Public Accommodations and Private Discrimination

Civil-rights statutes are limited to specific situations. The religious-freedom laws in Indiana and Arkansas were not.

The Reverend William Barclay had been a Baptist minister for nearly half a century before he bested Caesar in mortal combat.

Barclay operated the All Faiths Wedding Chapel in Wichita, Kansas. For a fee, he performed religious weddings for couples—whether or not they were members of his church. “I don’t marry ‘em if they’ve been drinking, and I don’t marry them if they don’t have the right attitude,” he told one reporter. He also didn’t marry them if they were of different races. Scripture had convinced Barclay that he should not offer his services to interracial couples. God didn’t want the races to mix, he said. He would allow other ministers to marry those couples in his chapel, but he wouldn’t do it himself.

A local prosecutor filed a criminal information against Barclay, alleging that his religious policy violated a state statute that required providers of “personal or professional services” to serve all willing customers, regardless of “race, color, ancestry, national origin or religion.” Barclay was briefly jailed before a court order freed him.

In 1985, when Barclay’s case reached the Kansas Supreme Court, the justices said to the prosecutor, in essence: “What are you, stupid?”

“The parties have not cited, nor has our research revealed, a single case from any jurisdiction within the United States where criminal prosecution of a minister has been attempted under even remotely comparable circumstances,” the court said. The justices reprinted both the First Amendment and Section Seven of the Kansas Constitution in full, to make clear that neither constitution allowed the state to tell a minister how to conduct religious worship.

Case dismissed. I haven’t been able to find a case before or since State v. Barclay in which a prosecutor or a court had been clueless enough to entertain a discrimination claim based on marriage ceremonies.

Pastor Barclay’s story puts the recent flap about Religious Freedom Restoration Acts in perspective. Many supporters of both the Indiana and Arkansas laws claimed that new “religious liberty” legislation was needed to prevent Caesar from dragging ministers from the pulpit. “A church should not be punished because they refuse to let the church be used for a homosexual wedding!” proclaimed Advance America, a Christian group prominently involved in the campaign for the Indiana RFRA.

But the First Amendment protects “the free exercise” of religion—and even those who read that clause most narrowly agree that it protects church decisions concerning whom to marry and where.

So this aspect of religious liberty was in no danger in Indiana, just as it has never been endangered by the Civil Rights Act of 1964 or the numerous state and local anti-discrimination laws passed over the past half-century.

The Indiana and Arkansas flaps, however, showed us that the public understands very little about how civil-rights laws and religious liberties work together.

No law, state or federal, forbids “discrimination” generally. Employers, landlords, and businesses “discriminate” all the time—on the basis of low credit ratings, bad references, and poor employment histories, among other factors. Any type of private discrimination is legal unless a state or federal law specifically forbids it. Civil-rights laws prohibit discrimination on certain grounds, and they specify what activities they apply to. The most common areas of civil-rights protections are employment, housing, and “public accommodations,” which refers to places like hotels and restaurants.

Thus, a civil-rights statute has two key parts. The first lays out the traits it governs, the forbidden grounds—for example (to quote Title VII of the Civil Rights Act of 1964), “race, color, religion, sex, or national origin.” To state a claim, plaintiff must show that he or she has been treated less favorably than others who differ in one of the covered traits, and that the unfavorable treatment was because of that trait.

(This is the reason that many of the examples floated on talk radio are just irrelevant: a halal butcher shop, for example, would not be “discriminating” against anyone by not selling pork chops. Discrimination against customers is forbidden; discrimination against meat products, not so much.)

Then the law specifies what activities it covers, and usually offers certain exemptions. For example, although the Civil Rights Act forbids discrimination in hiring, anyone employing 15 or fewer people is not defined as an “employer.” The Fair Housing Act bars a landlord from refusing to rent to anyone because of “race, color, religion, sex, familial status, or national origin.” But it allows religious organizations that own dwellings to favor members of their own sect; and it has the famous “Mrs. Murphy exemption,” which excludes small landlords who rent property where they live themselves.

Most of the furor surrounding the Indiana and Arkansas statutes has concerned “public accommodations,” meaning certain businesses holding themselves open to the public. Since at least the sixteenth century, English courts required certain businesses—inns, stagecoaches (and then railroads), companies that carried goods, surgeons, and even blacksmiths—to serve any customer who could pay. The rationale, according to Harvard Law Professor Joseph Singer, was that by “holding themselves open to the public,” they offered a binding contract to everyone, and had to honor it.

In Singer’s account, the “traditional” right of a property owner to refuse service at whim is relatively recent. It arose after the Civil War, when newly freed African Americans were using the vote and access to the courts to seek inclusion in Southern politics and the economy. In the immediate postwar period, many of the former Confederate states required businesses to serve both black and white customers; but many whites defied the law, and terror organizations like the Ku Klux Klan and the Knights of the White Camellia (often indistinguishable from local law enforcement) threatened or killed whites and blacks who objected to separation.

Then in 1882, the Supreme Court voided the Civil Rights Act of 1875; it told black Americans in so many words that they had “cease[d] to be the special favorite of the laws” and would just have to put up with white racism from now on. By the early twentieth century, Northern opinion countenanced Southern racist radicals imposing segregation by law in some areas (for example, education), or simply winked at discrimination by employers, landlords, and business owners. Black Southerners were evicted from political power, education, economic opportunity—and access to hotels, restaurants, theaters, barbershops, and even many hospitals—until the Civil Rights Act  and the Voting Rights Act made American apartheid illegal.

The Civil Rights Act, however, did not simply proclaim that all “public accommodations” were to be open; it carefully enumerated the businesses it would cover: inns and hotels, restaurants and all places serving food, service stations, and theaters and arenas. In other words, like other civil-rights acts, it contains its own internal limits. Each of these was debated carefully in Congress and explained openly to the public.

RFRAs are not civil-rights statutes at all. Indiana doesn’t have a statewide law outlawing discrimination against LGBT people. But some local Indiana communities do, and, comments by RFRA supporters suggested they planned to use it as a defense when individuals tried to enforce those laws. (Arkansas’s even more radical RFRA statute, which explicitly referred to civil-rights statutes, was really just icing on the cake in that state—only a few weeks before its passage, the legislature had voided all existing local laws protecting gays against discrimination and proscribed any new ones.) It might have given elected judges an unspecified power to decide that enforcing equal access for gays and lesbians was “going too far.”

Stealth is the wrong way to define exemptions in civil-rights laws. If a non-discrimination ordinance is to have exemptions, they should be debated as openly as were the ones in the CRA. Many existing anti-discrimination statutes already treat religious discrimination, sex discrimination, and racial discrimination slightly differently depending on context. (Church bodies can discriminate by religion in hiring; small landlords can rent to whom they like; and some separate facilities for men and women—like toilets and locker rooms—are okay.) Sexual orientation and same-sex marriage status need to be discussed openly, and possible exemptions should be examined dispassionately by both sides.

The one thing we can’t have is a rule—unwritten or explicit—that says discrimination is justified if the person discriminating really, really objects to the excluded group. Whether explained in religious terms or not, that undermines the entire idea of civil rights.

After the turnaround in Indiana and Arkansas, David Brooks clucked that the marriage-equality movement was becoming a merciless new Caesar. “In cases where people with different values disagree, we seek a creative accommodation,” he said. And that is right, but “creative accommodation” is sought in the legislative process, not by telling the excluded to grin and bear it. It needs to be negotiated.

The Pastor Barclays of this world are already safe from the long arm of the state. It’s the rest of us who still need to work it out.