In 1964, immediately upon the passage of the Civil Rights Act, an attorney named Moreton Rolleston sued the United States. Rolleston owned a Georgia motel called the Heart of Atlanta, which refused to accept African Americans as guests. Rolleston felt the Civil Rights Act's prohibition of discrimination violated his Fifth Amendment due process rights. To him, not being able to deny service to black people was an unjust interference with his liberty as a businessman.
Rolleston's case reached the Supreme Court in October of 1964 and he argued before the Court on his own behalf. His deep Southern accent and his wild rhetorical flourishes were just as fiery as you can imagine, but his impassioned appeals to personal liberty failed to sway the Court.
A unanimous Court ruled against Rolleston, holding that the Commerce Clause of the Constitution allowed the U.S. government to pass civil rights legislation which regulated interstate business, of which the Heart of Atlanta Motel was a part. Justice Tom Clark wrote:
We, therefore, conclude that the action of the Congress in the adoption of the Act as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution, as interpreted by this Court for 140 years. It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress not with the courts.
Heart of Atlanta Motel v. United States, 379 U.S. 241, 261 (U.S. 1964).
Later, Rolleston admitted that allowing African American guests at his motel had no negative impact on business, but called the ruling "a sad day for the cause of individual freedom." The decision, he said:
[O]pens the frightful door to the unlimited power of a centralized government in Washington in which the individual citizen and his personal liberty are of no importance. It makes possible a socialistic state and the eventual dictatorship.
Fifty years after Moreton Rolleston's desperate but futile demand to racially discriminate against his customers, Arizona legislators have passed a law allowing business owners to refuse service to people on account of their sexual orientation.
The Arizona situation isn't exactly the same as the Heart of Atlanta Motel's (though there is an obvious analogy). This time, there is no federal legislation prohibiting discrimination on the basis of sexual orientation. The Civil Rights Act prohibits discrimination on the basis of race, color, national origin, and sex, and subsequent laws such as the Americans with Disabilities Act and the Age Discrimination in Employment Act extend protections for disability and age, respectively. Yet still no federal protection extends to homosexuals who are discriminated against simply because they are gay.
Also, defenders of the Arizona law are no longer citing basic due process rights under the Fifth Amendment as justification for their bias. This time, they argue that the Free Exercise Clause of the First Amendment defends their "right" to exclude certain customers from public accommodations. To some, being a pious Christian means shunning homosexuals from public life and commerce.
Joseph E. La Rue, an attorney for the ironically-named Alliance Defending Freedom, argues that, "In America, people should be free to live and work according to their faith, and the government shouldn’t be able to tell us we can’t do that."
The first problem with this is apparent if you extend La Rue's argument to its logical conclusion. Where does La Rue's concept of religious freedom end? If a business owner's faith requires him to murder one out of every three customers who walks in his door, should he be allowed to do that? If not, why not?
Maybe murdering customers for Jesus is too much of a stretch. What if that same business owner is a member of a church which preaches that the races should be separate, so this business owner refuses to serve black customers. Shouldn't he be free to do that? Was the Supreme Court really wrong when it said no to that question fifty years ago? Where does La Rue draw the line, and why does he get to be the one who does so?
The second problem with the Arizona legislation is that the freedom of religion articulated by the First Amendment also includes a freedom from religion, in the form of the Establishment Clause:
Congress shall make no law respecting an establishment of religion...
Defenders would argue that the Arizona law protects free exercise rather than establishing any one religion over another. But who would enforce the Arizona law? If a homophobic business owner suspects a gay person has entered his business and sought service, and then that business owner demands the gay person leave, what happens when the gay person refuses? The business owner must then call the police (or risk getting charged with assault for physically expelling the gay person himself). The safest route for the business owner is to call in the cops, who would sweep in and enforce the business owner's religious perspective at gunpoint. This, not to mention the dubious underlying legislative motive for passing the law in the first place, raises the specter of an Establishment Clause violation.
Heart of Atlanta Motel was a unanimous Supreme Court decision, but other Justices wrote concurring opinions, including William O. Douglas. Douglas, perhaps the most prominent and consistent civil libertarian in the Court's history, agreed with the Commerce Clause rationale, but thought another part of the Constitution was more relevant: the Fourteenth Amendment.
Despite the "freedom" and "liberty" rhetoric of people like Moreton Rolleston and Joseph La Rue, Douglas noted that religious or personal biases in commerce require state action to enforce. Douglas did so by reference to the case of Shelley v. Kraemer. In Shelley, the Court overturned racist "restrictive covenants" in Michigan property law, which prohibited white owners from selling or renting to blacks:
We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.
These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individual the full coercive power of government...
334 U.S. 1, 19 (U.S. 1948). Douglas then concluded:
I repeat what I said earlier, that our decision should be based on the Fourteenth Amendment, thereby putting an end to all obstructionist strategies and allowing every person...to patronize all places of public accommodation without discrimination whether he travels interstate or intrastate.
379 U.S. at 286.
Shelley v. Kraemer and Douglas' concurrence to Heart of Atlanta Motel suggest that laws which would allow private discrimination in public accommodations run afoul of the Fourteenth Amendment because they require discriminatory state enforcement. Without state action, laws like Arizona's would be toothless. Activist homosexuals and their allies could undermine the statute simply by standing in place when asked to leave.
Nearly thirty years after Moreton Rolleston lost his case, the Supreme Court took up a case more similar to the situation now unfolding in Arizona. In 1992, Colorado voters passed an amendment to their state constitution perhaps unique in its purpose: it specifically prohibited the designation of sexual orientation - homosexuality to be precise - as a protected classification for anti-discrimination protection, and repealed all existing Colorado laws or ordinances which did so. By 1996, a challenge to the amendment reached the Supreme Court under the name of Romer v. Evans.
The specific issues addressed by the Court in Romer differ somewhat from the current situation in Arizona, but the underlying rule remains the same; the Fourteenth Amendment prohibits state-sponsored and state-enforced discrimination.
Writing for the Court (which voted 6-3 against Colorado's amendment), Justice Anthony Kennedy expressed several critical constitutional principles and found the state law indefensible:
[The state law] identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence...
[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare...desire to harm a politically unpopular group cannot constitute a legitimate governmental interest...
The primary rationale [for the law] is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality...
We must conclude that [the law] classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else...A State cannot so deem a class of persons a stranger to its laws.
Romer v. Evans, 517 U.S. 620, 633-36 (U.S. 1996) (internal citations omitted).
The Fourteenth Amendment makes very clear that while the government is certainly empowered to prevent discrimination, it is absolutely prohibited from enforcing it. And the First Amendment prohibits the establishment of any one religious perspective. Simply allowing people to be bigots is a far cry from the government enforcing those discriminatory whims through the removal of undesirables from public accommodations by statute or gunpoint.
These issues were resolved long ago. While courts traditionally grant extensive deference to business judgment, the state has no power to enforce the biased whims of business owners, regardless of their justification. Owning and operating a business is not a fundamental right to which business owners are entitled, and religious liberty does not extend to the harm - or public exclusion - of others.