Public Accommodations, Cakes And The Consititution

Fifty-four years ago, Congress passed the Civil Rights Act of 1964.  This important legislation outlawed discrimination based upon race, color, religion, gender, or national origin in hotels, motels, restaurants, theaters and other places of public accommodation.    

The Civil Rights Act was immediately challenged.  In the case Heart of Atlanta Motel v. United States, the owner of a large motel in Georgia did not want to accept African-American patrons.  He argued that the Civil Rights Act was unconstitutional for three reasons: first, he claimed Congress did not have the authority to enact it; second, that requiring him to accept undesired motel guests violated his Fifth Amendment right to operate his business as he wished; and third, that making him rent rooms to blacks placed him in a position of involuntary servitude, in violation of the Thirteenth Amendment.

The Supreme Court found the owner wrong on all three points.  The Court confirmed that the Constitution gave Congress the power to regulate interstate commerce, and that it could use this authority to pass the Civil Rights Act.  In addition, the Fifth Amendment did not forbid the reasonable regulation of interstate commerce.  And finally, as the Thirteenth Amendment was enacted to end discrimination, it could not be used as a tool to support discrimination.

Heart of Atlanta Motel was followed by Katzenbach v. McClung, where the Court found that the Civil Rights Act required the proprietor of a small, family-owned barbeque restaurant to serve African-American patrons.  Between them, these two cases cemented the constitutionality of civil rights legislation in the context of public accommodations.  Illinois and other states later passed similar legislation, providing state as well as federal protection from discrimination.

Now, both business proprietors in Heart of Atlanta Motel and in Katzenbach wanted to discriminate based upon race, but legislation barred that discrimination.  Critically, the business owners could not reasonably claim that the legislation suppressed their exercise of an important constitutional right.  That fact scenario would be a more challenging case.

And that is the situation alleged in the Masterpiece Cakeshop case, argued in December of 2017.  A gay couple visited a bakery that features custom-made cakes, hoping to order a wedding cake for their reception.  The baker declined to work with the couple, asserting that his religious faith precluded him from using his talents to endorse same-sex marriage.  The couple filed a complaint under Colorado’s civil rights law, claiming discrimination in a place of public accommodation.

Of course, we don’t want people to be compelled to act against their religious beliefs.  We have a strong tradition of religious freedom, and freedom of expression.  But we also don’t want important civil rights legislation to become undermined by exceptions, so that different types of citizens receive different levels of service from businesses.  That is precisely what the Civil Rights Act was created to avoid.

Supreme Court Justice John Roberts once said, “Judges are like umpires. Umpires don’t make the rules; they apply them.”  But anyone who has ever played a sport knows that the application of the rules can promote a team’s victory, or ensure its defeat.