Annotation 29 - Fourteenth Amendment
Other Areas of Discrimination
Transportation .--The ''separate but equal'' doctrine won Supreme Court endorsement in the transportation context, 104 and its passing in the education field did not long predate its demise in transportation as well. 105 During the interval, the Court held invalid a state statute which permitted carriers to provide sleeping and dining cars for white persons only, 106 held that a carrier's provision of unequal, or nonexistent, first class accommodations to African Americans violated the Interstate Commerce Act, 107 and voided both state-required and privately imposed segregation of the races on interstate carriers as burdens on commerce. 108 Boynton v. Virginia 109 voided a trespass conviction of an interstate African American bus passenger who had refused to leave a restaurant which the Court viewed as an integral part of the facilities devoted to interstate commerce and therefore subject to the Interstate Commerce Act.
Public Facilities .--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. 110 A municipality could not operate a racially-segregated park pursuant to a will which left the property for that purpose and which specified that only whites could use the park, 111 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. 112 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. 113
Marriage .--Statutes which forbid the contracting of marriage between persons of different races are unconstitutional 114 as are statutes which penalize interracial cohabitation. 115 Similarly, a court may not 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. 116
Judicial System .--Segregation in courtrooms is unlawful and may not be enforced through contempt citations for disobedience 117 or through other means. Treatment of parties to or witnesses in judicial actions based on their race is impermissible. 118 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. 119
Public Designation .--It is unconstitutional to designate candidates on the ballot by race 120 and apparently any sort of designation by race on public records is suspect although not necessarily unlawful. 121
Public Accommodations .--Whether or not 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 1960's, but it avoided finally deciding one way or the other, generally finding forbidden state action in some aspect of the situation. 122 Passage of the 1964 Civil Rights Act obviated any necessity to resolve the issue. 123
Elections .--While, 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, 124 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. 125 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. 126
[Footnote 104] Plessy v. Ferguson, 163 U.S. 537 (1896).
[Footnote 105] 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).
[Footnote 106] McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151 (1914).
[Footnote 107] Mitchell v. United States, 313 U.S. 80 (1941).
[Footnote 108] Morgan v. Virginia, 328 U.S. 373 (1946); Henderson v. United States, 339 U.S. 816 (1950).
[Footnote 109] 364 U.S. 454 (1960).
[Footnote 110] 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).
[Footnote 111] 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.
[Footnote 112] 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.
[Footnote 113] 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. 231.
[Footnote 114] Loving v. Virginia, 388 U.S. 1 (1967).
[Footnote 115] McLaughlin v. Florida, 379 U.S. 184 (1964).
[Footnote 116] Palmore v. Sidoti, 466 U.S. 429 (1984).
[Footnote 117] Johnson v. Virginia, 373 U.S. 61 (1963).
[Footnote 118] 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).
[Footnote 119] 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).
[Footnote 120] Anderson v. Martin, 375 U.S. 399 (1964).
[Footnote 121] 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).
[Footnote 122] 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).
[Footnote 123] Title II, 78 Stat. 243, 42 U.S.C. Sec. 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).
[Footnote 124] See infra, pp. 1946-50.
[Footnote 125] 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).
[Footnote 126] 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).