Religious Freedom and the Public Accommodation

The News Hour had an interesting segment last night on the controversy over Religious Freedom Laws being played out in Arkansas and Indiana. The most interesting interchange was between Rev. Tim Overton of the Halteman Village Baptist Church and Micheline Maynard of Arizona State University.

Rev. Tim Overton: Well, I do believe government needs a good reason to interfere with the private practice of religion among our citizens in this country...Our biggest concern with the changes is that Christian-owned businesses or religious-owned business are not going to be able to carry their faith as they would like into the business realm.

Micheline Maynard: Well, you know, Gwen, one of the things about business in the United States is that, when you open your doors and you sell something to the public, I think the principles in this country have been that you welcome all comers.

(Read the full transcript here, emphasis added above.) What the Religious Right Wing wants limited are the concepts of a public accommodation and discrimination under US law. The Civil Rights Act of 1964 and the ADA require that public accommodations must be handicap-accessible and must not discriminate on the basis of race, color, religion, or national origin. Some States extend the Federal law to cover discrimination based upon, race, gender, ethnicity, religion, age, breastfeeding in public and sexual orientation and/or gender identity (read more about the public accommodation here and discrimination here)**. Discrimination is particularly interesting because it involves treating people differently based on their membership in a class. The "different treatment" can either be positive or negative (as Supreme Court Justice Clarence Thomas has has argued in trying to overturn Affirmative Action).

So, let's be clear. The US government should not interfere with either the private practice of religion or the private practice of bigotry. You can discriminate or make all the bigoted statements you want in private. You can even say these things in public settings such as a public church (exempt under public accommodation laws). It's when you move into the public sector that there are more restrictions (e.g., hate speech).

I have repeatedly run into this issue when I have worked in government from people on both sides of the political spectrum. I have always considered public and private acts to be different but a lot of very vocal people and politicians do not. Some on the Right Wing want to regulate private acts in the bedroom or in the physicians office. Some on the Left Wing, advocating for a privacy right, do not want public acts (such as murder or criminal convictions) to be part of the pubic record.  An event that sticks in my mind was to watch politicians on both sides of the spectrum trying to invent reasons to discriminate against the Coptic Christian Church because their community was predominantly of a different religion, both Christian.

Maybe most people do not have a problem rationalizing these concepts when they are in private. It's only when they get into the public sector that the political struggle begins. We're seeing one, maybe inevitable, public fight playing out right now in Arkansas and Indiana. On the other hand, I can't think of any reasons why a right to discriminate should be extend to the public sector under any circumstances. Can you?

**Why the State freedoms listed in this sentence should not be extended to the Federal level is an interesting questions with some obvious answers you can think about. The fact is, they have not been.