On April 2, Governor Phil Bryant of Mississippi signed the “Protecting Freedom of Conscience from Government Discrimination Act," which allows people with “sincerely held religious beliefs or moral convictions” to refuse to provide various services for the marriages of same-sex couples. Earlier that week, Georgia’s governor vetoed a similar measure. These bills are part of a flurry of state measures introduced in the wake of last year’s Supreme Court ruling in Obergefell v. Hodges, which affirmed that fundamental right of same-sex couples to marry. (There've also been bills in several states similar to one filed this week by S.C. Sen. Lee Bright, seeking to bar transgender people from using the bathrooms associated with their gender identity — another kind of backlash against rights gained by LGBT people.)
Inherent in these religious freedom bills is the competition between the rights of all people to have access to public accommodation and commercial services, and the rights of religious freedom for those providing the services. This conflict echoes legal battles that played out half a century ago following the passage of the Civil Rights Act — and, in particular, a case that unfolded right here in Columbia.
The Civil Rights Act of 1964 banned discrimination in places of public accommodation based upon race, religion or national origin. Lyndon B. Johnson signed it on July 2, and the very next day, Lester Maddox, backed by an angry white crowd bearing ax handles, turned away three African-American ministers from his Pickrick Restaurant in Atlanta. In Columbia, Maurice Bessinger stopped two African-American customers at the door of his Little Joe Sandwich Shop on Main Street, saying he was “standing on my constitutional rights to pick my own customers.”
Six months later, in December 1964, the U.S. Supreme Court ruled in Katzenbach v. McClung that Ollie McClung had to integrate his barbecue restaurant in Birmingham, Alabama. It rejected McClung’s contention that he was engaged only in local business and therefore not subject to the Civil Rights Act, which was based on Congress’s power to regulate interstate commerce. The court found that “a substantial portion of the food served in the restaurant had moved in interstate commerce,” including much of the meat, which was purchased from Midwestern meat-packers through a local wholesaler.
In the wake of the Ollie’s decision, one South Carolina restaurant after another began integrating their dining rooms, but Maurice Bessinger held firm at his downtown sandwich shop and his five Piggie Park drive-ins. In the final days of 1964, three black Columbia residents — Mrs. I. D. Newman, the Rev. J. W. Mungin and Sharon W. Neal — filed suit against Bessinger and Piggie Park Enterprises for violating the Civil Rights Act.
In April 1966, Bessinger offered two main defenses in his trial before federal district judge Charles E. Simons, Jr. The first was that, unlike Ollie’s, the Piggie Park restaurants were truly not engaged in interstate commerce. Bessinger testified he did all that was “humanly possible” to prevent out-of-state residents from being served, posting “South Carolina residents only” signs and instructing carhops to refuse service to any cars with out-of-state license plates. His bookkeeper testified that 75 percent of the restaurant’s supplies — including all of its pork — were produced in the state.
Bessinger also advanced a religious freedom argument. In the Old Testament, he argued, “God commanded the Hebrew not to mix with any other race.” Being forced to serve African-American customers, Bessinger maintained, violated his right to free religion and “contravenes the will of God.”
Judge Simons ruled that Bessinger could not refuse black patrons at his sandwich shop, since its customers primarily ate on premises, but he allowed discrimination at the five Piggie Park drive-ins, since over half of their customers ordered food to go. The restaurants, he reasoned, were not “principally engaged in selling food for consumption on the premises” and therefore not subject to the Civil Rights Act.
The plaintiffs appealed, and in April 1967 the Fourth Circuit Court of Appeals ruled in their favor, ordering Bessinger’s five drive-ins to integrate, too.
“The Congress did not intend,” the court ruled, “a head count of how many people eat on the premises or a computation of poundage or volume of food eaten.”
What might seem a minor technical issue over attorney fees ended up in the U.S. Supreme Court. The Appeal Court ruled that the plaintiffs would have to pay their own attorney fees unless the defense’s arguments were “presented for purposes of delay and not in good faith.” The Supreme Court reversed this decision in Newman v. Piggie Park Enterprises. Inc., ruling that successful plaintiffs in Civil Rights Act cases should recover fees regardless of whether the defense’s arguments were based upon sincerely held beliefs. It was an important decision for civil rights law since many citizens would not be able afford to bring discrimination suits otherwise.
None of the three courts that heard the case had any use for Bessinger’s claims that his right to religious freedom should allow him to discriminate against African-American patrons.
“Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing,” Judge Simons had written in his first ruling, ”however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens.” The Supreme Court took it a step further, declaring that Bessinger’s assertion that the Act was invalid because it “contravenes the will of God” was “patently frivolous.”
The religious freedom defense isn’t the only aspect of the case that is relevant to today’s battles over LGBT rights. The Court of Appeals, in rejecting vague tests like the percentage of a restaurant’s food eaten on premise, argued that such conditions would leave African-Americans in “the intolerable position” of not knowing whether they might be served at a particular restaurant until they arrived there. All citizens, the court ruled, regardless of where they go in this country, need to be able to enter a public business with confidence that they will not be turned away.
Balancing freedom of religion against social good has always been difficult, but arguments that religious beliefs can be used to justify discrimination have had little success in federal courts.
The general consensus has been that the government must protect individuals’ rights to practice whatever religion they choose, but that freedom cannot impose an excessive burden on other citizens. That point was decided clearly in the 1960s when it came to barbecue, and upcoming decisions will likely decide whether it applies to wedding cakes, too.