Tuesday, June 5, 2018

Ruling for anti-gay baker and 1968 Piggie Park case both weighed religious freedom to discriminate with different results

Justices called portion of racist defense in Piggie Park case "patently frivolous"

Posted by Adam Manno on Tue, Jun 5, 2018 at 3:42 PM

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On Monday, the Supreme Court of the United States ruled in favor of a Colorado man who refused to bake a wedding cake for a gay couple in 2012.

But his defense — that his deeply held faith gave him the right to refuse services for something that went against his religion — isn't all that unique.

In 1968, the Supreme Court heard a case from South Carolina in which a white supremacist who ran a chain of barbecue restaurants used the same First Amendment defenses of freedom of speech and freedom of religion to justify refusing service to a customer because of his race.

The owner of those restaurants was Maurice Bessinger, the barbecue showman whose Piggie Park Enterprises operated six "southern-style barbecue" restaurants across the state at the time, according to court filings.

Recounting the incident in an interview with Slate last year, John Mungin, an African-American minister, said that in July 1964 someone put a gun to his head at a Columbia Piggie Park location, telling him to leave. Two other plaintiffs, Anne Newman and Sharon Neal, eventually joined the suit that found its way to the nation's high court as Newman v. Piggie Park Enterprises, Inc.

In U.S. District Court, the case alleged racial discrimination, reading, in part:
At first a waitress who came out seeing that they were colored went back into the building without taking their order or saying anything to them. Shortly a man with an order pad came to their car, he also refused to take their order, and gave no reason or excuse for this denial of service, although other white customers were being served there at that time. The fact that Piggie Park at all six of its eating places denies full and equal service to Negroes because of their race is uncontested and completely established by the evidence. 
"Bessinger believes as a matter of faith that racial intermixing or any contribution thereto contravenes the will of God," Bessinger's lawyers wrote in their answer to Mungin’s complaint. "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 justices, unanimous in their ruling against Piggie Park, called the religious freedom defense for the race-based denial of service "patently frivolous" and ordered Bessinger to pay the customers' attorney's fees.

Piggie Park shares a few similarities with Masterpiece Cakeshop v. Colorado Civil Rights Commission. Defense attorneys for the baker in this case, Jack Phillips, argued that his cakes are artistic in nature, protected under freedom of speech. They also argued that compelling him to perform work he didn't want to, i.e. baking a cake for a ceremony that goes against his beliefs, amounts to making a statement that interferes with his freedom of religion.

The 7-2 ruling hinged largely on specific circumstances of the case that hinted at a lack of objectivity early in the case as it sat before the Colorado Civil Rights Commission.

"The neutral and respectful consideration to which Phillips was entitled was compromised here," Justice Kennedy wrote for the majority. "The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection."

Justices Ruth Bader Ginsburg and Sonia Sotomayor both disagreed with the Court's assessment.

The are, of course, a few differences that worked in favor of Masterpiece Cakeshop.

Sexual orientation and gender identity are still not federally protected classes, unlike race and gender. The Equal Opportunity and Employment Commission says it forbids "employment discrimination based on gender identity or sexual orientation" under Title VII of the Civil Rights Act of 1964, and the S.C. Human Affairs Commission has similar rules, but those guidelines have no bearing on what services a business provides to customers. (South Carolina also does not have a public accommodations law protecting LGBT people, according to the National Conference of State Legislatures.)

To make matters more complicated, the Trump administration has continued to chip away at protections for LGBT Americans. Last year, the Department of Justice said the EEOC was "not speaking for the United States" when it filed court documents in support of a man who claims he was wrongfully fired after telling a customer he was gay.

On top of that, there were no discernible procedural missteps in Piggie Park that put the defendants' case in jeopardy.

"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," Bessinger went on to write in his 2001 memoir, Defending My Heritage.

Bessinger also sued several grocery chains in 2000 after they stopped selling his signature sauce when he began flying the Confederate flag at his restaurants to protest its removal from the Statehouse dome, according to The State. He died in 2014.

In the meantime, a May survey showed that six out of 10 Americans are against allowing small-business owners in their state to refuse products or services to gay people even if providing them would violate his or her religious beliefs, according to the Public Religion Research Institute.

The NAACP Legal Defense Fund noted that the narrow scope of the Masterpiece ruling does not address the 50-year old Piggie Park precedent. "Today’s decision signals the strength of the precedent set in LDF’s seminal 1968 Piggie Park case."

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