Let Them Bake Cakes (Part 3): The Constitution Matters, Right?

Posted on March 4, 2014 by


If you would like the background information on this post, go to Part 1. If you are more interested in the theological issue, see Part 2.)

Though I think the theological difference between Jim Crow discrimination and the same-sex debate is important, the comparison also makes constitutional assumptions that are troubling and misguided.

There was, without question, a severe problem with public accommodations in the Jim Crow South, especially since much of the de jure discrimination was built on depriving African-Americans’ access to widely available public services. Though regulations varied across the region, and some of the deprivations were based on custom as opposed to law, restaurants, theaters, hospitals, cemeteries, and public transportation were often segregated or closed to African-Americans. The era was defined not only by its restricted public accommodations, but by persistent political discrimination that included a host of schemes and tools to limit African-American voting and, by extension, office-holding and representation. These schemes ranged from so-called “white” primaries to poll taxes, literacy tests, and outright intimidation and violence. In this way, there was, throughout much of the South, a systematic effort to render African-Americans as, effectively, non-citizens.

The staggering nature of this is only elevated by the legal context in which it took place. Americans fought our bloodiest war to settle the relationship between the states and the federal government and, eventually, the relationship between master and slave. The U.S. ratified the Thirteenth, Fourteenth, and Fifteenth Amendments to restore former slaves to political and legal equality. The Fourteenth Amendment also had an enforcement clause which gave Congress the power to pass legislation to remedy further actions by state and local governments if they continued to deny equal protection or due process.

With this power, Congress passed the Civil Rights Act of 1875 to target discrimination in public accommodations. In 1883, the Supreme Court ruled (in The Civil Rights Cases) the act unconstitutional because it regulated private conduct and not governmental actions. During the next decade, Southern states passed laws that segregated facilities. The Supreme Court upheld a Louisiana that segregated rail cars in Plessy, and Mississippi’s literacy test in Williams, reasoning in both cases that the laws were applied equally to both races, regardless of the clear intention to disproportionately affect African-Americans. Once made, those decisions gave states all the justification they needed to erect the Jim Crow South’s legal restrictions and the political restrictions. All these decisions were poor interpretations of the three amendments’ spirit and, I think, as Justice Harlan noted in his famous dissent in Plessy, the Court’s actions continued the social vestiges of slavery.

Over time (see Sweatt and McLaurin) the Supreme Court reversed course, culminating in Brown v. Board of Education, which overturned the educational implications of Plessy. Brown engendered tremendous strife, and though it was critical symbolically, the decision created a flash point–emboldening African-American activists and cementing their opponents. The Supreme Court’s effort of top-down change limped because neither the Executive nor the Legislature went along, thereby leaving Brown to fester for a decade. Significant, systematic, and focused change did not occur until the federal government passed laws (The Civil Rights Act of 1964 and the Voting Rights Act of 1965) that addressed the situation directly and put the full force of the administrative state behind both integration and equal treatment of the laws.

The Civil Rights Act is actually the most analogous to what is happening right now with homosexual rights because the C.R.A. limited discrimination for public accommodations. Congress claimed the power to regulate hotels, restaurants, and entertainment facilities based on Article 1, Section 8’s interstate commerce clause. Many challenged the clause’s scope, arguing that some businesses engage in very little “interstate commerce,” so they should not fall under the federal government’s regulation. The Supreme Court determined, eventually, that nearly every enterprise fell under the law–hotels (Heart of Atlanta Motel), barbecue joints that buy a fair percentage of their goods from out-of-state (Katzenbach), and recreational facilities that have only a handful of products from out-of-state (Daniel v. Paul).

Under this line of thinking, gay rights activists might say, “look, see, there is a  precedent for blotting out discrimination in public accommodations.” And, it is true, if you follow the Court’s reasoning and apply it to homosexual couples seeking to marry, it would include florists, bakeries, and probably photographers as long as the businesses buy products from out-of-state. However, the differences between what happened then and what is happening now are dramatic.

The Court’s civil rights decisions were based on positive law that was a manifestation of clear, obvious majorities. The will of the people, as seen in THREE constitutional amendments and TWO major laws, declared that racial categorization and political marginalization were automatically suspect. For the Court to extend this to economic interactions, regardless of its propriety, makes sense given the length and depth of slavery, Jim Crow, and political discrimination. Many African-Americans were going from sub-citizenry to political, legal, and economic equality.

To say that gay marriage advocates, and the judiciary that undergirds them, cannot make similar claims is an understatement. The Supreme Court’s decisions (see Romer, Lawrence, and Windsorin this era have been counter-majoritarian. There is no constitutional text upon which to rely, unless the Fourteenth Amendment is skewed to deal with sodomy and/or homosexual marriage, which would be news to those who ratified it. Not only is there no clear constitutional authority at work, there is no affirmative legislation from which to launch. The judiciary, when it has struck down a range of state or federal laws that defined marriage traditionally, has opposed the people at every step.

While our Court today fancies itself as protecting a persecuted minority, in doing so it thumbs its nose at a majority that has enacted laws within reasonable constitutional boundaries. The Supreme Court has instead redefined the constitutional boundaries to achieve its own goals. Regardless of the extent to which one may agree or disagree with the idea of gay marriage, this means of change, pushed from the top, down the throats of the public, is the least effective and most destructive way to change our system.


So, whether we like it or not, this question of cakes is important. It is important personally because it is an opportunity to consider our ethics in light of conflict. It is also important because there is a very real possibility that we will no longer be able to make that choice because our form of government has shifted around us. The question of should we bake the cake–or snap the pictures or clip and arrange the flowers–may soon become what we must do at the behest of our government. I am not pretending our government might change unalterably, or that our way of life is threatened. We should not overstate things. But, we should recognize that when government regulates our private interactions, its reach grows inexorably, even if by inches.