William J. Brennan, Jr.

“ The issue in other words consumes the public attention. Yet we stand mute, avoiding decision of the basic issue by an obvious pretense.
The clash between Negro customers and white restaurant owners is clear; each group claims protection by the Constitution and tenders the Fourteenth Amendment as justification for its action. Yet we leave resolution of the conflict to others, when, if our voice were heard, the issues for the Congress and for the public would become clear and precise. The Court was created to sit in troubled times as well as in peaceful days. ”

“ Segregation of Negroes in the restaurants and lunch counters of parts of America is a relic of slavery. It is a badge of second-class citizenship. It is a denial of a privilege and immunity of national citizenship and of the equal protection guaranteed by the Fourteenth Amendment against abridgment by the States. When the state police, the state prosecutor, and the state courts unite to convict Negroes for renouncing that relic of slavery, the 'State' violates the Fourteenth Amendment. ”

“ With what rights, privileges, or immunities did this grant invest them? There is one, if there be no other-exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same State. That, surely, is their constitutional privilege when within the jurisdiction of other States. And such must be their constitutional right, in their own State, unless the recent amendments be splendid baubles, thrown out to delude those who deserved fair and generous treatment at the hands of the nation. ”

“ The heaviest duties of citizenship-military service, taxation, obedience to laws-are imposed even-handedly upon black and white. States may and do impose the burdens of state citizenship upon Negroes and the States in many ways benefit from the equal imposition of the duties of federal citizenship. Our fundamental law which insures such an equality of public burdens, in my view, similarly insures an equality of public benefits. This Court has repeatedly recognized and applied this fundamental principle to many aspects of community life. ”

“ Suppose a colored man presents himself at a public inn, kept for the accommodation of the public, is decently clad and behaves himself well and is ready to pay the customary charges for rest and refreshment, and is either refused admittance or treated as an inferior guest-placed at the second table and consigned to the garret, or compelled to make his couch upon the floor-does any one doubt that upon an appeal to the courts, the law if justly administered would pronounce the inn-keeper responsible to him in damages for the unjust discrimination? ”

“ The problem with which we deal has no relation to opening or closing the door of one's home. The home of course is the essence of privacy, in no way dedicated to public use, in no way extending an invitation to the public. Some businesses, like the classical country store where the owner lives overhead or in the rear, make the store an extension, so to speak, of the home. ”

“ The dissent argues that the Constitution permits American citizens to be denied access to places of public accommodation solely because of their race or color. Such a few does not do justice to a Constitution which is color blind and to the Court's decision in Brown v. Board of Education, which affirmed the right of all Americans to public equality. We cannot blind ourselves to the consequences of a constitutional interpretation which would permit citizens to be turned away by all the restaurants, or by the only restaurant, in town. ”

“ When we default, as we do today, the prestige of law in the life of the Nation is weakened.
For these reasons I reach the merits; and I vote to reverse the judgments of conviction outright.
The issue in this case, according to those who would affirm, is whether a person's 'personal prejudices' may dictate the way in which he uses his property and whether he can enlist the aid of the State to enforce those 'personal prejudices.' With all respect, that is not the real issue. The corporation that owns this restaurant did not refuse service to these Negroes because 'it' did not like Negroes. ”

“ We would reverse the modern trend were we to hold that property voluntarily serving the public can receive state protection when the owner refuses to serve some solely because they are colored.
There is no specific provision in the Constitution which protects rights of privacy and enables restaurant owners to refuse service to Negroes. The word 'property' is, indeed, not often used in the Constitution, though as a matter of experience and practice we are committed to free enterprise. ”

“ Those who control the destinies of the typical modern corporation own so insignificant a fraction of the company's stock that the returns from running the corporation profitably accrue to them in only a very minor degree. The stockholders, on the other hand, to whom the profits of the coporation go, cannot be motivated by those profits to a more efficient use of the property, since they have surrendered all disposition of it to those in control of the enterprise. ”

“ Petitioners frankly state that the 'extension of constitutional guarantees to the authentically private choices of man is wholly unacceptable, and any constitutional theory leading to hat result would have reduced itself to absurdity.' Indeed, the constitutional protection extended to privacy and private association assures against the imposition of social equality. As noted before, the Congress that enacted the Fourteenth Amendment was particularly conscious that the 'civil' rights of man should be distinguished from his 'social' rights. ”

“ The point is that corporate motives in the retail field relate to corporate profits, corporate prestige, and corporate public relations. [12] Corporate motives have no tinge of an individual's choice to associate only with one class of customers, to keep members of one race from his 'property,' to erect a wall of privacy around a business in the manner that one is erected around the home.
At times a corporation has standing to assert the constitutional rights of its members, as otherwise the rights peculiar to the members as individuals might be lost or impaired. ”

“ Private enterprise, which has molded economic life since the close of the middle ages, has been rooted in the institution of private property. Under the feudal system, its predecessor, economic organization grew out of mutual obligations and privileges derived by various individuals from their relation to property which no one of them owned. Private enterprise, on the other hand, has assumed an owner of the instruments of production with complete property rights over those instruments. ”

“ Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the State, or its officers, or by individuals or corporations exercising public functions or authority, against any citizen because of his race or previous condition of servitude.' Id., 109 U.S., at 48, 3 S.Ct., at 48. ”

“ As stated in the first part of the same Report, p. 18:
'Today, more than 100 years after their formal emancipation, Negroes, who make up over 10 percent of our population, are by virtue of one or another type of discrimination not accorded the rights, privileges, and opportunities which are considered to be, and must be, the birthright of all citizens.' When one citizen because of his race, creed, or color is denied the privilege of being treated as any other citizen in places of public accommodation, we have classes of citizenship, one being more degrading than the other. ”

“ Prejudice and bigotry in any form are regrettable, but it is the constitutional right of every person to close his home or club to any person or to choose his social intimates and business partners solely on the basis of personal prejudices including race. These and other rights pertaining to privacy and private association are themselves constitutionally protected liberties.
We deal here, however, with a claim of equal access to public accommodations. This is not a claim which significantly impinges upon personal associational interests ”

“ But the existence of that statutory right, like the existence of a right under the Constitution, is no criterion for determining what is or what is not 'state' action within the meaning of the Fourteenth Amendment. The conception of 'state' action has been considered in light of the degree to which a State has participated in depriving a person of a right. 'Judicial' action alone has been considered ample in hundreds of cases. ”

“ A legislature that passed a public accommodations law making it unlawful to deny service on account of race probably did not desire that persons should still be prosecuted and punished for the 'crime' of seeking service from a place of public accommodations which denies it on account of race. Since the language of the saving clause raises no barrier to a ruling in accordance with these policy considerations, we should hesitate long indeed before concluding that the Maryland Court of Appeals would definitely hold the saving clause applicable to save these convictions. ”

“ If a court de ree is state action in one case, it is in the other. Property rights, so heavily underscored, are equally involved in each case.
The customer in a restaurant is transitory; he comes and may never return. The colored family who buys the house next door is there for keeps-night and day. If 'personal prejudices' are not to be the criterion in one case they should not be in the other. We should put these restaurant cases in line with Shelley v. Kraemer, holding that what the Fourteenth Amendment requires in restrictive covenant cases it also requires from restaurants. ”

“ Affirmance would make corporate management the arbiter of one of the deepest conflicts in our society: corporate management could then enlist the aid of state police, state prosecutors, and state courts to force apartheid on the community they served, if apartheid best suited the corporate need; or, if its profits would be better served by lowering the barriers of segregation, it could do so. ”

“ The right of any person to travel interstate irrespective of race, creed, or color is protected by the Constitution. Edwards v. California, supra. Certainly his right to travel intrastate is as basic. Certainly his right to eat at public restaurants is as important in the modern setting as the right of mobility. In these times that right is, indeed, practically indispensable to travel either interstate or intrastate.
The requirement of equal protection, like the guarantee of privileges and immunities of citizenship, is a constitutional command directed to each State. ”

“ The corporate owners of a restaurant, like the corporate owners of streetcars, buses, telephones, and electric light and gas facilities, are interested in balance sheets and in profit and loss statements. 'It' does not stand at the door turning Negroes aside because of 'its' feelings of antipathy to black-skinned people. 'It' does not have any associational rights comparable to the classic individual store owner at a country crossroads whose store, in the dichotomy of an Adam Smith, was indeed no different from his home. ”

“ If on the road a shoe fall off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the king's subjects that will employ him in the way of his trade. If an inn-keeper refuse to entertain a guest where his house is not full, an action will lie against him and so against a carrier, if his horses be not loaded, and he refuse to take a packet proper to be sent by a carrier * * *. ”

“ It is said that ownership of property carries the right t use it in association with such people as the owner chooses. The corporate owners in these cases the stockholders-are unidentified members of the public at large, who probably never saw these petitioners, who may never have frequented these restaurants. What personal rights of theirs would be vindicated by affirmance? Why should a stockholder in Kress, Woolworth, Howard Johnson, or any other corporate owner in the restaurant field have standing to say that any associational rights personal to him are involved? ”

“ Whereas the organization of feudal economic life rested upon an elaborate system of binding customs, the organization under the system of private enterprise has rested upon the self-interest of the property owner-a self-interest held in check only by competition and the conditions of supply and demand. ”

“ The explosion of the atom of property destroys the basis of the old assumption that the quest for profits will spur the owner of industrial property to its effective use. It consequently challenges the fundamental economic principle of individual initiative in industrial enterprise.' Id., at 8-9.
By like token the separation of the atom of 'property' into one unit of 'management' and into another of 'absentee ownership' has in other ways basically changed the relationship of that 'property' to the public.
A corporation may exclude Negroes if 'it' thinks 'it' can make more money doing so. ”