Public accommodations under the Civil Rights Act of 1964: why freedom of association counts as a human right.

• Author: Epstein, Richard A.
• Position: Introduction through III. The Expansion of Title II and Kindred Statutes, p. 1241-1265 - The Civil Rights Act at Fifty

INTRODUCTION I. THE STATUTORY SCHEME II. SUBSTANTIVE SOUNDNESS A. Common Carriers B. The Historical Reality III. THE EXPANSION OF TITLE II AND KINDRED STATUTES IV. FROM PUBLIC ACCOMMODATIONS TO HUMAN RIGHTS A. Jaycees and Boy Scouts B. The Small Business Problem V. GOVERNMENT DISCRIMINATION AN UNHAPPY CONCLUSION INTRODUCTION

The fiftieth anniversary of the passage of the Civil Rights Act of 1964 has been, and will continue to be, a source of remembrance and reflection. Like many people of my generation, I believed then, as I believe today, that its passage was a defining moment in American culture, which had for far too long tolerated state-sanctioned segregation backed by massive social intolerance. At the time, the civil rights movement had priorities that are accurately reflected in the order of its particular titles. Title I, which dealt with voting, was first and foremost on everyone's mind because the overt and systematic exclusion of African Americans from the polls was as complete an affront to full citizenship as anyone could imagine. Next in line was Title II, which dealt with the question of public accommodations. Title VII, which dealt with employment discrimination, was way down on the list, as it should have been. (1)

Title II was passed when memories were still fresh of the many indignities that had been inflicted on African American citizens on a routine basis. It took little imagination to understand that something was deeply wrong with a nation in which it was difficult, if not impossible, for African American citizens to secure food, transportation, and lodging when traveling from place to place in large sections of the country. In some instances, no such facilities were available, and in other cases they were only available on limited and unequal terms. As someone who came of age (quite literally) when the Civil Rights Act was passed, it is easy to recall how widespread moral outrage propelled the statute to its passage. The sit-ins in Southern and border states were still fresh in the memories of the general public. (2) Those memories come flooding back with more recent historical accounts of the earlier times. Just recently, I read Isabel Wilkerson's The Warmth of Other Suns: The Epic Story of America's Great Migration, which contains personalized accounts of how difficult it was for black people, fearing violent retribution, to sneak out of the South on segregated trains in their efforts to make it to the North. (3) And Wilkerson's account of how Robert Joseph Pershing Foster was unable to find sleeping accommodations in Arizona on his migration to California in 1953 shows all too vividly that the practices of segregation extended far beyond the boundaries of the Old South. (4) Indeed, it can be taken as a vindication of Title II that its commands have rarely been the subject of litigation after the initial skirmishes on its constitutionality were decided shortly after passage of the Civil Rights Act. (5) The sign of successful legislative reform is its widespread social acceptance, which has certainly been the case for Title II.

In one sense, therefore, it is proper to treat the fiftieth anniversary of Title II as occasion for unrestrained celebration of legislation that has both met and exceeded the expectations at the time of its passage. But at the same time, the passage of a successful piece of legislation should give rise to at least some level of reflection about the principles on which that legislation rests and their soundness for general applicability. On this score, the inquiry goes off on two branches. For the first, it turns out that the original design of Title II contains its fair share of conceptual and practical difficulties, relating both to the terms of its passage on the one hand and its precedential value on the other. The paradigmatic case of Title II's application in 1964 was against monopolists who used their powers of exclusion to limit the options of politically vulnerable persons. (6) Historically, the dominant white segregationists who controlled the polls, the police, and all key government positions exercised in combination a level of state monopoly power that no simple public utility could hope to match. It was against the backdrop of this unified phalanx that the passage of the Civil Rights Act of 1964 has to be understood.

For the second, the resurgence of Title II-type obligations under modern "human rights laws" indicates a serious and regrettable reversal of fortune with respect to the basic function of this legislation. Under pressure from modern civil rights advocates, the worm has unfortunately turned, as people have lost sight of the evils that a public accommodations law should combat. The new application of the next generation of human rights law has the exact opposite orientation: may the state force small and isolated businesses, often with Christian beliefs, to violate their bona fide religious beliefs in order to provide services in highly competitive market segments? The fact that the two problems are both seen to justify strong government intervention offers powerful evidence of an unfortunate change in the dominant social attitudes toward the public use of force.

In order to work out the development of this theme, I shall proceed as follows. In Part I, I shall set out in brief fashion the essential structure of Title II, which, at least in form, has become the template against which all modern human rights laws are measured. In Part II, I shall examine the substantive soundness of the modern civil rights laws when tested against the standards for antidiscrimination laws developed in various common law contexts. In so doing, I shall pay special attention to the controversial critique of public accommodation laws offered by the late Robert Bork in The New Republic in August 1963. (7) In Parts III and IV, I shall trace the evolution of public accommodations laws into human rights laws that first addressed the position of large organizations like the Jaycees and the Boy Scouts, but later extended their influence to small, often fundamentalist groups that are frequently powerless to protect themselves against the rigors of majoritarian political processes. In Part V, I shall address the new set of dangers that arise when governments, at both the federal and state levels, use their monopoly powers over highways and other public facilities to exclude those groups whose internal practices are inconsistent with the preferred set of public norms. A civil rights program that at one time protected individual liberty and choice has by degrees become an instrument of repression in the hands of public and private groups. Even on a celebratory occasion, therefore, it is important to keep our intellectual distance and subject it to some serious scrutiny, which is what this Essay attempts to do.

1. THE STATUTORY SCHEME

   In order to put this inquiry into perspective, it is critical to set out the specific guarantees contained in Title II, paying special attention to their scope and underlying rationale. The initial section sets out the basic guarantee: "All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin." (8)

   Once that is established, subsection (b) of the legislation then lists the types of accommodations that fall within the general ambit of the Act.

   Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

   (1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

   (2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

   (3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

   (4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment. (9)

   These provisions have to be read in light of the narrow exemption that is found in subsection (e), which reads: "The provisions of this title shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b)." (10)

   In addition to these basic coverage provisions, Title II also contains subsections (c) and (d), which are intended to secure the proper constitutional basis for the substantive provisions just set out above. Thus subsection (c) offers a very broad definition of what it means for the "operations of an establishment" to "affect commerce," which includes the service at these establishment of interstate travelers or the use of food, gasoline, or other products that "move[] in [interstate] commerce." (11) Subsection (d) then gives a definition of the meaning of state action under the provision, which includes all conduct carried out under the color of state law or custom or required by any state or political subdivision...