How Anti-Gay Laws Could Backfire

by Brendan Beery

I have frequently addressed the concept of state action in the constitutional context. The Constitution does not concern itself with private conduct; it is directed to the attention of governments. It tells governments what they may or may not do and is agnostic as to the rest of us. Our business is our business.

That is why a mother’s choice to have an abortion cannot possibly be a violation of the Constitution. It’s also why a privately owned radio station can’t violate your First-Amendment rights. And it’s why, in a contest between the religious beliefs of a county clerk and the religious beliefs of a citizen, the citizen wins.

But what good are legal rules without caveats? It is possible, in rare circumstances, for a private person’s conduct to morph into state action. Consider Reitman v Mulkey, a US Supreme Court case from 1967. California had recently enacted a law that would prevent racial discrimination in renting or leasing housing. At the time, the law was so unpopular that it spawned a backlash: the voters of California adopted a referendum initiative that superseded the law. The new law provided, “Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.”

The US Supreme Court ruled that this new law not only permitted, but encouraged, racial discrimination by private parties. The Court declined to bury its head in the sand and view the new law as neutral, as the state argued. In its historical context, the law’s purpose was clear: to provide legal cover for private parties who wished to discriminate.

The Court reasoned that, in acting with this purpose, the state had so tangled itself up with the decisions of private parties to discriminate that the private discrimination it caused would properly be viewed as the result that the state itself wished to achieve. And the state itself, of course, may not achieve a discriminatory result without running afoul of a pesky detail called the Equal Protection Clause of the United States Constitution.

Today the Republican National Committee adopted as part of its platform an endorsement of a federal law that would allow – indeed, critically, invite – private anti-gay bigots to discriminate. All over the country, Republicans are agitating for similar laws at the state level under the guise of “religious freedom.” Driven as they are by their blinding dogmas, these agitators likely don’t understand what they’re doing. In their zeal to involve the government in private choices to discriminate, they are converting private conduct into state action.

In so doing, they are taking what would have been the perfectly legal individual choice to be an asshole and turning it into a violation of constitutional proportions.

Let me illustrate.  In most states right now, if you are a baker and you don’t want to bake a cake for “the gays,” you are legally entitled not to, and any lawsuit by a gay person would fail.  As of now, most states have no laws on the books preventing private providers from discriminating on the basis of sexual orientation (anti-discrimination laws are typically limited to characteristics like race, gender, and religion).

Now suppose that your state passes a law affirmatively permitting you to discriminate against gays.  Suddenly, what was once a non-actionable private choice to discriminate has turned into state-sanctioned conduct that violates the US Constitution, and the plaintiff who once had a case that would be summarily dismissed suddenly has a legitimate, cognizable claim.  This is called the law of unintended consequences.

If I were advising these ideologues, I’d be counseling them to leave good enough alone: you can discriminate without permission from the government; you can’t discriminate with it.

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