Tuesday, June 15

Pizza, Petunias, and Privilege

skepticI am not accustomed to being Devil’s advocate or adopting a contrarian stance regarding matters on which the progressive community is agreed to the point of near-unanimity. The issue of Miracle Pizza of Walkerton, IN, refusing to cater gay weddings is, to some extent, an exception, however. I say “to some extent” because, given the emotional temperature of this issue, merely advocating that all parties take a moment to reflect dispassionately on both the issues and case law suffices to cast me in both roles, however. So far, the conversation has generated a lot more heat than light, and we need a lot more of the latter and a lot less of the former. If that makes me “pathologically rational”, then … well … there are much worse things to be. My problem is that I see both sides, the “free exercise” of religion side and also the civil-rights / equality side. Both must receive their just due.


So far, the discussion has centered on the “free exercise” and equality aspects of the issue. The owners of Miracle Pizza assert that they have a “free exercise”-clause right to refuse service to gay weddings – not individual gay customers, it is important to note, but gay weddings -- because of their (apparently sincerely held) Christian belief that marriage should be restricted to relationships between men and women, and so catering gay weddings would violate that belief by requiring that their business be an accessory to the commission of a sinful act. Opponents counter that refusing to cater gay weddings, based only on the sexual orientation of the contracting parties, is tantamount to refusing to seat African-Americans at a lunch counter or refusing to register African-Americans at a hotel. What both arguments leave out, especially the latter, is something of which I would argue that most Americans are ignorant: the role played by the “commerce” clause of the US Constitution – Article I, Section 8, clause 3 – in lending constitutional justification to the requirement that “public accommodations” treat everyone impartially without regard to race. The "commerce" clause is quite brief:

[Congress shall have the power t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes 

So the matter of Miracle Pizza can be, and should be, addressed as a potential conflict between individual religious rights under the “free exercise” clause of the First Amendment and whether, and to what extent, those rights can be trumped by the “commerce” clause.

10262964876_7bed27c128_zThe key case in beginning to understand the Miracle Pizza matter in this regard is the landmark case of Heart of Atlanta Motel v. United States, in which the petitioners argued that Congress overstepped its authority under the “commerce” clause in writing into Title II of the Civil Rights Act of 1964 the requirement that all “public accommodations” – hotels, motels, restaurants, gas stations, public recreational areas, etc. – serve all customers / patrons impartially without regard to race. The owners of the Heart of Atlanta Motel argued that Congress had infringed on their property rights by, among other things, violating the “takings” and “due process” clauses of the Fifth Amendment. (Ironically, the Heart of Atlanta  defendants also argued that Congress had violated the 13th Amendment's prohibition of slavery by forcing the hotel to accommodate African-American guests.) The Supreme Court decided the case in favor of the government, asserting that Congress’ wording of Title II was entirely within the scope of its Article I, Section 8, clause 3, power to regulate interstate commerce, since segregated hotels, restaurants, gas stations, etc., disrupt interstate commerce by making, e.g., African-American sales people go out of their way to find hotels, restaurants, etc., willing to serve them, thereby inhibiting interstate commerce by detracting from the pursuit of their (African-American customers’) business interests. An ancillary but important case was that of Katzenbach v. McClung, in which the Court held that Title II applied to small businesses, and even to intra-state commerce trafficking in goods that had been moved into the State – specifically, Ollie’s Barbecue in Birmingham, AL – from out of state. That the goods sold had been imported from out of state and were miniscule in terms of national commerce did not exempt Ollie’s from its obligation to comply with Title II requirements. Other cases do require that the business have a substantial impact on interstate commerce. Perhaps the most important such are the Shreveport Rate Cases of 1914, which had nothing to do with selling pizza, but which did establish an important principle for interpreting the “commerce” clause:


[I]n all matters having such a close and substantial relation to interstate commerce [and when] the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule ... (boldface added)

Granted, the Heart of Atlanta and Katzenbach cases themselves, narrowly  construed, pertained to race, not sexual orientation. But what makes the considerations of both relevant to matters of sexual-orientation discrimination is just that issue raised by Shreveport -- the relationship with interstate commerce -- which embraces considerations that transcend race.  So there are two questions to ask vis a vis Miracle Pizza and related cases, like religious florists who object to providing flower arrangements for gay weddings:

o Does the refusal of Miracle Pizza to cater gay weddings – again for clarity: the issue is catering gay weddings – does Miracle Pizza’s refusal, in terms of its impact, have a “close and substantial relation to interstate commerce”?

If we only look at Miracle Pizza in and of itself, it would be difficult to answer this question in the affirmative. Miracle Pizza is a small business, not Pizza Hut or Domino’s or Round Table. However, Heart of Atlanta Motel was not Marriott or Holiday Inn, nor was Ollie’s Barbecue on the scale of Denny’s or Applebee’s or McDonald’s. And, in Wickard v. Filburn, small family farmer Roscoe Filburn was certainly not Archer Daniels Midland in terms of his impact on interstate commerce. Both Heart of Atlanta Motel and Katzenbach would indicate that the sheer scale of the business, in pure dollars-and-cents terms, is irrelevant to its obligations under Title II. Rather, the only relevant criterion – related to scale, but not equivalent thereto – is its “close and substantial” relation to interstate commerce. And here, in assessing the obviously begged questions of “How close?” and “How substantial?”, the example of Wickard v. Filburn becomes both relevant and instructive: it raises the question of precedent. The issue of precedent leads me to my second question. Let’s suppose for a moment, purely for the sake of argument and not advocacy, that the Miracle Pizza issue ended up being adjudicated by the Supreme Court, and that the Court decided in favor of Miracle Pizza. Consequently …

o … businesses – of any and all types -- whose owners have a sincerely held religious objection to serving a certain specific clientele are protected in their refusal by the “free exercise” clause of the First Amendment, and are therefore exempt from compliance with Title II of the Civil Rights Act of 1964

The Court’s rationale in deciding against farmer Filburn in Wickard v. Filburn goes to the heart of the issue vis a vis Miracle Pizza: what if everyone did it? What if every farmer, even every small farmer like Mr. Filburn -- never mind Big Agra behemoths like Archer Daniels Midland -- elected to grow their own crops purely for their own family’s use – and therefore elected not to enter into the stream of interstate commerce? The conclusion of the Court was that, if everyone acted as Mr. Filburn, the purposes and goals of the entire system of farm quotas – and therefore of farm crop-price supports – would be fatally undermined, to the detriment of interstate commerce and therefore to that of the Nation as a whole. Bottom line:  in order for that system to work, everyone has to participate – and non-participants must be penalized. (This was the argument to which advocates for the Affordable Care Act recurred, via Wickard, prior to the Court’s ruling that the individual mandate was a [sur]tax and not a penalty.) So let’s ask the analogous question vis a vis the Court’s hypothetical affirmation of the Miracle Pizza owners’ “free exercise” argument: what if everyone did it? What would the consequences be to interstate commerce if every business owner – not just every pizza-restaurant owner, but every owner of every business of any and all types – were permitted to self-select their clientele according to religiously based criteria of sexual orientation? Or gender? Or race / ethnicity? Or religion? What would the consequences be? So we have the geopolitical equivalent of the universal experience of school kids everywhere:  asking the teacher for an exemption from a rule and having the teacher refuse by saying "If I do it for you, I have to do it for everyone else".  The teacher is right.

(Just for clarity, I guess I should say that there could be certain exemptions. For example, Catholic parishes could be exempt from selling advertising space in their parish newsletter to promote condoms or abortion services. But Catholic parishes are not "public accommodations"; in particular, they are not pizza joints:  their purpose is to purvey faith, not food. Specifying permissible exemptions would be the real Tar Baby of this issue.)


Do you know what the word "Balkanization" means? In political terms, it refers to breaking up a continent or a nation into many discrete, disparate, and independent pieces. For example, Africa is a "Balkanized" continent. (The word was coined to describe the breaking up of the Balkan Peninsula into many independent states.) I cannot predict the future. My General Motors crystal ball has been on recall for a number of years now. But my fear is that, if the "free exercise" rights of Miracle Pizza, religious florists, etc., were affirmed in the unqualified form so many conservatives advocate -- Govs. Mike Pence and Asa Hutchinson, are you listening? -- the result would be, in time, to Balkanize the US economy into something looking like the Holy Roman Empire in the 1500s:  multitudes of competing, independent, disparate, and discrete fiefdoms, each based on a set of ideological, mainly religious, principles dissimilar to all the others. Most of the discussion of Miracle Pizza up to now has concentrated just on the single instance of Miracle Pizza without taking account of the wider implications of what would occur if everyone did it.

No right in the Bill of Rights is unqualified. Freedom of speech does not mean the right to falsely yell "Fire!" in a crowded theater. Likewise, even "free exercise" must at some point defer to the fact that we are one Nation, not merely a flock of separate ideological and religious birds that happen to be flying in loose formation.

James R. Cowles


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