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Arkansas's new anti-gay law forgets history 

It turns back the clock on civil rights.

Barely 50 years ago, in a landmark case originating in Little Rock, the U.S. Supreme Court upheld the rights of two individuals against discrimination by private businesses. At present, the Arkansas General Assembly, in passing Senate Bill 202, is in a very direct way challenging the laws won by the civil rights movement in the 1960s. It is yet another example of how the gains of a period in U.S. history that many revere as a triumph of democracy are being attacked and undermined in our own time. It also demonstrates how the African-American struggle for civil rights helped to establish legal precedents that are still fundamental in preserving all of our civil rights today.

On April 13, 1960, two African-American Philander Smith College students, Frank James Lupper and Thomas B. Robinson, requested service at the Gus Blass Department Store's downtown lunch counter. The white store manager told them he was not prepared to serve them and he asked them to leave. They refused. The assistant manager then called the police, who escorted the two students from the building. The students were charged under Arkansas's prosegregation Act 14, which made it "unlawful for any person to refuse to leave the business premises of any person when so requested by the manager or owner thereof."

Shortly before the sit-in arrests of Lupper and Robinson, the National Association for the Advancement of Colored People's Legal Defense Fund (LDF) had discussed its legal strategy for handling sit-in cases in the courts. LDF director-counsel Thurgood Marshall considered a number of defenses all based on the 14th Amendment's guarantee of equal protection under the law. However, in the Civil Rights Cases, 109 U.S. 3 (1883), the U.S. Supreme Court had made it explicitly clear that the equal protection clause did not cover private individuals, organizations or establishments, which were free to choose their own clientele even if that meant discriminating on the grounds of race. The 14th Amendment applied only to state-sanctioned discrimination. What, then, would happen in a case where there was no connection between state action and the conviction of sit-in participants, and where the private wishes of proprietors were solely involved? Did owners of private establishments still have the right to discriminate as the Civil Rights Cases suggested?

LDF lawyers looked to the more recent case of Shelley v. Kraemer (1948) as a precedent for extending the 14th Amendment's equal protection clause to private discrimination. Shelley prevented the use of restrictive covenants in property contracts to prevent the sale of homes to African Americans. The U.S. Supreme Court ruled against the use of such covenants on the grounds that state action was required to actually enforce these private contracts. This allowed a very wide interpretation of what constituted state action. As LDF lawyer Jack Greenberg put it, "Since private decisions cannot be enforced without an ultimate, although sometimes only implicit, state sanction, is everything we do 'state action'? Do all personal decisions present constitutional questions? Where should the courts draw the line?"

It was these questions that the U.S. Supreme Court confronted in the sit-in cases that arrived before it in the early 1960s. In the cases, the Court consistently reversed convictions. At the same time, it refused to extend the 14th Amendment's equal protection clause to instances of private discrimination as NAACP lawyers wanted. Instead, the Court devised other ways to reverse sit-in convictions.

On May 13, 1963, the Arkansas Supreme Court handed down its ruling in the Little Rock sit-in cases. Chief Justice James D. Johnson, an arch-segregationist and former president of the Associated Citizens' Councils of Arkansas, upheld the convictions of Lupper and Robinson. The Court ruled that the state had not violated their 14th Amendment rights, since, "By its terms and on its face, the statute applies to all who refuse to leave and it is not restricted to negroes. There is nothing uncertain, indefinite or vague about Act 14. It prohibits trespass." The court also held that the students had no inherent right to service at lunch counters and that store owners could legitimately choose to serve or not to serve customers at their discretion. It was exactly the sort of case the NAACP feared would be ambiguous if the U.S. Supreme Court did not extend the meaning of the equal protection clause. When the state court refused a rehearing of the case, it eventually went to the U.S. Supreme Court on appeal.

The following year, on July 2, Congress passed the 1964 Civil Rights Act, which, among other measures, outlawed segregation in public facilities and accommodations. The Little Rock cases of Lupper and Robinson, consolidated with the South Carolina case of Hamm v. City of Rock Hill, were the first to be heard by the U.S. Supreme Court after the passage of the 1964 Civil Rights Act. The Court reversed the convictions of the Little Rock students and all other sit-in protestors. Over 3,000 cases pending before the courts were dismissed as a result of the decision.

In another two landmark rulings after the 1964 Civil Rights Act, the U.S. Supreme Court upheld congressional power to pass desegregation laws that applied to accommodations involved in interstate commerce, rather than relying on the provisions of the 14th Amendment's equal protection clause. This marked a new direction in civil rights law that had been encouraged by the John F. Kennedy and Lyndon B. Johnson presidential administrations. In Heart of Atlanta Motel Inc. United States, the Court ruled that the motel was obliged to accommodate African- American patrons since a failure to do so would interfere with interstate commerce. In Katzenbach v. McClung, the Court ruled that Ollie's Barbecue in Birmingham, Ala., could not refuse to serve African-American customers since the food cooked in the restaurant originated from out of state.

The 50th anniversary of the passage of the Civil Rights Act of 1964 last year came amid new developments in the ongoing constitutional debate about the relationship between public and private spaces and the laws that govern them. Precisely one day before the act's anniversary, on July 1, 2014, Mississippi brought into effect the Mississippi Religious Freedom Restoration Act. Quickly dubbed an "anti-gay" law, along the lines of similar laws formulated in other states, many feared that its main purpose was to empower private businesses to refuse service to gay customers on the grounds that business owners had the right to exercise freedom of religious conscience. Of course, many white Southerners believed that racial segregation was biblically sanctioned, too, and they could well have argued for upholding the separation of the races on the grounds of religious freedom in the past if the courts had been receptive to those arguments then.

Arkansas's current SB 202 "anti-gay" law appears to advocate a state's rights position. It does two things: First, it appears to assert the primacy of intrastate commerce over interstate commerce. Yet the 1964 Civil Rights Act established over 50 years ago that interstate commerce has a far reach in its protection of civil rights and one with which states cannot interfer. Second, it asserts that cities cannot create a "protected classification" for the rights of a particular group of citizens. One of the things the 1964 Civil Rights Act did not do was to specifically extend equal protection to individuals in interstate commerce on the basis of sexual orientation. Local civil rights ordinances such as those being considered by a number of Arkansas municipalities are essentially, in a piecemeal way, providing a patch for the Civil Rights Act and extending the already established protections for other groups to gay people. Another ominous turn of phrase in SB 202 is that it is necessary for the "preservation of the public peace," which is identical to the language used by Gov. Orval Faubus to justify calling out the National Guard to Central High School in 1957.

Arkansas SB 202 is part of a wave of legislation that looks to uphold discrimination on the basis of sexual orientation. In doing so, it is very directly engaging with legal arguments resolved over 50 years ago, but which have been under challenge since and are now being attacked more vigorously than ever. Arkansas is actively seeking to turn the civil rights law clock back to a time before the civil rights movement occurred.

But Little Rock more than any other city should be aware of how defending discrimination works out. The economic consequences of the 1957 school crisis were catastrophic. It stalled economic investment altogether for four years as businesses avoided the city like the plague. The damage continued, arguably, for decades afterward, as the state capital remained stigmatized by the school crisis — as, indeed, it still is. Economic consequences have made other states think twice about their current moves to uphold discrimination. Arizona dropped its proposed anti-gay law last year after it risked the NFL's withdrawing the Super Bowl from the state. In Mississippi, businesses have actively denounced discriminatory legislation, hanging up signs that read: "We Don't Discriminate: If You're Buying, We're Selling."

Arkansas appears not to have heeded either its own past experiences or more recent developments. Instead, it seems hell-bent on learning the lessons of history the hard way again, whatever the cost to the state.

John A. Kirk is the George W. Donaghey Distinguished Professor of History and department chair at the University of Arkansas at Little Rock. His latest book, an edited collection of essays, "Race and Ethnicity in Arkansas: New Perspectives," was recently published by the University of Arkansas Press.

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