Indeed, in every Supreme Court case in the last decade involving religious resistance to an equality norm, equality has lost. The implications, for our civil rights laws and those they aim to protect, are grave. These cases are about nothing less than whether the Constitution protects the right to discriminate—the right of a business to post a sign in the window that reads, “Wedding cakes for heterosexuals only,” or “Help wanted. Transgender people need not apply.”
The recent challenge to antidiscrimination laws is not without precedent. As I have documented before, in the nineteenth century and even well into the twentieth, courts explicitly and repeatedly invoked religion in upholding racial segregation. In 1867, addressing segregation in trains, the Pennsylvania Supreme Court emphasized that “the order of Divine Providence” dictates that the races should not mix. In 1877 the Alabama Supreme Court, upholding a conviction for interracial marriage, reasoned that God “has made the two races distinct”—a sentiment echoed in 1955 when members of the Florida Supreme Court invoked religion to justify resistance to integration in schools, noting that “when God created man, he allotted each race to his own continent according to color, Europe to the white man, Asia to the yellow man, Africa to the black man, and America to the red man,” and again in 1959 when a trial judge sentenced Mildred Jeter and Richard Loving for violating Virginia’s ban on interracial marriage. As to gender, the Supreme Court held in 1872 that the state of Illinois could prohibit women from practicing law, with the concurring justice noting, “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”
Faith-based defenses of segregation and patriarchal gender roles endured even after passage of civil rights laws in the 1960s, but in these contexts, courts held steadfast to the nation’s commitment to equality. In Newman v. Piggie Park Enterprises (1968), for example, a barbecue franchise argued that requiring it to comply with the Civil Rights Act of 1964 would violate its religious rights, as the owner believed that integration “contravene[d] the will of God.” The court rejected the argument; in no uncertain terms, it emphasized that, while Piggie Park’s owner “has a constitutional right to espouse the religious beliefs of his own choosing . . . he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens.”