Amicus Curiae Brief — Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 419 (2017) (No. 16-111)

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rECCRO FILED

AND | SEP -7 2017

No. 16-111 | ope COEF ER

IN THE

Supreme Court of the United States

MASTERPIECE CAKESHU.”, LTD.; AND JACK ©.

PHILLIPS,

Petitioners,

Vv.

COLORADO CIVIL RIGHTS COMMISSION; CHARLIE

CRAIG; AND DAVID MULLINS,

Respondents.

On Writ of Certiorari to

the Colorado Court of Appeals

BRIEF OF AMICI CURIAE PROFESSORS

CHRISTOPHER R. GREEN AND DAVID R.

UPHAM SUPPORTING PETITIONERS

DAVID R. UPHAM CHRISTOPHER R, GREEN

Counsel of Record UNIVERSITY OF MISSISSIPPI

UNTVERSITY OF DALLAS SCHOOL OF LAW

1845 E. Northgate Drive 481 Chucky Mullins Drive

Irving, TX 75062-4736 University, MS 38677

(972) 721-5186 (662) 915-6837

davidrupham@yahoo.com crgreen@olemiss.edu

Counsel for Amici Curiae

ASRS IY Ree we

QUESTION PRESENTED

This brief addresses the question whether the Four-

teenth Amendment’s requirement of equal citizen-

ship allows states to exclude bakers like Masterpiece

from the marketplace.

TABLE OF CONTENTS

yy VF 2a) wi ty) 0 | yy | -. Se rnneenee ll

INTEREST OF AMICI CURIAE ...................... 1

SUMMARY OF ARGUMENT ......................2.... 3

IIE satedansesiaiesonnntanecsanenisnetiacantinkwusinnnalds 5

|. The Fourteenth Amendment secures

equal civil rights and thus bans second-

I iio eds cos cicacissinsvansndasisnss’ 5

Il. The Fourteenth Amendment's ban on

second-class-citizenship includes creedal

and viewpoint discrimination.............0........ Y

Pes Te IN a vanrcdciescccnsosesdcoesecesenisses 10

B. Religious-Liberty Background ............... 13

CORRE PEGI oss ccrovcesicecccsiscsisevcssaces 17

D. This Court’s Statements ........................ 18

III. The exclusion of traditionalists from

wedding related professions is strongly

akin to the anti-Catholic Test Acts ............. 20

IV. Mere privately-inflicted dignitary harm

in a market with readily-available sub-

stitute goods does not justify restrictions

I Ge HIS, sceneries ceisccsscescisececcess: 26

I cccrssunihbspicescsechtsseessivincaigeviibaninoks 36

TABLE OF AUTHORITIES

Page

CASES

Allgeyer v. Loutsiana,

ROG UB: BF CED ivceccccvesepsdveceditctineeeees 35

Allnutt v. Inglis,

104 Eng. Rep. 206 (K.B. 1810)............... 29, 33°35

American Sugar Refining Co. v. Louisiana,

fy 2SF 29 | REE fe

Bartemeyer v. lowa,

aie Ob, Li.” ROMO ci 26

Bell v. Maryland,

gig ks | ® . Ren ee 31-32

Cantwell v. Connecticut,

BIO UD, BO evo virinsovisixcimncdesee 4

Corfield v. Coryell,

6 F.Cas. 6466 GE.D: Pa. 10GB iisiiiscciccccccovcecsns 2,7°8

Craig v. Masterpiece Cakeshop,

370 P.3d 272 (Colo. App. 2015).................... 25

Cummings v. Missouri,

TE Cas OE CE vrceaissnchinntiiittip enn 22

Edwards v. California,

SEG UD: TOD I nee nicecsisssccsasstchearactetsace 19

Elane Photography. LLC v. Willack,

S00 F.BE BB GEE. BG okcssnciiiccceoc an 25

Employment Division v. Smith,

O06 1B. STB CAG csi ccecceiscsthicteccetoah 19

TABLE OF AUTHORITIES-— Continued

Page

Everson v. Board of Kducation,

Nee ne. cdvensdseestessoenencars 14-15

kx Parte Garland,

on emenuenbace 22

Hawthorn v. Hammond,

174 Eng. Rep. 866 (1844)... ieliscan 32-33

Hurley v. Irish-American Gay, Lesbian, and

Bisexual Group of Boston,

Eg 32

in re Klein, Nos. 44-14 & 45-14 (Ore. Bu-

reau of Labor and Industnes, July 2,

2015), available at goo.gl//WO8dvh.................. 23, 25

Lee v. Weisman,

aco bevacdseapsceceess conse 5

Live Stock Dealers’ & Butchers’ Association

v. Crescent City Live Stock Landing &

Slaughter-House Co.,

15 F.Cas. 649 (D.Ja. 1870) ...........0..ccccce ees. 13

McCreary County v. ACLU,

I .ccssisececsserersccesseces: 15

McDonald v. Chicago,

I IID ccvsevecesossisesesscecnncse 2, 4, 20, 33

TABLE OF AUTHORITIES-—Continued

Page

Munn v. /limors,

OTE Te, Be Ce OE oa vbaekintiatistinaccimisanes 29, 32, 34-36

Obergefell v. Hodges,

Br hs Se ID tccssandurvansciradsuntite wastes 3, 25

Plessy v. Ferguson,

, CUTIE on seccscsvideidvabsentenctanmnasan 19

Reynolds v. United States,

ere iia cencitied aca cenccsenceeiascdevenen 15

Speiser v. Randall,

Rn ae 22

State v. Arlenc’s Flowers, inc.,

389 P.3d 543 (Wash. 2017) ............-..-..000---- 25

Town of Greece v. Galloway.

Reo 19

Trinity Lutheran Church of Columbia, Inc.

v. Comer,

og i a: ye nnvemprnnmnone ees ly

Young v. Harrison,

et I atin acai ds- cident scontacmasbiieomaianid 29

TABLE OF AUTHORITIES—Continued

Page

STATUTES

Test Act, 25 Car. II, c. 2, 5 Statutes of the

EE 0 PEED sien ccnstalosueccminstesukddevaabilieian 4, 20-24

An Act to Protect All Persons in the United

States in Their Crvil Rights, and Furnish

the Means of Their Vindication, 14 Stat.

Pe ee I edsbckcceSonnaintssuscastintartncs 5-6, 8-11

An Act to Protect All Citizens in Their Civil

and Legal Rights, 18 Stat. 335 (March 1,

| AGREED PCRS OR. 5, 12, 26, 28, 30-31, 34

LEGISLATIVE DEBATES

I CI cesttapictscinsesinintetisipersetaseés ~ I

Congressional Globe....... 6, 8-9, 11, 21-22, 28, 30-32

ND TI vrniiceccsetinincnentacitcmtinvinteciens 12

Report of the Debates and Proceedings of

the Convention for the Revision of the

Constitution of Indiana (1851) .................... y)

NEWSPAPERS

Chicago Tribune, Feb. 12, 1867........................ 10

vil

TABLE OF AUTHORITIES—Continued

Page

Chicago Tribune, Dec. 12, 16GB ....2:..cscccecccccecces 18

Cincinnati: Commercial, Speeches of the

SINE TEE DUET oitivesteciesasesnennccsiseensess OF Uy BE Ee

Nashville Daily Union and American, Nov.

Mg, PI bicidiisia nisissninesistaneens Simigiomnsnis noadinptepeikeegrcbauieniteasins 13

Raleigh, N.C., Tri-Weckly Standard, May 3,

WR carccalovepacisnes.icscricictitestp ub vasaibiewtiiaissninahopwre pilekappinbanbaetin 6

The Cecil Whig, May 26, 1866......................66. 17-18

The Weekly Caucasian, June 20, 1866............. 21

USA Today, June 26, 2017........................ tides 25-26

ARTICLES

Avins, The Civil Rights Act of 1875: Some

Reflected Light on the Fourteenth

Amendment and Public Accommoda-

tions, 66 Colum. L. Rev. 873 (1966) ...........33°34

Epstein, Public Accommodations Under the

Civil Rights Act of 1964: Why Freedom of

Association Counts as a Human Right,

66 Stan. L. Rev. 1241 (2014) «00.000... 30

vill

TABLE OF AUTHORITIES—Continued

Epstein, The History of Public Utility Rate

Regulation in the United States Su-

preme Court: Of Reasonable and Nondis:

criminatory Rates, 38 J. Sup. Ct. Hist.

Te Seed ie IR Re ale, Bp St, oy SESS

Green, Duly Convicted: The Thirteenth

Amendment as Procedural Due Process,

15 Geo, J. L. & Pub. Pol'y 73 (2017)............

Green, Incorporation, Total Incorporation,

and Nothing But Incorporation?, 24 Wm.

& Mary Bill Rts. J. 93 (2015)............0000.......

Green, The Original Sense of the (Equal)

Protection Clause: Pre-Knactment Histo-

ry, 19 Geo. Mason U. Civ. Rts. L.J. 1

I lathe Sictencitatn aia iaihara abcatebbappemasieioe

Green, The Original Sense of the (Equal)

Protection Clause: Subsequent Interpre-

tation and Application, 19 Geo. Mason U.

ye Sk se | ee

Green, Twelve Problems with Substantive

Due Process, Geo. J. L. & Pub. Poly

ES RR An. De oe

Page

TABLE OF AUTHORI' iES—Continued

Page

Harrison, Reconstructing the Privileges or

Immunities Clause, 101 Yale Ld. 1385

Ra deccetncsis cabin cata hanccanss cae deadacponssipientnaneonase

Koppelman, Gay Rights, Religious Accom-

modations, and the Purposes of Antidis-

crimination Law, 88S. Cal. L. Rev. 619

REE OR RRS eoay eee ccrisiesuee ee

McConnell, Originalism and the Desegrega”

tion Decisions, 81 Va. L. Rev. 947 (1995).... 28

Singer, No Right to Exclude: Public Accom-

modations and Private Property, 90 Nw.

Cc Fis A, INNO cerscblaiedes.daaicectebitiinrmaresrs 33°34

Upham, Corfield v. Coryell and the Privileg:

es and Immunities of American Citizen’

ship, 83 Tex. L. Rev. 1483 (2005) ................ 3,7

Upham, Interracial Marriage and the Origt

nal Understanding of the Privileges or

Immunities Clause, 42 Hastings Const.

RS Sarre ee

Upham, The Meanings of the “Privileges

and Immunities of Citizens” on the Eve

of the Civil War, 91 Notre Dame L. Rev.

Sy, cacentkcheimcdduicctstamenode ee

TABLE OF AUTHORITIES—Continued

Upham, The Understanding of “Neither

Slavery Nor Involuntary Servitude Shall

Exist” Before the Thirteenth Amend-

ment, 15 Geo. J. L. & Pub. Pol’y 137

RE ieee TR Pe cero

Wyman, The Law of the Public Callings as

Solution of the Trust Problem, 17 Harv.

a I ot cbs babe aseiesn

Wyman, The Inherent Limitation of the

Public Service Duty to Particular Clas-

ses, 23 Harv. L. Rev. 339 (1910) ............

BOOKS, TREATISES, AND OTHER MATERIALS

American Annual Cyclopedia (1866) ...........

Works of Edmund Burke (1852) ..................

Barlow, Citizenship and Conscience (1961)

Butler, An Essay on the Life of Michel de

e+e

L’Hospital, Chancellor of France (1814) .....

Tn oki ert msadn se ctanpeutten

Egle, Life and Times of Andrew Gregg

NR ick trnsrvitesiisatinnscontsswiarisionts

Page

13-14

24°25

TABLE OF AUTHORITIES—Continued

Page

Epstein, Principles Fora Free Society:

Reconciling Individual Liberty With The

Common Good (2002) ............... 30

Green, Equal Citizenship, Civil Rights, and

the Constitution: The Original Sense of

the Privileges or Immunities Clause

NEES RIISE Sy 2,7, 31

Hale, De Portibus Maris (1670)........ 4, 29°30, 33°35

Memoirs, Correspondence, and Private

Papers of Thomas Jefferson (1829) ............. 9

Kent, Commentaries on American Law

ak ctecics cae matress 31-32

Koppelman with Wolff, A Right to Discrimi-

I IE eh ecicnicstinsticnectenranciataactrolvadbiecsnee 27

Laycock et al., ed., Same*Sex Marriage and

Rehgious Liberty: Emerging Conflicts

Te i hidbananetanese 21

Works of John Locke (12 ed. 1824)................. 13-14

Official Proceedings of the National Demo:

cratic Convention (1872)...................cccc..ss00 12

Xil

TABLE OF AUTHORITIES—Continued

Page

Parsons, The Law of Contracts (6*" ed. 1873)

ss acla ads b oeeshi dneeanuaceacehanemibaeaeubhndeaaneaneseneukegees iaaanunet 31-32

Reams & Wilson, Segregation and the

Fourteenth Amendment in the States

esi sncosscasievindsceitue shaven cectinishetesidtsipoishastensiens 7

Reports Made to the General Assembly of

IE cx saensieadadsrssnwissesasneeatterivadsnnsness cans 7

Story, Commentaries on the Constitution

SN ens cenycisin <oscenandeteinanbaiactiiisdgunihsheiieds.sitons 4

‘Thwaites, ed., Civil War Messages and

Proclamations of Wisconsin War Gover-

a es panes 10

Upham, Exploring “That Unexplored Clause

of the Constitution”: The Meaning of the

“Privileges and Immunities of Citizens”

Before the Fourteenth Amendment

ace RE Sian CARE a on ey 2-3

Papers of George Washington (1996) ........ 13, 15-16

Wyman, The Law Governing Public Service

CIID TEE BF) wrsvccicsacinccccmsctecidicssncceses 34

IN THE

Supreme Court of the Anited States

—

No. 16-111

MASTERPIECE CAKESHOP, LTD.; AND JACK C.

PHILLIPS,

Petinoners,

Vv.

COLORADO CIVIL RIGHTS COMMISSION; CHARLIE

CRAIG; AND DAVID MULLINS,

Respondents.

On Writ of Certiorari to

the Colorado Court of Appeals

BRIEF OF AMICI CURIAE PROFESSORS

CHRISTOPHER R. GREEN AND DAVID Rk.

UPHAM IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

Amici’ are widely-published scholars of the Re-

construction Amendments and especially the Four

1 Pursuant to this Court's Rule 37.6, counsel for amici curiae

certify that this brief was not authored in whole or in part by

counsel for any party and that no one other than amuci curiae or

their counsel has made a monetary contribution to the prepara-

tion or submission of this brief. All parties have consented to

the filing of this brief.

teenth Amendment's Privileges or Immunities

Clause.

Professor Green has published EQUAL CITIZENSHIP,

CIVIL RIGHTS, AND THE CONSTITUTION: THE ORIGINAL

SENSE OF THE PRIVILEGES OR IMMUNITIES CLAUSE

(2015) (hereafter Equal Citizenship); The Origina/

Sense of the (Kqual) Protection Clause: Pre-

Enactment History, 19 Geo. Mason U. Civ. Rts. Ld.

1 (2008); The Original Sense of the (Equal) Protec’

tion Clause: Subsequent Interpretation and Applica’

tion, 19 Geo. Mason U. Civ. Rts. L.J. 219 (2009);

incorporation, Total Incorporation, and Nothing But

Incorporation?, 24 Wm. & Mary Bill Rts. J. 93 (2014):

Duly Convicted: The Thirteenth Amendment as

Procedural Due Process, 15 Geo. J. L. & Pub. Pol’y 73

(2017); and Twelve Problems with Substantive Due

Process, Geo. J. L. & Pub. Pel’y (forthcoming 2018).

Justice Stevens cites Green's work on the Privileges

or Immunitics Clause in his dissent in AfcDonald v.

Chicago, 561 U.S. 742, 859 n.2 (2010).

Professor Upham has published Jnterracia/ Mar-

riage and the Original Understanding of the Privi-

leges or Immunitics Clause, 42 Hastings Const. L. Q.

213 (2015) (hereafter Interracial Marriage); The

Meanings of the “Privileges and Immunities of

Citizens” on the Eve of the Civil War, 91 Notre Dame

L. Rev. 1117 (2016) (hereafter Meanings); Corfield v.

Coryell and the Privileges and Immuauties of Ameri-

can Citizenship, 83 Tex. L. Rev. 1488, 1487 (2005)

(hereafter Corfield)i and The Understanding of

“Neither Slavery Nor Involuntary Servitude Shall

Exist” Before the Thirteenth Amendment, 15 Geo. d.

L. & Pub. Pol’y 137 (2017). His doctoral dissertation

was entitled Exploring “That Unexplored Clause of

the Constitution”: The Meaning of the “Privileges

and Immunities of Citizens” Before the Fourteenth

Amendment (University of Dallas, 2002). The re-

spondents and amici supporting both sides in Ober-

gefell v. Hodges, 135 S.Ct. 2584 (2015), cite Professor

Upham’s work on interracial marriage.

SUMMARY OF ARGUMENT

This case involves a clash between two appealing

claims to inclusion and equality that cannot both be

satisfied. Both sides wish to participate in the

market free from what they deem unfair, exclusiun-

ary discrimination. One side wants to celebrate their

marriages, they say, in a market free from private

sexual-orientation discrimination: the other side

wishes to engage in wedding-related professions free

from governmental viewpoint or creedal discrimina’

tion. Morc specifically, same-sex couples claim that.

as citizens, they have the right to celebrate on the

same basis as other citizens; to be denied wedding-

related services by any provider, even if substitutes

are available, would, they say, impose serious digni-

tary harm. Conversely, marriage traditionalists, like

the respondent here, simply desire, on a basis of

equality with their fellow citizens, to work in the

wedding occupations in a manner consistent with

their sincerely-held beliefs; to compel participation in

same sex weddings as a condition of participating in

such professions would constructively evict marriage

traditionalists from the market. Both sides agree

that their claimed right to cquality—their freedom

from what they deem unfair discrimination--—

depends on whether or not the Constitution permits

or prohibits Colorado from enforcing its antidiscrim-

ination law as interpreted and applied here.

The Court can resolve this dispute by looking to the

ways that the Republican authors of the Fourteenth

Amendment understood the principle of civic equali-

ty—equality in the rights of American citizens—

expressed in the Privileges or Immunitics Clause.

Most of the briefing in this case has focused (and will

focus) on phrases from the First Amendment, partic

ularly the “freedom of speech” and “free exercise of

religion,” adopted in 1791. These phrases, however,

were not written to restrict the states, but Congress.

Fourteenth Amendment history is more directly

relevant to a case, like this one, involving the states.

While, of course, this Court has held that a substan-

tive component of the Due Process Clause applies

freedoms from the First and Second Amendments

against the states in the same form that those free-

doms restrict the federal government, e.g., Cantwe//

v. Connecticut, 310 U.S. 296 (1940); McDonald v.

Chicago, 561 U.S. 742, 765 (2010), incorporation of

the Bill of Rights through the Due Process Clause is

controversial. Rather than relying on a chain from

the Duc Process Clause to the First Amendment to

evidence about equal citizenship, the Court can

instead rely directly on equal citizenship as ex-

pressed in the Privileges or Immunities Clause.

A great deal of evidence shows that the equal-

citizenship principle of the Fourteenth Amendment

covers creedal as well as racial discrimination. The

history of second-class citizenship for Roman Catho-

lics in England and Ireland imposed by the Test Acts

is closely analogous to the burden imposed on Mas-

terpiece here. Finally, Matthew Hale's tripartite

division between guvernmental responsibilities,

purcly private conduct, and private action “affected

with a public interest,” which Republicans main-

)

tained very clearly in the discussions leading to the

Civil Rights Act of 1875, favors the petitioner here.

The scarcity of substitutes is an essential ingredient

of any police-power justification for pushing particu-

lar providers out of their professions. Republicans

repeatedly confronted pure dignitary harm, severed

from tangible impact on the privileges of citizens.

They held that “social rights” were sometimes cov-

ered by the Fourteenth Amendment, to be sure, but

only to the extent that these rights overlapped with

tangible impact on the realm of civil rights. Digni

tary harm from purely-private social insult was and

is, of course, real harm—and a harm that traditional

religious believers and all other citizens must endure

as well—-but it lies beyond the domain of civil rights

as such. Restrictions on tangible occupational civil

rights cannot be justified on the basis of such purely-

privately-inflicted injury.

ARGUMENT

I. The Fourteenth Amendment secures equal civil

rights and thus bans second-class citizenship.

Beginning most prominently with John Harrison,

Reconstructing the Privileges or Immunities Clause,

101 Yale L.J. 1385 (1992), recent academic work has

argued that the Privileges or Immunities Clause, not

the Equal Protection Clause, was the vehicle by

which the Fourteenth Amendment constitutionalized

the Civil Rights Act of 1866. Just as Article IV guar-

antees American citizens civil rights equal to the

rights of all similarly-situated citizens when visiting

other states, free from the restrictions characteristic

of alienage, the Privileges or Immunities Clause

protects citizens of the United States more general:

ly-—against not only interstate but racial and several

other forms of discriminatiun. President Johnson had

asked regarding the freedmen on March 27, 1866, in

his veto of the Civil Rights Act, “Four millions of

them have just emerged from slavery into freedom.

Can it be reasonably supposed that they possess the

requisite qualifications to entitle them to all the

privileges and immunities of citizens of the United

States?” CONG. GLOBE, 39% Cong. 1* Sess. 1679

(1866). Republicans and the nation answered yes,

beginning with their override of Johnson's veto on

April 9 and, in constitutional form, in John Bing:

ham’s proposal of the Privileges or Immunities

Clause ("No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States”) to the Joint Commit

tee on Reconstruction on April 21. Just after the

Clause was unveiled to the public, the press de-

scribed the amendment as “intended to secure to all

citizens of the United States, including the colored

population, the same privileges and immunitics.”

Raleigh, N.C., TRI-WEEKLY STANDARD, May 3, 1866.

at 2. Representative Henry Raymond suid that

Section One “secures an equality of rights among all

the citizens of the United States.” CONG. GLOBE, 39%

Cong. 1% Sess. 2502 (1866). Senator John Conness

said that to be “treated as citizens of the United

States” is to be “entitled to equal civil rights with

other citizens of the United States.” Jd. at 2891.

Speaker of the House Schuyler Colfax said in August

that the Civil Rights Act’s requirement of equality

“specifically and directly declares what the rights of

a citizen of the United States arc.” CINCINNATI

COMMERCIAL, SPEECHES OF THE CAMPAIGN OF 1866,

at 14 (1866). Benjamin Butler said in October 1866

that the Privileges or Immunities Clause would

require “that every citizen of the United States

should have equal rights with every other citizen of

the United States, in every State.” /d. at 41. William

Dennison summarized the Privileges or Immunities

Clause the same month: “{T]he colored man shall

have all the personal rights, all the property rights,

all the civil rights of any other citizen of the United

States.” Jd. at 44. For much, much more, see general-

ly Green, Equal Citizenship, Upham, Interracial

Marriage, and Upham, Corfield.

During the ratification process, governors through:

out the Union characterized the Privileges or Im-

munities Clause, or all of Section 1, as a guaranty of

equal civil rights: that is, “equal rights and impartial

liberty” (Vermont), “equality of right” between the

freedmen and white citizens (New York), “equal

liberty of all [the Union’s] citizens in every State in

the Union” (llinois), for “all citizens of the United

States equal civil rights” (Minnesota); “equality

before the law" (Wisconsin), “civil equality before the

law” (Massachusetts with specific reference to the

Privileges or Immunities Clause), and “ ‘equality

before the law’ for all citizens” (California). Or more

claborately, Pennsylvania’s governor explained that

Section 1 would secure “to all classes the benefit of

American civilization” such that “all persons, of

whatever class, condition, or color should be equal in

civil rights before the law.” Reams & Wilson,

SEGREGATION AND THE FOURTEENTI! AMENDMENT IN

THE STATES 35, 273, 409, 677, 715 (1975); REPORTS

MADE TO THE GENERAL ASSEMBLY OF ILLINOIS 30

(1867); AMERCAN ANNUAL CYCLOPEDIA 518 (1866);

Egle, Lire AND TIMES OF ANDREW GREGG CURTIN 194

(1896).

Chief among these civil rights were economic hber:

ties such as the right to “to pass through or to reside

in any other State, for purposes of trade, agriculture,

professional pursuits, or otherwise,” “to make and

enforce contracts” and “to inherit, purchase, lease,

sell, hold, and convey real and personal property,”

and immunity from discriminatory taxation (“exemp-

tion from higher taxes or impositions than are paid

by the other citizens of the State”), as listed in either

the Civil Rights Act or Corfield v. Coryell, 6 ¥.Cas.

546 (E.D. Pa. 1825), as quoted by Senator Howard

and many others. See An Act to Protect All Persons

in the United States in Their Civil Rights, and

Furnish the Means of Their Vindication, 14 Stat. 27

(April 9, 1866); CONG. GLOBE, 39% Cong. 1* Sess.

474-75, 1117-18, 1835, 2765 (1866). Or as Senator

John Henderson elaborated, the rights of the citizens

include “the right to acquire property, to enter the

courts for its protection, to follow the professions,

land] to accumulate wealth.” Jd. at 3035. Hence a

central purpose of Section 1, and the Privileges or

Immunities Clause in particular, was to secure to all

Americans the cqual enjoyment of these economic

rights.

One way to read the Privileges or Immunities

Clause to guarantee equal citizenship is by reading

in a tacit baseline of comparison to similarly-situated

fellow citizens. Such an implicit baseline was com-

monplace in readings of provisions securing the

rights of citizens, whether readings of the Louisiana

Cession’s 1803 guarantee of the “rights, advantages,

and immunities of citizens of the United States,”

readings of state constitutional bans on special

privileges or immunities, or, most prominently,

readings of the comity clause of Article TV. A few

months after the Louisiana Cession, Thomas Jcffer-

son proposed its constitutionalization in a require’

ment that new citizens “stand, as to their rights and

obligations, on the same footing with other citizens of

the United States, in analogous situations.” 3

MEMOIRS, CORRESPONDENCE, AND PRIVATE PAPERS OF

THOMAS JEFFERSON 1-2 (1829). Joseph Story’s 1833

commentaries inserted an implicit qualifier “under

the like circumstances” to his reading of Article IV.

COMMENTARIES ON THE CONSTITUTION § 1800, at 674-

75 (1833). Horace Biddle, explaining an 1851 Indiana

state-constitutional provision that would ban the

legislature from granting “to any citizen, or class of

citizens, privileges or immunities, which, upon the

sume terms, shall not equally belong to all citizens,”

that “it only means that every cilizen may apply

under the same circumstances and on similar terms.”

REPORT Or THe DEBATES AND PROCEEDINGS OF THE

CONVENTION FOR THE REVISION OF THE

CONSTITUTION OF INDIANA 1394 (1851). Responding

on April 7 to President Johnson's veto of the Civil

Rights Act, Representative William Lawrence re-

peated Story’s Article 1V interpolation, referring to

“all the privileges and immunities of citizens,’ that

is, all citizens under the like circumstances.” CONG.

GLOBE, 39% Cong. 1* Sess. 1836 (1866).

Il. The Fourteenth Amendment's ban on second:

class-citizeaship includes creedal discrimina-

tion.

Besides racial discrimination, what other forms of

discrimination violate equal citizenship? There is, of

course, room for significant disagreement about the

scope of such a principle, and the Court need not

settle that precise scope in this case.

Since the framing of the Amendment, racial dispar-

itics in the rights of citizens of the United States

obviously have taken center stage. Still, it seems

clear that the Fourteenth Amendment, according tu

its original meaning and purpose, the way in which

religious liberty had long been deseribed in terms of

equal citizenship, and according to the repeated dicta

of this Court, protects equal citizenship against not

only racial discrimination, but also viewpoint or

creedal discrimination.

A. Original Meaning.

Republicans took distinctions based on religion or

belief to be clear instances of the sort of second-class

citizenship against which the Privileges or [mmuni-

ties Clause was aimed. Roscoe Conkling, while a

member of the Joint Committee that was privately

drafting the Amendment, publicly insisted that any

reconstruction plan must include “(t]he assurance of

human rights to all persons within their borders,

regardless of race, creed, or color.” /d. at 252. Con-

temporancously Wisconsin's governor advocated a

constitutional amendment that would protect “the

sacred natural rights of the humblest citizen, what-

ever may be that citizens’ creed or color,” including

the freedom to make and enforce contracts, and “to

pursue any and all avocations for which he is quali-

fied.” Thwaites, ed., Crvlm. WAR MESSAGES AND

PROCLAMATIONS OF WISCONSIN WAR GOVERNORS 266

(1912). And in the state's legislature during ratifica’

tiond ebates, a leading proponent said it secured

“equal rights of all, regardless of color, race, or

creed.” Chicago Tribune, Feb. 12, 1867, at 2.

During the debates over the Civil Rights Act, par-

ticipants saw that the principle of equal civil rights

implicated creedal as well as racial discrimination.

Senator Edgar Cowan protesied against the applica-

tion of civil rights laws in the North, where, he said,

people already stood on the “same footing,” “no

matter what may be his color, his complexion, or his

creed.” CONG. GLOBE, 39t» Cong. 1* Sess. 335 (1866),

William Lawrence responding to the Civil Rights Act

veto said that the bill was “not made for any class or

creed, or race or color,” but would “protect every

citizen, including the millions of people of foreign

birth who will flock to our shores to become citizens

and to find here a land of liberty and law.” /d. at

1833. Democrat Garrett Davis, opposing federally

enforced racial civic equality, recognized that reli

gious civil equality stood on the same basis. /d. at

419, 1415. Representative Kountz declared Republi

can hostility to all “systems built upon caste and

creed for the oppression of man.” CONG. GLOBE, 39%

Cong. 2"4 Sess. 596 (1867).

Indeed, to explain the civil equality mandated by

the Amendment, proponents frequently relied upon a

Jeffersoninan principle that had originally dictated

creedal equality. In his First Inaugural Address,

Jefferson had listed, as first among the “essential

principles of our Government,” “lelqual and exact

justice to all men, of whatever state or persuasion,

religious or political.” CONG. GLOBE, 39% Cong. 1"

Sess. 120 (1866) (quoting Jefferson). Republicans

understood that this principle, fully elaborated, also

precluded racial discrimination. Hence John Bing

ham, during the ratification debates, explained that

Section 1 was “a simple, strong, plain declaration

that equal laws and egua/ and exact justice shall

hereafter be secured within every State, of this

Union.” CINCINNAT! COMMERCIAL, SPEECHES OF THE

CAMPAIGN OF 1866 at 19 (1866). Accordingly, in

their 1872 national platform, Republicans celebrated

the Amendment for decrecing the “the equal citizen:

ship of all,” called for “[clomplete liberty and exact

equality in the enjoyment of ail civil, political, and

public rights,” and thus decried all “discrimination in

respect of citizens by reason of race, creed, color, or

previous condition of servitude.” 2 CONG. REC, 423

(1874) (quoting 1872 platform). In their platform of

the same year, Democrats announced their acquies’

cence to the Amendment and pledged “equal and

exact justice to all, of whatever nativity, race, color

or persuasion, religion or politics.” OFFICIAL

PROCEEDINGS OF THE NATIONAL DEMOCRATIC

CONVENTION 40 (1872). More authoritatively, in the

preamble to the 1875 Civil Rights Act, Congress

likewise treated race and creed as similarly illegiti

mate bases for discrimination:

Whereus it is essential to just government

we recognize the equality of all men before the

law, and hold that it is the duty of government

in its dealings with the people to mete out

equal and exact justice to all, of whatever na-

tivity, race, color, or persuasion, religious or

political; and it being the appropriate object of

legislation to enact great fundamental princi

ples into law.

An Act to Protect All Citizens in Their Civil and

Legal Rights, 18 Stat. 335 (March 1, 1875); see a/so 3

CONG. Rec. 1866, 1867, 1870 (1875) (Senator Ed-

munds and Bayard elaborating on similarity).

Both carlier and later history supply similar evi

dence for the rough equivalence of racial and creedal

discrimination in provisions guaranteeing the rights

of citizens. An 1840 joint committee of the Massa

chusetts legislature compared interracial-marriage

bans to interreligious-marriage bans, noting that the

latter had been widely understood by Protestants to

have “deprived them of the rights of citizens.”

Upham, Interracia) Marriage, at 240-41. John Bright

argued in 1855 that the “rights, advantages, and

immunities of citizens of the United States” (prom

ised in 1803 to those in Louisiana), the “privileges,

rights, and immunities of the citizens of the United

States” (promised in 1819 to those in Florida), and

the “the rights of citizens of the United States”

(promised in 1848 to those in the Southwest) each

represented an “assurance of entire cquality” to

Roman Catholics. Nashville Daily Union and Ameri:

can, Nov. 7, 1855, at 2. Sitting us a circuit justice in

1870, Justice Bradley said the Privileges or [mmuni-

ties Clause enforced the “entire equality of all creeds

and religions before the law.” Live-Stock Dealers’ &

Butchers’ Association v. Crescent City Live-Stock

Landing & Slaughter-House Co., 15 F.Cas. 649, 653

(D.La. 1870).

B. Religious-Liberty Background.

Many classic arguments for religious freedom, in’

cluding those of Locke, Madison, and Washington,

rest squarely on cqual citizenship.

In the midst of seventeenth-century lrench dis-

putes between Hugenots and Roman Catholics,

Michel de [’Hospital put the case for religious free’

dom in terms of equal citizenship: “All citizens who

ohey the laws and perform their duties to their

country and their neighbor have an equal right to the

advantages which civil society confers.” Charles

Butler, AN ESSAY ON THE LIFE OF MICHE!. DE

L’HOSPITAL, CHANCELLOR OF FRANCE 28-29 (1814).

In his Essay on Toleration, John Locke analogized

religiously-based second-class citizenship-—that is,

the failure to allow religious minorities “the same

privileges as other citizens’—to its racially-based

cousin:

Suppose this business of religion were let

alone, and that there were some other distinc

tion made between men and men, upon ac

count of their different complexions, shapes

and features, so that those who have black

hair, for example, or grey eyes, should not en-

joy the same privileges as other citizens; that

they should not be permitted either to buy or

sell, or live by their callings; that parents

should not have the government and education

of their own children: that they should either

be excluded from the benefit of the laws, or

meet with purtial judges: can be it doubted but

these persons, thus distinguished from others

by the colour of their hair and eyes, and united

together by one common persecution, would be

as dangerous to the magistrate, as any others

that had associated themselves merely upon

the account of religion?

5 WORKS OF JOHN LOCKE 49-50 (12** ed. 1824) (orig.

1685).

James Madison’s 1785 Memorial and Remon:

strance, which this Court has invoked countless

times, claimed that a proposed religious assessment

“degrades from the equal rank of Citizens all those

whose opinions in Religion do not bend to those of

the Legislative authority.” Hverson v. Board of

Education, 330 U.S. 1, 69 (1947) (quoting this lan-

guage from Madison): Lee v. Weisman, 505 U.S. 577,

607 n.10 (1992) (Blackmun, Stevens, and O'Connor,

concurring) (same); fd. at 622 (Souter, Stevens, and

O’Connor, JJ., concurring) (same); McCreary County

v. ACLU, 545 U.S. 844, 878 (2005) (same): see also

Reynolds v. United States, 98 U.S. 145, 163 (1879)

(relying on Memorial). Madison advocated “protect-

ing every citizen in the enjoyment of his Religion

with the same equal hand.” Everson, 330 U.S. at 68.

In Congress four years later, Madison's initial pro-

posal for religious rights likewise spoke of the

abridgement of “civil” rights, i.e., the rights of citi

zens: “The civil rights of none shall be abridged on

account of religious belief or worship, nor shall any

national religion be established, nor shall the full

and equal nights of conscience be in any manner, nor

on any pretext, infringed.” 1 ANN. CONG. 434 (1789).

In England later the same year, 1789, dissenters

against the Church of England claimed to be “enti-

tled, equally with their fellow subjects to the com-

plete possession of civil and religious lLberty,” that is,

to “enjoy the immunities of faithful citizens.” Richard

Burgess Barlow, CITIZENSHIP AND CONSCIENCE 255

(1961). The next year, Anna Barbauld hoped that

religious liberty might “bury every name of distinc

tion in the common appellation of citizen.” Jd. at 277.

In the United States in the summer of 1790—while

the First Amendment was still pending before the

states—Moses Seixas of the Hebrew congregation of

Newport wrote to George Washington and commend:

ed the United States in terms that clearly prefigure

the Privileges or Immunities Clause:

Deprived as we heretofore have been of the in

valuable rights of free Citizens, we now (with

a deep sense of gratitude to the Almighty dis-

poser of all events) behold a Government,

erected by the Majesty of the People—a Gov

ernment, which to bigutry gives no sanction, to

persecution no assistance—but gencrously af

fording to All liberty of conscience, and im-

munities of Citizenship: deeming every one, of

whatever Nation, tongue, or language, equal

parts of the great governmental Machine.

Washington’s famous reply the next day repeats

Seixas’s language on the equal “immunities of citi-

zenship”:

The Citizens of the United States of America

have a right to applaud themse!ves for having

given to mankind examples of an enlarged and

liberal policy: a policy worthy of imitation. All

possess alike liberty of conscience and immun-

ities of citizenship. It is now no more that tol:

eration is spoken of, as if it was by the indul-

gence of one class of people, that another en-

joyed the excercise of their inherent natural

rights. For happily the Government of the

United States, which gives to bigotry no sane

tion, to persecution no assistance requires only

that they who live under its protection should

demean themselves as good citizens, in giving

it on all occasions their effectual support.

6 PAPERS OF GEORGE WASHINGTON 284-86 (1996)

(orig. August 17 and August 18, 1790).

C. Original Purpose.

Undoubtedly the principal discrimination targeted

by the Fourteenth Amendment was racial. Still, a

secondary purpose was to protect the equal right of

all citizens, regardless of opinion, to travel, reside,

and engage in business throughout the Union. For

decades before the drafting of the Amendment,

antislavery Americans had argued that their consti-

tutional “privileges and immunitics” entitled them to

travel, reside, and conduct lawful business through-

out the Union, free from exclusion on the basis of

their opinions. Intolerance in heavily pro-slavery

and (later) pro-secession areas was so great that

many Americans were effectively excluded from

travel and commerce in many states. On the eve of

the Civil War, the Republican Party's national

platform contained this resolution,

That we deeply sympathize with those men

who have been driven, some from their native

States and others from the States of their

adoption, and are now exiled from their homes

on account of their opinions: and we hold the

Democratic Party responsible for this gross

violation of that clause of the Constitution

which declares that the citizens of each State

shall be entitled to aJl the privileges and im-

munities of citizens in the several States.

For discussion, sce Upham, Meanings, at 1151-59.

This danger persisted after the War, as there re-

mained widespread intolerance in the South. During

the ratification debates, Maryland’s Senator John

Cresswell explained that Section 1 was designed to

mect this enduring threat:

The States have assailed those principles of

personal liberty and personal security. If a cit-

izen of the United States went to South Caro-

lina, and claimed to exercise the privileges and

immunities which he was free to exercise in

other states, the State sometimes refused to

allow him so to do. So in some of the Rebel

States the people say now, that loyal men

shall not settle among them. We intend by

these provisions.... that wherever in this

broad land, any man, a citizen of the United

States, shall be assailed in any of his rights of

life, liberty or property, he shall be able to

throw around his shoulders the protecting ae-

gis of the Stars and Stripes, and say. “I am an

American citizen, and no man dare assail me,

beause the Constitution and the laws protect

me the world over.”

Reconstruction, The Cecil Whig, May 26, 1866, at 2.

Although brutal violence was the primary threat

faced by antislavery and Unionist citizens, propo-

nents of the Amendment also sought to preciude

economic sanctions. Bingham, for instance, argued

that the Amendment was essential to protect north-

ern citizens, residing in the South, from “being taxed

to the point of confiscation”—which was, he said, not

a “chimerica! evil,” for the former rebels “are doing

worse than this all the time.” John A. Bingham,

Chicago Tribune, Dec. 12, 1868, at 2.

D. This Court's Statements.

This Court in its Fourteenth Amendment ju

risrpduence has repeatedly affirmed, albeit in dicta,

that the Amendment prohibits creedal as well as

racial discrimination. In American Sugar Refining

Co. v. Loursiana, 179 U.S. 89 (1900), this Court

insisted that a state tax discriminating on the basis

of “color, race, nativity, religious opinions, political

affiliations,” or similar bases would be “a denial of

the equal protection of the laws to the less favored

classes,” sd. at 92; see also Edwards v. California,

314 U.S. 160, 185 (1941) (Roberts, J., concurring)

(contending that indigence was “constitutionally an

irrelevance, like race, creed, or color”); Plessy v.

Ferguson, 163 U.S. 537, 558 (1896) (Harlan, J.,

dissenting) (indicating that compulsory racial segre-

gation is as unconstitutional as compulsory religious

or national-origin segregation).

This Court's religion-clause cases have long been

shot through with notions of equal citizenship. For a

few instances in addition to the quotations of Madr

son’s 1785 Memorial and Remonstrance noted above,

see, e.g., Employment Drvision v. Smith, 494 US.

872, 897 (1990) (O’Connor, J., concurring) (“equal

place in the civil community”); Town of Greece v.

Galloway, 134 S.Ct. 1811, 1834 (2014) (Alito, J.,

concurring) (“the equal benefits of citizenship”); Jd. at

1841 (Kagan, J., dissenting) (“full and equal Ameri

can citizens”; “[W]hen each person performs the

duties or secks the benefits of citizenship, she does so

not as an edherent to one or another religion, but

simply as an American.”); Trinity Lutheran Church

of Columbia, Inc. v. Comer, 137 S.Ct. 2012, 2020

(2017) (“an equal share of the rights, benefits, and

privileges enjoyed by other citizens”) (quoting Lyng

v. Northwest Indian Cemetery Protective Associa-

tion, 485 U.S. 439, 449 (1988)); za. at 2024 (quoting

H.M. Brackenridge in 1818) (“odious exclusion from

any of the bencfits common to the rest of my fellow:

citizens”).

Whatever dangers of destablization, then, might be

thought possible from the resurrection of the Privi

Jeges or _ Immunities Clause in other contexts, see,

e.g., McDonald v. Chicago, 561 U.S. 742, 859-60

(2010) (Stevens, J., dissenting) (“the original mean-

ing of the [Privileges or Immunities] Clause is ... not

nearly as clear as it would need to be to dislodge 137

years of precedent”), explicitly rooting an equal

citizenship principle into the text of the Fourteenth

Amendment would “dislodge” nothing: such a princi-

ple is itself already firmly lodged in this Court's

precedents, and equal citizenship for adherents of all

religions is no longer even mildly revolutionary.

Reliance on Privileges or [mmunities Clause history

would in fact be profoundly stablizing, by supplying

the equal-citizenship principle with both a secure

anchor and a guide for the principle’s precise reach.

An equal-citizenship principle derived from the

Privileges or Immunities Clause can and should be

bound by the original public meaning of the Four

teenth Amendment's text.

IJ. The exclusion of traditionalists from wedding-

related professions is strongly akin to the anti-

Catholic Test Acts.

For about 150 years—from the 1670s to the

1820s—Roman Catholics in England and Ircland

were statutorily excluded from a range of profes:

sions, including the law, education, and any field

requiring more than two apprentices. Edmund Burke

described the disabilities on Roman Catholics im

terms of second-class citizenship, referring to “that

equality, without which you never can be FELLOW

CITIZENS,” 4 WORKS OF EDMUND BURKE 494 (1852),

and in terms of “a lower and degraded state of citi

zenship,” id. at 513. As Douglas Laycock has noted,

[O]ccupational exclusions have an odious his

tory. The English Test Acts and penal laws

long excluded Catholics from a range of occu’

pations, including positions of responsibility in

the civi) and military service, solicitors, barris

ters, notaries, school teachers, and most busi

nesses with more than two apprentices. These

occupational exclusions are one of the core his”

torical violations of religious liberty, and of

course this history was familiar to the Ameri

can Founders.

Afterword, in Laycock ect al, eds. SAME-SEX

MARRIAGE AND REJIGIOUS LIBERTY: EMERGING

CONFLICTS 201, 296 (2008). Burke’s view of Catholic

second-class citizenship was, moreover, well-known

to Reconstruction Republicans. Thomas Williams, for

instance, analogized Burke’s description of Roman

Catholic disabilities and “lower and degraded ...

citizenship” to the plight of the freedmen. CONG.

GLOBE, 39* Cong. 1*t Sess. 791 (1866).

At least some opponents and supporters of the

Amendment affirmed that it would prohibit the

retroactive occupational limits imposed in some

states against the former secessionists. Just after

Congress approved the Amendment, one newspaper

taunted that “it is a nice question for Missouri and

Tennessee radicals to decide, how, under this

amendment, they could make their test oath work

with [the Privileges or Immunities Clause].” Constr

tutional Amendment, The Weekly Caucasian, June

20, 1866, at 2. The Supreme Court struck down such

limits in Cummings v. Missouri, 71 U.S. 277 (1867),

and Ex Parte Garland, 71 U.S. 333 (1867), while

states were ratifying the Fourteenth Amendment.

Senator Matthew Carpenter appealed at length to

Cummings and Garland in explaining the Privileges

or Immunities Clause in February 1872, calling

Cummings the “best definition | know” for the privi-

leges of citizens of the United States. While Cum:

mings merely described such rights in explaining the

baseline for punishment, Senator Carpenter applied

Cummings’s statement that in America, “all avoca:

tions, all honors, all positions are alike open to

everyone,” 71 U.S. at 321, directly to the Privileges

or Immunities Clause. CONG. GLOBE, 42™4 Cong. 24

Sess. 762 (1872). The Privileges or Immunities

Clause, said Carpenter, “offers all the pursuits and

avocations of life to the colored man, in all the States

of the Union.” /d. Further, Cummings «ited reli

giously-based occupational restrictions for support of

its view that such restrictions are the sort of pun-

ishment covered by the bill-of-attainder and ex-poust-

facto-law prohibitions. 71 U.S. at 320-21. More

recently, the Court has recognized imposing condi-

tions on benefits can “reduce[] [an] individual ... to

second-class citizenship” just as effectively as a

direct penalty. Sperser v. Randall, 357 U.S. 513, 536

(1958) (Douglas, J., concurring). Of course, the Court

need not hold that the right to enter an occupation is

an exceptionless right guaranteed to literally a//

citizens of the United States; it necd merely hold

that religious occupational exclusions are, prima

facie, abridgements of the privileges or immunities of

citizens of the United Stutes.

Today's information technology turns public

accommodations laws into a modern-day Test Act.

Whatever the circumstances of the particular same-

sex couples whose wedding plans have led to the

cases before the Cuurt, affirming the judgment here

will allow other plaintiffs to seek out traditionally

minded wedding professionals precisely in order to

be denied service and thereby force such profession:

als out of public life. If the penalties in individual

cases are not high enough to force bakers like Wil-

liams out of their professions,? potential penalties

from the indefinitely-numerous possib/e plaintiffs

surely will be. A loss by Masterpiece here will inevi-

tably weaponize public-accommodations law.

Like the law at issue here, the Test Acts excluded

by compelling the disfavored group to do something

irreconcilable with their beliefs. Anti-Roman-

Catholic legislation generally required citizens to

endorse some proposition, usually the oath against

transubstantiation, in order to exercise participate in

a particular profession: “I, N, do declare that I do

believe that there is not any transubstantiation in

the sacrament of the Lord's Supper, or in the ele-

ments of the bread and wine, at or after the conse’

cration thereof by any person whatsoever.” Test Act,

25 Car. II, c. 2, § 8, 5 STATUTES OF THE REALM 782,

784 (1673). This is, in itself, not strictly a religious

statement—an atheist would have no problem agree

ing to it, for instance—but rather a secular state-

ment to which Roman Catholics would of course have

2 While the Commission has left unstated what punitive

sanctions await if Masterpiece disobeys its ccase-and-desist

order is not clear, obviously such penaltics would be designed to

force obedience. Oregon, for instance, ordered a similar baker in

that state to pay $135,000 plus interest. See Jn re A/ein, Nos.

44-14 & 45-14 (Ore. Bureau of Labor and Industries, July 2,

2015), available at goo.gl/WO8Jvh, at 42.

religious objections. Requiring bakers to affirm the

propriety of same-sex marriage—a secular statement

to which many bakers would object on religious

crounds—would be directly analogous to the Test

Acts.

To be sure, Colorado here demands of Jack Phillips

not words but his creation of the centerpiece of a

wedding celebration. However, religious market

participants who take rituals, customs, and ceremo

nies seriously have long faced the need to guard

against participating in the message that such

traditions are designed to express. Religious believ-

ers’ assessment of endorsement—that is, their eval-

uation of the message Gud thinks is conveyed, in

context, by particular symbols—of course raises

difficult theological questions. Pau! told the Corin-

thians, for instance, that it was not wrong to eat,

outside of a temple, meat that might have been

sacrificed to idols; members of the Corinthian church

buying their dinners were not required to pry into

sellers’ religious practices to assess how animals had

been killed. Eating idolatrously sacrificed meat,

explicitly presented as such, however, or eating it in

a temple, was an improper cndorsement, according

to Paul: “Eat whatever is sold in the meat market

without raising any question on the ground of con-

science. ... If one of the unbelievers invites you to

dinner and you are disposed to go, eat whatever is

set before you without raising any question on the

ground of conscience. But if someone says to you,

‘This has been offered in sacrifice,’ then do not eat

it.” 1 Cor. 10°25, 27-28 (emphasis added); 1 Cor. 8:10

(“{I]f anyone secs you who have knowledge eating in

an idol's temple, will he not be encouraged, if his

conscience is weak, to eat food offered to idols?”).

Careful attention to the role of locations and customs

is of course required to apply such principles today.

Whatever the medium, compelling expression to

which citizens object on religious grounds clearly has

the potential to impose second-class citizenship on

those citizens. Roman Catholics were asked to say it

with oaths, the Corinthians with meat, Baronelle

Stuntzman with flowers, Elane Photography with

photos, and Masterpiece with wedding cakes. But the

legitimacy of occupational qualifications should of

course not turn on the language of communication.

Indeed, those who advocate bans on private dis:

crimination out of a concern for “disrespect”’—as the

court below did in analogizing the case to official

state discrimination in Obergefel/ v. Hodges, 135

S.Ct. 2604 (2015), see Craig v. Masterpiece

Cakeshop, 370 P.3d 272, 281 (Colo. App. 2015)—

make clear that the rationale of applying public:

accommodation laws is preciscly to require profes

sionals to send a particular message, not merely to

allow access to goods and services. See also State v.

Arlene’s Flowers, Inc., 389 P.3d 543, 851 (Wash.

2017) (“[P]ublic accommodations laws do not simply

guarantee access to goods or services”); Hlane Pho-

tography, LLC v. Willock, 309 P.3d 53, 80 (N.M.

2013) (Bosson, J., concurring) (requirement to convey

a “sense of respect” is the “price of citizenship”); Ja re

Klein, Nos. 44:14 & 45-14 (Ore. Bureau of Labor and

Industries, July 2, 2015), available at

goo.g/WO8Jvh, at 32, 33 (“This case is not about a

wedding cake or a marriage,” but about cakeshop’s

“clear and direct statement”); USA Today, Gay

Marriage: Siding with Religious Baker 1s Problemat-

tc, June 26, 2017, goo.gl/aJSM3R (“[T]he right of

same-sex couples to marry is the law of the land. As

Justice Anthony Kennedy wrote in his 2015 majority

opinion, “The Constitution promises liberty to all

within its reach, a liberty that imeludes specific

rights that allow persons, within a lawful realm, to

define and express identity. Why would the court

now want to countenance people who object to that?)

(emphasis added). The entire point of applying

public accommodations laws to professionals like

Masterpiece, under rationales like these, is to compel

them to either express a more positive attitude

toward same-sex marriage or leave public life.

IV. Mere privately-inflicted dignitary harm in a

market with readily available substitute goods

does not justify restrictions on others’ civil

rights.

The fact that professionals with moral or religious

objections to same-sex marriage will face occupation-

al restrictions if they are required to provide goods

and services to such ceremonies does not guste end

the case. Even robust interpretations of the Privileg-

es or Immunities Clause make a tacit exception for

the promotion of health, safety, and morals. See

Bartemeyer v. Iowa, 85 U.S. 129, 138 (1874) (Field,

J., concurring). Republican adoption of the Civil

Rights Act of 1875 makes plain that the Fourteenth

Amendment does not embody an unqualified, unlim-

ited right of all businesses to deny service to custom:

ers fur any reason. The Fourteenth Amendment

clearly continues an Enghsh common-law tradition

allowing many sorts of market intervention. Those

interventions, however, are themselves not unlim-

ited. The interests as stake here clearly lie outside

the police power as the English and American com:

mon-earrier traditions and Reconstruction Republi

cans construed those limits.

Republicans teok the Fourteenth Amendment to

embody a common-law tradition that justified mar-

ket interventions to promote freedom of competition

or supply a remedy when such competition is impos

sible, as with local natura] monopolies. Without even

an assertion here of any state-granted or natural

monopoly, reflected in a scarcity of substitute goods

and services, there is no justification for pushing

Masterpiece out of the market. Indeed, as modern

technology lowers the costs of locating alternative

wedding professionals to the vanishing point, such a

police-powcr justification grows weaker every day.

At many times in the past, public accommodations

law has been the only vehicle for promoting tangible

access to the market for the victims of private dis-

crimination. Where such tangible access is at stake,

there will of course be difficult borderline cases in

which those tangible interests must be weighed

against costs for religious liberty. But this case is

not a difficult one, because there are no tangible

issues of marketplace access for same-sex couples.

The state has not even attempted to show that other

cakeshops ure not standing by to meet the full com-

plement of same-sex couples’ celebratory needs. No

natural monopoly even arguably justifies imposing

common-carrier-style duties on Masterpiece. Cf

Andrew Koppelman with Tobias Wolff, A RIGHT TO

DISCRIMINATE? 108, 117 (2009) (“The position in

society of the BSA is not that of one small booth in

the pluralist bazaar”; possible that “the BSA pos:

sesses a quasivmonopoly over a valuable cultural

resource”); Koppelman, Gay Rights, Religious Ac-

commodations, and the Purposes of Antidiscrimina-

tion Law, 88 S. Cal. L. Rev. 619, 652-53 (2015)

(‘(T]he human costs of refusing accommodation are

serious... the costs of accommodation in any particu-

lar case are trivial ... the refusal to accommodate ts

therefore irrational.”); sd. at 645 (“[T]he burden on

Vanessa Willock of being refused service, even if one

counts the stress, is less than the burden on Elaine

Huguenin of going out of business.”).

Prior to their enactment of the Civil Rights Act of

1875, Republicans gave a great deal of attention to

the nature of common-carrier-style rights and their

relationship to the Privileges or Immunities Clause.

To be sure, these discussions reveal sume intra-

Republican disagreement and fuzziness about the

precise edges of the relevant categories. In response

to religious-liberty concerns, for instance, Republi-

cans removed churches and cemeteries from the bill;

several Republicans argued compellingly that such

exclusions were constitutionally compelled, even in

cases where a single local church or cemetery might

be said to have something like a natural monopoly.

See Michael W. McConnell, Origtnalism and the

Desegregation Decisions, 81 Va. L. Rev. 947, 1050-51

(1995). The Congressional Globe and Congressional

Record also, however, display a great deal of consen-

sus among Republicans and continuity between the

Fourteenth Amendment and the Englhsh common-

law tradition. Republicans consistently justified

market interventions the same way as had tradition-

al English law.

By the time of Reconstruction, the English and

American law of public accommodations had long

made a three-fold division of rights first marked

crisply by Chief Justice Matthew Hale’s 1670 treatise

DE PORTIBUS MARIS (Concerning the Gates of the

Sea):

e a purely private/social zus privatum outside

governmental power,

e a purely governmental ius regium consisting of

the government's own responsibilities, such as

the protection of life and property and the oper-

ation of a system of criminal and civil justice,

and

e the sus publicum, the overlapping civic/social

realm in which common carriers and other

businesses “affected with a public interest” op-

erate.

Francis Hargrave, ed., A COLLECTION OF TRACTS

RELATIVE TO THE LAW OF ENGLAND 45-113, 78 (1787).

Hale’s three-fold distinction was incorporated to

English law in A//nutt v. Inglis, 104 Eng. Rep. 206

(K.B. 1810), and thence into American substantive-

due-process law in Munn v. Illinois, 94 U.S. 113, 125-

29 (1877), which reviewed both Hale and A//nutt in

great detail. Hale’s views had been amply received

into American law, however, well before Munn; one

court noted of De Jure Maris, a companion essay to

De Portibus Maris, citing five earlier cases, that “its

authority has been repeatedly recognized in this

country.” Young v. Harrison, 6 Ga, 130, 142 (1849).

Alinutt and Munn both quote Hale’s rationale for

imposing special duties of a wharf not to charge

excessive rates: “because they are the wharls only

licensed by the Queen, or because there is no other

wharf in that port.” Ad/nutt, 104 Eng. Rep. at 211;

Munn, 94 U.S. at 127 (both quoting Hale at 77). With

other wharves available, competititon will of course

prevent an owner from being able to charge exotori-

onate prices. The extent of legal and natural monopo-

lies—1i.e., the lack of a readily-available substitute

goods and services—mark the furthest extent of any

police-power justification for imposing common-

carrier-style rights on private parties. Private rate

setting in a genuinely competitive market, like the

purely-private racial insult discussed at length by

Reconstruction Republicans, is beyond state power.

Richard Epstein’s work canvasses the economic

background and latcr history at length. Public Ac-

commodations Under the Civil Rights Act of 1964:

Why Freedom of Association Counts as a Human

Right, 66 Stan. L. Rev. 1241, 1249-63, 1261-63

(2014); The Histury of Public Uuhty Rate Regulation

in the United States Supreme Court: Of Reasonable

and Nondiscriminatory Rates, 38 J. Sup. Ct. Hist.

345, 346-50 (2013); PRINCIPLES FOR A FREE SOCIETY:

RECONCILING INDIVIDUAL LIBERTY WITH THE COMMON

GOOD 279-318 (2002).

Sumner and other Republicans made very clear

that the overlapping civic/social realm—Hale’s ius

publicum—must be desegregated and purged of

insulting stigmatic harm. Sumner famously summa-

rized the message of segregation: “I am better than

thou, because I am white. Get away!” CONG. GLOBE,

42-¢ Cong. 2™4 Sess. 383 (1872). This was not a

message that would be tolerated in the realm of

common carriers under a legal obligation to serve the

public on equal terms. Outside the civic ream, how:

cver—that is, outside the ream of the “privileges or

immunities of citizens,” in Hale’s ius privatum—

Sumner and other Republicans recognized that

freestanding stigmatic injury could and would be

legally inflicted. Democrats accused Republicans of

enforcing purcly private social rights, rather than

civil rights, in the Civil Rights Act of 1875, but

Republicans steadfastly denicd the charge. The

social/civic distinction was genuine, they said repeat:

edly; the two realms overlapped but were not identi

cal. This is what it means to have a separate !us

publicum (the overlapping sphere) and sus privatum

(the purcly-social sphere). And Republicans, most

definitely including Sumner, acknowledged the

existence of a purely social realm as well as the

mixed civil-social one. See Green, Equal Citizenship,

at 207-211 (explanations from Senators James

Alcorn, Henry Arnthony, Matthew Carpenter, James

Flanagan, Frederick Frelinghuysen, John Sherman,

and Charles Sumner, and Representatives Alonzo

Ransier and William H.H. Stowell); zd. at 106-07

(explaining civic-social distinction in context of racial

insult of Ransier on the floor of the House); Be// v.

Maryland, 378 U.S. 226, 313 (1964) (Goldberg, J.,

concurring) (“[T]he Congress that enacted the Four:

teenth Amendment was particularly conscious that

the ‘civil’ rights of man should be distinguished from

his ‘social’ rights. ... [Rights pertaining to privacy

and private association are themselves constitution-

ally protected liberties.”).

In the same speech in which Sumner condemned

segregation so eloquently, he launched into a de:

tailed exposition of the law of common carriers, a law

guite conspicuously English in origin. Sumner him

self begins with English precedents, see CONG.

GLOBE, 42°? Cong. 24 Sess. 383 (1872), and the

treatises on which he relicd—Justice Story on bail:

ments, Kent’s Commentaries, Theophilus Parsons on

contracts, and Chamber’s Encyclopedia—are all

squarely rooted in English law. Chancellor Kent

proclaimed in this context, “[WJe cannot but admire

the steady and firm support which the Enghsh courts

of justice have uniformly and inflexibly given to the

salutary rules of Jaw on this” subject.” 2

COMMENTARIES ON AMERICAN LAW 602 (1826). This

Court has itself recognized the continuity between

English common Jaw, Sumner’s approach in 1872,

and Munn. Sce Hurley v. Irish-American Gay,

Lesbian, and Bisexual Group of Boston, 515 US.

557, 571 (1995) (citing and quoting English cases); 7d.

(following Bell v. Maryland, 378 U.S. 226, 298 n.17

(1964) (Goldberg, J., concurring), in turn associating

Munn and Sumner’s January 1872 explanation of the

common law with English cases).

Onc of the cases cited by Theophilus Parsons at the

point at which Sumner cites the treatise nicely

illustrates the sort of natural monopoly for which

common-carrier-style innkeeper’s duties would

apply. See CONG. GLOBE, 42°¢ Cong. 2™ Sess. 383

(1872) (citing and quoting “Professor Parsons, in his

work on Contracts, so familiar to lawyers and stu-

dents”); Theophilus Parsons, 2 THE LAW OF

CONTRACTS 163 n.z (6'» ed. 1873) (citing Hawthorn v.

Hammond, 174 Eng. Rep. 866, 868-69 (1844) for the

proposition for which Sumner quotes the treatise).

The plaintiff in Hawthorn claimed to have knocked

with his brother at the door of the defendant’s inn at

ten o'clock at night “for ten minutes or a quarter of

an hour,” after which they “tried to obtain accommo:

dation at a beer house,” found the beer-house full,

then came back to the defendant’s inn, knocked

again without success, and therefore were “obliged to

go on to Bridgenorth.” A jury issue was presented on

whether the defendant heard the knocking and

whether, if so, the defendant could have reasonably

concluded that the plaintiff and his brother “were

drunken persons, who had come to make a disturb-

ance.” The “trouble, inconvenience, and expense”

caused by the scarcity of alternative sleeping ac-

commodations—-mid-nineteenth century — late-night

travel to a different town— -is plainly absent here.

Joseph Singer's reboot of the — public

accommodations origin story, No Right to Exclude:

Public Accommodations and Private Property, 90

Nw. U. L. Rev. 1283, 1292 (1996) (hereafter No

Right), claims that a natural-monopoly justification

for, and limit on, common-carrier law was “the

invention of’ Harvard Law Professor Bruce Wyman.

However, while Singer's article 1s massive—215

pages—its omissions are glaring and fatal. Singer

does not even mention De Portibus Maris or A//nutt,

the classic English monopoly-based explanations of

the law of common carriers. Appearing in 1670 and

1810, they decisively cut the legs from under Singer's

claim that such justifications arose only after the

Civil War. Singer’s specific claim regarding English

law his “no” to the question “Specifically, did the

idea of monopoly or the idea of a government license

have anything to do with it, as suggested by later

scholars?,” sd. at 1303 is just wrong, as is Singer's

emphatic claim of a complete absence of monopoly

justification in antebellum cases, id. at 1319 (‘it is

important to note that mune of the antebellum cases

bases the duty to serve on the fact of monopoly,”

emphasis in original).4

3 In addition to his failure to mention A//nutt, the most prom-

inent English case giving a monopoly justification for common

carriers’ duties, Singer also appears to mention none of the

twenty American antebellum “representative cases about the

Calling Professor Wyman “the progenitor of the

monopoly theory,” sd. at 1329, Singer cites, and

quotes at length, two short (18- and 14-page) articles

of his: The Law of the Public Callings as a Solution of

the Trust Problem, 17 Harv. L. Rev. 156 (1904)

(Public Callings), and The Inherent Limitation of the

Pablic Service Duty to Particular Classes, 23 Harv.

L. Rev. 339 (1910). However, Singer fails to mention

Wyman’s 706-page treatisc, THE LAW GOVERNING

PUBLIC SERVICE CORPORATIONS (1911) (Public Ser-

vice), which, like the articles, is an extended expla-

nation of “the distinction between the private call-

ings—the rule—and the public callings—the excep-

tion.” Jd. at vi; cf Public Callings at 156 (beginning

with same phrase). While Wyman’s short articles du

not mention Hale, A//nutt, and Munn, his treatise

cites them repeatedly, see Public Service at 14, 16,

44, 46, 56, 78-80, 122, 158, 170, 203, 255-56, 284, and

calls the monopoly-based passage from Hale’s De

Portibus Maris distinguishing the zus privatum from

ius pubhcum “the most famous paragraph in the

whole law relating to public service.” /d. at 14. Sing:

er complains that Wyman was “misreading the older

law,” No Right at 1408, but fails even to mention

Wyman’s central sources.

In addition to completely missing Hale and Al/nutz,

Singer barely mentions Munn, which of course itself

discussed Hale and A//nutt extensively. Singer says

only that Munn “justified legislative regulation of

businesses ‘affected with a public interest,’ ” No

monopoly characternstics of common carriers and their fran-

chises and licenses” listed in Avins, The Civil Rights Act of

1875° Some Reflected Light on the Fourteenth Amendment and

Public Accommodations, 66 Colum. L. Kev. 873, 888 n.80

(1966).

Right at 1403, claiming that “it was not clear wheth-

er this category would be broad or narrow.” But

Munn's category, taken from Hale, is unclear only if

we ignore Hale and A//nutfs natural-or-artificial-

monopoly rationale for it.

Sumner’s appropriation of English law into the

Fourteenth Amendment makes clear thut Muna was

right to associate the American law of common

carriers tightly with Chief Justice Hale’s economic

rationale. Munn’s use of substantive due process as

the vehicle for Hale's limits on that law was a sec-

ond-best accommodation to the premature death of

the Privileges or Immunities Clause in 1873; even if

it got the clause wrong, the constitutionalization

decision itself—-that commonccarrier‘style price

regulations may be unconstituitional in “some cir

cumstances ... but not under all,” 94 U.S. at 125, was

sound.

Munn’'s explanation of Hale and cases lke A/nutt

fits perfectly with Republican explanations of the

Privileges or Immunities Clause; the Court repeated-

ly refers to “citizens” and other language from the

Clause. See, e.g, 94 U.S. at 124 (referring to the

“rights or privilges” with which “citizens” part when

they enter society); id at 125 (“the government

regulates the conduct of its citizens one towards

another, and the manner in which each shall use his

own property, when such regulation becomes neces”

sary for the public good’); sd. at 129 (“the right of the

citizen to pursuc his lawful trade or calling’). As in

Aligeyer v. Louisiana, 165 U.S. 578, 589-90 (1897),

McDonald v. Chicago, 561 U.S. 742, 762 n.9 (2010),

and the many religion-clause equal-citizenship cascs

cited earlier, the stream of historical evidence rele-

vant to the original meaning of the Privileges or

Immunities Clause fed into the substantive due

process river in Munn.

The natural-monopoly rationale raises some diffi-

cult boundary cases; Justices Field and Strong

thought it would not justify the price controls in

Munn. But while Munn might be a difficult case, this

is not one. With substitute goods readily at hand, the

natural monopoly rationale never gets started.

Unless changing Masterpiece’s moral and religious

views is stse/f deemed, as such, an improvement in

public morals—a position obviously inconsistent with

even the most minimal! religious liberty—Colorado’s

stance here lacks police-power justification. “In order

to allow equal citizenship for others, you must find

another cakeshop” is plainly a message more con:

sistent in this context with the original understand-

ing of the Fourteenth Amendment than “In order to

allow equal citizenship for others, you must find

another profession.”

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

DAVID R. UPHAM CHRISTOPHER R. GREEN

Counsel of Record UNIVERSITY OF MISSISSIPPI

UNIVERSITY OF DALLAS SCHOOL OF LAW

1845 E. Northgate Drive 481 Chucky Mullins Drive

Irving, TX 75062-4736 University, MS 38677

(972) 721-5186 (662) 915-6837

davidrupham@yahoo.com crgreen@olemiss.cdu

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.