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Jun. 29 2010 - 10:37 am | 536 views | 2 recommendations | 14 comments

The Right to Exclude Gays: The Supreme Court’s Decision

Yesterday (June 28) the Supreme Court voted to support the University of California Hastings College of the Law when it determined that if you accept public money and utilize public facilities you cannot discriminate against gays because that is against current laws prohibiting discrimination.

In 2004 the Christian Legal Society established a chapter at the U.C. law school that required members to swear “unrepentant participation in or advocacy of a sexually immoral lifestyle,” which it defined as sex outside heterosexual marriage. So, presumably, every member is either married or a virgin, and is most definitely straight.

Two thoughts to clear this up:

(1). If you want to discriminate against people whose beliefs, ideas, or nature you don’t like, you are free to do so with your own money. You cannot take Other People’s Money (OPM) and expect no strings to be attached, especially when it is public money. So, by all means, the Christian Legal Society should have the right to exclude anyone they like from their club, including gays, Jews, blacks, atheists, Muslims, and Elvis impersonators, as long as they rent their own facility and pay for it with their own private money. It’s that simple.

(2). It isn’t that simple, because just last month in the run-up to the primary elections, the Republican Senate candidate from Kentucky, Rand Paul, found himself in a heap of hot water when he argued that the civil rights movement did not really need the support of the Federal government, that private businesses should be allowed to discriminate against whomever they like, as abhorrent as such discrimination is. Here is what he said on the Rachel Maddow Show on MSNBC when the host asked him, “Do you think that a private business has the right to say ‘we don’t serve black people’?”:

“I’m not in favor of any discrimination of any form. I would never belong to any club that excluded anybody for race. We still do have private clubs in America that can discriminate based on race. But I think what’s important about this debate is not written into any specific ‘gotcha’ on this, but asking the question: What about freedom of speech? Should we limit speech from people we find abhorrent? Should we limit racists from speaking? . . . I don’t want to be associated with those people, but I also don’t want to limit their speech in any way in the sense that we tolerate boorish and uncivilized behavior because that’s one of the things freedom requires.”

Paul then backpedaled faster than Lance Armstrong front-pedals:

“Let me be clear: I support the Civil Rights Act because I overwhelmingly agree with the intent of the legislation, which was to stop discrimination in the public sphere and halt the abhorrent practice of segregation and Jim Crow laws.”

Question: why is it acceptable for a private Christian group to discriminate against gays as long as they do not use public money or publicly-owned facilities, but it is unacceptable—blatantly illegal in fact—for a private restaurant to discriminate against blacks? Can we have some consistency here?


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  1. collapse expand

    It’s good to hear that the Supreme Court actually supported what seems to me (and you, apparently) an obvious proposition: you are legally entitled to hang around with whomever you choose, but if you want government subsidies (in the form of free rent or whatever), you are NOT entitled to discriminate against people.

  2. collapse expand

    Mr. Shermer,

    You asked:”Question: why is it acceptable for a private Christian group to discriminate against gays as long as they do not use public money or publicly-owned facilities, but it is unacceptable—blatantly illegal in fact for a private restaurant to discriminate against blacks? Can we have some consistency here”

    Under Federal law (Title II of the Civil Rights Act of 1964) any business which provides public accommodations must provide those accommodations to the whole public, that business may discriminate against certain members of the public based on race, religion, gender, or national origin. It is a pretty simple proposition. In the South to the this very day, there are private dinning clubs, which can legally exclude Black people, and do. They do not provide accommodations to the public, they are open only to members, and thus do not run afoul of a civil rights laws (Title II, Section 201(e) The provisions of this title shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b)).

    This is completely consistent with yesterday’s ruling. Private organizations may indeed be as racist or exclusionary as they privately please. Organizations that cater to the public must follow public rules and may not be racist or exclusionary as defined by law.

  3. collapse expand

    You asked: “Question: why is it acceptable for a private Christian group to discriminate against gays as long as they do not use public money or publicly-owned facilities, but it is unacceptable—blatantly illegal in fact—for a private restaurant to discriminate against blacks? Can we have some consistency here?”

    If the Supreme Court ruling is this simple, than my question is, how does “Don’t Ask, Don’t Tell” remain legal? The military most assuredly uses public money and publicly-owned facilities…. I think there’s a larger issue here.

  4. collapse expand

    Because we have no problem regulating business, but regulating religion is another third rail of politics. You are absolutely right: to be consistent they shouldn’t regulate anything private.
    What’s sad is that churches do take Other People’s Money: they don’t pay property taxes and operate at a public subsidy as a charity/not-for-profit. If they want to mail out marketing for their religion, our tax dollars help pay for that discounted postage.

  5. collapse expand

    I agree. Being black and gay, I can honestly say that if we’re going to allow discrimination (and as long as it’s a private business, then I see no reason why they shouldn’t be able to do whatever they like with their money) it should be the same all over the board, whether you’re black or gay or religious or whatever. Discrimination is a social ill, and I detest it, but I detest governments sticking their fingers in my pies even more. It’s terrible, it really it, and it’s wrong, morally, but the job of legislature is not to regulate morality.

    • collapse expand

      Hello Hannah Southerland,

      In 1964 you would not be writing that. You would not be allowed entry to many restaurants, theaters, and other public accommodations. In restaurants you would have to go around to the back and pick up your there to go. You see, the restaurant would be glad to take you money but would not allow you to sit with the white clients. It is government intervention in the form of the Civil Rights Act (Title II) of 1965 that stopped those sorts of practices.

      Government intervention gives you the luxury of detesting government intervention.

      In response to another comment. See in context »
  6. collapse expand

    So very tired of the Black and Gay comparison…I unfortunately know a few Racist White Homosexuals.

    I can’t tell if your Gay straight off but you know that I am Black Man.

    The comparison is silly and its what keeps the Black Community from supporting Gay Rights.

    • collapse expand

      I don’t think anyone was comparing blacks and gays other than to say that each is a protected group. Much like private clubs can exclude women or blacks or Hindus or gays or the handicapped, etc.

      If that’s what you think is keeping “the Black Community from supporting Gay Rights” then maybe YOU need to look inward at your own hate.

      In response to another comment. See in context »
  7. collapse expand

    “Question: why is it acceptable for a private Christian group to discriminate against gays as long as they do not use public money or publicly-owned facilities, but it is unacceptable—blatantly illegal in fact—for a private restaurant to discriminate against blacks?”

    Good Morning Americaaaa!))))))
    I’ve actually found myself asking the same question ( well kinda,) when facing eviction long time ago, as I’ve discovered a very peculiar law ( in predominantly white state by the way,) that I’ve had the right to have free of charge lawyer and that my tenant rights were protected overall, HAD I LIVED WITHIN THE CITY LIMITS. But since I happened to live a mile away from it, ( read suburban area,) I should have quietly left without arguments, the moment landlord showed me to the door for a good reason or… without it. ( That is of course if I were not ready to shell out big bucks for the lawyer in the court.) And who, I asked myself, would live within “the city limits,” “the inner city” – shall we say? The Blacks, the poor – you know the drill. So the lesson learned – stay where you belong and “your rights will be protected,” move out of it – and you are on your own. You’ve got to go, even if the landlord “doesn’t like the color of your hair” – that’s precisely what I’ve been told under the circumstances. If that’s not discrimination that’s prohibited by the law with one hand, yet written into the law with the other, you tell me what it is.
    I always learn new things about America, as fascinating as they are, heh.

  8. collapse expand

    My guess is that the difference in discrimination is the membership requirement and whether the group is semi-public (restaurant is, law group isn’t).

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    About Me

    Dr. Shermer is the Founding Publisher of Skeptic magazine and editor of Skeptic.com, a monthly columnist for Scientific American, and an Adjunct Professor at Claremont Graduate University. His latest book is The Mind of the Market, on evolutionary economics. His last book was Why Darwin Matters: Evolution and the Case Against Intelligent Design, and he is also the author of The Science of Good and Evil and of Why People Believe Weird Things. He received his B.A. in psychology from Pepperdine University, M.A. in experimental psychology from California State University, Fullerton, and his Ph.D. in the history of science from Claremont Graduate University (1991). He was a college professor for 20 years, and since his creation of Skeptic magazine he has appeared on such shows as The Colbert Report, 20/20, Dateline, Charlie Rose, and Larry King Live (but, proudly, never Jerry Springer!).

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