Maybe Goldwater Was Right

The Public Accommodations Law 

and Gay Rights

Two of the things Barry Goldwater is most remembered for occurred in 1964. (1) He ran for President, and lost to Lyndon Johnson in a landslide. (2) He voted against the Civil Rights Act. 

For voting against the Civil Rights Act he was branded a racist, and, today, even when he is not called a racist, his vote is regarded as huge mistake. However, his record on civil rights reveals a man of fairness, conviction, and courage. When he was put in charge of organizing the Arizona Air National Guard in 1946, he recommended its integration and waited two years for President Truman's approval. He was a member of his home state's NAACP and Urban League. He integrated the Senate Dining Room when he insisted that Kathrine Maxwell, his black legislative assistant, be admitted. He voted for civil rights legislation in 1957 and 1960. Though he voted against the 1964 Civil Rights Act, he made a televised speech in South Carolina during the last week of his presidential campaign in which he said he would implement and enforce the law.

Goldwater very much wanted to support the 1964 bill, but he could not get past two provisions that he thought unconstitutional, the parts dealing with public accommodations and employment. He explained his opposition:

I wish to make myself perfectly clear. The two portions of this bill to which I have constantly and consistently voiced objections, and which are of such overriding significance that they are determinative of my vote on the entire measure, are those which would embark the Federal Government on a regulatory course of action in the area of so-called "public accommodations" and in the area of employment--to be precise, Titles II and VII of the bill. I find no constitutional basis for the exercise of Federal regulatory authority in either of these areas; and I believe the attempted usurpation of such power to be a grave threat to the very essence of our basic system of government, namely, that of a constitutional government in which 50 sovereign states have reserved to themselves and to the people those powers not specifically granted to the central or Federal Government.

Though assurances were given to the contrary, Goldwater was proved right in his concern that the employment law would lead to quotas. However, what interests us here is the public accommodations law. What did the law require?

SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. 

(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and 

(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

What the "public accommodations" law required, if originally in a limited fashion, was that businesses which provided "accommodations" were required to do business with anyone regardless of race. Goldwater believed it was morally repugnant to practice racial discrimination in providing "public accommodations," but he believed the federal government had no power to coerce businesses that provided "public accommodations" to provide them to anyone who wanted to do business with them. In other words, the government should not force hotels to sell rooms, restaurants to sell food, or movie theaters to sell tickets to anyone who wanted to do business with them. Those were decisions for business owners to make.

What does this have to do with gay rights? We have accepted as a society that civil rights includes the requirement that all businesses sell their goods and services without discrimination. We believe that a person, regardless of race, ethnicity, or color has the right to buy gasoline from any business that sells gasoline.

It is common to hear Christians and others say that the movement for black rights and the movement for gay rights are two very different animals. Discriminating in doing business with black persons and in doing business with gay persons are not of the same order. This is self-evidently true. But it is fast becoming irrelevant.

Why? Because the American society has come to several conclusions: (1) Homosexual relations are not immoral and, even if they were, are nobody's business. (2) Homosexual persons should have the same protections under the law as any other group. (3) Homosexual couples should have the same right to marriage and its legal protections as heterosexual couples. (4) Homosexuals, particularly those who are contemplating marriage, should have the same rights to goods and services as anyone else. If you can't refuse to sell a cake because you object to interracial marriage, you can't refuse because you object to homosexual marriage.

Efforts by conservative Christians and other religious groups to frame the issue as one of religious freedom are having a tough go of it. It is pointed out that Christians in the South defended segregation and Jim Crow on the basis of their reading of the Bible. They were wrong then. Who can say those, who on religious grounds do not believe they should be required to provide wedding cakes for homosexual marriages, are not wrong now? Society turned against the South's defense of segregation as an aspect of faith, and now society seems to be turning against discrimination against homosexuals as something protected under the freedom of religion. 

So bakers, florists, photographers, and others, who sell goods and services associated with weddings and who object to selling these goods and services to engaged homosexual couples on the basis of their religious convictions, are having a very hard time getting society to agree with them and provide them with protection. 

Now, if I were a Christian who owned a bakery or a floral shop, I can see myself just selling cakes and flowers regardless of the sexual orientations of persons buying my cakes or flowers. Where the yuck factor would get to me is if I were asked to photograph a gay wedding, if the pictures were to be of the same sort as are often taken for heterosexual weddings. I just don't know if I could photograph a gay couple exchanging a kiss or removing garters.

The reality with which Christians have to contend is that they are not going to win arguments against homosexual relations and marriage by arguing that the Bible does not allow these. It's hard even to make a natural law argument against them by saying "the parts" don't go together. It is the consensus of society that decides these things. Society decided that discrimination against blacks was wrong and must not be allowed even if it this impinges on your freedom in doing business. Now society seems to be coming to the same view of discrimination against gays.

It seems to me that the only protection against being forced to do business with gays who want to marry is if there were a recognized right not to have to do business with anyone you don't want to do business with. It is too late by much, but perhaps, if Goldwater had prevailed in 1964 and the freedom to do business or not do business with anyone you please, even if you are wrong, had been established, those with moral objections to doing business related to gay weddings would be protected. Put another way, perhaps protecting the freedom of people to do wrong (discriminate in doing business with blacks if that is what you want to do) is the only way to protect their freedom to do right when when an action violates their moral code (not do business with gays planning marriage). 

Before you get mad at me, please know I think segregation and Jim Crow were wrong. I am sorry that integration has failed. I believe it is morally wrong to refuse to do business with a person based on their race. I believe persons of different races should be free to marry. I was a liberal on race in Mississippi when it wasn't easy to be a minister and believe these things.  

This present world is a messy place. Sometimes you have to give freedom to people to be and do wrong if you want the freedom to believe and do right. 

Meanwhile in western civilization we are very close to being back in the place of Christians in the world of the New Testament. That may not be all bad.