Saturday, June 19

Making History Rhyme


Mark Twain is supposed to have said “History doesn’t repeat itself, but it often rhymes”, though the exact source of this Twain-ism is surprisingly elusive. But even if he did not say it, he should have. Or someone should have. The rhyming of history is especially evident, given the proliferation of State-level religious-freedom restoration acts (RFRA) protecting individuals and businesses from criminal and civil penalties for discrimination against LGBTQ -- specifically, though not exclusively, transgender -- people in commercial transactions. The most obvious question that gets begged is why States are expending this much effort in light of the requirements of, for example, Title II of the Civil Rights Act of 1964. Unfortunately, Title II of the Federal law is altogether “porous” in the protection it affords to people of minority sexuality, and State laws, even where they exist, are a kind of ad hoc patchwork as to the types of discrimination covered (though employment discrimination specifically is covered by Title VII of the Federal 1964 Civil Rights Act). So ensuring equal treatment for LGBTQ individuals in commercial transactions is going to require that the next several years, not repeat, but at least “rhyme,” with the history of similar discrimination on the basis of gender, race, and religion. Almost the only light at the end of the legislative tunnel is that general public opinion has become, not merely tolerant, but actively and vocally supportive with breathtaking speed on matters of sexual orientation, which was not the case with racial discrimination.

The porousness of Title II protections vis a vis sexual-orientation minorities is evident from the first paragraph (a) pertaining to “Equal Access”:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

Heart of Atlanta Motel

It is not surprising that those four criteria are explicitly listed, because all four are "suspect classifications" that trigger a "strict scrutiny" level of judicial review in cases alleging violation of the "due process" clauses of the Fifth and Fourteenth Amendments or the "equal protection" clause of the latter. Unlike Title VII covering employment discrimination, Title II does not list “Sex” as one of the criteria used in prohibiting discrimination, and, in fact, it was only fairly recently that, even in Title VII, “Sex” was construed to include sexual-orientation minorities in general, and transgender people in particular. (This is consistent with the 2nd Circuit Court of Appeals ruling in 2012 in Windsor v. United States that sexual orientation is a "quasi-suspect" class requiring an "intermediate" level of judicial review. But more on this issue below.) So as long as State-level RFRAs discriminate only and solely on the basis of sexual orientation (including “trans” people in that term), and not on the basis of “race, color, religion, or national origin” as required by the Federal law, it would appear that State-level anti-LGBTQ laws, provided that the language of same is carefully crafted, can thread the jurisprudential needle – even, it is important to note, in issues pertaining to “public accommodation” as defined in Title II (boldface added):

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment
(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

Ollie's BBQ ("Katzenbach v. McClung")

Note that even if, per impossibile, we could somehow interpret Title II as covering sexual orientation – which we cannot since, unlike Title VII, there is no “umbrella category” of “Sex” mentioned in paragraph (a) on which to hang such a gender-centric construction – the boldface part of (2) (“selling food for consumption on the premises”) would still give anti-LGBTQ businesses legal cover to refuse to bake cakes for same-sex weddings and to perform catering for them, given that the wedding reception and party would presumably not be held at the bakery or the caterer’s establishments.

Approaching this issue with the wide-eyed naivete of a deer caught in a semi's headlights, one would think -- incorrectly, as it turns out ... keep reading -- that the solution would be to amend Title II of the 1964 Civil Rights Act, specifically paragraph (a), to read as follows, or some cognate thereof:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, national origin, or sexual orientation.

The usual objections would be raised that were raised in, e.g., landmark cases like Heart of Atlanta Motel v. United States and Katzenbach v. McClung  about presumptive violations of the "due process" and "takings" clauses of the Fifth Amendment.  There would no doubt also be a replay of allegations of "free exercise"-clause violations, because of the moral animus against LGBTQ people, based on conservative evangelical and fundamentalist interpretations of biblical texts -- but this time around, citing texts allegedly condemning homosexuality instead of "race mixing" as before.  The objections that would be raised at this point would amount to an almost verbatim outright repetition of previous history, not a mere rhyming.

But at this point, I am going to play Devil's Advocate:  there may possibly be one salient and potentially important respect in which the case of race and the case of sexual orientation diverge with respect to Title II of the Civil Rights Act of 1964. It has long been settled that race is a "suspect classification" within the meaning of the famous footnote 4 of Carolene Products. In fact, a rather long sequence of case law has defined the requirements of a certain characteristic being a "suspect classification":  (1) a history of invidious discrimination, (2) an immutable and highly visible trait marking members of the group sharing the "suspect classification," (3) a chronic lack of political power ("discrete and insular minority"), and (4) the ability to contribute to society despite the presence of the "suspect" trait. A serious case can be made that (3) is the case with LGBTQ people, historically and arguably at present. I will not argue pro or con as to that issue. But it is clear that race and sexual orientation diverge when we consider (2):  the presence of an immutable and highly visible trait marking individuals as members of the group in question. When an African-American woman walked into Lester Maddox's Pickrick Restaurant in Atlanta, or into Ollie's BBQ in Birmingham and tried to order a meal, or when an African-American couple walked up to the registration desk at Heart of Atlanta Motel and asked to reserve a room, they were immediately marked as to race. Now replace those scenarios with gay or lesbian or bisexual or transgendered individuals attempting to do the same things.  Unlike skin color, the latter's sexual orientation would be invisible -- and would become visible only if and when the individuals involved chose to self-disclose. (This is why simply adding "sexual orientation" to the list of "suspect classes" at the end of paragraph [a] would be an apples-and-oranges tactic:  sexual orientation is not the same, "ontologically" or jurisprudentially, as the other three.) A black person has no control over whether another person knows they are black. But an LGBTQ individual has complete control over whether they are seen and known as LGBTQ ...

PIckrick A
Lester Maddox's Pickrick Restaurant

... unless they and their partner want to order a cake for their wedding, or enter into a contract for catering, or rent an apartment as a married couple, etc. So what is the point? That LGBTQ people should remain in the closet, living a lie for the sake of "equal protection"? Not only "No," but "Hell no". My point, rather, is a subtle phrasing in the Heart of Atlanta and Katzenbach opinions.  In Heart, the Court said (emphasis added) Congress' power over interstate commerce extends to the regulation of local incidents thereof which might have a substantial and harmful effect upon that commerce. Similarly, in Katzenbach:  Much is said about a restaurant business being local, but, even if appellee's activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerceThe whole point of both decisions, Heart of Atlanta and Katzenbach, was that racial discrimination in public accommodation did indeed constitute "a substantial and harmful effect" on interstate commerce, and that this adverse effect was serious enough to supersede even something as grave as an individual business owner's fundamental "free exercise"-clause-based religious principles, regardless of how ignorant and gibberingly benighted those principles may be to others who do not share them.

Therefore, the question to be addressed is the following:  granted that there will be cases in which LGBTQ people, in the course of transacting business, must disclose their sexual orientation and confront religiously grounded refusals of service -- will those refusals of service in the aggregate constitute "a substantial and harmful effect" on interstate commerce of sufficient magnitude to supersede a business owner's "sincerely held" religious convictions, as in the case of race, and thereby to justify a Title-II-like requirement that all businesses serve customers impartially as to sexual orientation? Or will the consequences to interstate commerce be negligible enough that, in the case of sexual orientation, business owners' religious principles will be given decisive weight? As is always the case, important disputes in constitutional law amount to a delicate multi-way balancing act among the litigants' respective rights, on the one hand, and the "compelling interest" of government on the other.  Whether one individually agrees with the litigants' beliefs -- in this case, their religious beliefs as to race -- is entirely irrelevant. The only relevant consideration is whether the litigant has a right to that belief, and whether the facts of the case justify tipping the balances of Lady Justice toward one side or the other.

I don't know. But I do know three things:  (1) the various State RFRA laws will be litigated sooner or later; (2) if I, and people like me, don't ask questions like the two above in red, someone else, someone perhaps outright homo- / transphobic will --  and (3) words mean something.

James R. Cowles

Image credits:

Heart of Atlanta Motel ... Pullen Library, Special Collections, Georgia State University
Ollie's Barbecue ... Courtesy of Ollie's Barbecue
Lester Maddox and "Pickrick Drumstick" ... File photo, "Lawrence Journal world"
Pickrick Restaurant ... Photo courtesy of the "Atlanta Time Machine"

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