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Tensions have been particularly acute in the area of public accomodations and it is imperative that Federal legislation be passed to eliminate discrimination in hotels, restaurants, and other public facilities. It is no accident that the student sit-ins of 1961 originated at a southern lunch counter, a public facility which, it was deeply felt, had to be made available to everyone. The fact that subsequent demonstrations, sit-ins, wade-ins, and the like have affected the field of public accomodations more than any other area in which discrimi is prevalent suggests again the overwhelming need for comprehensive legislation in this field. It is the obligation of Congress to enact such legislation to insure that those who have been promised equal rights will in fact receive them.
THE NEED FOR PUBLIC ACCOMMODATIONS LEGISLATION
President Kennedy in his civil rights message of June 19, 1963, said that "Events of recent weeks have again underlined how deeply our Negro citizens resent the injustice of being arbitrarily denied equal access to those facilities and accommodations which are otherwise open to the general public. That is a daily insult which has no place in a country proud of its heritage the heritage of the melting pot, of equal rights, of one nation and one people. No one has been barred on account of his race from fighting or dying for America—there are no 'white' or 'colored' signs on the foxholes or graveyards of battle.”
The President's recognition of the sense of outrage on the part of minority groups led him to include in his civil rights message and in the comprehensive civil rights bill of 1963 (S. 1731) a section on discrimination in public accommodations. This section of the comprehensive Civil Rights Act has also been introduced as a separate bill (S. 1732) by Senator Mansfield and 45 other Senators.
We believe that there is great need for legislation of this type. Jews are not unfamiliar with the humiliation which results from approaching a facility supposedly open to the public and being turned away with either crudely antiSemitic remarks or inadequate evasions which clearly reveal the bias of the speaker. Discrimination against Jews in the area of public accommodations has, of course, diminished greatly in the last few years. Nevertheless, the possibility of insult has not been totally eliminated.
We do not pretend, of course, that the insult to us anywhere approaches the humiliation and indignity to which the Negro is constantly subjected, It is a terribble thing to approach a cafeteria, a hotel, a store, or any other place that appears to solicit the trade of everyone and then to find that this means everyone who is of the right color. From the time of the first sit-ins, demonstrators have explained that they were protesting psychic as well as physical injury. The refusal of owners of places of public accommodation to serve them, or the insistence that they be served at separate facilities, stamps them with a badge of inferiority, a constant reminder of second-rate status. The deep resentment aroused by this treatment goes far to explain the fact that laws against discrimination in public places are the oldest and most widespread form of civil rights legislation.
PRECEDENTS FOR THE PROPOSED LEGISLATION
Legislation in the area of public accommodations is neither novel nor impractical. Massachusetts adopted the first public accommodations bill in 1865. In the close to 100 years following this enactment, 30 States and the District of Columbia have prohibited discrimination in places of public accommodation (Alaska, California, Colorado, Connecticut, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Vermont, Washington, Wisconsin, Wyoming).
These laws have worked well wherever they have been adopted and it is perfectly apparent that they have brought none of the grave evils in their train that have been so freely predicted. The benefit they confer on the aggrieved minority groups is reflected in the continued demand for further legislation, The absence of evils is shown by the continued adoption of new laws in State after State.
Furthermore, the laws have uniformly been upheld whenever their constitutionality has been challenged on the ground that they represent an undue invasion of property rights. The courts have consistently held that State laws against discrimination in public accommodations are a valid exercise of the
police power. Darius v. Apostolos, 68 Colo. 323, 190 Pac. 510 (1920); Crosswaith v. Bergin, 95 Colo. 241, 35 P. 2d 848 (1934); Baylies v. Curry, 128 Ill. 287, 21 N.E. 595 (1899); Pickett v. Kuchan, 323 Ill. 138, 153 N.E. 667 (1926); Bolden v. Grand Rapids Operating Corp., 239 Mich. 318, 214 N.W. 241 (1927); Brown v. J. H. Bell Co., 146 Iowa, 89, 123 N.W. 231 (1910); Rhone v. Loomis, 74 Minn. 200, 77 N.W. 31 (1898); Messenger v. State, 25 Nebr. 674, 41 N.W. 638 (1889); People v. King, 110 N.Y. 414, 18 N.E. 245 (1888); Commission v. George, 61 Pa. Super. 412 (1915). Most recently, in Frank Marshall, et al., v. Kansas City, Mo. (1962), the Supreme Court of Missouri held that a municipal antidiscrimination ordinance "bears a substantial and reasonable relation to the specific grant of power to regulate restaurants and to the health, comfort, safety, convenience, and welfare of the inhabitants of the city and is fairly referable to the police power of the municipal corporation.”
Although the Supreme Court of the United States has never had this issue directly presented to it, the Court has made it clear that it regards these laws as constitutional. In District of Columbia v. John R. Thompson Co., 346 U.S. 100, 109 (1953), it said “* * * certainly as far as the Federal Constitution is concerned there is no doubt that legislation which prohibits discrimination on the basis of race in the use of fac ties serving a public function is within the police power of the States."
THE TERMS OF S. 1732
S. 1732 contains six sections dealing with discrimination in places of public accommodation.
Section 1 provides that this act may be cited as the “Interstate Public Accommodations Act of 1963."
Section 2 is an elaborate set of legislative findings. It contains nine detailed paragraphs designed to establish the constitutional basis for congressional action in this area. They recite the large amount of interstate travel by Americans and the hardships resulting from discrimination against members of minority groups engaged in such travel. They state that discrimination in cultural and recreational opportunities as well as in retail stores restricts the number of persons to whom the benefits of interstate commerce are available. They state further that such discriminatory practices are "encouraged, fostered, or tolerated, in some degree" by the States "which license or protect the businesses involved" and that these practices "take on the character of action by the States and therefore fall within * * * the 14th amendment to the Constitution * * *." Finally, it is asserted that the burdens on commerce can best be removed by invoking the power of Congress under the 14th amendment and under the commerce clause of the Constitution.
Section 3 creates a right to nondiscrimination in places of public accommodation. Subsection (a) prohibits discrimination in any public place furnishing lodging to transient guests, including guests traveling in interstate commerce, and in any public place of amusement or entertainment which presents movies or other entertainment or entertainers that move in interstate commerce. It also prohibits discrimination in any store or restaurant that offers goods or food or any other services or accommodations to the public if the enterprise falls within one of the following four categories : (1) The goods or services are provided to a substantial degree to interstate travelers; (2) a substantial part of the goods made available has moved in interstate commerce; (3) the activities of the enterprise otherwise substantially affect interstate commerce; or (4) the establishment is an integral part of an enterprise in one of the previous categories (for example, by being located on its premises).
Subsection (b) of section 3 provides an exception for bona fide private clubs.
Section 4 provides that no person shall deny or interfere with the rights guaranteed in section 3. It specifically applies to all persons "whether acting under color of law or otherwise." Hence, it applies to private individuals and companies as well as to persons acting under governmental authority.
Section 5 provides for a civil action to prevent violations of section 4. (There are no criminal penalties.) Under this section, an action for preventive relief may be brought by the person aggrieved. It may also be brought by the Attorney General if he has received a written complaint from a person aggrieved and he certifies that the aggrieved person "is unable to initiate and maintain appropriate legal proceedings” and that the purposes of the title will be furthered by his bringing an action.
A person is to be considered unable to maintain a proceeding (1) if he cannot bear the expense of litigation or obtain a lawyer "either directly or through other interested persons or organizations” or (2) if there is reason to believe that bringing a suit would jeopardize his economic standing or result in injury or economic damage to himself or his family.
If a complaint is filed with the Attorney General involving an enterprise in a State having an applicable law against discrimination, the Attorney General is directed to give the local officials opportunity to handle the matter. The Attorney General is however not required to refer the matter to local authorities if he certifies to the court that the delay involved in such a referral would adversely affect the interests of the United States or that in the particular case "compliance would be fruitless."
Before bringing an action, the Attorney General is required to use the services of any Federal agency which may be available to secure voluntary compliance, if he believes that "such procedures are likely to be effective in the circumstances.”
Section 6 gives the U.S. district courts jurisdiction to hear cases brought under this title whether or not the complainant has already exhausted his other administrative or legal remedies. It also provides that this legislation does not preclude State or local agencies from enforcing their own antidiscrimination laws.
COMMENTS ON THE BILL
We suggest two major ways in which the protections provided by S. 1732 might be substantially broadened. The first is by resting the bill not only on the commerce clause but also on the 14th amendment; the second is by allowing the Attorney General to bring suits in the name of the Federal Government, and not as a substitute for an individual aggrieved party.
(1) S. 1732 rests on the commerce clause (see section 3). We suggest that the bill should rest on the 14th amendment as well, so as to include establishments which are licensed by the State, whether or not these establishments in some way operate in interstate commerce.
Justice Douglas, concurring in Garner v. Louisiana, 368 U.S. 157, 181-5, said that it is impermissible for a State to exercise its power to license businesses either “in terms or in effect to segregate the races in the licensed premises."
“One can close the doors of his home to anyone he desires. But one who operates an enterprise under a license from the Government enjoys a privilege that derives from the people * * * [the] necessity of a license shows that the public has rights in respect to those premises. The business is not a matter of mere private concern. Those who license enterprises for public use should not have under our Constitution the power to license it for the use of only one race. For there is a constitutional requirement that all State power be exercised so as not to deny equal protection to any group." (368 U.S. 1845.)
It is, of course, State action which is prohibited by the 14th amendment, and not the action of individuals. But it is clear to us (as it has been to courts and legislatures) that there are certain establishments which are affected with a public interest, and which have a public consequence.
Section 2(h) of the bill (the findings of fact) recognizes that the discriminatory practices are fostered to some degree by the States, "which license or protect the businesses involved by means of laws and ordinances * * *. Such discriminatory practices * * * take on the character of action by the States and therefore fall within the ambit of the equal protection clause of the 14th amendment to the Constitution of the United States."
This proposition should be made an explicit basis for bringing an establishment within the purview of the act. A possible formulation is suggested by a bill (H.R. 6720) introduced in the House of Representatives by Representative Lindsay which would prohibit discrimination in any enterprise "authorized by a State or a political subdivision of a State *** providing accommodations, amusements, food, or services to the public * * *"
(2) Under the terms of S. 1732 the Attorney General is authorized to act only if he finds that aggrieved individuals are unable to do so, or that interested organizations are not available or are unable to sponsor this case. Aside from the fact that it imposes a means test on individuals and conceivably on civil rights organizations as well, this approach is unsound in theory. It conceives of racial segregation and discrimination as a private rather than a public wrong. It ignores the fact that Federal officials have the responsibility of seeing that public officials adhere to the law of the land. We suggest, therefore, that the bill should authorize the Attorney General to bring suits in this area directly in the
name of Federal Government and without the necessity of showing that aggrieved parties are unable to act.
It has been suggested that this law would be ineffective because it would be impossible for the Government to bring civil proceedings against all the thousands of enterprises to which it would apply—that this would require a vast Federal police force. The same argument could be made against any Federal regulatory law. It ignores the fact that the vast majority of the enterprises affected by the law would comply with it because it is the law. The law would set a standard to which law-abiding persons would conform. Many hotels, restaurants, and other public places would find that the bill provided the incentive they needed to end a distasteful practice which they have continued only because of local custom or demand.
Nevertheless, there may be other proprietors, more recalcitrant, against whom stronger sanctions are needed. If a proprietor should wait until a court order was issued against him, under this bill that order would only provide for enforcement of the law. The proprietor who defies the law receives no additional penalty. We suggest that the bill include a provision for damages, to provide an incentive to comply with the law for those for whom avoidance of a lawsuit is not incentive enough.
S. 1732, as presently drawn, is very broad in scope, as it must be to meet the needs of the people it intends to protect. We urge that the coverage of this bill not be limited under the guise of concern for private property as represented by Mrs. Murphy's boardinghouse. The boardinghouse is, we believe, simply a red herring. The bill contains an exemption for bona fide private clubs, and this is sufficient to protect the legitimate interests of free association. Other establishments, open to the public and often licensed by the State are properly within the coverage of this bill.
CONCLUSION The grave human problems created by discrimination in public accommodations urgently cry out for immediate correction. The Jewish organizations submitting this statement therefore urge this committee to recommend adoption of S. 1732 with the broadening amendments described above.
THE NATIONAL COUNCIL,
New York, N.Y., August 29, 1963.
MY DEAR SENATOR : Last May the presiding bishop of the Protestant Episcopal Church sent out the enclosed statement. At the meeting of the House of Bishops in Toronto on August 12, 1963, three resolutions were passed.
We respectfully bring to your attention the deep concern of our church and its leaders as shown in these statements. Very truly yours,
(The Rev.) GENE SCARINGI,
RESOLUTIONS ADOPTED BY THE HOUSE OF BISHOPS, PROTESTANT EPISCOPAL CHURCH,
TORONTO, ONTARIO, AUGUST 12, 1963
Resolved, That the House of Bishops of the Protestant Episcopal Church urges the Congress of the United States to pass such civil rights legislation as shall fairly and effectively implement both the established rights and the needs of all minority groups in education, voting rights, housing, employment opportunities, and access to places of public accommodation.
Resolved, That the House of Bishops of the Protestant Episcopal Church, mindful of the Church Assembly to be held in Washington, D.C., on August 28, 1963, in cooperation with the March on Washington for Jobs and Freedom, (a) recognizes not only the right of free citizens to peaceful assemblage for the re
dress of grievances, but also that participation in such an assemblage is a proper expression of Christian witness and obedience,
(b) welcomes the responsible discipleship which impels many of our bishops, clergy, and laity to take part in such an assemblage and supports them fully,
(c) prays that through such peaceful assemblage citizens of all races may bring before the Government for appropriate and competent action the critical and agonizing problems posed to our Nation by racial discrimination in employment, in access to places of public accommodation, in political rights, in education and housing.
Resolved, That the House of Bishops of the Protestant Episcopal Church commends to all people the presiding bishop's letter dated Whitsunday 1963, as appropriate and helpful in the present racial crisis; and that we support the presiding bishop in this wise and timely expression of Christian leadership.
A STATEMENT BY THE PRESIDING BISHOP OF THE PROTESTANT EPISCOPAL CHURCH
Recent events in a number of American communities—Birmingham, Chicago, Nashville, New York, and Raleigh, to mention only the most prominent-underscore the fact that countless citizens have lost patience with the slow pace of response to their legitimate cry for human rights. Pleas of moderation or caution about timing on the part of white leaders are seen increasingly as in unwillingness to face the truth about the appalling injustice which more than a tenth of our citizens suffer daily. While we are thankful for the progress that has been made, this is not enough.
Our church's position on racial inclusiveness within its own body and its responsibility for racial justice in society has been made clear on many occasions by the general convention. But there is urgent need to demonstrate by specific actions what God has laid on us. Such actions must move beyond expressions of corporate penitence for our failures to an unmistakable identification of the church, at all levels of its life, with those who are victims of oppression.
I think of the words we sing as we hail the ascended Christ, “Lord and the ruler of all men,” and of our prayers at Whitsuntide as we ask God to work His will in us through His Holy Spirit. And then in contrast to our praises and our prayers our failure to put ourselves at the disposal of the Holy Spirit becomes painfully clear. Only as we take every step possible to join with each other across lines of racial separation in a common struggle for justice will our unity in the Spirit become a present reality.
It is not enough for the church to exhort men to be good. Men, women, and children are today risking their livelihood and their lives in protesting for their rights. We must support and strengthen their protest in every way possible, rather than to give support to the forces of resistance by our silence. It should be a cause of rejoicing to the Christian community that Negro Americans and oppressed peoples everywhere are displaying a heightened sense of human dignity in their refusal to accept second-class citizenship and longer.
The right to vote, to eat a hamburger where you want, to have a decent job, to live in a house fit for habitation: these are not rights to be litigated or negotiated. It is our shame that demonstrations must be carried out to win them. These constitutional rights belong to the Negro as to the white, because we are all men and we are all citizens. The white man needs to recognize this if he is to preserve his own humanity. It is a mark of the inversion of values in our society that those who today struggle to make the American experiment a reality through their protest are accused of disturbing the peace. And that more often than not the church remains silent on this, our greatest domestic moral crisis.
I commend these specific measures to your attention: (1) I would ask you to involve yourselves. The crisis in communities North and South in such matters as housing, employment, public accommodations, and schools is steadily mounting. It is the duty of every Christian citizen to know fully what is happening in his own community, and actively to support efforts to meet the problems he encounters.
(2) I would also ask you to give money as an expression of our unity and as a sign of our support for the end of racial injustice in this land. The struggle of Negro Americans for their rights is costly, both in terms of personal sacrifice and of money, and they need help.
(3) I would ask you to take action. Discrimination within the body of the church itself is an intolerable scandal. Every congregation has a continuing