Originally posted on the Gender & Sexuality Law Blog on June 4th, 2014.
In conversations about our work on religious exemptions law, I frequently compare the refusal to provide wedding-related services to gay couples or reproductive health care to women for religious reasons to the widespread refusal to provide services to African-Americans for religious reasons before, during, and even after the Civil Rights Movement. This comparison is most often met with dismissive incredulity: my audience insists that this did not happen, or that if it did, it was not widespread. But in fact, religious doctrine was routinely used to justify the extensive oppression of, and discrimination against, African-Americans, beginning with religious justifications for slavery and continuing through the 20th Century, particularly in the South under Jim Crow. These arguments were more widespread before the Civil Rights Movement, but even as late as 1983 Bob Jones University, a Christian-affiliated school, was arguing in the Supreme Court that its racially discriminatory dating and marriage policies for students were constitutionally protected as a free exercise of religion. (The Supreme Court disagreed).
As it turns out, this argument is not old news. A new poll released this week finds that a full 10% of Americans think that business owners should be allowed to refuse service to African-Americans if the refusal is religiously-motivated. (Not to mention the 16% who believe business owners should be allowed to refuse service to LGBT individuals – that number is 15% when polled about refusing service to atheists and 12% for refusing service to Jewish individuals). Although that means the overwhelming majority of those polled do *not* support such exclusions, it’s still a striking result.
We should be concerned about these results not only for their face value, but because they point to a dangerous slippery slope. If we allow for-profit businesses (or even non-profit entities providing public services with public dollars) to refuse services to LGBT people or women on the basis of religious belief, we’re not just slowing or halting progress on civil rights – we’re actually leaving ourselves open to dramatic erosion. It’s hard to come up with a principled reason why a business should be allowed to discriminate, for religious reasons, on the basis of sexual orientation, gender identity, or sex – but not on the basis of race or another religion.
The real difference is that we have a national consensus that formal race discrimination (i.e., race discrimination directly allowed by law) is socially unacceptable. (I’m leaving aside the myriad consequences of more invisible structural racism – on which we do not have a social consensus at all). We don’t have that consensus on gender and sexual orientation. But social consensus can be a dangerously shifting base on which to build our civil rights protections. If the polls on refusing services to African-American or Jewish individuals show a growth in the numbers who find that outcome acceptable, and we have allowed religious refusals of services based on sex and sexual orientation, we are going to have a hard time preserving even the formal civil rights protections that those who came before us fought so hard to obtain.
Kara Loewentheil is a Research Fellow at Columbia Law School and the Director of the Public Rights / Private Conscience Project in the Columbia Center for Gender and Sexuality Law.