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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

rECCRO FILED
AND | SEP -7 2017
aw

No. 16-111 | ope COEF ER
IN THE

Supreme Court of the United States

re

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

1
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.

uu

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

iV

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

Vv

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

vl

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

1x
TABLE OF AUTHORI' iES—Continued
Page

Harrison, Reconstructing the Privileges or
Immunities Clause, 101 Yale Ld. 1385

Ra deccetncsis cabin cata hanccanss cae deadacponssipientnaneonase

Cr

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

x

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

a

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

34

34

13-14

24°25

Xl

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.

2

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

3

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.

4

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

6

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

7

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).

8

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

q

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.

10

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

11

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

12

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

13

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

14

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

15

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:

16

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).

17
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:

18

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

19

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

20

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

21

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

22

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.

23

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.

24

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?”).

25

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

26

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:

27

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-

28

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

29

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

30

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

31

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

32

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

33

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

34

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).

35

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-

36

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0693%3A058. Public record. Not legal advice.