Analysis: 3 Reasons Religious Freedom Laws Are Nothing Like Jim Crow

In the debate over Arizona's S.B. 1062, a bill that would have modified the state's Religious Freedom Restoration Act, some opponents of the bill characterized the bill and others like it as "Jim Crow for gays." Those who used this analogy, though, either do not understand RFRA, do not understand Jim Crow, or both.

The opponents claimed it would have allowed business owners to deny gays access to public accommodations. A Christian Post analysis of the bill concluded that was not true. In a letter sent to Arizona Gov. Jan Brewer (R) before she vetoed the bill, 11 law professors, some liberal, some conservative and all experts in religious freedom, came to the same conclusion.

But even if the Arizona law would have done what opponents claimed, the law would still not be analogous to a Jim Crow law. Here are three reasons why:

Jim Crow laws mandated separation for blacks and whites at government facilities. This included separate schools, parks and prisons, and separate seating areas in public places, like in courtrooms, public libraries and public transportation. And, at the federal level, this included a segregated military.

RFRA laws, including the federal law, state laws, and the modifications in the Arizona bill, do not mandate government discrimination.

Jim Crow laws mandated that businesses deny access to certain accommodations. Business owners were required by state law to maintain separate facilities for whites and blacks. Railroad owners, for instance, were required to have separate cars for blacks and whites. Barber shops and liquor stores were required to serve either blacks or whites, but could not serve both. And hospitals had to maintain separate facilities based upon race.

Neither the federal RFRA, state RFRAs or the Arizona bill (if it had become law) require or would have required businesses to deny access to gays.

RFRA laws restrict government action. In essence, these laws maintain what was long held to be the view of the Free Exercise Clause of the First Amendment. Namely, government cannot infringe upon your religious liberty unless it has a really good reason for doing so and it cannot avoid doing so.

Rather than restrict when the government can take away your freedom, Jim Crow laws limited freedom. Most egregiously, of course, Jim Crow laws limited the freedom of blacks, and, in some Jim Crow states, Latinos, Jews and poor whites. But they also limited the freedom of white business owners. Jim Crow laws used government coercion of private business to enforce a racist government policy.

Government policy was not the only source of racism, of course. Private institutions also discriminated based upon race. But they did so with government blessing. Indeed, government set the example for them to follow.

If you owned a barber shop serving whites, you could not serve blacks. If you owned a liquor store serving whites, you could not sell to blacks. If you owned restaurant, you had to provide a separate room if you wanted to serve blacks. All these are examples of government coercion of business owners.

Imagine there were no government coercion in the marketplace of the Jim Crow South. Private businesses would have been able to sell and market their products to whomever they chose. Some businesses, no doubt, would have been owned by racists and chosen to discriminate. In a free market, though, these businesses would have competed against businesses that did not discriminate, preferring to sell and market to as many customers as possible. Over time, businesses that chose discrimination would have died off because turning away customers is not a sustainable business model.

A feature of the Jim Crow South was the abuse of state power, and the denial of a free market. While Jim Crow laws were ultimately defeated by the power of the federal government, such as with President Harry Truman's executive order desegregating the military, the Supreme Court's Brown vs. Board of Education decision and passage of the Civil Rights Acts of 1964 and 1965, Jim Crow also needed the power of the state to sustain itself.

Opponents of Arizona's S.B. 1062 wrongly claimed that the bill would allow private businesses to deny gays access to public accommodations. Even if it were true (it is not), for the law to be akin to Jim Crow laws, the bill would have had to require businesses to deny service to gays or maintain separate facilities for gays.

Is the law really as narrow as described by most journalists? Is it specifically about ‘deeply held religious beliefs’ and only about homosexuality?

For me, a key point is that the bakery in question would sell cakes, pies and pastry to the homosexual couple. The business was happy to have customers, and was not discriminating. BUT the bakery drew the line at creating a cake which glorified the sin of homosexuality. That was the problem. And the state said: "You must."

I wonder if anyone will go to a black-owned bakery and ask them to make a cake which says "I love the KKK"? They couldn't say No, could they?

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