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Birmingham Bar Association Spring 2014

Special Interest Barry A. Ragsdale; Sirote & Permutt, PC 5 Things You Probably Didn’t Know About Katzenbach v. McClung (The Ollie’s BBQ Case) This year marks the 50th anniversary of the U.S. Supreme Court’s decision in Katzenbach v. McClung. Every law student who attended law school in Alabama, or who studied out of state but whose constitutional law professor knew they were from Birmingham, knows about McClung, the landmark constitutional law case that relied on the Commerce Clause to uphold Congress’ power to prohibit racial discrimination in restaurants under the Civil Rights Act of 1964. McClung is arguably the most famous constitutional case to come out of Birmingham, and possibly the most important. For those of you who paid no attention at all in law school, McClung i n v o l ve d a small (seating for 220) BBQ place located in Birmingham and owned by the father and son team of Ollie McClung, Sr. and Jr. Ollie’s was a Birmingham institution, operating since 1927 in what Life magazine described at the time as the “seedy south side of the city” (902 Seventh Ave. South). Ironically located in a predominantly black neighborhood and employing mostly black workers, Ollie’s did not serve black people in the restaurant’s dining room. Pursuant to the perverse Jim Crow protocol, blacks could cook and serve the food, and even come in and order take-out at the counter, but they couldn’t eat in the restaurant. The Civil Rights Act of 1964 made Ollie’s business model illegal. And business is what Ollie always claimed that the case was about. The McClungs were not virulent racists. Ollie Mc- Clung was a deeply religious man who refused to serve beer and covered his restaurant’s walls with Bible verses. Two-thirds of Ollie’s employees were black and they shared in the profits from the restaurant. Instead, the McClungs were sincerely convinced that if they integrated their restaurant, they would lose their white clientele overnight, particularly given their location in a predominantly black neighborhood. In other words, while Ollie might not have been a racist, he understandably assumed his customers were (of course, history has proved his fears unfounded; Good BBQ crosses all racial, ethnic and socioeconomic divides.) The McClungs and the Washington lawyers from the U.S. Dep a rtme n t of Justice’s Civil Rights Division squared off in federal court in Birmingham in September of 1964 before a special 3-judge panel. The only two witnesses to testify were the McClungs. Two weeks later, Judges Walter Gewin, Seybourn H. Lynne and Hobart H. Grooms issued an order holding the accommodations provision of the Civil Rights Act unconstitutional and enjoined its enforcement against Ollie’s. It is easy to forget that the United States Supreme Court in 1964 was overrun with open and notorious liberals like William O. Douglas, Earl Warren, and Clay County’s own Hugo Black. The McClungs never had a chance when the case got to the Supreme Court. The 3-judge panel’s ruling was promptly stayed, then reversed by a vote of 9-0, with the Supreme Court 16 Birmingham Bar Association


Birmingham Bar Association Spring 2014
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