CIVIL RIGHTS-PUBLIC ACCOMMODATIONS HEARINGS BEFORE THM COMMITTEE ON COMMERCE UNITED STATES SENATE EIGHTY-EIGHTH CONGRESS FIRST SESSION ON S. 1732 A BILL TO ELIMINATE DISCRIMINATION IN PUBLIC ACOOM- MODAl IONS AFFECTING INTERSTATE COMMERCE PART 3 (APPENDIX) Serial 40 Printed for the use of the Committee on Commerce U.8. GOVERNMENT PRINTING OFFICE 21-M44 WASHINGTON : 1984 For sale by the Superintendent of Documents, U.8. Government PFinting 0M0 Wasington, D.C., 20 - Prce 2 cent C, . COMMITTEE ON COMMERCE WARREN 0. MAGNUSON, Washington, chairman JOHN O. PASTOR, Rhode Island NORRIS COTTON, New Hampahire A. 8. MIKE MONRONEY, Oklahoma THRUSTON B. MORTON, Kentucky 8TROM THURMOND, South Carolina HUGH SCOTT, Pennsylvania FRANK J. LAUSCHE, Ohio WINSTON L. PROUTY, Vermont RALPH YARBOROUGH, Texas J. GLENN BEALL, Maryland CLAIR ENOLE, California B. L. BARTLETT, Alaska VANCE HARTKE, Indiana GALE W. McGEE, Wyoming PHILIP A. HART, Michigan HOWARD W. CANNON, Nevada EDWARD JARRETT, OhfCl Olerk RALPH W. HoaTow, Ase fent OClef Olerk OzRALD B. GaOImaINz, Ohfef Oomonel JIBeUIAH J. KENNsr, Jr., Asistant OChef Oounsel CONTENTS Statement submitted by- The Association of the Bar of the City of New York, Committee on PFar Federal Legislation, Fred N. Fishman, chairman, 42 West 44th 1525 Street, New York, N.Y....................................... American Vegetarian Party, 353 West 48th Street, New York, N.Y.. 1536 The Commonwealth of Massachusetts, Commission Against Discrimi- nation, Oswald L. Jordan, acting executive secretary, 41 Tremont Street, Boston, Mass ....-------------------------------.... 1542 Council for Christian Social Action of the United Church of Christ, Ray Gibbons, director 289 Park Avenue South, New York, N.Y.. 1548 Cutts, John A., III, 2 Meeting Street Georgetown, S.C .---------- 1551 Department of Justice, Civil Rights Division, Hon. Burke Marshall, Assistant Attorney General, Washington, D.C--..--------------- 1553 Emerson, Prof. Thomas I., Yale University Law School, New Haven, Conn..---------.-----..----------....------------..... 1555 Fordham, Dean Jefferson University of Pennsylvania Law School, 3400 Chestnut Street, Philadelphia, Pa., and joint letter signed by 35 law school deans and professors at 8 major universities-------- 1556 Green, Prof. John P., University of Houston, Department of Political Science Cullen Boulevard, Houston, Tex ------.---------...... 1557 Kerner, Hon. Otto, Governor of the State of Illinois, Office of the Governor, Springfield, I----------.. ----------------.--.... 1563 National Community Relations Advisory Council, Lewis N. Weinstein, chairman, 65 West 42d Street New York, N.Y..--..-..--------- 1564 The National Council, Episcopal Church Center, 815 Second Avenue, New York, N.Y --................. -------------------... 1569 National Retail Merchants Association, John C. Hazen vice president- government, 1317 F Street, NW., Washington D.C--..--.--.... - 1571 Pittman, C. C., Pittman & Crowe, Box 83, Noble Building,,Carterville, Ga--.----- -------------------------------- 1571 Rostow, Dean Eugene V., Yale University Law School, New Haven, Conn---- ----..... .---.......---...---------........... 1574 United Church Board for Homeland Ministries, Division of Christian Education, Edward A. Powers, general secretary, 1505 Race Street, Philadelphia, Pa --................ --------------.------. 1575 m CIVIL RIGHTS-PUBLIC ACCOMMODATIONS APPENDIX THE ASSOCIATION or THa BaB or TU Crrr or New Yoax, CoMurrM ON FEDERA, L ISOLATION, August 23, 1903. Memorandum to Members of the Senate Committees on Commerce and the Judicaryand the House Committee on the Judlcarvior : Enclosed is a copy of the report of the committee on Federal legislation of the association on proposed Federal civil rights laws relating to public accommo- dations. It is contemplated that this report, along with a report on other aspects of the proposed civil rights law now pending in Congress, will be published In due course in our Federal Legislation Bulletin and sent to all Members of Congress In accordance with our customary practice. We are sending this copy of the report to you in advance of such publicatiq , because the public accommodations legislation s before your committees, and we thought that you might find it helpful to have the report at this'time. Sincerely yours, FRED N. FISBRAN, Ohirman. RzsPoT on PROPOSED FiDLBE CIVIL RIGHTS LAWs RELATING TO PUBLIC AooOMMODATIONs INTRODUOTION , ,.' . Thil report is addressed to certain bills presently before Congress to elimi nte discrimination in public accommodations, and to establish causes of action by private individuals and the Attorney General to prevent such discrimination.': We have considered prtincpally the provisions comprising title II of the pfi- posed Civil Rights Act of 1903, introduced by Senator Mansfield and others ks 8. 1781, 88th Congress, Ist session, and by Representative Celldr as H.R, 7152, 88th Congress, 1st session. Senator Mansfield and others havb also Introdiced substantially the same provisions as title II in a separate bill, 8. 1782, he pro- posed Interstate Public Accommodations Act of 1903.' Other bll deallit with this problem have been introduced by' a substantial number of other Senatrs and Representatives, including S. 1591 Introduced by Senators obdd and Coper and others, and H.R. 0720 introduced by Representative Lindsay' and by others in the same form. 8. 1781 and H.R.' 7152 were proposed by Pre~idjnt Kennedy in a special message to Congress on' June 19, 196, which stated that the public accommodations provisions are designed "to guarantee all citizens equal access to the services and 'facilities of hotels, restaurants, places of amuse~nht,1 and retail establishments" (Pew York Times, June 20, 1968, p. 18, col.' 4). ' Title II of 8. 1731 invokes the powers of Congress under both the comidere clause and the 14th amendment of the Constitution, with. chief teliapce pliced upon the commerce clause, and with the operative sections, as Int produced ' rel ing solely on the commerce clause. S. 1591 and H.R, 6720' r. based updh'tbe 14th amendment, and proposals have been made to amend title II to place g~tter operative reliance upon the 14th amendment. Title II now provides that all persons shall be entitled "wlitout diergnring- tion or segregation on account of race, color, religion, or national origin to the full and equal enjoyment of the goods, services, facilitit, pttlvleges,. ad ntau SUnless otherwise Indicated the reference to the propose ed legittltoIq n tbtq , rt refer to title It of 8. 1781, the fll text of which Isattaebd heret6 as an tppMend1'r. 1526 CIVIL RIGHTS--PUBLIC ACCOMMODATIONS and accommodations" of enumerated kinds of "public establishments" if such establishments satisfy specified criteria with respect to activities or operations related to Interstate commerce. The denial of or interference with the right to nondiscriminatory treatment is prohibited, and an aggrieved person, or the Attorney General for or In the name of the United States, may institute a civil action (orJp)yqctlvo relief In the Federal district courts. In orderifor the Attroney General to Institute suit, he must certify that he has received a written complaint from the aggrieved person and that In his Judgment such perwn Is unable to initiate and maintain appropriate legal proceedings because of lack of adequate financial means or effective repre- sentation or risk of economic or other Injury. If local laws appear to forbid the discrimination complained of, the Attorney General is required to notify the appropriate State or local officials, and, upon their request, to afford them a reasonable time to act before he institutes an action. In the case of other complaints ithe Attorney General is required, before instituting an action, to refer the matter to the Community Relations Service, contemplated by title IV 'f the bill, to attempt to secure compliance with the statute by voluntary pro- cedures. Compliance with the provisions for action by local officials or the 'Community Relations Service is not required if the Attorney General certifies to the court that delay, would adversely affect the Interests of the United States or that compliance with such provisions would be fruitless. , , BUMMABT SWe support the proposed legislation and we believe it is validly founded on the commerce clause and also derives substantial constitutional support from the 14th amendment. We believe that Coigress should rely oh both constitu- tional provisions, since we regard the commerce clause and the 14th amend* ment as complementary and not competitive sources of congressional power. THE COMMERCE CLAUSE Article I, section 8, clause 8, of the Constitution confers upon Congress the power "To regulate commerce * among the several States * * .*" The commerce clause has repeatedly been held by the U.S. Supreme Court to empower Congress to reach akd control activity which affects Interstate commerce and to remove burdens on such commerce whether or not a particular facility or transaction embraced by the legislation Is itself Interstate in charac- ter. --ven it an activity or transaction considered In Isolation Is both intrastate JAncharacter an insubstantial In its impact on Interstate commerce, Congress my legislate..with regard to the aggregate impact or burden on Interstate omerce of all such activities or transactions. The power reaches not only !-tClues which are purely "commercial" In nature, but, In furtherance of JprtUilair public poUcles, can be, and has been, used to reach noncommercial