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04/08/2017

The Privileges or Immunities Clause and 1523, Part II: Freestanding Stigmatic Injury?
Chris Green

Yesterday I noted how Reconstruction history complicates one of the arguments against Mississippi’s House Bill 1523: the idea that it gives a remedy to only one group of citizens, not everyone. Today I consider another of the arguments against the bill: that because of the context in which the bill was discussed and then passed, 1523 was properly seen as a symbolic insult to LGBT people, even without any tangible effect on their rights. Roberta Kaplan and Rob McDuff in their arguments against 1523 mentioned LGBT citizens who had been afraid to dine in public or had even left the state in response to 1523, a statute which, they argued, had inflicted, simply by being passed in its context, stigmatic injury.

Most of the discussion on the point at the Fifth Circuit related to whether freestanding stigmatic harm, purely from the existence of a statute, unaccompanied by public symbols or any direct impact on plaintiffs’ liberties, would count as Article III injury sufficient to render the lawsuit ripe. But a broader related issue can be asked in the context of the original meaning of the Fourteenth Amendment: is freedom from purely stigmatic harm, unaccompanied by any tangible effect on civil rights as such, one of the “privileges or immunities of citizens of the United States”?

More after the jump.

The historic relationship of insult and stigma to the Privileges or Immunities Clause is more nuanced than many appreciate. Republicans discussed the relationship of social meaning and insult to the rights of citizenship quite extensively. in 1857 Dred Scott had inferred the lack of black citizenship from the placement of a “stigma of the deepest degradation” on free blacks through segregation. To have the rights of such a a citizen, as the Fourteenth Amendment required in overruling the case, was to be free from such stigma.

Republicans enforcing the Fourteenth Amendment sought to prohibit segregation in schools, juries, and common carriers because equal citizenship required that citizens not be told they were inferior while exercising their civil rights. Senator Charles Sumner said famously, “Insult to him is insult to an American citizen. Dishonor to him is dishonor to the Republic itself. Whatever he may have been, he is now the same as ourselves. Our rights as his rights; our equality is his equality; our privileges and immunities are his great possession.” Senator James Nye demanded that even “the poorest citizen” should be “exempt from insult in public place and on the highways, and shall receive that consideration that is due to the ennobling position of an American citizen.” There is clear and strong historical support for the idea that the Fourteenth Amendment requires, as Strauder v. West Virgnia put it in 1880, “exemption from legal discriminations, implying inferiority in civil society.”

Republicans clearly saw freedom from insult in the civic realm as one of the privileges of citizens of the United States. Because of this argument Democratic opponents of the Civil Rights Act of 1875 alleged that Republican proponents of the act were enforcing social rights, not mere civil rights, i.e., the rights of citizens, which were alone guaranteed by the Privileges or Immunities Clause. But Republicans consistently replied that social inequality outside the civic realm—that is, pure insult-based or stigma-based injury, divorced from any actual impact on civil rights—was beyond the Fourteenth Amendment.

Sumner, the most radical of Republicans on the issue, distinguished quite steadfastly between “public institutions,” where equality was required by the law, and the realm of “private concern,” where it was not. Representative Alonzo Ransier noted that the Civil Rights Act preserved the right to exclude associates in a purely private social sphere, insisting on his own right to exclude from his private social realm, for instance, racist Democratic members of Congress (whom he clearly meant to insult and condemn with his remark).

Appendix F of my book gives many more examples. Where the social and civic realms overlapped, civic equality was required by the Privileges or Immunities Clause. But purely private social injury and insult were not constitutionally-recognized harms. Tangible impact on civil rights, not a feeling of inferiority as such, was required for a violation of the Privileges or Immunities Clause. Of course, the Supreme Court and Fifth Circuit’s equal-protection and establishment-clause cases have sent a great number of signals, many of them conflicting, on purely dignitary injury. But the limits of the Privileges or Immunities Clause as explained by Republicans in the Civil Rights Act of 1875 debates are relatively clear.