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Corporate “Values” Don’t Trump Civil Rights

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Hugo Black, contrary to some dumb conservative arguments, was an effective advocate for civil rights and civil liberties for most of his tenure on the Court. But he stayed on a decade or so too long, and there were times during the height of the civil rights movement where a bit of you-can-take-the-boy-out-of-Jim-Crow-Alabama would surface. I love this dispute between Black and William O. Douglas over civil rights recounted in Scot Powe’s The Warren Court and American Politics, where Douglas gets to the heart of the issue with secular for-profit corporations claiming the right to “exercise” religion at the expense of the rights of their employees:

Black was quite clear that either the state or federal government could mandate the restaurant serve everyone, but if the law was neutral, the property owner prevailed…He saw the situation in terms of his father’s store in Ashland, Alabama, and related that he believed “Pappy” would have the right to decide whom he was going to serve in his store.

Douglas, who had been inseparable from Black in the earlier periods, was now his opposite, and he was hardly interested or impressed with Black’s childhood or his father’s store because they were irrelevant to the issues before the Court. Douglas had no tolerance for the idea that S.H. Kress or Woolworth’s or McCrory’s was a mom-and-pop store where ownership and management merged. “The corporation that owns this restaurant did not refuse service to these Negroes because “it” did not like Negroes. The reason “it” refused service was because “it” thought “it” could make more money by running a segregated restaurant.” [228]

Quite so. And this is also relevant to whether secular companies should be able to claim religious exemptions to civil rights laws covering sexual orientation.

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  • I’m amused/appalled when a couple conservative Catholic friends push the religious liberty argument. They obviously don’t know the history of discriminatory treatment of Catholics in the US.

    • sparks

      Um, maybe they do know and want to take advantage now. I don’t expect principles in any organization of long standing, even if avowed principles are their reason for being.

      • Huh?

        I said a couple conservative Catholics I know. That’s not an institution.

        • Michael H Schneider

          The institution of the Catholic church has long opposed religous freedom, if you consider the Pope to speak for the institution.

          Pius IX described the following beliefs as errors:

          “15. Every man is free to embrace and profess that religion which, guided by the light of reason, he shall consider true. …
          55. The Church ought to be separated from the State, and the State from the Church. … ”

          http://www.papalencyclicals.net/Pius09/p9syll.htm

          • Oh yeah, that’s especially relevant to my point about American history, because Pius IX exerted major influence over American politics and government. Lincoln did exactly what Pius told him, as did every subsequent Catholic president over the next 100 years. In fact, that string of Catholic presidents was almost broken in 1960, but Kennedy pulled it out when he reassured voters that he would do whatever he was told by the Vatican.

            Oh, wait a second…

    • Manju

      They obviously don’t know the history of discriminatory treatment of Catholics in the US.

      Well, and expansive reading of the Establishment clause hasn’t always been friendly to Catholics.

      From a Summary of Phillip Hamburger’s Separation of Church and State:

      Hamburger shows that separation became a constitutional freedom largely through fear and prejudice. Jefferson supported separation out of hostility to the Federalist clergy [Manju adds for clarity: clergy that criticized slavery] of New England. Nativist Protestants (ranging from nineteenth-century Know Nothings to twentieth-century members of the K.K.K.) adopted the principle of separation to restrict the role of Catholics in public life.

      http://www.amazon.com/exec/obidos/ASIN/0674013743/thevolocons0d-20

      • Manju

        The idea that the Klan adopted the notion of Separation of Church & Clause as part of their Creed might sound far-fetched to some of you.

        Klansman’s Manual (1925):

        (b) The true Klansman is pledged to absolute devotion to American principles. Before the sacred altar of the Klan, face to face with the Stars and Stripes, and beneath the holy light of the Fiery Cross, he pledged himself in these words; “I swear that I will most zealously and valiantly shield and preserve, by any and all justifiable means and methods, the sacred Constitutional rights and privileges of . . .”

        1 Free public schools.

        2 Free speech and free press.

        3 Separation of church and state.

        http://history.hanover.edu/courses/excerpts/227kkkmanual.html

        • TribalistMeathead

          Doesn’t surprise me at all. Stopped clocks are right twice a day?

          What was your point? That anyone who supports separation of church and state also supports the KKK?

        • Why would it sound farfetched? It’s pretty consistent with Southerners and rural people fearing/opposing restrictions on their local autonomy imposed upon them by the hoards of Un-American types in the northern cities.

          But that doesn’t change the facts of official anti-Catholicism in colonial America, which is what I was alluding to in my comment about conservative Catholics acting like Obama is the most anti-Catholic American leader in history.

          And I don’t think the establishment clause was bad for Catholics. Since it wasn’t until after the Civil War that anyplace other than Louisiana would have had even a plurality of Catholics, they avoided being Catholics in a place with an official Protestant state religion, nationally or in any of the states.

      • Anonymous

        A lot of this was resistance to Catholics setting up a parallel educational system (parochial schools). One doesn’t have to be a bigot to think that’s a bad idea, and as a whole religiously affiliated schools have a terrible track record in the US. (Religiously affiliated Universities are a somewhat different matter).

        And the Federalist clergy were not just anti-slavery, but had a history of harassing religious minorities like Quakers and Baptists.

        Jefferson was a deeply flawed individual, but his championing of Separation of Church and State did have some genuine idealism behind it, and was one of his most positive contributions. Hamburger has his own agenda of promoting religious privilege.

        • The weird thing is that Catholic schools tend to be a little less on the terrible side, at least as far as academics go. (I won’t argue the point as far as Catholic scandals.) For one, though I’m sure there are creationist biology teachers at some Catholic schools, you’re generally supposed to teach the theory of evolution properly in the curriculum.

          The other thing I noticed is that the kids, because they’re made to take religious studies and all that stuff as part of school, actually learn to question it much better and more deeply than you’d expect.

          • though I’m sure there are creationist biology teachers at some Catholic schools

            The Catholic Church doesn’t buy in to that crap, so why would there be, other than lax supervision? And certainly not at universities.

            • Mostly I was guarding against the possibility of getting hit with a news story on some Catholic school teacher pushing creationism. Since not all schools require you to be Catholic to teach there, it exists even if it isn’t likely.

        • Hogan

          A lot of this was resistance to Catholics setting up a parallel educational system (parochial schools). One doesn’t have to be a bigot to think that’s a bad idea, and as a whole religiously affiliated schools have a terrible track record in the US.

          At the time Catholics were doing that, public schools were teaching the King James Bible to their students, along with commentary pointing out that the Antichrist in Revelations clearly symbolizes the Pope. It was only when local school boards refused to change this that Catholics began building their own schools.

    • I work with a number of conservative Catholics who think that the discriminatory treatment of Catholics is precisely why they should get to push the religious liberty argument now.

      • Bet none of them are sympathetic to the claims of polygamist Mormons or to Rastafarians.

        I mean, why should they be consistent wrt Catholics and Rastafarians; Antonin Scalia sure isn’t.

        • Of course. Though in the part of my mind that thinks in fantasies, I’m seeing a near-future in which the USCCB comes out for fundie-Mormon polygamy under the aegis of religious freedom . . .

          • Ken

            One of the beautiful things about the Romney campaign was the spirit of ecumenicalism that broke out. Catholics, Southern Baptists, Missouri Synod Lutherans – suddenly they all stopped using the word “cult” and embraced the Mormons as fellow Christians.

            How’s that held up, anyone know?

            • In my corner of the Catholic world, I was informed that Mormons are not Christians because they do not believe in the Trinity.

              When I asked whether then we shouldn’t call Christians “Trinitarians” instead, I did get a fairly comprehensive historical explanation, but nothing in it said why you couldn’t call Mormons Christians as well.

    • GoDeep

      People tend to change once they’re in power. In early America Baptists were scorned and hassled & after our founding were big believers in the separation of church & state… Not so much anymore…

      • mds

        Not so much anymore…

        Indeed, although “Baptists” is somewhat too sweeping (esp. given the way they fragment at the drop of a hat). As far as I know, American Baptist Churches USA remains disinclined to impose a theocratic state, though the congregationalist model means individual congregations might feel differently. And last time I checked, the “Faith and Message” mission statement of the Southern Baptist Convention still included a section on how church and state should be separate, that the church should not rely upon secular means to obtain its ends, etc. Once Al Mohler has finished purging everyone who isn’t a backdoor Dominionist from the clergy, I expect that part to finally be excised. Though his rejection of “the priesthood of all believers” in favor of a hierarchical model more amenable to theocracy has already cost him some member churches, so it might be excised from the Faith and Message of an even smaller denomination.

  • kindness

    Reasonableness seems to go out the window with these issues. Funny thing about religion too, as I do not know of any prophet who has told their flock to crap on those below them on the economic ladder. Maybe Ayn Rand types should build up a religion but she was an avowed atheist.

    • Cody

      The irony of staunch religious people (like Republicans) worshiping Ayn Rand is always lost on them.

      • GoDeep

        Paul Ryan must be darn near schizophrenic w/ Francis occupying the big chair in Rome…

    • Barry

      “Reasonableness seems to go out the window with these issues”

      It’s seasoned with a healthy understanding of who would get to discriminate, and who would get to be discriminated against. Those people who wanted to discriminate on the basis of race were probably not proportionate to the racial breakdown of the population.

      • Ramon A. Clef

        These people turn Rawls upside down and inside out. Rather than design a society as if behind a veil of ignorance as to their position in it, they would design society so that they alone are comfortable and everyone else lives behind a veil of ignorance as to how badly they’re screwed.

  • Snarki, child of Loki

    I’ll agree that corporations have “souls”, when I see one go to Hel.

    The fact that many of them DESERVE to go to Hel, unfortunately does not mean that they CAN.

    • LeeEsq

      I thought you had to sell your soul to the Devil in order to incorporate?

  • wengler

    I keep saying that Hobby Lobby’s stance is bullshit. Their stores are packed wall to wall with crap from China. A state that not only has widespread abortion, but forces women to have them from time to time.

    Their support of Chinese industry is invisible however, while their grandstanding over ‘religious rights’ is not.

    • GoDeep

      +1

      The SCOTUS should tell them, ok you can practice your religious beliefs wrt Obamacare so long as you don’t do business w/ anyone other than ppl who believe exactly as you do…and most especially not do business w/ the Catholic-bashing Chinese gov’t.

  • Strong Thermos

    I read Wild Bill a while ago. Douglas was a nut, but an awesome one. Drafted opinions on cocktail napkins, never spent more than what an hour on an opinion, usually wrote it in one draft? Something like that.

    • progressive
      • JTR

        Or nine.

      • Strong Thermos

        This is great. Also funny, I took a couple of Tax courses in law school. In any case where the court ruled against the IRS, Douglas would dissent without opinion. Hilarious.

        • Strong Thermos

          I meant, in any case where the Court ruled FOR the IRS, Douglas would dissent without opinion. He always ruled against the IRS.

          So if you want to sell Justice Douglas to a conservative friend, try that.

  • DrDick

    When corporations get baptized and take communion (and the Pope acknowledges they have a “soul”) or attend any kind of worship service, I will consider the possibility that they have “religious freedoms.”

    • Lee Rudolph

      How about with start with a nice circumcision?

      • DrDick

        8-)

      • JosephW

        Well, that’ll only prove the corporation is Jewish. Even then, only if the proper bris ceremony is performed. (The US certainly has more circumcised NON-Jewish men than there are Jews of both genders worldwide.)

    • I think it’s a mistake to think of this in terms of corporations not having rights.

      Someone came up with a good example on another site– what about a mandate that restaurants serve pork, applied to a corporate owned Jewish or Muslim restaurant?

      Another example is I don’t think the government can require a Chik-fil-a to open on Sundays.

      And of course, some religions are organized in the corporate form.

      Douglas’ point was about big versus small, not corporation versus individual. It wouldn’t have mattered one bit if Woolworth’s was operated as a sole proprietorship.

      They key point with the Obamacare contraception mandate is that business owners don’t have the right to prevent their employees from receiving free contraception from someone else. That’s simply not a cognizable religious freedom. In RFRA terms, it’s not a substantial burden on your religion that someone else is giving your employees free birth control.

      But something else could be, even if the business is a corporation.

      • DAS

        I don’t think “a mandate that restaurants serve pork, applied to a corporate owned Jewish or Muslim restaurant” quite matches what’s going on here though. No one is forcing corporations to hand out condoms to their employees or have an abortion-provider on premises. What the law requires is that contraception be provided as a benefit as part of a health insurance package.

        The correct analogy would be to ask whether a Jewish owned corporation could forbid its employees from purchasing blood sausages with their wages or, perhaps even more to the point, where a Jehovah’s Witness owned corporation could be allowed to purchase a special health insurance policy that doesn’t provide coverage for blood transfusions.

        By the way, while the government cannot require businesses to be open on Sundays, it can and did (and some governments still do in terms of Sunday morning mall openings and liquor sales being banned) forbid businesses from being open on Sundays. And this very much had a discriminatory effect against Jewish-owned small businesses, which couldn’t afford to remain closed on two days of the week, by interfering with the rights of Jewish business owners to observe a Saturday Sabbath.

        • I agree that your analogies are correct. But my point is, none of them depend on the corporate status of the employer. I don’t think an employer has the right to control an employee’s receipt of free contraception from another source, whether or not the employer is a corporation. However, there could be other situations where a corporation should be able to assert religious freedom rights.

          I think there’s a tendency to want to relitigate Citizen’s United in these cases, and that’s not the issue.

          • GoDeep

            Well a for profit corporation is a special kind of organization with special types of privileges and tax rates. There’s a trade-off involved.

            So to continue w/ your pork analogy, if corporations want the bacon, they gotta take the chitlins too.

      • Strong Thermos

        Why does the corporation as an entity even have to be implicated in that analysis? A serving pork mandate would already give you a solid Free Exercise argument on the individual level.

  • Randy Paul

    Most of the Alabama side (i.e., maternal) of my family are from Ashland, AL, which s the county seat of Clay County. My grandfather knew Hugo Black and corresponded with him when he (Black) was in the Senate. Black considered my grandfather a radical liberal. One of my grandfather’s brothers got chased out of Clay County for trying to organize unions in the cotton mills.

  • Late again, but here is an odd coincidence:
    When I started college in 1971 I became friends w/ two guys who were room-mates down the hall from me, one of whom was the nephew (or grandnephew) of Hugo Black, the other of whom soon started to go out w/ Justice Douglas’ granddaughter, also a student.

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