Skip to main content Accessibility help
×
Home
Hostname: page-component-99c86f546-n7x5d Total loading time: 0.434 Render date: 2021-12-06T12:34:28.178Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

Public Rights

Published online by Cambridge University Press:  30 October 2020

Abstract

Scott focuses on the conflicts in the state of Louisiana over a provision in the post-Civil War Louisiana Constitution of 1868 that guaranteed “public rights” to all regardless of race. While we still live with shockingly high levels of racial discrimination in public accommodations, front and center today are claims that the Constitution's guarantee of religious liberty requires exemptions from state laws that prohibit discrimination on the basis of sexual orientation or gender identity. To understand the historical context within which we confront this issue today, it will help to understand how public accommodations law has changed over time through the course of United States history.

Type
Invited Article
Copyright
Copyright © the American Society for Legal History, Inc. 2020

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

He thanks Martha Minow and Mira Singer.

References

1. Trinchant, Edward, quoted in Scott, Rebecca J., “Discerning a Dignitary Offense: The Concept of Equal “Public Rights” during Reconstruction,” Law and History Review 38 (2020): 519–53Google Scholar.

2. Masterpiece Cakeshop v. Colo. Civil Rights Comm'n, 584 U.S. __ 138 S. Ct. 1719 (2017).

3. This history is based on my research and analysis of historical treatment of public accommodations in the American legal system. See Singer, Joseph William, “No Right to Exclude: Public Accommodations and Private Property,” Northewestern University Law 90 (1996): 1283–497Google Scholar. See also Saidel-Goley, Isaac and Singer, Joseph William, “Things Invisible to See: State Action & Private Property,” Texas A&M Law Review 5 (2018): 439504Google Scholar; and Singer, Joseph WilliamWe Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom,” Boston University Law Review 95 (2015): 929–50Google Scholar.

4. Blackstone, William, Commentaries on the Laws of England (Abingdon, Oxon [Oxfordshirre]: Professional Books Ltd., 1982)Google Scholar (reprint of Edward Christian ed., 15th ed. 1809), 3:165–66.

5. Ibid.

Ibid

6. Ibid.

Ibid

7. Ibid.

Ibid

8. Kent, James, Commentaries on American Law (1826–30) (photo reprint; New York: Da Capo Press, 1971), 2:464–65Google Scholar.

9. Ibid.

Ibid

10. Joseph Story, Commentaries on the Law of Bailments, with Illustrations from the Civil and the Foreign Law (1832), §508, p. 328.

11. Ibid., § 475, p. 310 (discussing “common inns”); § 495, p. 322 (discussing “common carriers”).

Ibid

12. Ibid., §476, p. 311, §508, p. 328.

Ibid

13. Ibid., § 495, p. 322.

Ibid

14. Clute v. Wiggins, 14 Johns. 175, 176 (N.Y. Sup. Ct. 1817). Accord, Pinkerton v. Woodward, 33 Cal. 557, 597 (1867) (“Where a person, by the means usually employed in that business, holds himself out to the world as an innkeeper . . . and a traveler relying on such representations goes to the house to receive such entertainment as he has occasion for, . . . the innkeeper cannot be heard to say that his professions were false, and that he was not in fact an innkeeper.”); Markham v. Brown, 8 N.H. 523, 528 (1837) (“Holding it out as a place of accommodation for travelers, he cannot prohibit persons who come under that character, in a proper manner, and at suitable times, from entering, so long as he has the means of accommodation for them.”)

15. Singer, No Right to Exclude, 1315–1317. The sole exception involved a case where a customer beat up the shopkeeper, and exclusion from the bookstore might well have been justified on grounds other than a lack of a duty to serve the public, such as the fact that he “abuse[d] the privilege which [had] been…given him.” Watrous v. Steel, 4 Vt. 629, 632 (1829).

16. McCrea v. Marsh, 78 Mass. (12 Gray) 211 (1858).

17. Singer, No Right to Exclude, 1354.

18. Ibid., 1352–53.

Ibid

19. Ibid., 1354.

Ibid

20. Civil Rights Cases, 109 U.S. 3 (1883).

21. Singer, No Right to Exclude, 1387.

22. 347 U.S. 43 (1954).

23. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968) (“Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.”).

24. Ibid., 443.

Ibid

25. Saidel-Goley and Singer, “Things Invisible to See,” 441–42.

26. Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Comm'n, 138 S.Ct. 1719, 1727 (2017) (“gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity or worth”); ibid., 1728 (“It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”); ibid., 1727 (“[p]etitioners conceded…that if a baker refused to sell any goods or any cakes for gay weddings,…the State would have a strong case…that this would be a denial of goods and services that went beyond any protected [first amendment] rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law.”).

27. 42 U.S.C. §2000a.

28. Jeff Jacoby, “Freedom of Association Means Red Hen Can Turn Away Sarah Sanders,” Boston Globe, June 25, 2018, https://www.bostonglobe.com/opinion/2018/06/25/freedom-association-means-red-hen-can-turn-away-sarah-sanders/Tpc5Toex4iUOVd15cKdgPN/story.html (accessed April 11, 2020); Jeff Jacoby, “Three Reasons to Vote No on Question 3, Boston Globe, November 4, 2018, https://www.bostonglobe.com/opinion/2018/11/02/three-reasons-vote-question/cklF8OcjD9nfFF1mxZ60gO/story.html (accessed April 11, 2020).

29. Jacoby, “Freedom of Association.”

30. Ibid.

Ibid
1
Cited by

Send article to Kindle

To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Public Rights
Available formats
×

Send article to Dropbox

To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

Public Rights
Available formats
×

Send article to Google Drive

To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

Public Rights
Available formats
×
×

Reply to: Submit a response

Please enter your response.

Your details

Please enter a valid email address.

Conflicting interests

Do you have any conflicting interests? *