EO! EO! Ewww!

Just when I think that maybe the Nation has finally laid to rest religious fundamentalists’ objections to equal treatment of sexual-orientation minorities and trans people – “trans” is not a sexual orientation, of course – the issue rears its ugly head again, and I feel like someone has abducted me, placed me into Mr. Peabody’s Way-Back Machine, and zorched me ten or so years into the past when the issue was still being debated and adjudicated.

Such was my reaction to Politico’s and USA Today's recent story about Trump’s intent to sign an executive order (EO) mandating a respect for “sincerely held religious convictions” vis a vis … well … what …. exactly … ? … which is precisely the issue. Given that Vice President Pence was once governor of Indiana, where he advocated a State-level religious freedom restoration act (RFRA) enabling business owners to refuse to service LGBTQIA patrons for, e.g., gay weddings, we can safely assume that one of the primary intents of this new executive order presently being drafted is to enable business owners considerable latitude in accepting or refusing transactions with LGBTQIA clients, on the basis of the owners’ “sincerely held religious convictions”.  There may well be other applications of such an EO, but at a minimum, the LGBTQIA community would be an initial target. Herewith a couple of issues that Trump and his lawyers must deal with.

o Given that there are people who entertain “sincere religious objections” regarding the moral permissibility of “race-mixing” – what used to be known as “miscegenation” – how does the Administration, and the Justice Department thereof, propose to reconcile a RFRA executive order with Title II of the Civil Rights Act of 1964?

In particular, how would the RFRA EO now being written be reconciled with section 2000a of the Act, given that that section, in particular, explicitly prohibits “public accommodations,” as defined in section 2000a(b), from discriminating “on the ground of race, color, religion, or national origin”? This issue immediately poses the problem of how to allow businesses to discriminate within their clientele on the basis of sexual identity and orientation without at the same time violating section 2000a of the 1964 Civil Rights Act by similarly enabling people with equally “sincere religious objections” to “race-mixing” to, e.g., refuse to seat black patrons at restaurants, refuse to rent apartments to mixed-race couples, refuse to allow black and white people to use the same swimming pool, etc., etc., etc., etc.  One “facial” consequence of doing so would be to essentially introduce a two-level bifurcation of religious prerogatives into the “free exercise” clause of the First Amendment, as follows:

--  On one superordinate level, there would be laws mandating that business owners have the unqualified prerogative of discriminating within their potential clientele on some basis other than “race, color, religion, or national origin,” e.g., sexual identity and orientation

--  On a second, subordinate, level, there would be religious beliefs which, though sincere, would be strictly supereseded laws like section 2000a of the 1964 Civil Rights Act:  the sincerity of one’s religious objections to “race-mixing” notwithstanding, landlords, restaurant owners, service station operators, etc., must nevertheless serve black clients / customers equally

President Johnson signing the 1964 Civil Rights Act

In George Orwell’s political parable Animal Farm, the animals’ revolution ends up producing a society in which all animals are equal, but “some are more equal than others”. It would seem that this bifurcation scheme of religious prerogatives -- one tier independent of statutory law; a second tier, subordinate -- would tend toward the same result:  all religious beliefs would be equal, but some would be "more equal" than others. Such an outcome would be devoid of support in the case law and utterly without support under any reasonable – or even unreasonable – interpretation of the First Amendment.  Moreover, a very strong case could be made that  designating some religious beliefs as privileged above ordinary statutory law – the “superordinate level” above – would amount to the Government de facto granting privilege to some religious beliefs above others, a “facial” violation of the “establishment” clause, which mandates strict neutrality of the Government vis a vis religious doctrine in the civil law. Such a bifurcation of privilege would get Government into the religion business.

o The problem – if I may play Devil’s Advocate for a moment – is how to separate “race, color, religion, [and] national origin” from sexual identity / orientation so as to leave the protections of the 1964 Civil Rights Act intact, while at the same time giving business owners the option of discriminating within their (actual or potential) clientele vis a vis the latter.

That sounds far, far, far more straightforward than it actually is.  First of all – granted – race is a “suspect classification” entirely within the meaning of the venerable footnote 4 of Carolene Products in a way that sexual identity / orientation is not, if for no other reason than that there is no “immutable and highly visible trait” marking one as LGBTQIA:  it is much easier for discrimination as to sexual orientation / identity to fly “under the radar” – except in conspicuous cases like getting wedding invitations printed. But even beyond this more or less obvious example, there is the issue of impact on interstate / intrastate commerce. The basis of the Civil Rights Act of 1964 was the commerce clause – Art. I, Sec. 8, para. 3 – and the rationale for the Act was that racial segregation in gas stations, hotels, restaurants, etc., would result in prohibitive impediments to the free flow of commerce between, and within, State lines, to the detriment of everyone in the Nation. Furthermore, in assessing the impact of such discrimination on commerce, the Supreme Court’s decision in the Shreveport Rate Cases is crucial (boldface added):

[I]n all matters having such a close and substantial relation to interstate commerce [and when] the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule …

So, regarding discrimination against business clients / customers on the basis of sexual identity / orientation, the critical question, per Shreveport, is the following:  does “a close and substantial relation to interstate commerce” exist when considering the participation of members of the LGBTQIA community in the commercial life of the Nation? Before attempting to answer this question, it should be  carefully and explicitly noted by way of preface that the case law strongly indicates that the sheer scale of the business in question has no bearing on how we answer the question in red. The modest family farm in Wickard v. Filburn was hardly Archer Daniels Midland or Monsanto. Ollie’s Barbecue in Katzenbach vs. McClung was hardly McDonald's or Applebee’s or Denny’s. Heart of Atlanta Motel in Heart of Atlanta Motel vs. United States was hardly Hyatt or Holiday Inn or Marriott.  Cliched as it sounds, and as much as it stimulates our knee-jerk cynicism to say so, the issue in all such cases was the principle, and, even more so, the implications of beginning to allow exceptions. An exception for a modest family farm would ultimately redound to an exception for Archer Daniels Midland;  for Ollie’s Barbecue, to an exception for McDonald’s; etc. What is at stake in all such questions is preserving, for the good of the Nation, the seamless web of inter- and intrastate commerce within and across State lines. To that priority, even something as otherwise sacrosanct as the “free exercise” clause of the First Amendment must yield. That is the bedrock principle upon which the Civil Rights Act of 1964 is built.

So … my conclusion … the Court does not have to answer the question in red. Furthermore, even attempting to answer it would drag Federal courts into an endless, and endlessly futile, game of acting as football officials on the field of national commerce by setting a precedent whereby those Courts would be dragooned into the process of assessing the impact of each racial, ethnic, national, etc., etc., group on inter- / intrastate commerce, with a view toward determining the permissibility of discriminating against that specific group, rather as a football official must determine whether a team got the first down by a quarter-inch. The jurisprudential equivalent would be, e.g., determining the impact on inter- / intrastate commerce of allowing businesses to discriminate against bisexual, left-handed Bulgarians. Instead of deciding cases on the basis of high constitutional principle, as they are supposed to do, Federal appellate courts would end up getting down in the litigatory weeds of local disputes about alleged discrimination in business practices. This is through-the-looking-glass bizarre, bizarre that conservative Republicans -- of all people! -- who are presumably militantly opposed to “activist courts,” would advocate for any legal instrument that would promote precisely such chronic and incessant activism. Much simpler, much cleaner, much more free of jurisprudential minefields of precedent and prejudice:  treat everyone the same in the most straightforward and unqualified manner humanly possible. It is high time we began to honor this principle in the observance as well as in the breach.

By contrast, people like Vice President Pence and his conservative-Republican siblings are like that poor, hapless astronaut in Alien who dared to peek down into the seed-pod in the crashed extraterrestrial starship. And we all know what happened to him. Don’t go there. Otherwise, you’ll never eat calamari again!

James R. Cowles

Image credits
President Johnson signing Civil Rights Act of 1964 ... White House Press Office ... Public domain
Lester Maddox ... Southern Foodways Alliance ... Public domain
Serves Everyone sticker ... "Washington Post" ... CC by SA 3.0
No Freedom To Discriminate ... World Religion News ... Public domain
Rainbow sign ... Catholic News Service ... CC by SA 2.0

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