Even if the United States Supreme Court does the right thing in Masterpiece Cakeshop v. Colorado Civil Rights Commission and comes to the doctrinally easy conclusion that it is not a violation of the First Amendment for government to require places of public accommodation to provide services without discriminating on the basis of sexual orientation, it will remain unfortunate that by agreeing to hear the case in the first place, the court provided a prominent public platform to arguments that have as much moral foundation as racial apartheid and less intellectual depth than phrenology.
From the earliest days of marriage equality litigation, opponents argued in court that equal marriage rights for same-sex couples would harm three constituencies: society at large, the individuals involved in same-sex unions, and children raised in these households. The argument that same-sex marriage posed a threat to social order rested on the notion that same-sex married couples would weaken one of the most important social tools for transmitting community values and promoting public good, thereby deinstitutionalizing marriage and stripping it of all intrinsic worth. The claim that same-sex relationships were damaging to the individuals depended on the commonly held belief that same-sex relationships are by their very nature purely sexual, and consecrating them with marriage rights would give individuals free reign to indulge in their base instincts and worst appetites. The proposition that same-sex unions were harmful to children raised the specter that these children would be ostracized by the outside world for belonging to a homosexual household and would be pressured inside the home to develop putatively homosexual interests and behaviors, resulting in all manner of calamities, including, among other things, mental illness, criminal behavior, substance abuse, promiscuity, depression, and suicide.
If these arguments seemed tiresome in their repetitiveness, it was in part because in court after court the same cadre of lawyers and organizations filed the very same briefs. But their appalling familiarity was also due to their ancient provenance: They had first been rehearsed at the end of the Civil War, when the taboo of sex between black men and white women could no longer be effectively policed by the institution of slavery, and had been rehashed over generations until the United States Supreme Court finally put an end to them in Loving v. Virginia. So, beginning with one of the early marriage cases in California Supreme Court, through the Iowa litigation, and subsequent federal cases, a number of amicus briefs—most prominently from the Civil Rights Clinic at Howard University School of law—showed in exhausting detail that the very same arguments that were raised against interracial sex, marriage, and parenting, had been dug up, dusted off, and were now being revived against same-sex marriage.
Indeed, so clear were the parallels that in many instances, anti-marriage equality briefs relied on the very same biblical verses, the very same sexualized images, and virtually the very same eugenics theories as had first been used in anti-miscegenation cases. But perhaps no brief made the point more succinctly than the one the California NAACP filed in 2007, in which they simply cut and pasted virtually verbatim the words of the majority and dissenting opinions in Perez v. Sharp, the 1948 California case that preceded Loving by nearly two decades in outlawing a ban against interracial marriage. The only change the brief made was to replace words and phrases such as “race,” “different races,” “ancestry,” and “intermarriage” with “same-sex,” “gender,” and “sexual orientation.”
So it didn’t come as a surprise that in Masterpiece Cakeshop, opponents of equal public accommodation rights for same-sex couples returned to the same racist well from which they drew throughout the course of marriage equality litigation. Others have pointed out—and correctly so—that the basic logic of affording equal public accommodation seemed indistinguishable from two Supreme Court decisions—Heart of Atlanta Motel v. United States and Katzenbach v. McClung—in which the Court upheld the constitutionality of Title II of the Civil Rights Act of 1964 by rejecting claims that private owners of hotels, restaurants, and other places of public accommodation had a constitutional right to deny service to black patrons. But the freedom of religion and free speech origins of the arguments on behalf of the owner of Masterpiece Cakeshop go much further back than the challenges to the Civil Rights of 1964; those arguments were first articulated against passage of the Civil Rights Act of 1875 less than ten years after the Civil War ended.
The 1875 Civil Rights Act required all inns, public conveyances, theaters, and other places of public amusement to open their accommodations without regard to race, color, or previous condition of servitude. The act was the last major piece of civil rights legislation passed during Reconstruction and indeed the last significant civil rights statute Congress would adopt for almost the next century. Charles Sumner, a principal architect of the Fourteenth Amendment, had first introduced the bill in the U.S. Senate in May 1870 and envisioned it as the final legislative piece to enforce the equality commands of the Fourteenth Amendment. Over the next two years, Sumner reintroduced the bill on at least three occasions and each time the bill failed—either in the Senate Judiciary Committee, or on the Senate floor, where Democrats filibustered it. Sumner died in March 1874, shortly after reintroducing his bill in January 1874 and before substantial debate could begin on it. When Democrats won a majority in the House in the 1874 elections, effectively ending Reconstruction in the South, Republicans facing reelection in 1876 at first declined to continue their support for the bill but managed to revive it in a lame duck session. In January 1875 the bill, now known as the Civil Rights Act of 1875, passed both houses and was signed into law by President Ulysses Grant.
Between 1870 when the bill was first introduced and 1875 when it was finally enacted, its provisions engendered a great deal of debate, during which opponents of the act insisted that to require private business owners to provide services to blacks would violates both God’s law, which commands separation of the races, and their constitutional right to free speech and free association, which provides that the government lacks the power to compel them to associate with anyone whose social company or presence they found odious. In other words, appeals to God and free speech were at the heart of opposition to the equal public accommodation bill at the conclusion of the Civil War, just as they are now in opposition to equal public accommodation for LGBTQ people nearly one hundred and fifty years later.
And just as the idea of providing equal rights to gay couples seem to conjure up in some minds all sorts of bizarre hypotheticals about, say, Jewish bakers being forced to design Nazi cakes, so too in 1875 there was an awful lot of sloppy slippery-slope arguments about government eventually forcing whites to invite blacks into their homes. As one democratic representative argued on the floor of the House:
If Congress has the power to pass this bill and make it a law it has the power to enact laws to regulate the minutest social observances of domestic or fashionable life. If it has the right to say to my neighbor, ‘You must ride in the same car, eat at the same table, and lodge in the same room with a negro,’ it can also say that you must not interpose an objection on account of his color to any advances he may make toward your children or family.
The 1875 act was a short-lived victory. A mere eight years later, in an 1883 decision, the Court, without even the benefit of oral arguments, ruled in a series of consolidated cases captioned The Civil Rights Cases that Congress lacked authority under the Fourteenth Amendment to prohibit racial discrimination by private actors. That decision, as much as Plessy v. Ferguson issued thirteen years later in 1896, established the foundation of an American racial apartheid system that would remain firmly in place in both the North and the South for almost a century.
In the days and weeks following the Supreme Court decision in The Civil Rights Cases, virtually every single white-owned newspaper in the country heralded it as both constitutionally correct and socially wise, while every black-owned newspaper decried it as both a betrayal of Reconstruction and a harbinger of the Jim Crow society to come. In countless editorials, white newspapers lectured black audiences against making what these newspapers insisted were hysterical claims about how the decision would pave the way for Jim Crow. White newspapers also raised the point that blacks had a misplaced sense of priority in focusing on public accommodation when there were so many other more important rights for which they should devote their energies fighting.
To these newspapers, the case itself was a tempest in a teacup: of the three sets of plaintiffs suing to enforce the 1875 act, one had been denied his seat at the Maguire theater in San Francisco, while the other had been refused admission at New York’s Grand Opera House. But what blacks intuitively and deeply understood then is what LGBTQ people understand now: The Civil Rights Cases was no more about the theater than Masterpiece Cakeshop is about wedding cakes; both cases are about public respect for an individual’s humanity. And if the Supreme Court rules against the gay couple as it ruled against the black plaintiffs, it will in effect say to LGBTQ people in 2017, as it said to black people in 1883, that theirs is a lesser form of constitutional personhood deserving of a lesser measure of public respect.