The Peoples’ Constitution: Wedding Cakes and Ollie’s Barbeque

By Benedict Lenhart

The Supreme Court ruled this week in favor of a baker who refused to sell a wedding cake to a same-sex couple. The baker argued that forcing him to make and sell the cake would violate his rights to freedom of speech and religion. Decades earlier the Supreme Court ruled—in a landmark civil rights case—that Ollie’s Barbeque restaurant could not deny service to black customers. Both cases involve obvious discrimination by private businesses, but the results in the two cases are quite different. Why? How are the two cases different under our Constitution? Answering these questions sheds light of several core constitutional principles.

The Wedding Cake Case

         Jack Philips is a master baker who considers his cakes to be works of artistic expression. In denying a cake to the same-sex couple, Philips explained that he “does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage.” At the time, same-sex marriages were not allowed in Colorado, and so Charlie Craig and Dave Mullins (the same sex couple) planned to marry out-of-state followed by a celebration in Colorado. The couple pointed to Colorado’s broad anti-discrimination law, which makes it unlawful to deny or refuse any person “because of disability, race, creed, color, sex, sexual orientation, marital status, nation origin or ancestry, the full and equal enjoyment of [most good and services sold in Colorado.]” The couple argued that non-discrimination was a fundamental American value, and that providing a cake did not mean that the baker was endorsing same sex marriage.

The case presents sharply clashing constitutional issues. On the one hand, the principle of anti-discrimination, seem most clearly in the Equal Protection clause of the 14th Amendment; and on the other hand, freedom of speech and religion guaranteed by the First Amendment. The Court focused on freedom of religion. With amazing brevity, the First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”  With some important exceptions (involving conflicts with other laws), the “Free Exercise” clause guarantees the fundamental freedom to practice your religion—to pray how you want, believe what you want, and  live your life consistent with your religious beliefs. (An interesting note for Virginia readers—the Free Exercise clause traces back to Virginia’s Status of Religious Freedom, drafted by Thomas Jefferson.) Philips invoked the “Free Exercise” guarantee as his basis to deny the wedding cake to the same-sex couple.

The Court focused on the Colorado Civil Rights Commission—which had earlier ruled against the baker, finding that he had violated Colorado’s anti-discrimination law, and that his religious beliefs did not excuse that violation.  During the hearing some members of the commission made hostile remarks about religious beliefs, suggesting they are often insincere and calling them “despicable piece of rhetoric.” One member compared the baker’s religious beliefs “to defense of slavery and the Holocaust.” Armed with these facts, the Court concluded that the commission’s treatment of the baker violated the constitutional mandate that state laws or rules can’t be based “on hostility to religion or religious viewpoint.” Stated another way, freedom of religion means that “our laws should be applied in a way that is neutral toward religion,” and in this case, the Court held that religious neutrality was violated as applied to the baker.

But the Court also addressed the other side of the coin—discrimination against the same-sex couple. Interestingly, the majority opinion was authored by Justice Kennedy, who had also recently written the decision upholding the right to same-sex marriage. Kennedy spoke powerfully against discrimination, noting that religious objections usually “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services …” He also said that Colorado businesses who object to same-sex marriages for religious reasons usually can’t “put up signs saying ‘no goods or services will be sold if they will be used for same-sex marriages’.” At the end of the day, the court had to balance these two principles—anti-discrimination and freedom of religion.  Given the unusual facts, the Court sided with the baker, largely resting its ruling on the open “hostility to religion” and the lack of religious neutrality demonstrated by some member the commission. But the Court took pains to note it was a narrow ruling and that other cases of discrimination against same-sex marriage—even if based on religious beliefs—may come out differently.

Ollie’s Barbeque

On its surface, Ollie’s Barbeque looks similar to the wedding cake case.  Both involve clear discrimination by businesses refusing to serve customers, and in both cases the people suffering the discrimination pointed to laws that appeared to ban such discrimination. However, Ollie’s Barbeque did not involve religion, but rather a challenge to the 1964 Civil Rights Act (CRA) based on the argument that the federal government lacked the power—under the Commerce Clause of the Constitution—to apply the CRA to Ollie’s Barbeque.

Ollie’s Barbeque was a popular restaurant in Birmingham, AL. Like many restaurants in the area, it openly discriminated by refusing sit-down service to African-Americans. Arising from the civil rights movement, the CRA outlawed racial segregation in many places in America including restaurants. The key question in the case was whether Congress had the power to pass the CRA, at least as applied to small private businesses.  Ollie’s Barbeque argued that Congress lacked any such power, and thus Ollie’s Barbeque need not comply with the CRA. While nothing in the Constitution expressly gave Congress the right to ban racial discrimination in private businesses, Congress pointed to the Constitution’s “Commerce Clause,” which empowers Congress to regulate interstate commerce (but not the power to regulate purely intrastate Commerce).

Ollie’s Barbeque’s argument—like the baker’s religious freedom argument—ultimately raised the fundamental question of liberty. Ollie’s Barbeque pointed out, correctly, that the federal government is strictly limited to its enumerated powers, and that any act of Congress beyond those powers is null and void. The Founding Fathers believed that limiting the size of the federal government was necessary to prevent it from becoming too powerful and tyrannical, and so threaten the fundemental liberties of all Americans (a concern that is all too real today in many parts of the world).

While Ollie’s Barbeque’s argument was good in theory, it was bad in fact (not to mention that the discrimination it was seeking to defend was indefensible). The Supreme Court unanimously rejected Ollie’s Barbeque’s argument, and, while admitting that Ollie’s Barbeque by itself had a minuscule effect on interstate commerce, found that racial discrimination in restaurants across America, taken as a whole, had a significant impact on the flow of goods and services in interstate commerce. The Court ruled that Congress had the power to ban the conduct at issue here—racial discrimination by local restaurants—under its Commerce Clause power.

Public versus Private Discrimination

         The wedding cake and barbeque cases would have been quite different had they involved discrimination by government rather than private business. Had Colorado banned same sex couples from buying wedding cakes in Colorado, or had Alabama banned blacks from eating in restaurants, the cases would been simple. The discriminatory laws would likely have been struck down as direct violations of the Equal Protection clause. But that clause applies only to action by the state. Because the discrimination in the cake and barbeque cases arose from private business, the cases were more complex, requiring the Court to look at anti-discrimination laws not found directly in the Constitution.


Why did the wedding cake and Ollie’s Barbeque cases come out differently? First, the wedding case had unusually bad facts—anti-religious sentiments by the commission—which allowed the Court to issue a narrow ruling for the baker. No similar “bad facts” by a ruling body were present in Ollie’s Barbeque. Second, Ollie’s Barbeque based its opposition to the anti-discrimination law on the Commerce Clause. In contrast, the baker based its opposition to the anti-discrimination law on religious freedom. Simply put, the Court is more likely to strike down laws based on interference with religious freedom than on an alleged violation of the Commerce Clause.  Finally, the two cases suggest a difference in how the Court deals with racial versus sexual-orientation discrimination. At the time of Ollie’s Barbeque, the Civil War had been fought and the Equal Protection clause had been in the Constitution for 100 years, whereas the ruling protecting same sex marriage was penned by Justice Kennedy less than three years ago. The wedding case is surely not the last word on the intersection of anti-discrimination laws and religious freedom.


Ben Lenhart

Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.


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