that facilitated this new form of discrimination. And then something remarkable happened: corporate America rose up in opposition, and the GOP in both states were cowed into amending their laws so that bigots could not rely on them to discriminate.

The US Supreme Court has yet to hear a case on whether one can invoke ones religious beliefs to discriminate against others on the basis of their sexual orientation. Many states afford no protections for gays from discrimination. And Congress has thus far failed to pass a Civil Rights Act for gays. But it is heartening to see this new form of bigotry beaten back by public opinion. The LGBT community assuredly needs a federal Civil Rights Act affording them full protection from commercial discrimination, nationwide. And the road to that destination just got a bit smoother.

 

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Refs:

http://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act

http://en.wikipedia.org/wiki/Employment_Non-Discrimination_Act

4 articles with comprehensive coverage of RFRAs: http://www.washingtonpost.com/blogs/govbeat/wp/2015/04/01/the-twisted-history-of-how-religious-freedom-laws-confused-everybody/

http://www.usatoday.com/story/news/politics/2015/04/02/arkansas-religious-freedom-bill/70831330/

http://www.huffingtonpost.com/2015/04/02/asa-hutchinson-arkansas-rfra_n_6995826.html

http://www.usatoday.com/story/news/nation/2015/04/02/indiana-religious-freedom-law-deal-gay-discrimination/70819106/

http://www.hrc.org/resources/entry/employment-non-discrimination-act

 

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