The origin of the public accommodation doctrine

Today is the 60th anniversary of the landmark US Supreme Court ruling in Brown v. Board of Education that said that ‘separate but equal’ practices were unconstitutional in the field of public education. Chief Justice Earl Warren wrote the unanimous opinion:

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.

We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.

But the full consequences of that ruling in other areas of life were not clear. Recall that recent court cases involving whether religious owners of businesses such as bakers, florists, and photographers had the right to refuse their services to same-sex couples hinged on whether these business were ‘public accommodations’ and thus could not pick and choose whom they denied service to without at least a rational basis for the rejection.

Professor of law Randall Kennedy writes (behind paywall) in the June 2014 issue of Harper’s magazine that it was Title II of the landmark 1964 Civil Rights Act that established the idea of a public accommodation and it arose directly out of the experience of black people being denied service in restaurants and hotels and the like, something that he and his family experienced directly when he was a child.

The issue then was whether private commercial establishments had the right to discriminate against any group and this was what lay behind the various sit-ins that took place during the civil rights struggles. It was Title II of the Civil Rights Act, introduced by president John F. Kennedy in 1963 and after his assassination vigorously pursued by Lyndon Johnson, that addressed this. Then Attorney General Robert Kennedy took the lead, arguing that “White people of whatever kind—prostitutes, narcotics pushers, Communists, or bank robbers—are welcome at establishments which will not admit certain of our federal judges, ambassadors, and countless members of our Armed Forces.”

Title II began:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and 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.

The act specifically listed hotels, motels, restaurants, theaters, and all other things engaged in interstate commerce as having to comply with this law. It exempted a “private club or other establishment not in fact open to the public” without defining what they were.

It is this part of the Civil Rights Act that has opened doors for everyone. It did not specifically extend it to members of the LGBT community because they were politically invisible then but now courts are viewing sexual orientation as deserving of the same public accommodation protections as race, color, religion, or national origin.


  1. AsqJames says

    “… owners of religious businesses such as bakers, florists, and photographers …”

    Minor point Mano, but I don’t really think you want to encourage the idea that “corporations are people [my friend]”. Surely they are not “owners of religious businesses”, but “religious owners of businesses”.

  2. machintelligence says

    When Johnson signed that legislation, he said that the Democrats would lose the South for a generation, He was wrong. It might well be a century or two.

  3. Trebuchet says

    Michelle Obama talked about Brown in a high school commencement speech a day or two ago. She also mentioned that the schools are getting re-segregated. Cue the right wing losing their minds about any minute now. As soon as they get home from American Spring.

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