We’ve been hearing a lot about Jim Crow lately, so perhaps it would be worthwhile to recall the history behind the Jim Crow legislation. This will enable us to more accurately decide whether Arizona’s recently proposed SB 1062 (which was vetoed last week by Republican governor Jan Brewer) is relevantly similar to the Jim Crow laws.
The term “Jim Crow” refers to a collection of state and local laws passed in the late nineteenth and earlier twentieth centuries, especially in the American South. Their purpose was to prevent people of African heritage from integrating naturally into mainstream society. Laws demanded, among other things, that black and white Americans attend different schools, that they use different facilities, and that they eat in different restaurants or in different areas of a restaurant. Southerners sometimes claimed that segregation was intended to keep ethnic groups “separate but equal.” Realistically this is not what happened; African Americans were treated as an underclass. No doubt this is what many of the Jim Crow proponents actually wished to see.
In our time the injustice of Jim Crow laws is almost universally acknowledged, which is why opponents of Arizona’s proposed religious freedom law (SB 1062) seized upon the term as a convenient way of implying that the proposed law was bigoted. Foaming and frothing, liberal journalists assured Americans that under SB 1062, homosexuals would be evicted from restaurants, refused basic services and generally denied access to civil society. Some warned that the harms might well go further. Mothers would be denied needed antibiotics in the middle of the night because they were not veiled, and because the only drug store in town was owned by a serious Muslim. Military members would be forced to sleep in their cars if passing through towns in which the lone hotel was owned by a pacifist.
The level of exaggeration and mendacity in the media coverage of this legislation is jaw-dropping even for those of us who are familiar with the media’s strong biases. (Mollie Hemingway has done a thorough write-up of the media hissy-fit, for those who wish to delve into the details.) In fact, the law’s actual terms were exceedingly modest. It provided clarification concerning the application of the already-existing Religious Freedom Restoration Act, which formally established a constitutional standard for adjudicating religious freedom cases. The RFRA has been Federal law since 1993, and Arizona has had its own version since 1999. Many people have never even heard of it, which is a testament to how non-disruptive it has been.
The proposed SB 1062 made clear that private businesses are covered under RFRA. If a business were sued for refusing to provide some accommodation, the owner could defend himself by claiming that his religious beliefs forbade it. It would then be the owner’s job to demonstrate in court that his belief was sincere, and that the requested service would substantially burden him in exercising that belief. A plaintiff could still win if he could prove that the provider’s refusal to supply the service constituted a “serious hardship” for him.
It is important to understand that SB 1062 emphatically did not give religious business owners carte blanche to refuse any kind of service to anyone. They could claim protection under RFRA, but there was no guarantee that they would win. Fear-mongering journalists warned that, under SB 1062, homosexuals could be turfed out of restaurants or stores at the drop of a hat. In truth, it’s extremely unlikely that that would ever happen. It’s hard to see how anyone could successfully persuade a court that serving a sandwich to a homosexual person constituted a substantial burden on his religious exercise. And even if the (hypothetical) Muslim drug store owner successfully argued that he was burdened by the need to serve unveiled women, the desperate antibiotic-seeking mother could still make an excellent case that his refusal to serve her constituted a serious hardship for her, in which case he would lose.
Beyond all of this there are two further questions that liberal journalists almost never bother to ask. First, do any businesses even wish to discriminate against homosexuals (or anyone else) in such an arbitrary way? And even if they do, do we need public accommodation laws to save us from the occasional aberration?
There is really no evidence that business owners (in Arizona or elsewhere) are looking for excuses to refuse ordinary services to homosexuals. The religious freedom cases that have already arisen concern same-sex wedding ceremonies. Christian wedding vendors (such as photographers or bakers) quite reasonably argue that participating in a same-sex ceremony compromises their integrity in a way that, say, selling a homosexual person shoes would not. Directly involving oneself in a celebration of a “marriage” one deems immoral is quite different from simply providing a service to a person whose personal activities happen not to meet with one’s approval. We make these kinds of distinctions all the time. Marriage counselors or facilitators of marriage retreats might likewise have claimed under RFRA that they were within their rights to refuse services to same-sex couples, given a sincere religious commitment to traditional marriage. Most ordinary commerce, however, would not have been affected at all by SB 1062.
Many have made the point as well that public accommodation laws probably are not necessary to protect the public from discriminatory business practices. In our media-drenched society, bigoted business owners would be “outed” in no time at all even if the law did nothing, and most would probably pay a heavy price for their policies through lost business. Suppose we did end up the very occasional racist pizzeria or anti-Christian health spa. Ask yourself: where would that rank on your list of social concerns?
None of this speculation, however, should cause us to lose sight of the central fact that SB 1062 allowed for nothing of the kind. It merely provided some guidelines to help courts sort through conflicts involving private businesses with serious religious concerns.
Looking back to the comparison between Jim Crow laws and Arizona’s SB 1062, we can on one level see how utterly ridiculous it really is. Jim Crow legislation used the force of law to engineer substantial social developments; it sometimes forced business owners to engage in discriminatory practices whether they wished to or not. Arizona’s legislation would have protected businesses from legal repercussions in an extremely limited set of cases. It envisioned no sweeping social change of its own, but merely offered a very modest shelter to those who are personally burdened by social changes that are already underway. There is really no noteworthy similarity at all.
At the same time, serious religious believers of all stripes should perhaps be alarmed by the readiness with which the secular left calls to mind the legally enforced segregation of yesteryear. Is it not clear by now that many on the left would like to see unrepentant religious believers relegated to a similarly second-class status? Have they not demonstrated a willingness to use the force of law and even our most trusted governmental institutions (such as the IRS and the Justice Department) to punish their enemies and implement their political and social agenda? The new Jim Crow laws may well be on our horizon. It is we, the faithfully religious, who should be legitimately afraid.