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The Privileges or Immunities Clause and 1523, Part I: “Nondiscrimination for Me, but not for Thee”?
Chris Green

Rather than the Gorsuch confirmation and Hively opinion from the en banc Seventh Circuit, the big legal news in my home state this week was the Fifth Circuit oral argument in two consolidated cases concerning the constitutional challenges to Mississippi House Bill 1523, which became law a year ago, but has been embroiled in litigation since then.  The details of the law, and the Equal Protection and Establishment Clause challenges to it, are complicated, but I wanted to focus on two issues in the case as they relate to the original meaning of the Fourteenth Amendment: selectivity in the application of an antidiscrimination norm, and stigmatic injury unrelated to other impact on civil rights.

As I read the Fourteenth Amendment, religious and other equality claims under the Fourteenth Amendment should be decided under the Privileges or Immunities Clause. The Due Process Clause is about the rule of law, not the content of the substantive rights protected by the law, and the Equal Protection Clause is about literal protection, not equality in general.  Of course, the Supreme Court has officially disagreed about the Privileges or Immunities Clause since 1873, but it has at the same time been willing to use evidence related to the Privileges or Immunities Clause in both its equality cases (relying on the first Justice Harlan’s citizenship-based reading of equality in Plessy and other cases) and in basic-rights cases (where the Court used Privileges-or-Immunities-Clause evidence in cases as recent as McDonald in 2010 and as old as Allgeyer in 1897).

More after the jump.

The Privileges or Immunities Clause, as I read it, requires all similarly-situated citizens of the United States to receive the same rights. Neutrality between the rights of citizens of different religious perspectives is therefore generally required by the Privileges or Immunities Clause, whatever we make of the incorporation of the Establishment Clause as such. Likewise, the Privileges or Immunities Clause generally requires equality in rights both among similarly-situated couples themselves (e.g., same-sex and opposite-sex couples, as the Court saw things in Obergefell) and among citizens with differing attitudes toward such couples (e.g., citizens who are morally opposed, indifferent to, or morally approving of such relationships).  

What does a constitutional command of equal citizenship require in the context of religious accommodations and same-sex marriage?  As I explained the day of Obergefell, I have my doubts about whether the Court was in a position to have sufficiently secure knowledge about the similar-situatedness of opposite-sex and same-sex couples to support its result. But set that worry aside. House Bill 1523 is obviously not an Obergefell nullification bill: as Jonathan Mitchell stressed energetically at oral argument, the very text of 1523 demands “all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed” and the same regarding such marriages’ “performance or solemnization.”

One of the chief attacks on 1523 is that, while it is phrased in terms of banning discrimination—preventing the state from discriminating against citizens with certain traditional views on sexuality—this prohibition is only for some citizens. A “non-discrimination for me, but not for thee” policy, the argument goes, is itself discriminatory.

This is, indeed, a form of argument made by some very important Republican proponents of equal citizenship.  In 1869, John Bingham criticized the Fifteenth Amendment for giving special antidiscrimination protection to those victimized by racial discrimination, but not to others: “While colored citizens are equal in rights with every other class of citizens before the majesty of American law, as that law stands written today, I am unwilling to set them above every other class of citizens in America by amending the Constitution exclusively in their interest.” Republicans did not, however, change the proposal as Bingham desired—adding others categories of prohibited discrimination—and Bingham himself voted for the Fifteenth Amendment just after making the remark.

George Edmunds, a particularly well-spoken Republican framer of the Fourteenth Amendment, argued to the Supreme Court in 1880 in Missouri v. Lewis that if the Fourteenth Amendment covered only racial discrimination, and not geographical discrimination, the freedmen would receive an improper special benefit: “If not, that amendment which sought to establish equality before the law establishes inequality, by giving preference to the rights of the colored race, and affording them superior protection.” Despite Edmunds’s argument, the Court upheld a geographical distinction between St. Louis and the rest of Missouri made by the structure of the state’s appellate courts.

The most prominent and important argument in this form, however, was made by President Andrew Johnson in his veto of the Civil Rights Act of 1866, which required that all citizens enjoy the same rights (within a certain list) as were enjoyed by white citizens. White citizens themselves, of course, received no benefit from the Civil Rights Act, because they already were receiving those rights. But the freedmen received a special benefit for themselves—the prohibition on discrimination.

Johnson complained in his veto message that the Civil Rights Act would “establish, for the security of the colored race, safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is, by the bill, made to operate in favor of the colored and against the white race.”

Lyman Trumbull replied on behalf of Republicans before they overrode Johnson’s veto:

Does that discriminate in favor of the colored person? Why, sir, the very object and effect of the section is to prevent discrimination, and language, it seems to me could not more plainly express that object and effect. It may be said that it is for the benefit of the black man because he is now in some instances discriminated against by State laws; but that is the case with all remedial statutes. They are for the relief of the persons who need the relief, not for the relief of those who have the right already; and when those needing the relief obtain it, they stand upon the precise footing of those who do not need the benefit of the law.

Trumbull’s point is only that it sometimes is appropriate to give antidiscrimination remedies only to those in need of them. That general point does not, of course, resolve whether it is appropriate in the context of 1523: whether 1523 is a remedial state “for the relief of the persons who need the relief.”  The details--many of which Gail Heriot identified in the context of the First Amendment Defense Act at the end of her Peaceful Coexistence dissent--are complicated. Establishing the baseline against which “neutrality” is to be judged is, in this as in other contexts, very difficult. A careful investigation is required of which citizens stand most “needing the relief.” 

It is important to see, though, that the case against 1523 is by no means open-and-shut. The simple “this bill gives antidiscrimination protection only to a single group of citizens” objection, made without any attention to the context of different groups’ need for a remedy, was not one that the Fourteenth Amendment’s adopters took as dispositive.