The furor over Indiana’s on-and-off “religious freedom” law is a strange one. Left and right argue about not only the bill, but whether it even matters. If you’re against it, this is a historic battle, Selma all over again. If you’re for it, like Indiana’s hapless governor, it’s just a tiny little law, a trivial pointless bill that doesn’t actually have any effect at all, so insignificant it’s hard to see why they bothered to pass it.
Of course this isn’t Selma. March against Mike Pence all you want; you won’t get shot. If the one side is prone to over-dramatizing itself, though, the other flat-out lies. Trivializing the law is deeply mendacious, and even the right wing can’t stay committed to the fiction; for,behind the shoulders of the soothing temporizers waggle the true believers, screaming out dirty secrets like the madwoman in the attic: the Bryan Fischers, babbling that minus absolute license to discriminate, white Christian people will be slaves. Yet you still hear that the act’s only impact would be making it mildly harder to find a florist. This is exactly what’s most dangerous about the bill: the claim that it isn’t so dangerous at all.
Structural transformation of the public sphere: a London coffee house, by William Holland, 1798
The Indiana law is dangerous because it chips away at core values of American law: how we define public life and public space, and rights within them. The word that counts is “public.” For Jürgen Habermas, whose theories comprise not quite a history but a coherent mythology about our era, the eighteenth century saw the creation, for the first time in modern Western societies, of publics: networks of (mostly) men who cultivated spaces outside both home and government to debate, discuss, and form solidarities around questions of mutual moment. This sociable Eden immediately suffered a Fall: on the one hand growing governments tried to constrict it, and on the other burgeoning capitalist forces demanded all concerns of the commons be economized and made private ones. Habermas’ myth is true enough to be useful. It encapsulates a sense that the bounds of what’s “public,” the realms of free communication and confrontation and elective solidarities, are increasingly endangered. The United States is the world’s first fully capitalist country; it’s also chafed for a century or more under an ever-more secretive government, hating transparency, hoarding information. And it has been ground zero for just these battles.
A long struggle pervades American history, to reclaim life from both “private” enterprise and the state like land won back from the sea, to expand and defend the “public” realm, the possibilities for public decision. Edward Snowden’s revelations are consistent with this theme; but so was the whole civil rights movement. This history is varied and it’s violent. The attempted Indiana law was a small step back. But it was a dire precedent.
What’s at stake is not access to geraniums or wedding chapels. The debate is definitional; it’s about how rights and spaces will be allocated. It takes place, ominously, in a society that economic and cultural forces and the Supreme Court are all making more “private” once again. Too bad so many activists condemn the law without calling out its context, or clarifying what its corrosive evasions mean.
Back to Harvard, face to the future: Sumner’s statue in the Square
1. Public accommodations
To talk about the public sphere in the US, you need to talk about the Civil Rights Act of 1964. Signed five decades ago, when I was one year old, it shaped my life. It didn’t protect me, a white kid in the South, from discrimination; it protected me from myself. It did not end but it shook the terms of a former world where inequality was the normative form of existence as soon as you locked your front door behind you. It’s sometimes difficult to remember how much outrage it evoked at the time; for most of us, the law’s principles are now integral to American public life. But their prehistory goes back at least another hundred years, to the aftermath of the Civil War.
The prehistory was a battle for a new definition of what was “public” in American law and experience. That definition came in answer to American slavery, which had made human beings possessions, as private as any other legally protected property.
For years, I walked almost every day past a statue of Charles Sumner, morosely moored on a traffic island in Harvard Square, the site a symbol of his isolation in life, his oblivion after. Fierce abolitionist, Massachusetts Senator from 1851 till his death in 1874, Sumner was eloquent, contumacious, principled, perpetually enraged. In 1856, after he gave an anti-slavery speech, a South Carolina Congressman tried to beat him to death on the Senate floor. Sumner suffered from the wounds for the rest of his life.
Uncompromising and uncollegial, Sumner was given little role in the passage of the Fourteenth Amendment, which in 1868 put equality before the law in the Constitution. The Amendment left Congress to codify what it meant. In 1870, Sumner introduced sweeping legislation to do that. To him, repairing the effects of slavery required guaranteeing African-Americans open access to the public sphere in its widest definition. Legal equality was not just a right against the government, but a right across public life; or, to put it differently, the right of equality the Fourteenth Amendment affirmed was not just an obligation on how the government should treat people, but should shape all public services and places. `Even “private” businesses and associations, as long as they served the public, would have to be realms governed by rights.
Thomas Nast in Harper’s Weekly, November 1869. An integrated if slightly awkward dinner party sits down to celebrate equality before the law and universal suffrage.
Sumner’s bill mandated that “all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment” of all public accommodations, regardless of “race and color,” including “inns, public conveyances on land or water, theaters, and other places of public amusement”: and schools and — imagine this in the current controversy — churches. The scope remains astonishing. English common-law tradition had given government some powers to ensure that institutions calling themselves “public” (like inns or “public houses”) should actually be open to the public. Few previous laws had ever used such powers so sweepingly, and with the specific end of preventing invidious discrimination. (See the endnote below.) It was an especially remarkable assertion in a laissez-faire era, in a country with laws largely designed to facilitate, not regulate, a capitalist economy. It involved defining an expanded public sphere ruled by rights rather than the market, of which “private” businesses formed a subordinated part. Sumner explained this in debate with a Georgia Senator:
The Senator may choose his associates as he pleases. They may be white or black, or between the two. That is simply a social question, and nobody would interfere with it. The taste which the Senator announces he will have free liberty to exercise … but when it comes to rights, there the Senator must obey the law and I insist that by the law of the land all persons without distinction of color shall be equal in rights. Show me, therefore, a legal institution, anything created or regulated by law, and I show you what must be opened equally to all without distinction of color. [emphasis added]
Contemporary engraving of “The Death of Charles Sumner,” complete with weeping African-American seated by his foot
Congress finally passed the Civil Rights Act in 1875, a year after Sumner’s death. (The dying Senator had begged a visitor: “Take care of the civil rights bill … don’t let it fail.”) It was the last civil rights law for 82 years. The final version omitted churches and schools — and cemeteries. The bill’s enforcement provisions were weak. In any case, national Republicans — who owed their rule after the corrupt 1876 election to compromises with the South — soon lost interest in enforcing it at all.
In 1883, in an amalgamation of suits known as the Civil Rights Cases, the Supreme Court overturned the law. With only one dissent, it found the Fourteenth Amendment did not give the Federal government power to regulate private commerce in the name of equality. The Court thus semaphored its approval of racist segregation, affirmed thirteen years later in Plessy v Ferguson. Many at the time compared the decision to Dred Scott. African-Americans and their supporters held “indignation meetings” in city after city to protest, vainly. An new system of intensified oppression was settling across the country.
News report on an 1883 lynching. Exactly sixty days later, the Supreme Court overturned the Civil Rights Act.
Eighty years later, pressed by a massive social movement, Congress passed the Civil Rights Act of 1964. Its “public accommodations” provisions resurrected and expanded the terms of the 1875 Act; it added a ban on race- and sex-based discrimination in most employment. Proposed by Kennedy, passed under Johnson, this is probably the last half-century’s most significant US law. It has hugely influenced the torrent of equality laws passed worldwide since. Though many of them far transcend its protections, the vision of a public sphere including “private” enterprise remains essential.
President Johnson hands a pen to Rev. Martin Luther King, Jr., after signing the Civil Rights Act, July 2, 1964
Unlike the 1875 Act, the Supreme Court found the 1964 one constitutional. (A Georgia motel owner sued immediately on its passage, claiming Congress had no “power to take away the liberty of an individual to run his business as he sees fit in the selection and choice of his customers.” A unanimous Court held against him.) But this was because Congress grounded the law in its Constitutional powers to regulate interstate commerce, a basis for broadening federal authority at least since the New Deal — and not just in the Fourteenth Amendment. The Supreme Court has never overturned its racist and restrictive 1883 decision in Civil Rights Cases. As Akhil Reed Amar observes, Civil Rights Cases has never joined Dred Scott and Plessy v Ferguson in the American anti-canon of rejected judicial errors. This is troubling for two reasons. First, the Court has never acknowledged a Federal power to regulate the “private” sphere based on the Equal Protection Clause. (In fact, conservative Chief Justice Rehnquist approvingly cited the Civil Rights Cases in his 2000 majority opinion denying Federal protections to victims of gender-based violence.) Second, as the Court turns rightward, it has gradually chipped away at Congress’s powers to regulate business under the Interstate Commerce Clause as well. Corporations have been given free speech rights and now rights of religious conscience beyond the reach of Congress. (Rehnquist’s 2000 decision also denied that violence against women had a “substantial” enough effect on “commerce” to be a concern for Federal courts.)
Ensuring public equality should be a settled principle of US public life. There is just enough slight wobble in its foundations in US law for an unreconciled and unreconstructed right wing to sense an opportunity.
2. Religious freedom
Such a pretty little plant to cause so much trouble: Peyote cactus, domesticated
Congress passed a Religious Freedom Restoration Act (RFRA) in 1993. Three years earlier, the Supreme Court had held that a Native American tribe had no right to violate drug laws by using peyote in religious ceremonies. (Justice Scalia, for the majority, wrote: “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.”) The bill partly rolled back that decision, requiring courts to apply strict scrutiny to apparently neutral laws in deciding how they should affect religious practices. Let them eat cactus, Congress said.
The bill’s drafters evidently didn’t envision it could permit actions harming others or restricting their rights — for instance, otherwise unlawful discrimination. The Act licensed actions indifferent in their effects on the rights of others. (In the context of the peyote case, the Act tacitly affirmed that “illegal” drug use had little impact on anyone except the user.) But they didn’t draft well. Constitutional lawyer Marci Hamilton writes, “Civil rights groups were blind (or deceived) … when the first RFRA was enacted.” Even Congress closed its eyes to what was coming.
In 1997, the Supreme Court decided the Act did not apply to the states. As a result, 20 states passed their own versions, effectively identical.
State versions of the Religious Freedom Restoration Act, with dates of passage, as of 2014
One defeat and one victory for the religious right set off the current furor.
Martyrs: Owners of the New Mexico photography shop make witness to the world
a) The New Mexico case. New Mexico has an RFRA (since 2000) but also a legal ban on sexual orientation- and gender identity- based discrimination (since 2003); it’s one of only 17 states to include “public accommodations” as well as employment in the latter. Nobody really thought these would come head to head; but in 2006, a same-sex couple planning a commitment ceremony filed suit when a wedding photographer refused their business. The photographer claimed religious freedom. In 2013, the state Supreme Court found the business liable. (The next year, the US Supreme Court refused to review the decision.) The New Mexico courts held the state RFRA didn’t apply, since it only limited government actions, not suits between private parties. Dissed but endowed with a new set of martyrs, the right started plotting to strengthen the RFRAs.
b) Hobby Lobby. In 2014, by a 5-4 vote, the Supreme Court struck down the Obama Administration’s requirement that employers cover certain contraceptives for female employees. Hobby Lobby, a chain of arts-and-crafts stores, had sued because it didn’t like birth control. The Court held the Federal RFRA protected the religious opinions not just of individuals, but of corporations — “closely held” ones, at least, where a few stockholders predominated. Like robots feeling the inward dawn of A.I. in a sci-fi movie, companies tingled to the neural thrill of personhood surging through their circuits: first free speech rights, now religious conscience. I’m sorry, Dave. I’m afraid I can’t do that. A business has beliefs, and can claim they trump the law, no less than a church- or mosque-goer can.
Artificial personhood: I am a $90 billion corporation, and I love you, Mommy
The Indiana law was framed to fix the first case, and take advantage of the second. Although the hypocritical governor lied that the law was no different from all the other RFRAs out there, its drafters made it stronger in precisely these two ways:
- It allows religious freedom as a defense “regardless of whether the state or any other governmental entity is a party to the proceeding” — that is, in private lawsuits;
- It explicitly lets for-profit businesses claim rights based on “the free exercise of religion.”
Fears over same-sex marriage gave the excuse for passing this law. But was the right wing sincerely worried about perverts forcing the hands of florists? Or is that a pretext, fig-leafing for some other motive?
Indiana has no statewide protections for sexual orientation or gender identity. 11 cities and counties do have local anti-discrimination ordinances, but those come almost without enforcement powers. Indiana’s new RFRA would make those laws even less enforceable; any attempt by victims to complain could be blunted by a religious-freedom claim. In the rest of the state, though, it would just confirm that LGBT people already have no recourse. It might encourage employers to discriminate more, knowing the law supports them; but you can’t take away rights that aren’t there.
Far less discussed are its possible effects on other discrimination claims. Indiana has its own civil rights laws covering the usual suspects — race, color, national origin, ancestry, religion, sex, age, disability — and its own Civil Rights Commission. So what if someone has a religious objection to equal treatment on these grounds?
Back off, Jews, out of my bakery: Icon of St. Gavriil Belostoksky
What if your faith forbids renting to interracial couples, or hiring the disabled? What if God doesn’t want you letting Muslims in your establishment? 2 Corinthians 6:14 is clear on the subject: “Be ye not unequally yoked together with unbelievers: for what fellowship hath righteousness with unrighteousness?” Meanwhile, one of the saints of the Russian Orthodox Church is the child Gavriil Belostoksky, canonized in 1820 after Jews ritually slaughtered him — so goes the pogrom-provoking story. If a Russian bakery in Evansville declines to serve Jews, lest they sprinkle their blinis with the holy blood of infants, who is to gainsay the sanctified exclusion?
Let’s be clear: probably none of these would succeed. Indiana’s RFRA wouldn’t “overrule any [and all] existing anti-discrimination laws,” as some shriek. But it would complicate them. It would confuse the cases, leaving legal fog behind it, giving a potential basis for the discriminators’ defense. It would shift the burden slightly toward the government (or someone pressing a private lawsuit), forcing them to show, over and over, why there’s a compelling interest in overriding these factitious claims of faith in this particular case of discrimination, and why there’s no less restrictive way to stop it. It would encourage people to come up with divine mandates for despicable behavior, and it might make a few people think twice about pressing discrimination claims, given the extra firewalking they could be compelled to do. It would chip away at existing protections in the law. If you hate the whole idea of equality in law, that’s a victory. This confusion, this incremental erosion, is the point of the new-style RFRAs.
Indiana, of course, is reeling from bad press and boycotts; now it’s passed a “fix” for the law, a weird sort of partial victory. The retreat leaves businesses as well as individuals their “enhanced” religious liberty claims, but only if they don’t discriminate in services, housing, or employment. And sexual orientation and gender identity are mentioned as reasons not to discriminate, for the first time in Indiana law. Except this doesn’t give LGBT people any rights. You can still discriminate; you just can’t claim religion as a pretext — but then, you don’t need to. What’s the point of mentioning LGBT people at all?
For other identities, a political ambiguity persists under the legal clarification. Discrimination was made easier for a few days, and even if the new language partly retracts that, the fact survives the furor. Somebody out there will feel freer to act on his prejudices, or make them quiet company policy. This very ambiguity is also the point of the new-style RFRAs.
Public accommodations I: “Sorry, but you have an incurable skin condition.” Cartoon by Herblock, Washington Post, 1963
The Indiana outrage has shown that lots of Americans will stand up for LGBT rights, even as lots of others oppose them. It’s also shown, though, that there’s no broad coalition to defend the principle of equality. They attack it piecemeal — and we defend it the same way. The gays treat reproductive rights as irrelevant; they had little or nothing to say about Hobby Lobby. But the threats Indiana’s law posed to women also went unnoticed. The RFRA-makers use same-sex marriage as the thin end of the wedge. But they mean to carve out space for every kind of discrimination: to undermine every equality claim they can, including those confirmed in the national canon of civil rights protections.
And it still could work. As Marci Hamilton notes, fifteen years ago “it was widely assumed by the civil rights community that Title VII” — the gender-equality section of the Civil Rights Act of 1964 — “would be a bulwark” against attempts to use the Federal RFRA to roll back women’s rights. “Hobby Lobby proved that they were wrong.” The threat is serious, the defenses fragile, and that’s why the focus on florists is reductive. Even for gays, discrimination generally goes beyond geraniums. As Garrett Epps writes, “public accommodations are not usually about wedding photos—they are about pediatricians, about pharmacies, about daycares or private schools for your children. They are about being able to shop and eat in public without exclusion and humiliation.” That’s where the Indiana law gave scope for discrimination. And in fact, as these laws keep coming, the legal threats to queers in public space turn physically painful. Texas, for instance, is trying to write an “enhanced” RFRA into its constitution. But three bills before its legislature would also criminalize both trans people who enter the “wrong” toilet, and business owners who fail to “verify the gender of individuals using their restrooms.” That’s a direct threat to trans folk’s ability to hold jobs, go outside, access the public world at all.
Yet the LGBT fixation also ignores the breadth of the threats, the potential range of victims. Sure, you could find another florist. And an African-American whom some godly proprietor kicks out could find another lunch counter, or job, or home. It’s not that these stories are equivalent; they aren’t. But the principle is the same. It’s Sumner’s principle, again endangered: that the public sphere should be for everyone.
Public accommodations II: “The White traveller has no difficulty in getting accommodations, but with the Negro it has been different.” The Negro Traveller’s Green Book was published from 1936 to 1966, to help the small numbers of African-American tourists in the segregation age find places to stay, eat, shop, or use restrooms — “without encountering embarrassing situations.”
An uneasy coalition of libertarians, social conservatives, and open racists has been fighting this battle since well before 1964. Their goal isn’t to protect “religious freedom.” They want to change and chain up public space, close off access, put paid to the principles of American civil rights law. “Religious freedom” is just a way to make the effects of inequality seem minimal, its appeal seem broad.
If religious freedom doesn’t turn you on, that’s fine. Already they’re thinking way beyond it. They’ll defend unequal treatment as a First Amendment issue. When you refuse a Jew a room in your hotel, you’re really just saying, “I am unfavorably disposed toward Jews,” and that’s free speech. Or they’ll claim they actually defend difference in the public sphere, by letting some folks drive it out. “Civil society is where life happens; we want it to be as rich an ecosystem as it can be,” Jonah Goldberg writes in National Review, not previously known for defending either diversity or ecosystems. “All RFRA was intended to do was to give millions of Americans a little space to be and do what their religion tells them they must.” Or they’ll claim everybody should have the right to discriminate, not just the godly. If the non-religious can’t discriminate just like the religious do, that’s discrimination against them:
As vital as religious liberty is, what about the rights of the 25 percent of Americans who have no faith? The safe harbors that these laws attempt to dredge should not, themselves, discriminate against nonbelievers. … What if you are an atheist who really objects to gay marriage? Must you still bake cakes for gay weddings, or will pro-shariah Muslim bakers be the only ones who can walk into court and ask to be excused from doing so?
Cover of NAACP pamphlet explaining the Civil Rights Act
Meanwhile, Ross Douthat, the New York Times‘s resident rightist, warns that protections for LGBT people take the tools used against racial discrimination much too far. “In the annals of American history, both Jim Crow and the means we used to destroy it are, well, legally and culturally extraordinary.” If that’s true, public equality for women and the disabled is overreach too. The Supreme Court already gutted the Voting Rights Act. Should the Civil Rights Act of 1964 go next?
Not likely. Not yet. But that’s what they want. The battle is about what public space will look like, who’s empowered to appear. Reactionary partisans of the ancien régime dream of driving out everybody who’s occupied their territory in the last fifty years.
It’s similar to the struggles in eastern Europe over LGBT Pride marches, brutalized by skinheads and banned. Many of those countries decriminalized “sodomy” in the 1990s under EU pressure, grudgingly giving gays bedroom freedoms; but conservatives draw the line in public, at access to the streets. With the rule of law underdeveloped there, though, violence displaces legislation as the curb of choice. More salient as a parallel are the measures against Muslims in some western European nations. In France, there’s been the drive to ban the veil and other emblems of religious identity in public; in the UK, the constant intimidation and surveillance — by government and by “human rights” vigilantes — of Muslim communities, speakers, NGOs, mosques. Both reveal revulsion against an unfamiliar immigrant-borne identity, among older, whiter groups who thought they had sole tenure on citizenship: in particular, an insular and arrogant secularism that strives to stamp out any alternatives. Many gays and Muslims might might reject the analogy. But it suggests how this controversy too isn’t about freedom of religion, or freedom from religion. It’s about power. It’s about control.
Like being trans in Texas: Police arrest a woman under the new law against wearing the niqab in public, Paris, April 12, 2011. Photo: European Press Agency
From the purely queer perspective, you have to ask: how did Indiana happen to us? What makes these backlash-fed attempts at rollback possible is this: while same-sex marriage swept the country, most of us still have no defenses against discrimination. 36 states permit marriage now; less than half that many protect LGBT people in work, housing, public accommodations. The backlash against the former thus finds people’s material well-being easy prey. Would things be different if the priorities of American’s institutional gay movement had been different? If, instead of such a single-minded focus on weddings, they had fought hard for civil rights laws in employment and public accommodations — for tangible equality?
Why didn’t they? Equality is such a touchy term. It’s far easier to get it when it doesn’t cost anything. Marriage has the advantage of making few demands on either government or business, unlike anti-discrimination laws. (The alleged burdens it places on non-juring florists are so nugatory that nobody even imagined them before the right dreamed them up). But real equality always costs; its implications are economic. The language of civil rights protections often veers into abstract realms of legal formalisms, but few who fought for those standards forgot their tangible impact: not just offering discursive recognition to people, but redeeming livelihoods and lives. Lyndon Johnson, telling a gaggle of governors why the Civil Rights Act of 1964 was needed, burst into a manic oath of uplift to all the country’s wretched and poor: “So that we can say to the Mexican in California or the Negro in Mississippi or the Oriental on the West Coast or the Johnsons in Johnson City that we are going to treat you all equally and fairly.” Clean up the language, take away the self-pity: what politician today would dare commit himself like that? Promises to the poor make the rich angry. To pass a civil rights bill now, you’d have to swear on the God of Genesis that it wouldn’t actually help anybody at all.
Compare Hillary Clinton. “Extreme inequality has corrupted other societies,” she warns. But:
Mrs. Clinton was vague when it came to solutions. …. Though she derided the Republican practice of cutting taxes on the wealthy, she made no mention of tax increases or more aggressive measures, like capping the pay of chief executives or modestly taxing stock market transactions.
Any nerve Clinton ever had is Novocained now by Wall Street money, which pulls the teeth of both her policies and prose. Speaking of inequality to a “well-heeled crowd,” she said: “We have to have a concerted effort to meet a consensus about how to deal with this.” What brave rhetoric! It’s George W. Bush on Quaaludes.
Inequality? Two of us are equal, and the third, she’s trying. Hillary Clinton and billionaire Bill Gates, with billionaire Howard Buffett (Warren’s son) between them
That’s the fix we’re in. We imagine equality as an invitation-only ceremony: let them eat wedding cake. But others are starving outside, and at any moment we could join them. The deeper implications even of a fiasco like Indiana’s evade us.
Why are the gays ecstatic when corporations side with us? True, their clout makes a difference when properly put to use: the ebb of investment forced Indiana’s governor into full retreat. But it’s opportunistic friendship they’re offering, not a marriage proposal. Apple and Walmart object to religious-discrimination laws because they know it’s good business to be open to all consumers. But none of them complained about the Hobby Lobby decision, which quashed a requirement to give workers benefits. Those cost money. Tim Cook wrote no op-eds defending women’s rights to birth control.
Corporations may sometimes use their power for human rights, but corporate power is still a problem. And when Tim Cook intones “we will never tolerate discrimination,” he’s making a sales pitch, not a promise. Apple benefits plenty from inequalities in the labor market. There’s a reason it subcontracts work to high-tech sweatshops in China, where the wages are risible, the exploitation rife. Meanwhile, in California, Cook’s corporation bars construction contractors from hiring workers with criminal backgrounds. Blanket employment bans based on criminal record can violate Federal law — according to the Equal Employment Opportunity Commission, which enforces the Civil Rights Act of 1964. Mark Ames writes,
Discrimination against ex-offenders is a major ongoing problem that exacerbates poverty, inequality and racism; in an incarceration-mad state like California, Apple’s policy imposed on construction companies it hires means worsening inequality and cycles of poverty for a problem that disproportionately affects people of color.
For all his invocations of his Alabama childhood, if the Civil Rights Act of 1964 comes under attack, I doubt Tim Cook is going to defend it.
The decades after Civil Rights Cases and Plessy v Ferguson were the Barbarian Ages of American law — and not just for racial freedom. Courts refused to use the equal protection clause to make government protect the disenfranchised and the lynched. They used the due process clause to keep government from protecting anyone else. During the so-called “Lochner era” in the first forty years of the twentieth century (named for a Supreme Court decision overturning limits on the work week), judges rejected child labor laws, health and safety laws, almost any restriction on the all-mastering, untrammeled market. Racism dominated the political world, laissez-faire indifference the economic. Together they subjugated the public sphere, under the dual rule of prejudices and prices. The expansion of Congress’s interstate commerce powers that made the 1964 Civil Rights Act constitutionally possible grew as a tool to reverse the Supreme Court’s sacralization of private business.
No one thinks the dark era of counter-Reconstruction could return in full; but there are echoes. New laws chisel away at civil rights principles. States are stealing voting rights, while the Supreme Court lops the Federal government’s authority to intervene. Corporations assume personhood, then human rights, then oligarchic powers. The gay movement indulges gauzy wedding fantasies; in the real world, run by Walmart and Apple, inequality metastasizes. A qualified victory came out of Indiana. But meanwhile the freedom to access the common world recedes. A long American struggle strove to create a broad public sphere governed by rights. That sphere is shrinking. No temporary triumph will last unless we defend the principles of public life, as political beings, together.
Freedom at bay: South Carolina Congressman Preston Brooks canes Charles Sumner on the Senate floor, 1856, from a contemporary engraving
NOTE. English common law imposed duties on certain private entities that offered services to the public. Lord Chief Justice Holt’s 1701 dissent in Lane v Cotton definitively formulated the principle:
If on the road a shoe falls off my horse, and I come to a smith to have one put on, and the smith refuses to do it, an action will lie against him, because he has made profession of a trade which is for the public good ….If an innkeeper refuses to entertain guests where his house is not full, an action will lie against him and so against a carrier, if his horses are not loaded, and he refuses to take a packet proper to be sent by a carrier.
A certain idea of non-discrimination lies latent here. However, the American context of comprehensive racist restriction drew forth responses applying that governmental power specifically to inequality. In Massachusetts, Charles Sumner himself helped argue Roberts v Boston in 1849-50, a failed attempt to bring about school integration by litigation. The failure led, however, to Massachusetts enacting the first school integration law in the US, and — in 1865 — to the first statewide law prohibiting race discrimination in public accommodations. These in turn were models for Sumner’s national civil rights bill.
Most of these were measures expressly couched against property rights. They led to a conservative backlash expressly associating property rights with discrimination. Robert C. Post and Reva B. Siegel note:
Although Anglo-American common law had imposed on at least some business owners the duty to serve customers on a nondiscriminatory basis, the linkage of property ownership with the liberty to discriminate found increasingly forceful expression in the decades after the Civil War as white Americans invoked racial notions of associational privacy to justify practices of racial segregation in both public and private spheres.
Post’s and Siegel’s analysis of the arc leading from Reconstruction to measures against gender-based violence amply repays reading. My thanks to Danish Sheikh, of the Alternative Law Forum in Bangalore, India, and Mindy Chateauvert for their guidance here.