JURISPRUDENCE THE LAW, LAWYERS, AND THE COURT. DEC. 4 2017 5:11 PM

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.

By Cristian Farias

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.”