“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
The most remarkable thing about Arizona’s “License To Discriminate” bill is how quickly it became anathema, even among Republicans. Both 2008 GOP presidential candidate John McCain and 2012 GOP presidential candidate Mitt Romney called upon Arizona Gov. Jan Brewer to veto this effort to protect businesses that want to discriminate against gay people. So did Arizona’s other senator, Jeff Flake. And former House Speaker Newt Gingrich. Indeed, three state senators who voted for this very bill urged Brewer to veto it before she finally did so on Wednesday, confessing that they “made a mistake” when they voted for it to become law.
The premise of the bill is that discrimination becomes acceptable so long as it is packaged inside a religious wrapper. As Arizona state Rep. Eddie Farnsworth (R) explained, lawmakers introduced it in response to instances where anti-gay business owners in other states were “punished for their religious beliefs” after they denied service to gay customers in violation of a state anti-discrimination law.
Yet, while LGBT Americans are the current target of this effort to repackage prejudice as “religious liberty,” they are hardly the first. To the contrary, as Wake Forest law Professor Michael Kent Curtis explained in a 2012 law review article, many segregationists justified racial bigotry on the very same grounds that religious conservatives now hope to justify anti-gay animus. In the words of one professor at a prominent Mississippi Baptist institution, “our Southern segregation way is the Christian way . . . . [God] was the original segregationist.”
God Of The Segregationists
Theodore Bilbo was one of Mississippi’s great demagogues. After two non-consecutive terms as governor, Bilbo won a U.S. Senate seat campaigning against “farmer murderers, corrupters of Southern womanhood, [skunks] who steal Gideon Bibles from hotel rooms” and a host of other, equally colorful foes. In a year where just 47 Mississippi voters cast a ballot for a communist candidate, Bilbo railed against a looming communist takeover of the state — and offered himself up as the solution to this red onslaught.
Bilbo was also a virulent racist. “I call on every red-blooded white man to use any means to keep the n[*]ggers away from the polls,” Bilbo proclaimed during his successful reelection campaign in 1946. He was a proud member of the Ku Klux Klan, telling Meet the Press that same year that “[n]o man can leave the Klan. He takes an oath not to do that. Once a Ku Klux, always a Ku Klux.” During a filibuster of an anti-lynching bill, Bilbo claimed that the bill
will open the floodgates of hell in the South. Raping, mobbing, lynching, race riots, and crime will be increased a thousandfold; and upon your garments and the garments of those who are responsible for the passage of the measure will be the blood of the raped and outraged daughters of Dixie, as well as the blood of the perpetrators of these crimes that the red-blooded Anglo-Saxon White Southern men will not tolerate.
For Senator Bilbo, however, racism was more that just an ideology, it was a sincerely held religious belief. In a book entitled Take Your Choice: Separation or Mongrelization, Bilbo wrote that “[p]urity of race is a gift of God . . . . And God, in his infinite wisdom, has so ordained it that when man destroys his racial purity, it can never be redeemed.” Allowing “the blood of the races [to] mix,” according to Bilbo, was a direct attack on the “Divine plan of God.” There “is every reason to believe that miscengenation and amalgamation are sins of man in direct defiance to the will of God.”
Bilbo was one of the South’s most colorful racists, but he was hardly alone in his beliefs. As early as 1867, the Pennsylvania Supreme Court upheld segregated railway cars on the grounds that “[t]he natural law which forbids [racial intermarriage] and that social amalgamation which leads to a corruption of races, is as clearly divine as that which imparted to [the races] different natures.” This same rationale was later adopted by state supreme courts in Alabama, Indiana and Virginia to justify bans on interracial marriage, and by justices in Kentucky to support residential segregation and segregated colleges.
In 1901, Georgia Gov. Allen Candler defended unequal public schooling for African Americans on the grounds that “God made them negroes and we cannot by education make them white folks.” After the Supreme Court ordered public schools integrated in Brown v. Board of Education, many segregationists cited their own faith as justification for official racism. Ross Barnett won Mississippi’s governorship in a landslide in 1960 after claiming that “the good Lord was the original segregationist.” Senator Harry Byrd of Virginia relied on passages from Genesis, Leviticus and Matthew when he spoke out against the civil rights law banning employment discrimination and whites-only lunch counters on the Senate floor.
Although the Supreme Court never considered whether Bilbo, Candler, Barnett or Byrd’s religious beliefs gave them a license to engage in race discrimination, a very similar case did reach the justices in 1983.
Bob Jones University excluded African Americans completely until the early 1970s, when it began permitting black students to attend so long as they were married. In 1975, it amended this policy to permit unmarried African American students, but it continued to prohibit interracial dating, interracial marriage, or even being “affiliated with any group or organization which holds as one of its goals or advocates interracial marriage.” As a result, the Internal Revenue Service revoked Bob Jones’ tax-exempt status.
This decision, that the IRS would no longer give tax subsidies to racist schools even if they claimed that their racism was rooted in religious beliefs, quickly became a rallying point for the Christian Right. Indeed, according to Paul Weyrich, the seminal conservative activist who coined the term “moral majority,” the IRS’ move against schools like Bob Jones was the single most important issue driving the birth of modern day religious conservatism. According to Weyrich, “[i]t was not the school-prayer issue, and it was not the abortion issue,” that caused this “movement to surface.” Rather it was what Weyrich labeled the “federal government’s move against the Christian schools.”
When Bob Jones’ case reached the Supreme Court, the school argued that IRS’ regulations denying tax exemptions to racist institutions “cannot constitutionally be applied to schools that engage in racial discrimination on the basis of sincerely held religious beliefs.” But the justices did not bite. In an 8–1 decision by conservative Chief Justice Warren Burger, the Court explained that “[o]n occasion this Court has found certain governmental interests so compelling as to allow even regulations prohibiting religiously based conduct.” Prohibiting race discrimination is one of these interests.
My Liberty Stops At Your Body
Ultimately, the question facing anti-gay business owners, even if the bill Brewer vetoed had become law, is why it is acceptable to exclude gay people simply because of who they are, when we do not permit this sort of behavior by racists such as Bilbo or Byrd? And there is another, equally difficult question facing advocates of the kind of sweeping “religious liberty” protected by the Arizona bill — why should we allow people to impose their religious beliefs upon others?
One year before Bob Jones, the Court decided a case called United States v. Lee, which involved an Amish employer’s objection to paying Social Security taxes on religious grounds. As the Court explained in Lee, allowing people with religious objections to opt out of Social Security could undermine the viability of the entire program. “The design of the system requires support by mandatory contributions from covered employers and employees,” Burger wrote for the Court. “This mandatory participation is indispensable to the fiscal vitality of the social security system. . . . Moreover, a comprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer.”
Just as importantly, allowing religious employers to exempt themselves from the law would be fundamentally unfair to the employees who are supposed to benefit from those laws. “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.”
Lee, in other words, stands for the proposition that people of faith do not exist in a vacuum. Their businesses compete with other companies who are entitled to engage in this competition upon a level playing field. Their personnel decisions impact their employees, and their decision to refuse to do business with someone — especially for reasons such as race or sexual orientation — can fundamentally demean that individual and deny them their own right to participate equally in society.
This is why people like Theodore Bilbo should not be allowed to refuse to do business with African Americans, and it is why anti-gay business owners should not be given a special right to discriminate against LGBT consumers. And this is also something that the United States has understood for a very long time. Bob Jones and Lee are not new cases. A whole generation of Americans spent their entire professional careers enjoying the protections of the Civil Rights Act of 1964. Religious liberty is an important value and it rightfully belongs in our Constitution, but it we do not allow it to be used to destroy the rights of others.
The argument Gov. Brewer resolved Wednesday night with her veto stamp is no different than the argument Lyndon Johnson resolved when he signed the Civil Rights Act of 1964. Invidious discrimination is wrong. And it doesn’t matter why someone wants to discriminate.