We’ve Already Litigated This

A cake maker has as much right to discriminate against gay customers as a BBQ shop has a right to discriminate against black ones: None.

Jack Phillips stands for a portrait near a display of wedding cakes in his Masterpiece Cakeshop

Jack Phillips stands for a portrait near a display of wedding cakes in his Masterpiece Cakeshop in Colorado on Sept. 1, 2016.

Matthew Staver/for the Washington Post via Getty Images

Judging from the coverage surrounding this week’s blockbuster case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, it might seem that the legal clash between religious liberty and discrimination in public spaces is a modern controversy that the Supreme Court is just catching up to. But more than 50 years ago, John W. Mungin, a black Baptist minister, was threatened with deadly force and told to leave a famous South Carolina barbecue restaurant—all because its owner held to the belief that the races should be kept strictly separated.

“He put a pistol to my head,” said Mungin, 84, as he recalled the time he tried to eat at Maurice’s Piggie Park, a chain of drive-in restaurants renowned for its bright mustard-based sauce and the views of its founder, Maurice Bessinger, who in life was an avowed white supremacist. Mungin, who is now retired and living in Brooklyn, New York, doesn’t remember exactly who met him with a shotgun at the Piggie Park on Main Street, a few blocks away from the South Carolina statehouse in downtown Columbia. But he was determined he’d one day assert his right to eat there. “I left, but I said, ‘I’ll be back,’ ” he told me recently.

The law happened to be on Mungin’s side. He was shunned in July 1964, just days after Congress passed Title II of the Civil Rights Act of 1964. Legally and literally, the law opened the door to blacks in all of the United States, but particularly in the South, “to the full and equal enjoyment” of places like Piggie Park. “Plaintiff was not served and was required to leave the premises solely because of his race and color,” read Mungin’s lawsuit against Bessinger in federal court, filed months later with the help of local South Carolina attorneys and the NAACP Legal Defense Fund.

In his defense, Bessinger tried to invoke a higher law. “Bessinger believes as a matter of faith that racial intermixing or any contribution thereto contravenes the will of God,” his lawyers wrote in their answer to Mungin’s complaint, which was joined by two other black Americans who had been turned away. “As applied to this Defendant, the instant action and the Act under which it is brought constitute State interference with the free practice of his religion, which interference violates The First Amendment of the United States Constitution.”

The lower courts didn’t think much of his argument. And neither did the Supreme Court, which resoundingly rejected Bessinger’s plea to allow his religious beliefs to serve as a shield for his obligations under the newly enacted civil-rights statute—an obligation that included serving Mungin and other black customers. In a footnote joined by all the justices, the high court made plain that “this is not even a borderline case” of discrimination, and shot down Bessinger’s defense that the federal public-accommodations law was unconstitutional “because it contravenes the will of God and constitutes an interference with the free exercise of the Defendant’s religion.”

Looking back, Hemphill Pride, one of the local attorneys who helped litigate the case against Bessinger in the District of South Carolina, recalled that he and the Piggie Park owner happened to share a flight back to Columbia after the Supreme Court heard arguments in the dispute.* They didn’t exchange words, but they didn’t have to. “The irony of the situation is that his religion didn’t keep him from riding next to me,” Pride, who is black, said with a chuckle.

In his 2001 autobiography Defending My Heritage, Bessinger would declare that the forces for equality behind the Civil Rights Act were part of a larger unholy alliance threatening America: “I have concluded that the civil rights movement is a Satanic attempt to make it easier for a global elite, a group of extremely wealthy men with no Constitutional or national or cultural loyalties, working at an international level to eventually seize power in this country.” He died in 2014. Today, the next generation of Bessingers is eager to move forward and leave Piggie Park’s ugly past where it belongs.

And yet half a century later, what long seemed open and shut in Newman v. Piggie Park Enterprises, the case Maurice Bessinger lost, seems to be in question again. This week, the Supreme Court is poised to reconsider whether the First Amendment can be wielded as a defense against full compliance with anti-discrimination laws. This time, there’s a tiny wrinkle: Jack Phillips, the religious baker at the center of the Masterpiece Cakeshop case, is claiming that that both his freedom to exercise his Christian faith and his right to free speech prevent him from creating a custom-made wedding cake for a married gay couple. He insists he harbors no animus toward LGBTQ people. “Phillips gladly serves people from all walks of life, including individuals of all races, faiths, and sexual orientations,” the baker’s lawyers reassured the Supreme Court in a brief filed in August. “But he cannot design custom cakes that express ideas or celebrate events at odds with his religious beliefs.”

In Phillips’ bakery, gay couples do get served any baked good they want—so long as they don’t ask for a wedding cake. But if religion rather than speech is the true driving force for this denial, isn’t that a distinction without a difference? At the Piggie Park of old, black Americans could order the restaurant’s famed barbecue, but only for takeout. They couldn’t eat on the premises; they had to come to a kitchen window to pick up their food and eat it elsewhere. At trial, Bessinger testified that it was his “belief as a Christian,” premised on “the infallible word of God,” that taught him that integration of the races was anathema. Do we really want judges sifting wheat from chaff in adjudicating which beliefs are valid and which ones aren’t? As Justice Ruth Bader Ginsburg pondered in a recent dissent that cited Piggie Park: “Isn’t the Court disarmed from making such a judgment given its recognition that courts must not presume to determine … the plausibility of a religious claim?”

There’s a certain allure to the notion that the state cannot compel a person of faith to express support for beliefs he or she disapproves of. Freedom of religion and speech are as enshrined in our Constitution, as well as equal protection of the laws. But if the Civil Rights Era and ensuing court decisions grappling with this tension teach us anything, it is that faith alone cannot override society’s compelling interest in equality for all. If it did, all Bessinger would’ve had to do to prevail against Mungin and other black patrons was to claim that his world-class barbecue—which can be considered both an art form and a political statement in the South—is a type of expression that cannot contravene his deeply held beliefs about blacks. And that the government cannot penalize him for declining to create art that’s against those beliefs.

Bessinger didn’t claim that, but if he did, his barbecue-as-speech cover would’ve stood little chance. As a unanimous Supreme Court recognized in 1968, his religious-freedom defense was “so patently frivolous” to even warrant serious consideration. And since Piggie Park was decided, free-speech exemptions to neutral laws that apply to every businessowner haven’t gained traction in the courts. When I shared with Mungin in broad strokes what the Masterpiece Cakeshop case stood for, he said that he was grateful to God that someone was still waging these court battles to erase the “stain” of denying people their rights: “This is a trick of the devil. The devil is terribly busy playing games,” he said. “And he will twist the law.”

*Correction, Dec. 5, 2017: This article originally misidentified the destination of a flight taken by Hemphill Pride. It was Columbia, South Carolina, not Columbus. (Return.)