My mom told me a story once about being a little girl when she and my grandparents drove from their home in South Dakota to California. It was sometime in the 1940s, after the war, and she might have been ten years old or so. Lord knows how long that must have taken in those pre-Interstate Highway days. Obeying some rules of travel known only to her, my grandmother insisted that my mom sit in the front seat between the two adults for the entirety of the trip. My grandmother, with the reasonable patience for which the German people are known, spent a lot of time criticizing her daughter for not having Sitzfleisch.
As difficult (and boring for any normal 10-year-old girl) that trip must have been, it must have been immeasurably more difficult for African American travelers of the time. The South, of course, was legally segregated, but things were not any better in the North or the West. The law allowed any private business to refuse service to African Americans simply because they were African Americans. When travelling, African Americans could never be sure if they would be refused service at the restaurant they stopped at for lunch, the gas station they stopped to refuel, or the motel they stopped in to rest. One resource they had was the Green Book, a guide that showed them the places where they would be welcome. As the introduction stated:
With the introduction of this travel guide in 1936, it has been our idea to give the Negro traveler information that will keep him from running into difficulties, embarrassments and to make his trips more enjoyable.
The legend on the cover has a rather ominous warning: “You may need it.” It was not even a matter of your kids going hungry because you can’t find dinner or sleeping in the car because you can’t find lodging. It was also a matter of avoiding a violent reception in an area where the police could not be counted on to enforce the law.
Why would anyone want to refuse service to a potential customer because of who that customer is rather than that customer’s behavior? I’ll offer two that were popular for the first half of the twentieth century.
The first were those who objected to racial integration because of their religion. Many religious leaders defended segregation on Christian grounds. Stuart Omer Landry, a segregationist writer from Louisiana, who is forgotten by everyone except those peddling “Eurocentric Resources” (and me), argued in 1957 that:
The Bible recognizes the separation and the differentiation of races and peoples. At the Tower of Babel when God caused the confusion of tongues He did away with one world. He evidently wanted different races, different peoples and different languages….
There is no Commandment against segregation, no prohibition of it in the Bible nor in any of the great canons of moral law. Segregation was not a sin ten years ago, it was not a sin a hundred years ago, it was not a sin a thousand years ago and it is not a sin now (p. 12).
In testimony concerning the public accommodations clause of the Civil Rights Bill, the Reverend Albert Garner of the Florida State Baptist Association of Churches told Congress:
It is our finding that segregation was the social pattern of life of the Old Testament Hebrew people, long followed with much glory to their history. This social pattern was given and administered by divine command.
It is also our finding that prior to this century neither the Hebrew religion, the Christian religion, nor any denomination of the Christian religion ever held that Integration of the races into a close social pattern was necessary to obey God, to follow the teachings of Jesus Christ.
It is further our findings that the philosophy of close social integration of the races, prior to this century, has been basically held and promoted by anti-Christian religions, atheists, and infidels.
In the light of these findings, and in consideration of the evidence that our Nation became the greatest and most respected Nation in the world Under the pattern of segregation in social life, and inasmuch as prior to this century segregation was accepted as a Christian philosophy by all Christian denominations, our people of the Florida State Baptist Association of Churches contend that moral principles never change. They believe that Federal efforts to force Integration as a new social pattern of life is morally wrong, un-Christian, and in conflict with the word and will of God as well as historic Christianity. Our people do not accept in silence back home and will not accept at the polls, ‘the segregation-be-damned attitude’ they feel is now being pressed upon them by Intimidation threats of Federal agencies (p. 1148).
The second reason that a business would refuse service to African Americans was: they could do whatever they wanted, it is their damn business. The religious segregationists’ allies were the libertarian right. Today, when many think of the libertarians as “Republicans who want to smoke weed,” an alliance between Christian fundamentalists and libertarians must seem strange. But, in fact, there has always been a close alliance between significant branches of the libertarian movement and fundamentalists. They met in journals like Faith and Freedom, Christian Economics, and First Principles of Morality and Economics. In the 1950s the libertarians were trying to reverse the Civil Rights Movement’s attack on “discrimination.” For libertarians, discrimination was a positive good. Consider the arguments of F.A. “Baldy” Harper, a leading light of libertarians of the time. In his 1951 essay, “The Blessings of Discrimination” Harper argued that “discriminate” simply meant “choose.” The ability to make choices was the essence of what makes us human: “Discrimination is the exercise of choice,” Harper wrote, “It necessarily arises from knowledge and wisdom. And the greater the knowledge and wisdom, the higher the degree of discrimination” (p. 5). The right to choose whoever one wishes for association is the centerpiece of freedom, Harper argued, and we have no right to question the basis an individual makes a choice. Hence, if an employer wants to hire only white people, or a business-owner chooses not serve Jews, we are all obligated to respect that choice:
One cannot question the basis for a choice without questioning the right of choice itself. There isn’t much sense to saying that I have the right, for instance, to select any kind of cheese I wish, but that I have no right to select one in preference to another because it tastes better, or has a more appealing color, or is made from the milk of better cows. The right of choice is the right of choice, and the reasons therefor become a sacred part of the right of choice itself. (p. 10)
The Green Book also included this hopeful message:
There will be a day sometime in the near future when this guide will not have to be published. That is when we as a race will have equal opportunities and privileges in the United States. It will be a great day for us to suspend this publication for then we can go wherever we please, and without embarrassment. But until that time comes we shall continue to publish this information for your convenience each year (p. 1)
It was twenty-eight years from from the first edition of the Green book before that “great day” came with the passage of the 1964 Civil Rights Act, in particular, Title II, which prohibited businesses that were “public accommodations” from engaging in discrimination. Those businesses included:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment.
In other words, if your business was open to the public it had to be open to ALL of the public, not just to those you found “your kind of people.” The passage of Title II was the most controversial aspect of the Civil Rights Bill. After all, the law required private businesses to behave in a certain way in their choice of customers: what business was it of the governments to tell private business owners who they must serve?
Despite the hue and cry of conservatives about Title II, its passage did not result in violence or even much resistance from business owners after 1964. It was, as Hugh Davis Graham wrote in 1990, a “welcome casualty of success” (p. 5).
Not everyone has welcomed the success of the Civil Rights Act. Libertarians still maintain the the right to do as you wish with your property trumps any right of others to be treated fairly, and they still find ready allies in conservative Christianity. The arguments are pretty much identical to those of six decades ago. In a case in Washington State, Arlene Sturtzan, a florist, refused her services to a same-sex couple on religious grounds. In their brief, her lawyers argued:
Mrs. Stutzman is a Christian, who was brought up in the Southern Baptist tradition. CP 535. Southern Baptists believe that every human person is worthy of dignity and respect. CP 603-652. They also hold to the belief that Scripture limits marriage to the union of a man and a woman. Mrs. Stutzman believes that using her artistic skills to create custom arrangements for a marriage that is not between one man and one woman would violate her religious beliefs. (p. 7)
The US Supreme Court just agreed to hear the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which a baker. Jack Philips, refused his services to a gay couple who sought them. The question before the Court is: “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.” The organization defending Philips is the “Alliance Defending Freedom, a group that would like nothing better than to make homosexuality a sin and at the very least, make sure that gay people cannot fully participate in public life. In the Masterpiece case, they’ve found an ally in the Cato Institute, the largest libertarian think-tank in the nation. The Cato Institute also supports same-sex marriage, but religious fundamentalists can find lots of libertarian allies to help them oppose same-sex marriage too (see here, here, or here). Some of those libertarians dream of a theocracy, in which the free market determines all of our choices and we are all subject to strict Biblical (not secular) law.
The idea that public accommodations must be free of discrimination is now under significant threat. The “wall of separation” between religion and public policy is being torn down. The case coming before the Court is not really about cake, it is about defining “freedom.” Many conservative Christians dream of the day when the non-believers among them must abide by the laws of their religion. And libertarians dream of a society where we all have to carry the 21st century equivalent of the Green Book to see if we will be welcomed when we step into a place of business. For them, that is what it means to be free. For the rest of us, it seems like a prison.