Like several other big First Amendment cases the Supreme Court will hear this year, Masterpiece Cakeshop is not really a First Amendment case. By its terms, the First Amendment restrains only “Congress” from making laws abridging “the freedom of speech” or prohibiting “the free exercise” of religion, but the Masterpiece case involves a state law. It is the Fourteenth Amendment, adopted after the Civil War, that restricts the states’ powers over religion or speech. Yet, as in last year’s Trinity Lutheran case, the Fourteenth Amendment has barely been mentioned in the briefing so far.
Our amicus brief to the Court in Masterpiece Cakeshop is so far the only attempt to consider at length the relevance of the original meaning of the Fourteenth Amendment for the case. Our scholarly work has documented in detail—sometimes quite tedious detail!—that the original meaning expressed by “privileges or immunities of citizens of the United States,” which the Fourteenth Amendment guaranteed the freedmen, includes civic equality with all similarly situated fellow citizens of the United States. Although it is fuzzy at the margins, the authors of the amendment made its central applications very clear, especially in the Civil Rights Acts of 1866, 1871, and 1875 and in the discussions leading to them. In particular, they made clear that the Fourteenth Amendment forbids not only racial discrimination, but also creedal discrimination—giving fewer rights to some citizens because of their religious or political beliefs. In many ways, to be sure, hostility to creedal discrimination resonates with current First Amendment speech and religion doctrine. When states are involved, however, originalist interpretation can and should stand on its own Fourteenth Amendment foundation of equal citizenship.
Equal citizenship has long been the theme of Americans’ conception of religious freedom. In language repeatedly quoted by the Supreme Court, James Madison complained in 1785 that a religious assessment would “degrade from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.” George Washington boasted in 1790 that in America, “All possess alike liberty of conscience and immunities of citizenship.”
Racial and creedal discrimination were seen as analogous in many settings. In 1690, John Locke’s Letter Concerning Toleration analogized religious and racial failures to give some citizens “the same privileges as other citizens.” In 1840, the committee that led Massachusetts to eliminate its ban on interracial marriage analogized it to bans on inter-religious marriage, which had “deprived [religious minorities] of the rights of citizens.” The Republican Party’s 1860 platform applied Article IV’s reference to the “privileges and immunities of citizens” to creedal discrimination against anti-slavery views, and in 1866 Republicans routinely denounced discrimination on the basis of “race, color, or creed.” While the substantive provisions of the Civil Rights Act of 1875 concerned racial distinctions, its preamble noted the constitutional obligation to supply “equal and exact justice to all, of whatever nativity, race, color, or persuasion, religious or political.” Our amicus brief details a great deal more evidence in this vein.
Given that the Fourteenth Amendment prohibits creedal discrimination, what rights does it cover? The rights of citizens, both etymologically and in common usage, are civil rights. It was utterly uncontroversial during Reconstruction that civil rights included occupational economic freedoms. The Civil Rights Act of 1866 covered the rights “to make and enforce contracts” and “to inherit, purchase, lease, sell, hold, and convey real and personal property.” Justice Bushrod Washington’s 1823 circuit opinion explaining the “privileges and immunities of citizens,” which was widely quoted by Republicans in 1866, covered the rights “to pass through or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise” and immunity from discriminatory taxation (“exemption from higher taxes or impositions than are paid by the other citizens of the State”). In America, Senator Matthew Carpenter said in 1872, “all avocations, all honors, all positions are alike open to everyone,” applying the language of the Supreme Court when it struck down attempts to exclude Confederates from particular professions. 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.”
How does this doctrine apply to Masterpiece Cakeshop? The state of Colorado ordered the owner, Jack Phillips, to prepare and deliver a cake for a same-sex wedding, just as he would for a wedding between a man and a woman. Phillips objects to the demand because, as he sees things—or, more to the point, as he believes that God sees things—to supply those services for a same-sex wedding would represent a participation in, and endorsement of, that celebration. Assessing “participation” and “endorsement” is, of course, no less context-sensitive and theologically fraught than were the questions about the precise relationship of meat to a religious ceremony on which Paul advised the Corinthians. But Colorado wants to coerce bakers like Phillips into either changing his views on marriage, changing his views on what counts as participation or endorsement, or abandoning the field of customized wedding-cake preparation. The policy thereby coercively excludes American citizens from a profession on the basis of their beliefs.
Does Colorado have a good reason to impose this sort of creedal occupational restriction? Much of the briefing on the First Amendment issue turns on whether designing and selling a cake for a wedding really counts as “participation” or “endorsement” under the Supreme Court’s case law. But on our view of the Fourteenth Amendment evidence, Phillips has the right to decide those questions for himself—to adopt his own creed on how God views his marketplace interactions with others’ celebrations. Only, perhaps, if the state can articulate a sufficient justification under its traditional police powers is it permitted to push bakers like Masterpiece out of the marketplace.
Colorado’s justification for its coercion is, of course, that Phillips’s refusal to provide his services inflicts a purely dignitary harm on same-sex couples. The state has not attempted to show any harm beyond a pure dignitary harm. The state has not attempted to show that alternative celebratory goods and services are not readily available, nor could it, given the existence—as elegantly noted by an amicus brief by law-and-economics scholars led by Richard Epstein—of same-sex-wedding-friendly bakeshops only a tenth of a mile away:
Under the Fourteenth Amendment, is purely dignitary harm enough to justify a restriction on civil rights, such as a creedal occupational limit? As it happens, the Republicans discussed purely dignitary harm at great length prior to the Civil Rights Act of 1875, and their answer was unambiguous: no. From the very beginning of the debate, Republicans insisted that “social rights”—i.e., freedom from dignitary harm—were conceptually distinct from, though overlapping, civil rights. In Chief Justice Matthew Hale’s seventeenth-century language, businesses “affected with a public interest”—that is, that were the only source for a particular good or service—could be subject to the duty not to supply such goods and services in a segregated fashion. As Charles Sumner put it in January 1872, segregation in such a context sent a message “I am better than thou, because I am white. Get away!”
These debates make very clear, however, that the Amendment imposed no duty on private citizens to avoid stigmatic injury. Republicans exhibited a racist insult of Representative Alonzo Ransier on the floor of the House as the sort of social distinction that was not covered by the Fourteenth Amendment, and indeed was itself constitutionally protected. An appendix here shows how Senators James Alcorn, Henry Anthony, Matthew Carpenter, James Flanagan, Frederick Frelinghuysen, John Sherman, and Charles Sumner; Representative William H.H. Stowell; and Ransier himself all set out this theory at length. To be an American is to be subject to other Americans’ assessments of honor, dishonor—and, yes, insults—but also to have room to give and inflict one’s own assessments. The indignity of seeking a different provider is not enough to justify a creedal restriction on civil rights.
Discussions preceding the Civil Rights Act of 1875 considered at length exactly the sort of social/dignitary harm divorced from tangible impact on civil rights at issue in Masterpiece Cakeshop. Republicans made clear not only that private, purely social expressions were not rendered unconstitutional by the Fourteenth Amendment, but that such associational expressive freedom was affirmatively protected by the Amendment. Many Republicans relied on a distinction between “civil” harms and purely “social” harms to define the scope of the Amendment—a distinction deeply rooted in Anglo-American law.
Anglo-American Common Law
Republicans’ explanations of the Fourteenth Amendment made very clear that the Republican legal theory of civil rights under the Fourteenth Amendment came directly from the Anglo-American law of public accommodations and common carriers. Republicans’ tripartite distinction between social, civil, and political rights mirrored Chief Justice Hale’s tripartite distinction two centuries before in his 1670 treatise De Portibus Maris (Concerning the Gates of the Sea). Hale distinguished a purely private ius privatum beyond regulation, a purely governmental ius regium concerning the ruler’s duties, and an intermediate ius publicum of businesses “affected with a public interest.” The key to this framework was distinguishing ius publicum from ius privatum: what exactly rendered a business “affected with a public interest”? That public interest arose, Hale said, from the lack of substitute goods and services: as applied to a commercial bottleneck like a wharf, “because they are the wharfs only licensed by the Queen, or because there is no other wharf in that port.”
English courts adopted Chief Justice Hale’s analysis in Allnutt v. Inglis in 1810, particularly in Lord Chief Justice Ellenborough’s opinion in the case. And within a decade of the Fourteenth Amendment’s adoption, in Munn v. Illinois (1877), our Supreme Court did the same, quoting both Hale and Allnutt to hold that the states could adopt certain rate-setting laws. While Munn’s use of substantive due process rather than the Privileges or Immunities Clause to protect civil rights was a second-best approach, the rule taken from Hale and Allnutt fits perfectly with early Republican thought on the Fourteenth Amendment.
In an amicus brief partly responsive to ours, Professor Joseph Singer and his academic allies tell a very different story of Anglo-American public-accommodations and common-carrier law. In the brief, as in a huge 1996 law review article, Singer has argued that even absent any sort of natural monopoly or scarcity of substitute goods and services, the common law required professionals to accept all customers. Modern public accommodations statutes, on this account, would actually have been unnecessary before the right to exclude rose, under this story, in the late-nineteenth and early-twentieth centuries.
Both Singer’s article and the amicus brief, however, massively downplay the historical prevalence of monopoly-based justifications for market interventions in this context. Hale and Allnutt, for instance, are not mentioned in the 215 pages of Singer’s article. Nor does the article so much as mention any of the twenty antebellum cases described by Alfred Avins in a 1966 article (see here) as “representative cases about the monopoly characteristics of common carriers and their franchises and licenses.” Amid a claim that no antebellum cases tie common carriers’ duty to serve to their monopoly powers, these silences in Singer’s article speak volumes.
Misstating the Duty to Serve
Singer’s amicus group claims, without any supporting proof, “Only one of the cases cited by Professor Avins even discusses the duty to serve,” and then cites Avins’s single post-war case, the Messenger case from New Jersey in 1874. But Avins’s other cases—twenty antebellum, four during the war—most certainly do discuss the duty to serve the public, and they consistently associate that duty with a monopoly power. Skip now to the next paragraph to spare yourself the gory details! Avins’s cases refer to the right of “all and every person and persons who should pass over and use the said bridge” (here, from New York in 1821), to the common carrier being “bound, at all times, to be ready with good boats and craft to convey passengers” (here, from South Carolina in 1822), to the “right of passing” over a public highway (here, from North Carolina in 1830), to the existence of “a right of way given to the public over the property of the individual to whom the toll was granted” (here, from New York in 1832), to a “toll-bridge” being “as much an object of public concern as a turnpike road or a highway” (here, from Ohio in 1832), to the rule for turnpikes that “Every traveller has the same right to use it, paying the toll established by law“ (here, from Massachusetts in 1834), to a bridge franchise as a “great public highway for the convenience of the citizens” (here, from New Hampshire in 1834), to a railroad “being generally open and free for the ordinary purposes” (here, from Kentucky in 1839), to the fact that “[p]ublic convenience was the consideration for the grant” (here, from Mississippi in 1841), to the fact “that the owner of a ferry is bound to the public to keep it in repair and readiness for the ease of the citizens” (here, from North Carolina in 1845, following Blackstone), to a bridge being “abundantly adequate to all public travel” (here, from Connecticut in 1845), to the common carrier being “bound, at all times, to give reasonable accommodation to the public” (here, again from Connecticut in 1845, citing Hale), to the right of incoming vessels to “claim the inner berth at the wharf for a reasonable time” (here, from Pennsylvania in 1846), to the fact that “no greater evil could well be imagined than the unrestrained power, on the part of individuals, to exact from the traveler, who cannot brook delay, nor stipulate for terms, whatever cupidity might exact” (here, from Georgia in 1849, following and paying tribute to Hale), to a requirement that a bridge “should be free and open to the citizens of the county” (here, from Arkansas in 1859), to “all the conditions required of vessels in that service” (here, from New York in 1860), to the “right to use the road, and to require it to be kept open for public use” (here, from New York in 1861), to a franchise that “gave the company the power to build it, and to all the people the privilege to use it upon paying the tolls” (here, from New Jersey in 1863), to the fact that “all railroads are compelled to act as common carriers for the conveyance of all passengers and property that may come to their road for that purpose” (here, from California in 1863), and to the imposition of “certain duties and burdens on the grantee,” including “the rate of tolls to be charged” given “the interests and welfare of the traveling public” (here, from Kentucky in 1863).
Another very important error in detail relates to Munn. The scholars’ brief quotes Munn’s analogy from bakers and other public employments to grain elevators, but omits the introductory key phrase—“under such circumstances”—which refers to the “‘virtual’ monopoly” in the previous sentence. The Court made perfectly clear in Charles Wolff Packing v. Court of Industrial Relations in 1923 that under Munn, bakers and kindred professions are not “clothed with a public interest” simply because they offer food to the general public.
Most fundamentally, Singer and his amicus group err by unnecessarily pitting two rationales for common-carrier duties against each other. Do common carriers exercise special market power (a) because they occupy a strategic position of local monopoly, as Hale, Allnutt, and Munn say, or instead (b) because they hold themselves out to the public at large, inviting the public to rely on them, as comments from Blackstone, Story, and others suggest? The right answer is that the reliance interest in rationale (b) is an instance of the local monopoly in rationale (a). Offering services to the public will frequently, especially in markets catering to travelers, induce offerees to abandon substitute goods and services, giving the initial offeror no-other-available-game-in-town bargaining power. Lack of readily available alternatives is thus the means by which reliance on a general offer to the public produces damages. The leading early case on common-carrier bailment duties, Coggs v. Bernard from 1703, makes this clear: such special duties were “contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons.”
In sum, the common law and the original Republican understanding of the Fourteenth Amendment converge on the same intuitive argument in favor of Masterpiece Cakeshop: America is an inclusive republic, where all citizens, regardless of race, color, creed, or way of life, have a right to participate in the marketplace, free from the creedal exclusions imposed by those armed with state coercive power, save perhaps where that citizen uses some monopoly power to exclude other citizens from the market. Colorado has sought to force the baker either to leave his profession or provide wedding-related services incompatible with his creed. He can have no duty to provide such services where the same-sex couple can obtain their wedding cake a short distance down the street. Jack Phillips has no market power over dissenting minorities like that exercised in the Jim Crow South; he himself is the member of a dissenting creedal minority who seeks simply the liberty to participate in the market consistently with his conscience. When substitute goods and services are readily available, there is no moral, common-law, or Fourteenth Amendment justification for creedal and exclusionary limits on occupational freedom.