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US-JUSTICE-POLITICS-TRUMP

The Supreme Court hears arguments today in a case involving a Colorado baker who refused to bake a cake for a same-sex marriage celebration.
The details of the case are straightforward: Colorado law prohibits businesses that serve the general public from discriminating on the basis of sexual orientation. Jack Phillips, the owner of Masterpiece Cakeshop, opposes same-sex marriage on religious grounds, and he claims that the First Amendment’s protections of religious liberty and free expression prevent Colorado from enforcing its anti-discrimination law against him. Now, in one of the most anticipated cases of its term, the highest court in the nation must determine whether Phillips has the right to discriminate.
Philips’s opponents invoke history to bolster their cause. In the 1960s, under pressure from the civil rights movement, legislatures on the local, state and federal level implemented new policies protecting against racial discrimination in public accommodations. Opponents argued that these policies infringed upon the white business owner’s right to liberty, property, association and, in some instances, religion. And every time they took this claim to court, they lost.
But this historical account fails to fully capture the reason courts rejected these claims. It was not because judges did not take seriously the idea of a right to discriminate. It was because they recognized that the people drafting America’s transformative anti-discrimination laws not only acknowledged this right, but aimed to safeguard it.
Legislators had acknowledged that while achieving racial equality demanded the abolition of many forms of discrimination, in certain spheres, the right to discriminate was defensible, and might actually be an asset in their quest to craft a new legal regime that fostered racial equality under the law. In fact, the notion of a right to discriminate was actually central to building the necessary political coalition to pass anti-discrimination laws and construct the modern civil rights legal regime itself.
The civil rights movement asked for dramatic changes in the lives of Americans of all races. That most of these changes were absolutely right and necessary does not take away from the fact that whites who were most affected by them gave up something they felt was valuable — the right to choose who to serve in their private businesses.
And legislators constructing the new legal regime acknowledged this forced sacrifice. The framers of the public accommodations provision of Civil Rights Acts of 1964, for example, insisted they were taking into account concerns about privacy and liberty when they exempted from coverage private clubs and any “establishment not in fact open to the public.” They also exempted any establishment that provided lodging in which there were no more than five rooms for rent and in which the owner also lived — what’s commonly called the “Mrs. Murphy” exemption.
In testimony before the House Judiciary Committee, liberal activist Joseph Rauh gave a passionate plea for the importance of this exemption. “What is there in this country that we prize as much as any other right?” he asked. “It is the right in our own home to do as we see fit. Those of us who have been in the civil rights movement have also been fighting for civil liberties, for the right of privacy, for the right to be let alone.”
Acknowledging a narrow right to discriminate broadened the coalition supporting these laws. In making this change, legislators recognized that the exemptions they crafted were contingent, and that they would be reexamined by future lawmakers who would make their own assessment of these competing rights claims. But they knew that this addition would make it easier to effectively implement the new civil rights laws by eliminating the piece most likely to provoke angst among Americans because it challenged other fundamental values.
So, yes, the civil rights era made anti-discrimination a policy priority. But it relied on narrow claims of a right to discriminate to gain the political capital necessary to do this.
But there was one place where this claim of a right to discriminate did not fare well during the civil rights era: the courts. Practically every court that heard a claim about the right to discriminate, including the Supreme Court, rejected it. Justice Hugo Black dismissed this “right” by saying that it “does not even come close” to being a valid constitutional claim.
By denying this constitutional claim, the courts left it to the political branches of government to determine the narrow contours of the right to discriminate.
Up until now, when dealing with claims of a right to discriminate in the context of gay rights, the courts have largely followed the precedents of the civil rights era and rejected such constitutional claims. But by agreeing to hear the baker’s appeal in Masterpiece Cake, the Supreme Court has indicated it may be reconsidering this history of judicial deference to lawmakers on the line between permissible and impermissible discrimination. It should not.
The courts of the civil rights era were right to recognize that they were not the correct institution to resolve these kinds of claims. The courts today should remain on the same wise path and leave this issue to the political process.
There is a right and a wrong way to recognize legitimate claims of a right to discriminate. We should debate the boundaries of legal anti-discrimination requirements. We should, when appropriate, recognize exemptions in our laws. But we should not rely on our courts to protect this right — which would foreclose these debates.

Christopher W. Schmidt teaches and co-directs the Institute on the Supreme Court of the United States at Chicago-Kent College of Law and is a faculty fellow at the American Bar Foundation.

Christopher Schmidt

The Washington Post

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Yes, there is a right to discriminate

But the political branches, not the courts, should be determining its contours.