A person is free to be racially prejudiced towards black people as long as that prejudice remains an idea only and is practiced privately. A white person can think and usually say what he wants to about black people. Of course, he has no right to be free of criticism for what he thinks or says. He has no right not to be called a bigot. But he has the right to express his opinions and views about black people without official negative sanction. If he wants to believe black and white people should not get married, then he can think and say this and only marry white women. If he doesn’t want to eat around black people, then he can sit in his kitchen with his white family and eat with them. This is his right. If he wants to use offensive language, he should be able to do so. Those who are offended by this utterance, have the right to criticize him for saying it. They, too, have free speech.
However, this racially prejudiced man does not have the right to expect to eat at a restaurant where he is guaranteed the absence of black people or where the restaurant creates an atmosphere where black people will be deterred from eating or working at his establishment. This man does not have the right to set up a business which is a place of public accommodation, such as a fast food restaurant, based on the white supremacist principles. A place of public accommodations must be free of racism, which is defined as racial prejudice in practice or effect. This is a matter of federal law.
The Federal Civil Rights Act of 1964 guarantees all people the right to “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.” Full and equal enjoyment covers both the customer and the employee. If a white business owner where to utter white supremacist slogans in his place of public accommodations or compel his employees to listen to white supremacist propaganda, he would be in violation of federal law. He cannot create a racially hostile environment in a place of public accommodations.
You will notice that race and color are not the only items mentioned in the list of protected categories in the 1964 Civil Rights Act. Religion is also listed. Business owners cannot operate places of public accommodations that exclude customers or bar workers on the basis of religion. A business owner cannot terminate the employment of a mother on the grounds that, according to his religious beliefs, she should be at home with her children. A business owner cannot terminate the employment of a man on the grounds that, in her religion, it is wrong for him to be in a romantic relationship with another man. A business owner cannot tell a gay couple that they cannot have a private booth on account of the religious beliefs of the business owner. A business owner cannot stop expression of affection among gay couples but allow these for straight couples. A business owner cannot deny to an employee birth control in the health insurance provision of the benefits package of an employee because the business owner opposes birth control. A place of public accommodation cannot have any religious policies whatsoever, it cannot be a projection of the business owners religious values, and this includes the articulation of a religious policy, let alone an explicit admission that the business is organized upon biblical principles. Businesses of public accommodations cannot be based on Christian, Muslim, or Jewish principles any more than they can be based on white supremacist principles (and by extension male supremacist principles, for sex is a protected category, as well).
This is the part of the Chick-fil-A controversy that many liberals in the corporate news media—and of course all the conservative and self-styled “libertarian” voices we encounter—have missed. And this is the issue. The issue is not freedom of religion for the Christians running Chick-fil-A. It is a religion freedom issue for the customer and worker at Chick-fil-A. And it is not freedom speech issue. Those who defend Chick-fil-A, whether they know it or not, are buying into the pre-1964 logic of the American legal system, i.e., the logic of segregation based on suspect classifications, namely that policy based on principles of exclusivity are equivalent to principles based on inclusivity in the public sphere. This idea no longer underpins public law in America, at least it isn’t supposed to, because we as a people (at least we used to) recognize that this is discrimination and that discrimination is wrong. Denying a license of privilege to a place of public accommodations based on white supremacist principles is not discrimination. Nobody’s rights are violated when the government denies a license to such a business. On the contrary, it is permitting the existence of a business operating as a place of public accommodations explicitly based on white supremacist principles that is discriminatory, since such an establishment harms the rights of black customers and workers to be free of racial discrimination.
In the post-1964 world, if a business owner wishes to operate a business based on biblical principles, then he must convert his business into a private religious institution. His business can no longer be a place of public accommodations. Only in the sanctuary of a church is a group of the religiously devoted allowed to practice exclusivity based on their belief system. A Christian church doesn’t have to allow Muslims or create a welcoming environment for them. The same is true for a racially exclusive group, such as the Ku Klux Klan. A klavern doesn’t have to allow black members. It is not a place of public accommodations. It’s an exclusive club based on white supremacist principles. But if the KKK wants to open a place of public accommodations, it cannot be based on white supremacist principles. And, frankly, a community would be perfectly justified in denying the KKK a business license for a place of public accommodations in which the business owner stated that his business was going to based on white supremacist principles. And you know as well as I do that they would be able to do so without controversy. I can’t imagine any of the liberals presently defending Chick-fil-A defending a business owner who was a member of the KKK declaring that his business was operating on white supremacist principles. And with respect to religion, it’s not simply the demand of the Civil Rights Act of 1964. The right to be free from the religious prejudices of another in the context of the public sphere is enshrined in the First Amendment.
Here is what the right to religion entails: a Christian man is free to be religiously prejudiced towards non-Christian people as long as that prejudice remains an idea only and is practiced privately. A Christian can think and usually say what he wants to about non-Christians. Of course, he has no right to be free of criticism for what he thinks or says. He has no right not to be called a bigot. But he has the right to express his opinions and views about non-Christians without official negative sanction. If he wants to believe that Christians should not marry Jews, then he can think and say this and only marry Christian women. If he doesn’t want to eat around Muslims, then he can sit in his kitchen with his Christian family and eat with them. This is his right. If he wants to use offensive language to describe a Muslim person, he should be able to. I will defend his right to say this. But, again, those who are offended by this utterance, have the right to criticize him for saying it. They, too, have free speech. I will defend their right, as well.
In our society, a person is allowed to be religiously prejudiced in this way, but he is not allowed to operate a business that puts his prejudice into practice. Business owners are explicitly forbidden to run their businesses in a way that discriminates on the basis of race and religion. Nothing could state more clearly the republican and secular principle that underpins our representative democracy that businesses serve the interests of the community and that communities have no obligation to be subjected to harmful business actions than the existence of a law forbidding a business from discriminating against black people.
If you are a white business owner who doesn’t want to serve black people in his place of accommodations, you are not allowed to run such a business. It’s that simple. There is no suppression of your rights occurring when the state denies you a business license on the grounds that you explicitly operate your business based upon racial exclusion. It is no different for religion. You are not being punished for your views. You are being prevented from imposing your views on others.
It took this nation well more than a hundred and fifty years to realize in the law what has always been true in principle. We must not now go backwards to claim as a right what was really always a privilege.