Published online by Cambridge University Press: 30 October 2020
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.
He thanks Martha Minow and Mira Singer.
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): 439–504Google Scholar; and Singer, Joseph William “We 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.
8. Kent, James, Commentaries on American Law (1826–30) (photo reprint; New York: Da Capo Press, 1971), 2:464–65Google Scholar.
10. Joseph Story, Commentaries on the Law of Bailments, with Illustrations from the Civil and the Foreign Law (1832), §508, p. 328.
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.
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.”).
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.”