Indiana Governor Mike Pence recently signed an amendment to his state’s controversial “religious freedom” law which stipulates that it cannot be invoked by business owners to discriminate against LGBT customers. Far-right Christians who championed the bill as a means to prevent Christians from baking cakes and making floral arrangements for same-sex weddings were livid.
Matt Barber called the amended law and “anti-Christian, sexual anarchist disaster” and likened Governor Pence to Judas Iscariot. Scott Lively, an extremist pastor currently set to stand trial for crimes against humanity, compared LGBT activists to the Borg from Star Trek, writing, “No existing member of the American Marxist collective is allowed to dissent from the view that homosexuality and related perversions are deserving of legal protection and cultural celebration. Moreover, any dissent from outside the Collective attracts the entire body of Borg-like drones — like a swarm of hornets — in the single-minded quest to seek and either assimilate or destroy whatever person or entity has been foolish enough to challenge it.”
The AFA’s Bryan Fischer had similar harsh words, claiming the amended law “forces Christian bakers to bake cakes in violation of their faith and conscience” and that Governor Pence “tried to fix something that wasn’t broken, and he broke it.”
Fischer also conceived of a way to fight legislation that doesn’t allow for Christians to follow their consciences and deny service to gays and lesbians. Citing an article from American Thinker Fischer wrote that “the key constitutional answer to Indiana’s crisis is not even found in the First Amendment but in the 13th”:
Here’s how the 13th Amendment reads (emphasis mine):
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Well, Indiana is subject to the jurisdiction of the United States, so involuntary servitude is flatly forbidden anywhere in the state. Period. We fought a civil war to resolve this issue, and yet pro-homosexual zealots want to take us back to the days of the Confederacy and the days when disfavored minorities were forced to pick cotton or else.
. . .
A Christian baker cannot be forced against his will to bake a cake for a same-sex wedding. That’s involuntary servitude.
A Christian florist cannot be compelled against her will to prepare a floral arrangement for a same-sex wedding. That’s involuntary servitude.
A Christian photographer cannot be compelled against her will and conscience to shoot a same-sex wedding ceremony. That’s involuntary servitude.
A Jewish baker cannot be compelled against his will to bake a cake with Adolf Hitler’s image on it (such cakes exist, believe it or not). A black owner of a T-shirt company cannot be compelled against his conscience and will to print shirts with KKK slogans. And a Muslim butcher cannot be compelled against his will to butcher a hog. Period.
Setting aside the vast differences between a Christian baker creating a cake — something that a baker does in the regular course of business — and a Muslim being forced to purchase and slaughter an animal for meat he wouldn’t normally stock, Fischer’s constitutional analysis falls flat, and is once again reminiscent of arguments made by segregationists decades ago.
Over fifty years ago the 88th Congress passed the landmark Civil Rights Act of 1964. This law banned acts of discrimination in both the public and private sphere, with Title II reading in part, “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation…without discrimination or segregation on the ground of race, color, religion, or national origin.”
The law was, quite predictably, met with fierce resistance by white business owners who refused to be compelled by Congress to serve African-Americans. In their minds they were allowed to refuse service to anyone, and for any reason, and had a right to run their businesses as they saw fit.
Such was the attitude of Moreton Rolleston, a white motel owner from Georgia, who refused to rent rooms to blacks. Rolleston swiftly mounted a legal challenge to Title II of the Civil Rights Act, alleging that Congress acted outside the scope of its powers to force private business owners to provide services to people regardless of race.
In Heart of Atlanta Motel v. United States (1964), the main thrust of Rolleston’s argument before the Supreme Court was that Congress exceeded its power under the Commerce Clause — its main justification in being able to police the actions of private business owners — in enacting Title II. However, one of his more colorful arguments was that the law also violated his rights under the Fifth and Thirteenth Amendments.
The Fifth Amendment guarantees that no person “shall be…deprived of life, liberty, or property, without due process of law,” while the Thirteenth Amendment serves as the prohibition against both chattel slavery and involuntary servitude. Rolleston claimed that denying him the freedom to choose the customers whom he wished to serve (i.e. white travelers) would be tantamount to involuntary servitude. That is, he would be forced by the government to provide rooms to black customers just as he would for white customers — all against his will.
The Supreme Court, with Justice Tom C. Clark writing for the majority, eviscerated these arguments in short order. The Court declared not only that Congress was well within its authority under the Commerce Clause to enforce such sweeping legislation, but that Rolleston was not deprived of his Fifth Amendment rights:
Thus, the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce. One need only examine the evidence which we have discussed above to see that Congress may — as it has — prohibit racial discrimination by motels serving travelers, however “local” their operations may appear.
Nor does the Act deprive appellant of liberty or property under the Fifth Amendment. The commerce power invoked here by the Congress is a specific and plenary one authorized by the Constitution itself. The only questions are: (1) whether Congress had a rational basis for finding that racial discrimination by motels affected commerce, and (2) if it had such a basis, whether the means it selected to eliminate that evil are reasonable and appropriate. If they are, appellant has no “right” to select its guests as it sees fit, free from governmental regulation.
The Court also found “no merit in the remainder of appellant’s contentions, including that of ‘involuntary servitude.'” The Court noted that, at that time, 32 states had laws which barred racial discrimination in public accommodations, and that such laws merely codified the common law innkeeper rule, by which such proprietors had a duty to accommodate all travelers absent some reasonable grounds for refusal. The common law, the Court pointed out, “long predated the Thirteenth Amendment,” and it is doubtful that the Thirteenth Amendment was “intended to abrogate this principle.” The Court concluded this point by declaring, “Indeed, the opinion of the Court in the Civil Rights Cases is to the contrary as we have seen, it having noted with approval the laws of ‘all the States’ prohibiting discrimination. We could not say that the requirements of the Act in this regard are in any way ‘akin to African slavery.'”
The point made by Fischer is one that has been settled a half century ago. Trying to cast laws prohibiting businesses from discriminating against protected classes of people as being the same as slavery is a foul, evil comparison that defies all logic. It has been argued before, by other bigots, long before reactionaries such as Bryan Fischer and the teary-eyed owners of Sweet Cakes by Melissa. Co-opting the pain of minority groups in order to exempt yourselves from treating your customers equally was a losing argument in 1964. It will surely be a losing argument in 2015.