Other Areas of Discrimination
The “separate but equal” doctrine won Su-preme Court endorsement in the transportation context,1772 and its passing in the education field did not long predate its demise in transportation as well.1773 During the interval, the Court held invalid a state statute that permitted carriers to provide sleeping and dining cars for white persons only,1774 held that a carrier’s provision of unequal, or nonexistent, first class accommodations to African-Americans violated the Interstate Commerce Act,1775 and voided both state-required and privately imposed segregation of the races on interstate carriers as burdens on commerce.1776 Boynton v. Virginia1777 voided a trespass conviction of an interstate African-American bus passenger who had refused to leave a restaurant that the Court viewed as an integral part of the facilities devoted to interstate commerce and therefore subject to the Interstate Commerce Act.
In the aftermath of Brown v. Board of Education, the Court, in a lengthy series of per curiam opinions, established the invalidity of segregation in publicly provided or supported facilities and of required segregation in any facility or function.1778 A municipality could not operate a racially segregated park pursuant to a will that left the property for that purpose and that specified that only whites could use the park,1779 but it was permissible for the state courts to hold that the trust had failed and to imply a reverter to the decedent’s heirs.1780 A municipality under court order to desegregate its publicly owned swimming pools was held to be entitled to close the pools instead, so long as it entirely ceased operation of them.1781
Statutes that forbid the contracting of marriage be-tween persons of different races are unconstitutional,1782 as are statutes that penalize interracial cohabitation.1783 Nor may a court deny custody of a child based on a parent’s remarriage to a person of another race and the presumed “best interests of the child” to be free from the prejudice and stigmatization that might result.1784
Segregation in courtrooms is unlawful and may not be enforced through contempt citations for disobedience1785 or through other means. Treatment of parties to or witnesses in judicial actions based on their race is impermissible.1786 Jail inmates have a right not to be segregated by race unless there is some overriding necessity arising out of the process of keeping order.1787
Whether discrimination practiced by operators of retail selling and service establishments gave rise to a denial of constitutional rights occupied the Court’s attention considerably in the early 1960s, but it avoided finally deciding one way or the other, generally finding forbidden state action in some aspect of the situation.1790 Passage of the Civil Rights Act of 1964 obviated any necessity to resolve the issue.1791
Although, of course, the denial of the franchise on the basis of race or color violates the Fifteenth Amendment and a series of implementing statutes enacted by Congress,1792 the administration of election statutes so as to treat white and black voters or candidates differently can constitute a denial of equal protection as well.1793 Additionally, cases of gerrymandering of electoral districts and the creation or maintenance of electoral practices that dilute and weaken black and other minority voting strength is subject to Fourteenth and Fifteenth Amendment and statutory attack.1794
- Plessy v. Ferguson, 163 U.S. 537 (1896).
- Gayle v. Browder, 352 U.S. 903 (1956), aff’g 142 F. Supp. 707 (M.D. Ala.) (statute requiring segregation on buses is unconstitutional). “We have settled beyond question that no State may require racial segregation of interstate transportation facilities. . . . This question is no longer open; it is foreclosed as a litigable issue.” Bailey v. Patterson, 369 U.S. 31, 33 (1962).
- McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151 (1914).
- Mitchell v. United States, 313 U.S. 80 (1941).
- Morgan v. Virginia, 328 U.S. 373 (1946); Henderson v. United States, 339 U.S. 816 (1950).
- 364 U.S. 454 (1960).
- E.g., Mayor & City Council of Baltimore v. Dawson, 350 U.S. 877 (1955) (public beaches and bathhouses); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (municipal golf courses); Muir v. Louisville Park Theatrical Ass’n, 347 U.S. 971 (1954) (city lease of park facilities); New Orleans City Park Improvement Ass’n v. Detiege, 358 U.S. 54 (1958) (public parks and golf courses); State Athletic Comm’n v. Dorsey, 359 U.S. 533 (1959) (statute requiring segregated athletic contests); Turner v. City of Memphis, 369 U.S. 350 (1962) (administrative regulation requiring segregation in airport restaurant); Schiro v. Bynum, 375 U.S. 395 (1964) (ordinance requiring segregation in municipal auditorium).
- Evans v. Newton, 382 U.S. 296 (1966). State courts had removed the city as trustee but the Court thought the city was still inextricably bound up in the operation and maintenance of the park. Justices Black, Harlan, and Stewart dissented because they thought the removal of the city as trustee removed the element of state action. Id. at 312, 315.
- Evans v. Abney, 396 U.S. 435 (1970). The Court thought that in effectuating the testator’s intent in the fashion best permitted by the Fourteenth Amendment, the state courts engaged in no action violating the Equal Protection Clause. Justices Douglas and Brennan dissented. Id. at 448, 450.
- Palmer v. Thompson, 403 U.S. 217 (1971). The Court found that there was no official encouragement of discrimination through the act of closing the pools and that inasmuch as both white and black citizens were deprived of the use of the pools there was no unlawful discrimination. Justices White, Brennan, and Marshall dissented, arguing that state action taken solely in opposition to desegregation was impermissible, both in defiance of the lower court order and because it penalized African-Americans for asserting their rights. Id. at 240. Justice Douglas also dissented. Id. at 231.
- Loving v. Virginia, 388 U.S. 1 (1967).
- McLaughlin v. Florida, 379 U.S. 184 (1964).
- Palmore v. Sidoti, 466 U.S. 429 (1984).
- Johnson v. Virginia, 373 U.S. 61 (1963).
- Hamilton v. Alabama, 376 U.S. 650 (1964) (reversing contempt conviction of witness who refused to answer questions so long as prosecutor addressed her by her first name).
- Lee v. Washington, 390 U.S. 333 (1968); Wilson v. Kelley, 294 F. Supp. 1005 (N.D.Ga.), aff’d, 393 U.S. 266 (1968).
- Anderson v. Martin, 375 U.S. 399 (1964).
- Tancil v. Woolls, 379 U.S. 19 (1964) (summarily affirming lower court rulings sustaining law requiring that every divorce decree indicate race of husband and wife, but voiding laws requiring separate lists of whites and African-Americans in voting, tax and property records).
- E.g., Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); Turner v. City of Memphis, 369 U.S. 350 (1962); Peterson v. City of Greenville, 373 U.S. 244 (1963); Lombard v. Louisiana, 373 U.S. 267 (1963); Robinson v. Florida, 378 U.S. 153 (1964).
- Title II, 78 Stat. 243, 42 U.S.C. §§ 2000a to 2000a–6. See Hamm v. City of Rock Hill, 379 U.S. 306 (1964). On the various positions of the Justices on the constitutional issue, see the opinions in Bell v. Maryland, 378 U.S. 226 (1964).
- See “Federal Remedial Legislation,” infra.
- E.g., Hadnott v. Amos, 394 U.S. 358 (1971); Hunter v. Underwood, 471 U.S. 222 (1985) (disenfranchisement for crimes involving moral turpitude adopted for purpose of racial discrimination).
- E.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960); United Jewish Orgs. v. Carey, 430 U.S. 144 (1977); Rogers v. Lodge, 458 U.S. 613 (1982).