Back in June, I wrote a post defending the actions of the DC authorities who enforced the property rights of Muslim traditionalists who expelled several women from the local Islamic Center for trying to worship next to men. As an atheist and a libertarian, I have little sympathy for their views. However, a free society must protect the property rights of all groups, including those that advocate distasteful or unpopular positions. Moreover, Muslim traditionalists are far from the only religious group that segregates women during worship services. Orthodox Jews and some Christian denominations do so as well. Some religious groups also discriminate against women by forbidding them from becoming clergy.
I. Ron Rotunda’s Argument that the DC Authorities Violated the Constitution.
Professor Ron Rotunda, a prominent constitutional law scholar, has written an article arguing that the actions of the DC Police were in fact unconstitutional based on 1960s civil rights precedents:
What happened in Washington, D.C., should remind us of the peaceful sit-ins of the 1960s. The courts found that the police action removing people from private businesses violated the Equal Protection Clause.
In a series of cases the lower federal courts and the Supreme Court reversed convictions of black and white civil protestors who were convicted under state criminal trespass or disturbing the peace laws when they sat in the “white-only” section of various lunch counters and restaurants and refused to move after having been ordered to do so by the agent of the establishment.
Neither state nor federal laws at the time required the restaurants to serve blacks, but the courts found “state action” that violated Equal Protection. In Garner v. Louisiana (1961), for example, the Supreme Court reversed the convictions (under a state disturbing the peace statute) of those who had engaged in a sit-in, because the record was “totally devoid of evidentiary support” that petitioners caused any disturbance of the peace. They sat there quietly.
Peterson v. Greenville (1963) reversed the trespass conviction of blacks who had engaged in a lunch counter sit-in. The store manager asked the blacks to leave because integrated service was “contrary to local customs” and a local ordinance. The Supreme Court held that “these convictions cannot stand,” whether or not a local ordinance supported the store manager. In Lombard v. Louisiana (1963), decided the same day, the Court reversed the trespass convictions of three blacks and one white who had sat in a privately owned restaurant that served only whites….
There are precious little differences between the sit-in cases of the 1960s and the Muslim sit-in cases. We knew, in the 1960s, that the Equal Protection Clause forbids discrimination based on color. We know now that the Equal Protection Clause forbids discrimination based on gender….
II. The Civil Rights Era Sit-In Cases Struck Down Government-Mandated Segregation, Not Private Choice.
A closer look at the precedents cited by Rotunda suggests that none of them actually supports his position. Garner v. Lousiana was decided on the grounds that there was no evidentiary support for the state’s claim that the defendants were guilty of “disturbing the peace.” As the Court put it, “Louisiana law requires a finding of outwardly boisterous or unruly conduct in order to charge a defendant with “foreseeably” disturbing or alarming the public…. [T]he . .. records [of the case] contain no evidence to support a finding that petitioners disturbed the peace, either by outwardly boisterous conduct or by passive conduct likely to cause a public disturbance. [W]e [therefore] hold that these convictions violated petitioners’ rights to due process of law guaranteed them by the Fourteenth Amendment to the United States Constitution.” The state’s lack of evidence, not the actions of the lunch counter owners decided the outcome.
The other two cases Rotunda cites involved discrimination compelled by the government, not merely the exercise of private property rights by the owners. In Peterson v. Grenville, the Court emphasized that segregation was compelled by a city ordinance:
It cannot be denied that here the City of Greenville, an agency of the State, has provided by its ordinance that the decision as to whether a restaurant facility is to be operated on a desegregated basis is to be reserved to it. When the State has commanded a particular result, it has saved to itself the power to determine that result and thereby “to a significant extent” has “become involved” in it, and, in fact, has removed that decision from the sphere of private choice. It has thus effectively determined that a person owning, managing or controlling an eating place is left with no choice of his own but must segregate his white and Negro patrons. The [lunch counter] management, in deciding to exclude Negroes, did precisely what the city law required.
The Peterson Court emphasized that the presence of a city ordinance requiring segregation made the case different from one involving police protection of purely private exercises of property rights.
Lombard v. Louisiana also involved discrimination mandated by the government, in this case by the Mayor and Superintendent of Police of New Orleans:
A State, or a city, may act as authoritatively through its executive as through its legislative body…. As we interpret the New Orleans city officials’ statements, they here determined that the city would not permit Negroes to seek desegregated service in restaurants. Consequently, the city must be treated exactly as if it had an ordinance prohibiting such conduct. We have just held in Peterson v. City of Greenville…., that where an ordinance makes it unlawful for owners or managers of restaurants to seat whites and Negroes together, a conviction under the State’s criminal processes employed in a way which enforces the discrimination mandated by that ordinance cannot stand. Equally, the State cannot achieve the same result by an official command which has at least as much coercive effect as an ordinance.
By contrast, in the DC Islamic Center case, the city has not in any required these Muslims to discriminate against women. It has merely protected their property rights, just as it would for any other resident who wanted to order a trespasser off their land. As the Court recognized in Peterson and Lombard, the Equal Protection Clause only forbids race and sex discrimination by the government, not that by private parties.
III. A Free Society Must Enforce the Property Rights and Religious Freedom of Unpopular Groups.
A free society must protect private individuals’ rights to make a wide variety of decisions that would be unconstitutional discrimination if made by the government itself. For example, it is unconstitutional for the government to forbid interracial or interfaith marriage. Yet the government can and should enforce the property rights of churches or synagogues that refuse to allow such marriages in their facilities. If I try to celebrate my marriage to a non-Jew at a synagogue whose owners disapprove, the police would be justified in enforcing the owners’ decision to kick us out. Similarly, the government cannot mandate sex discrimination in the hiring of clergy. But it must protect the right of the Catholic Church to hire only male priests, as mandated by Church doctrine.
Title II of the Civil Rights Act of 1964 did eventually ban private racial discrimination in places of public accommodation. That, however, does not support Rotunda’s argument that police protection of property owners who engage in such discrimination violates the Constitution, not merely a federal statute.
For reasons co-blogger David Bernstein has explained here, Title II’s ban on racial discrimination might be justified even on libertarian grounds because it was possibly the only way to break down the Jim Crow system of massive government-enforced discrimination against blacks. But there is no similar justification for forcing Muslim traditionalists to accept gender integration in their religious institutions. Unlike blacks in the Jim Crow South, American Muslim women are not the victims of a vast system of government-enforced segregation. If they do not want to worship in segregated mosques, they are free to join more liberal mosques, establish their own integrated religious institutions, or leave the Muslim faith entirely.
Finally, even the race-discrimination provisions of Title II do not apply to houses of worship. To this day, segregationist churches are free to segregate the races or exclude one or more racial groups entirely. Protecting the property rights and religious freedom of racist churches may be unpleasant. But it is essential if we are going to protect religious freedom for everyone. If religious groups can only exclude people for reasons that are approved by majority public opinion, we would not have any meaningful freedom of religion for long.
UPDATE: I wrote the above post before noticing senior Conspirator Eugene Volokh’s post on the same subject, which makes related arguments. Had I read Eugene’s post first, I would have avoided making some of the same points as he did. I apologize for the redundancy. At the same time, I think my post makes several points that Eugene’s does not, including analyzing the precedents cited by Rotunda.
UPDATE #2: I have made a few stylistic and organizational changes to the post in order to increase clarity and readability.