The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways'

38 Pages Posted: 15 May 2015

See all articles by Linda C. McClain

Linda C. McClain

Boston University - School of Law

Date Written: May 13, 2015

Abstract

Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” in debates about the Civil Rights Act of 1964 (the “CRA”). Proponents argued that the national conscience demanded such a law because discrimination posed a moral crisis. Proponents and opponents of the CRA differed sharply on the role of federal law in addressing prejudice and discrimination. While proponents recognized the limits of what law could achieve, they argued that the CRA would remove artificial barriers created by segregation that constrained normal or natural human interaction. Opponents defended segregation as natural, Biblical, and part of the created order and warned that the CRA would usher in a dangerous and forced racial intermingling and line-crossing, particularly in marriage. Similar to the social scientists of the late 1940s and 1950s, supporters or the CRA appealed to experience with local and state antidiscrimination law and the World War II-era Fair Employment Practice Committee. The Article concludes with reflections on the present-day implications of this earlier “legislating morality” debate for controversies over LGBT rights and the evident clash between conscience, or religious liberty, on the one hand, and antidiscrimination law and marriage equality, on the other. This Article is part of a symposium, “The Civil Rights Act of 1964 at 50: Past, Present, and Future.”

Keywords: civil rights, prejudice, bigotry, Congress, antidiscrimination, segregation, conscience, morality, federalism, integration, public accommodations

JEL Classification: K19, K39

Suggested Citation

McClain, Linda C., The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways' (May 13, 2015). 95 Boston University Law Review 891 (2015); Boston Univ. School of Law, Public Law Research Paper No. 15-20. Available at SSRN: https://ssrn.com/abstract=2605996

Linda C. McClain (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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