SB 1062, the Shame of St. Patrick, and Constitutional Moments

“[T]he right of people to be free of state action that discriminates against them because of race, like the right of persons to move freely from State to State, occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines.”

-- Associate Justice William O. Douglas, Supreme Court of the United States

Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964) (concurring)

Last week, Boston Mayor Marty Walsh appeared to be on the verge of a breakthrough regarding equal access to the South Boston St. Patrick’s Day parade. Parade organizers broke longstanding precedent and invited MassEquality—a grassroots LGBT rights organization—to participate. However, the organizers’ olive branch came with a catch: marchers would be barred from wearing T-shirts or holding signs that included the word gay or other references to sexual orientation. Unsurprisingly, this condition was unacceptable to MassEquality and this week, parade organizers rescinded their offer.

There is, of course, a big difference between a discriminatory shopkeeper operating in the public sphere and a group setting limits on who can join in its First Amendment protected conduct. The Supreme Court of the United States recognized as much when it unanimously upheld the St. Patrick’s Day organizers’ right to exclude LGBT people in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995), in sharp contrast to its momentous decision in Heart of Atlanta Motel, which upheld the core “public accommodations” provision of the Civil Rights Act of 1964.

As a result, while utterly shameful discrimination continues to mar what should be a proud day in South Boston (not to mention on 5^th Avenue in New York City, where a similarly backward restriction on open LGBT marchers still exists), it is a settled principle of American law that individuals operating businesses open to the public cannot discriminate on the basis of race, sex, religion, or national origin. 

Greensboro Woolworth's Lunch Counter, 1960 (Smithsonian Institution)

This principle is one of the lasting legacies of the Civil Rights Era. Yale Law School Professor Bruce Ackerman is well known for his theory of “Constitutional Moments”—situations outside of Article V of the Constitution where the public expresses such overwhelming and sustained support for a constitutional transformation that the government absorbs the authority to act in a given manner.

Ackerman himself does not consider the Civil Rights Movement to be a Constitutional Moment (he cites the Civil War and the New Deal as exemplars). I disagree. It was a flashpoint in American life in which We the People decided that individuals may discriminate in the privacy of their own home and bigoted groups may have just as much a right to march as anybody else, but when you pitch a shingle on Main Street, USA and open your door to customers, that door must be open to all who wish to shop there.

And yet, 50 years after the Civil Rights Act, we found ourselves fighting a rearguard attack last month, when Arizona lawmakers passed SB 1062, a bill that would have allowed any individual, association, partnership, corporation, church, religious assembly or institution or other business organization to discriminate against LGBT persons under the guise of religious liberty. While Governor Jan Brewer (R) vetoed the bill, many insisted that the Constitutional Moment of the Civil Rights Movement did not extend to our LGBT brothers and sisters.

On This Week with George Stephanopoulos, Rich Lowry, editor of the National Review, tried to distinguish the discrimination permitted by SB 1062 with the lunch-counter discrimination of Jim Crow:

In this case, the (inaudible) in the street is not bristling with hostility to gay people. You're dealing with the occasional baker or florist who has a genuine conscientious objection. And if they do, you can find another baker or florist.

To put it bluntly, Rich: this Nation decided 50 years ago that it wasn’t the individual who had to find another baker or florist, it was the baker or florist who had to find another line of work.

Justice Douglas was right a half-century ago when he insisted that the principle enshrined in the Civil Rights Act was not girded merely by Congress’ power to regulate interstate commerce, but rather was essential to preserving the promise of the Republic as we imagined it to be in the aftermath of Ackerman’s first Constitutional Moment—the Civil War.

That promise—that no state may deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws—remains as vital and vibrant today as it has ever been; a North Star in a constitutional constellation that guides us, ever so slowly, toward justice.