When the Civil Rights Act was enacted in 1964, much controversy surrounded its prohibition of discrimination in "public accommodations", which meant that hotels, restaurants, and theaters would have to serve black and white alike. While it was acknowledged that the law could require governmental actors to treat citizens equally, it was not broadly accepted that the law could mandate equal treatment by private actors. Shouldn't a privately owned business have the liberty to employ and to serve whomever it chooses? Understandably, that was the point of view of the owners of hotels, lunch counters, and other businesses in the south who were being forced by the new law to serve blacks and whites the same. It was also a point of view shared by some for philosophical rather than discriminatory reasons. Some such as Barry Goldwater worried about governmental encroachment on liberty, and that it was unwise for the government to "legislate morality". That view had also been the position of the US Supreme Court nearly 100 years earlier, when it struck down the Civil Rights Act of 1875 as unconstitutional in its attempts to outlaw discrimination in public accommodations. But much had changed in those 100 years, including the increasingly central role of commerce in our society, and along with that, the Supreme Court's increased recognition of Congress's power to regulate commerce. And enough of a majority in Congress recognized that continued private discrimination in the commercial sphere would have been intolerable. It clearly was not tenable to simply say "if one restaurant chooses not to serve them, they can find another". Blacks were shut out of hotels and restaurants in neighborhoods or even entire towns and regions, effectively curtailing their freedom to travel. Property owners and realtors conspired to keep blacks out of "white neighborhoods". Without mandating anti-discrimination in public accommodations, coordinated private action could (and did) keep oppressed minorities from being able to participate fully and equally as citizens in our commerce-centric society. Now from our point of view 50 years after Selma, it seems pretty clear that the regulations of public accommodation were necessary and proper.
Yet the tension between competing liberties underlying the public accommodation issue remains with us. I think many Americans share a "common sense" instinct that discrimination on characteristics such as race and religion is wrong. And I think many Americans also share an instinct that each person should be entitled to make their own choices about the work they do and who they do it for. No one should be forced by the government to do something against their conscience. These two principles come into conflict when one person's conscience collides with another's notion of unacceptable discrimination. In the area of commerce, Americans have generally come down on the side of anti-discrimination, especially when it involves large corporations or relatively impersonal business transactions, where the involvement of the business owner's conscience can seem rather indirect and abstract. Now we are at a new flash point in the tension between personal liberty and anti-discrimination laws that centers on bakers, florists, and photographers. While there are certainly analogies to be made to lunch counters and buses, there are differences that should be considered. The fact that these are small businesses and personal services with expressive elements bring the liberties in question into sharp focus. I think one must acknowledge that the participation of the baker or the photographer in a wedding presents a level of tacit endorsement not present in providing a hotel room or a restaurant meal or a train ride.
When trying to sort out questions like these, I find it is good to seek out analogies to probe for principles, and to try to eliminate my own partisan prejudices. And it is good to try to imagine how the "other side" sees things. To that end, I've been contemplating thought experiments like these: Imagine a marriage which is legal, but which you would find morally repugnant. For me, I am imagining some religious cult community making arranged marriages between girls at the youngest legal age to the eldest patriarchs of the cult. If you were a baker, how would you feel about baking wedding cakes for those cult people? (And please include nice little figurines of a young bride and an old groom. And could you write some messages about wifely obedience in the icing?) Reject them, and you're practicing religious discrimination and facing legal trouble. Similarly, should a gay baker be required to bake a cake for an Exodus "graduation" ceremony for ex-gays? Should a Jewish tattoo artist be required to take a customer who wants a swastika tattoo? If you want the principle of anti-discrimination above personal liberty in all cases, you need to be prepared to force all of those service providers to serve all of those odious customers. On the other hand, if you think that there needs to be some room for personal service providers to exercise conscience and choice of who they serve, then we've got a trickier set of questions to figure out where to draw the line and strike the balance.
With the rise of Religious Freedom Restoration Acts (RFRAs), it makes religious liberty weigh stronger in the balance, though I'm not sure everyone has really thought through the consequences. I think libertarians will generally like RFRAs, as religious liberty ultimately boils down to freedom of conscience. Social conservatives think they like RFRAs, because they imagine them protecting their own religion. They will, but I'm not sure they yet realize that RFRAs will have to protect any and all religions equally. And my religion is whatever I claim my religious convictions to be. The courts will not be able or willing to adjudicate which religions are proper religions, or which convictions are central to a faith. Some clever stoner has already founded the First Church of Cannabis in Indiana. I also can see an interesting wrinkle where, as more churches are turning to give religious recognition to same-sex marriage, RFRAs will enable gay couples to add religious anti-discrimination arguments to their petitions for equal treatment. Thanks, RFRA! (That would be an echo of Perez v. Sharp, the 1948 California Supreme Court case that declared anti-miscegenation laws unconstitutional. Andrea Perez, a white woman seeking to marry a black man, asserted a free-exercise-of-religion claim because her Catholic church was willing to marry her but the state would not issue the license.) The US Supreme Court in 1878 foresaw the problem of giving absolute freedom to religion, writing "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." (From Reynolds v. U.S., where they ruled that being a sincere Mormon did not excuse one from generally applicable anti-bigamy laws.) These same fears and very words were cited by Justice Scalia in 1990, ruling that Native American religious regard for peyote did not trump Oregon state law (Employment Division v. Smith). Backlash to that decision triggered the first RFRA at the federal level, with strong bipartisan backing. With RFRA, Congress basically said, "if the Court won't find strong religious freedom in the Constitution, then we shall enact it as law". I think it's only a matter of time before Warren Jeffs or someone like him files a RFRA claim seeking his FLDS church to be excepted from the anti-bigamy laws. With RFRA, they could make a compelling case. There would certainly be a rich irony in that. A favorite jeremiad of social conservatives is that allowing gay marriage starts a slippery slope to polygamy. And yet it may be that the latest RFRAs, pushed by conservatives as a backlash to gay marriage, are what open the door to polygamy. And wouldn't Mike Pence want to bake that cake?