Next week’s oral argument in Masterpiece Cakeshop involves a familiar story: Three customers walk into a small business that sells specialty foods. The owner is said to be an “artist” for his unique culinary skills and believes his religious convictions imbue his work. The owner turns the customers away entirely or denies them access to the full range of his products because these religious beliefs forbid him from serving a particular group of persons. When challenged in court regarding his refusal to serve the customers, the owner claims that the First Amendment should abrogate public accommodations laws and immunize his refusal to provide service.
I could be describing what happened in 2012 to Mr. Mullins, Mr. Craig, and Ms. Munn in Masterpiece when a shop essentially said “no cake for you” on the basis of sexual orientation. But I am actually describing what transpired in 1964 to three African American customers at a barbeque restaurant in South Carolina, which led to the Supreme Court’s seminal case addressing racial discrimination in public accommodations, Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). It is déjà vu all over again.
That restaurant, Piggie Park, was owned by Maurice Bessinger, who was deeply religious and believed that serving Black customers or contributing to racial intermixing in any way “contravene[d] the will of God.” When a Black Baptist minister sought to enter the restaurant, Mr. Bessinger stood in the doorway to block him. On another occasion, when two other African Americans tried to patronize Piggie Park, Mr. Bessinger refused them access to a drive-in and would only allow them to purchase food if they abstained from consuming it on the premises. The customers sued, alleging that Mr. Bessinger’s refusal to serve them violated Title II of the Civil Rights Act of 1964, which bars discrimination in public accommodations.
When the case reached the Supreme Court, it unanimously affirmed the Fourth Circuit’s holding that Mr. Bessinger’s conduct violated Title II. As the district court had explained, “free exercise of one’s beliefs, . . . as distinguished from the absolute right to a belief, is subject to regulation when religious acts require accommodation to society.” In a straightforward decision just eleven days after hearing oral argument, the Supreme Court stressed that “this is not even a borderline case” and flatly rejected the owner’s defenses “that the [Civil Rights] Act was invalid because it ‘contravenes the will of God’ and constitutes an interference with the ‘free exercise of the Defendant’s religion.’”
Piggie Park controls the outcome of Masterpiece and is an important reminder that the crossroads of religious liberty and civil rights are historically complex and contested, with both defenders and opponents of equality invoking theological principles. During the Civil Rights Movement, religious leaders from numerous faiths — from Reverend Martin Luther King to Rabbi Abraham Joshua Heschel to Archbishop Patrick O’Boyle — were at the forefront of this nation’s march towards equality. At the same time, theological arguments were regularly offered to sustain blatant forms of racial discrimination, such as anti-miscegenation laws, as well as segregation in schools and public accommodations. In light of the claims before it today, the Supreme Court should be especially mindful of how religion has been used and abused to validate discrimination.
By the middle of the twentieth century, courts generally stopped accepting religious motivations as acceptable rationales for racial discrimination, namely in Piggie Park, Loving v. Virginia, and Bob Jones University v. United States. The overarching lesson of these three cases is that the Supreme Court has repeatedly and unambiguously rejected religious-based justifications for differential treatment — and this logic applies squarely to the context of LGBTQ discrimination. Religious beliefs, no matter how sincerely felt or well-intentioned, simply cannot justify differential treatment of LGBTQ individuals or couples in places of public accommodation. The Supreme Court should decline the petitioners’ invitation to carve wide new exceptions into public accommodations law. (Indeed, an additional risk of the petitioners’ expansive conception of religious exemptions is that it could apply to the hiring and firing of employees, and it could have even more drastic implications for the country and federal law.)
The central importance of Piggie Park to Masterpiece is unaltered by the fact that the petitioners and the United States now argue that requiring a bakery to make a wedding cake for a same-sex couple is “compelled speech” that violates the First Amendment. There is simply no limiting principle that would permit exemptions for “artistic” or “custom” products without eviscerating public accommodations law, particularly because Colorado’s statute is materially similar to Title II. Even under this faux-modest limiting principle offered by the petitioners and their amici, the decision here would apply to a wide array of businesses and professionals (far beyond wedding cakes) and would inexorably embroil the judiciary in adjudicating a flurry of questions at the nexus of expression, artistry, and religion. It is important to remember that Mr. Bessinger from Piggie Park was also later described as an “artist,” and his restaurant continues to offer “custom” wedding catering.
All told, cases like Piggie Park are also a story of progress that should guide the justices as to how rulings about religion, expression, and antidiscrimination are publicly received and practically applied. The Court’s 1968 ruling did not induce a major backlash or give rise to some new wave of religious disputes in the courts or in public life. It did not impede religious institutions from their important and constitutionally protected activities. It did not impinge upon the commercial success or culinary artistry of barbeque specialists or other caterers. Rather, people for the most part embraced the wisdom of the Court’s ruling. Piggie Park continues to operate a vibrant chain of stores, and the current owner — Mr. Bessinger’s son — now speaks openly about rising above his father’s legacy on race.
In the context of LGBTQ protections, the courts, the commercial sector, and the country are entirely capable of operating under generally applicable neutral laws while ensuring due respect to the personal religious views of individuals. Antidiscrimination laws, bolstered by the Supreme Court’s rulings, have undergirded the extraordinary advancements that this country can make. But the continued advancement of equality is not inevitable. The Supreme Court can and should preserve the critical protections of public accommodations laws, which shield us all, while also duly guarding individual religious liberty.