Lombard v. Louisiana/Concurrence Douglas
Mr. Justice DOUGLAS, concurring.
While I join the opinion of the Court, I have concluded it necessary to state with more particularity why Louisiana has become involved to a 'significant extent' (Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45) in denying equal protection of the laws to petitioners.
The court below based its affirmance of these convictions on the ground that the decision to segregate this restaurant was a private choice, uninfluenced by the officers of the State. State v. Goldfinch, 241 La. 958, 132 So.2d 860. If this were an intrusion of a man's home or yard or farm or garden, the property owner could seek and obtain the aid of the State against the intruder. For the Bill of Rights, as applied to the States through the Due Process Clause of the Fourteenth Amendment, casts its weight on the side of the privacy of homes. The Third Amendment with its ban on the quartering of soldiers in private homes radiates that philosophy. The Fourth Amendment, while concerned with official invasions of privacy through searches and seizures, is eloquent testimony of the sanctity of private premises. For even when the police enter private precincts they must, with rare exceptions, come armed with a warrant issued by a magistrate. A private person has no standing to obtain even limited access. The principle that a man's home is his castle is basic to our system of jurisprudence.
But a restaurant, like the other departments of this retail store where Negroes were served, though private property within the protection of the Fifth Amendment, has no aura of constitutionally protected privacy about it. Access by the public is the very reason for its existence.
'Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.' Marsh v. Alabama, 326 U.S. 501, 506, 66 S.Ct. 276, 278, 90 L.Ed. 265.
The line between a private business and a public one has been long and hotly contested. New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747, is one of the latest cases in a long chain. The Court, over the dissent of Mr. Justice Brandeis and Mr. Justice Stone, held unconstitutional an Oklahoma statute requiring those manufacturing ice for sale and distribution to obtain a license from the State. Mr. Justice Brandeis' dissent was in the tradition of an ancient doctrine perhaps best illustrated  by German Alliance Ins. Co. v. Kansas, 233 U.S. 389, 34 S.Ct. 612, 58 L.Ed. 1011, L.R.A.1915C, 1189, which upheld a Kansas statute that regulated fire insurance rates. Mr. Justice McKenna, writing for the Court, said, 'It is the business that is the fundamental thing; property is but its instrument, the means of rendering the service which has become of public interest.' Id., 408, 34 S.Ct. 617. Cf. Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028.
Some of the cases reflect creative attempts by judges to make innkeepers, common carriers, and the like perform the public function of taking care of all travelers.  Others involve the power of the legislature to impose various kinds of restraints or conditions on business. As a result of the conjunction of various forces, judicial and legislative, it came to pass that 'A large province of industrial activity is under the joint sovereignty of the market and the state.' 
The present case would be on all fours with the earlier ones holding that a business may be regulated when it renders a service which 'has become of public interest' (German Alliance Ins. Co. v. Kansas, supra, 233 U.S. 408, 34 S.Ct. 617) if Louisiana had declared, as do some States,  that a business may not refuse service to a customer on account of race and the proprietor of the restaurant were charged with violating this statute. We should not await legislative action before declaring that state courts cannot enforce this type of segregation. Common-law judges fashioned the rules governing innkeepers and carriers.  As stated by Holt, C.J., in Lane v. Cotton, 12 Mod. 472, 484 (1701):
'Wherever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him. * * * 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 innkeeper 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.' 
Judges who fashioned those rules had no written constitution as a guide. There were, to be sure, criminal statutes that regulated the common callings.  But the civil remedies were judge made. We live under a constitution that proclaims equal protection of the laws. That standard is our guide. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. And under that standard business serving the public cannot seek the aid of the state police or the state courts or the state legislatures to foist racial segregation in public places under its ownership and control. The constitutional protection extends only to 'state' action, not to personal action. But we have 'state' action here, wholly apart from the activity of the Mayor and police, for Louisiana has interceded with its judiciary to put criminal sanctions behind racial discrimination in public places. She may not do so consistently with the Equal Protection Clause of the Fourteenth Amendment.
The criminal penalty (60 days in jail and a $350 fine) was imposed on these petitioners by Louisiana's judiciary. That action of the judiciary was state action. Such are the holdings in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, and Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586.  Those cases involved restrictive covenants. Shelley v. Kraemer was a civil suit to enjoin violation of a restrictive covenant by a Negro purchaser. Barrows v. Jackson was a suit to collect damages for violating a restrictive covenant by selling residential property to a Negro. Those cases, like the present one, were 'property' cases. In those cases, as in the present one, the line was drawn at dealing with Negroes. There, as here, no state legislature was involved, only the state judiciary. The Court said in Shelley v. Kraemer:
'That the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court.' 334 U.S., at 14, 68 S.Ct., at 842.
The list of instances where action of the state judiciary is state action within the meaning of the Fourteenth Amendment is a long one. Many were noted in Shelley v. Kraemer, 334 U.S., at 14-18, 68 S.Ct., at 842-844. Most state convictions in violation of the First, Fourth, or Fifth Amendment, as incorporated in the Due Process Clause of the Fourteenth Amendment, have indeed implicated not the state legislature but the state judiciary, or the state judiciary and the state prosecutor and the state police. Shelley v. Kraemer-and later Barrows v. Jackson-held that the state judiciary, acting alone to enforce private discrimination against Negroes who desired to buy private property in residential areas, violated the Equal Protection Clause of the Fourteenth Amendment.
Places of public accommodation such as retail stores, restaurants, and the like render a 'service which has become of public interest' (German Alliance Ins. Co. v. Kansas, supra, 233 U.S. 408, 34 S.Ct. 617) in the manner of the innkeepers and common carriers of old. The substance of the old common-law rules has no direct bearing on the decision required in this case. Restaurateurs and owners of other places of amusement and resort have never been subjected to the same duties as innkeepers and common carriers.  But, what is important is that this whole body of law was a response to the felt needs of the times that spawned it.  In our time the interdependence of people has greatly increased; the days of laissez faire have largely disappeared; men are more and more dependent on their neighbors for services as well as for housing and the other necessities of life. By enforcing this criminal mischief statute, invoked in the manner now before us, the Louisiana courts are denying some people access to the mainstream of our highly interdependent life solely because of their race. Yet, 'if there is any one purpose of the Fourteenth Amendment that is wholly outside the realm of doubt, it is that the Amendment was designed to bar States from denying to some groups, on account of their race or color, any rights, privileges, and opportunities accorded to other groups.' Oyama v. California, 332 U.S. 633, 649, 68 S.Ct. 269, 276, 92 L.Ed. 249 (concurring opinion).
An innkeeper or common carrier has always been allowed to exclude drunks, criminals and diseased persons, but only because the public's interest in protecting his and his guests' health and property outweighs its interest in providing accommodations for this small group of travelers.  As a general rule, innkeepers and carriers cannot refuse their services on account of race; though the rule developed in this country that they can provide 'separate but equal' facilities.  And for a period of our history even this Court upheld state laws giving sanction to such a rule. Compare Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, with Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, affirming, D.C., 142 F.Supp. 707. But surely Shelley v. Kraemer, supra, and Barrows v. Jackson, supra, show that the day has passed when an innkeeper, carrier, housing developer, or retailer can draw a racial line, refuse service to some on account of color, and obtain the aid of a State in enforcing his personal bias by sending outlawed customers to prison or exacting fines from them.
Business, such as this restaurant, is still private property. Yet there is hardly any private enterprise that does not feel the pinch of some public regulation-from price control, to health and fire inspection, to zoning, to safety measures, to minimum wages and working conditions, to unemployment insurance. When the doors of a business are open to the public, they must be open to all regardless of race if apartheid is not to become engrained in our public places. It cannot by reason of the Equal Protection Clause become so engrained with the aid of state courts, state legislatures, or state police. 
There is even greater reason to bar a State through its judiciary from throwing its weight on the side of racial discrimination in the present case, because we deal here with a place of public accommodation under license from the State. This is the idea I expressed in Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, where another owner of a restaurant refused service to a customer because he was a Negro. That view is not novel; it stems from the dissent of the first Mr. Justice Harlan in the Civil Rights Cases, 109 U.S. 3, 58-59, 3 S.Ct. 18, 55, 27 L.Ed. 835:
'In every material sense applicable to the practical enforcement of the Fourteenth Amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents or instrumentalities of the State, because they are charged with duties to the public, and are amenable, in respect of their duties and functions, to governmental regulation. It seems to me that, within the principle settled in Exparte Virginia, a denial, by these instrumentalities of the State, to the citizen, because of his race, of that equality of civil rights secured to him by law, is a denial by the State, within the meaning of the Fourteenth Amendment. If it be not, then that race is left, in respect of the civil rights in question, practically at the mercy of corporations and individuals wielding power under the States.'
The nexus between the State and the private enterprise may be control, as in the case of a state agency. Pennsylvania v. Board of Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792. Or the nexus may be one of numerous other devices. 'State support of segregated schools through any arrangement, management, funds, or property cannot be squared' with the Equal Protection Clause. Cooper v. Aaron, 358 U.S. 1, 19, 78 S.Ct. 1401, 1410, 3 L.Ed.2d 5. Cf. Hampton v. Jacksonville, 5 Cir., 304 F.2d 320. A state-assisted enterprise serving the public does not escape its constitutional duty to serve all customers irrespective of race, even though its actual operation is in the hands of a lessee. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45. Cf. Boynton v. Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206. State licensing and surveillance of a business serving the public also brings its service into the public domain. This restaurant needs a permit from Louisiana to operate;  and during the existence of the license the State has broad powers of visitation and control.  This restaurant is thus an instrumentality of the State since the State charges it with duties to the public and supervises its performance. The State's interest in and activity with regard to its restaurants extends far beyond any mere income-producing licensing requirement.
There is no constitutional way, as I see it, in which a State can license and supervise a business serving the public and endow it with the authority to manage that business on the basis of apartheid, which is foreign to our Constitution.
^1 See Hamilton, Affectation with Public Interest, 39 Yale L.J. 1089, 1098-1099.
^2 See Jeremy, The Law of Carriers, Inn-Keepers, etc. (1815), 4-5, 144-147; Tids-well, The Innkeeper's Legal Guide (1864), c. 1; Schouler, Law of Bailments (2d ed. 1887), §§ 274-329, 330-341; Beale, The Law of Innkeepers and Hotels (1906), passim; 1 Wyman, Public Service Corporations (1911), §§ 1-5; Burdick, The Origin of the Peculiar Duties of Public Service Companies, 11 Col.L.Rev. 514, 616; Arterburn, The Origin and First Test of Public Callings, 75 U. of Pa.L.Rev. 411.
^3 Hamilton, supra, note 1, p. 1110.
^4 See, e.g., McKinney's Consol.N.Y.Laws, Vol. 8, Civil Rights Law, c. 6, Art. 4; id., Vol. 18, Executive Law, c. 18, Art. 15; N.J.Stat.Ann., Tit. 10; id., Tit. 18, c. 25; Cal.Civ.Code, § 51. Cf. Cal.Health and Safety Code, §§ 35700 (1962 Supp.) et seq.; Burks v. Poppy Constr. Co., 57 Cal.2d 463, 20 Cal.Rptr. 609, 370 P.2d 313; Martin v. New York, 22 Misc.2d 389, 201 N.Y.S.2d 111. See generally, Greenberg, Race Relations and American Law, 101-114 (1959); 7 St. Louis U.L.J. 88 (1962).
^5 See Schouler, op. cit., supra, note 2, §§ 274, 335; Wyman, op. cit., supra, note 2, § 1; Arterburn, supra, note 2.
^6 See also White's Case (1558), 2 Dyer 158.b.; Warbrooke v. Griffin (1609), 2 Brownl. 254; Bennett v. Mellor (1793), 5 Term Rep. 273; Thompson v. Lacy (1820), 3 B. & Ald. 283.
For criminal prosecutions, see, e.g., Rex v. Ivens (1835), 7 Car. & P. *213; Regina v. Sprague (1899), 63 J.P. 233.
For a collection of the English cases, see 21 Halsbury's Laws of England (3d ed. 1957) 441 et seq.; 10 Mews' Dig.Eng.Cas.L. to 1924, pp. 1463 et seq.
^7 Arterburn, supra, note 2.
^8 See also Abstract Investment Co. v. Hutchinson, 204 Cal.App.2d 242, 251, 22 Cal.Rptr. 309, 315; 10 U.C.L.A.L.Rev. 401.
^9 See Marrone v. Washington Jockey Club, 227 U.S. 633, 33 S.Ct. 401, 57 L.Ed. 679; Madden v. Queens County Jockey Club, 296 N.Y. 249, 72 N.E.2d 697, 1 A.L.R.2d 1160; Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906; Nance v. Mayflower Tavern, 106 Utah 517, 150 P.2d 773.
^10 Wyman, op. cit., supra, note 2, §§ 1, 2-16, 330; Schouler, op. cit., supra, note 2, §§ 274, 335; Beale, op. cit., supra, note 2, c. I; Arterburn, supra, note 2, 420-426.
^11 Wyman, op. cit., supra, note 2, c. 18; Schouler, op. cit., supra, note 2, §§ 320, 322.
^13 See generally, Pollitt, Dime Store Demonstrations: Events and Legal Problems of First Sixty Days, 1960 Duke L.J. 315, 350 365; Henkin, Shelley v. Kraemer: Notes for a Revised Opinion, 110 U. of Pa.L.Rev. 473.
^14 Under the provisions of Article 7.02 of the Sanitary Code, promulgated by the State Board of Health pursuant to LSA Rev.Stat. § 40:11, no person shall operate a public eating place of any kind in the State of Louisiana unless he has been issued a permit to operate by the local health officer; and permits shall be issued only to persons whose establishments comply with the requirements of the Sanitary Code.
^15 Under LSA-Rev.Stat., Title 40, §§ 11, 12, 15, 16, 52, and 69, state and local health officials closely police the provisions of the Sanitary Code. They may 'enter, examine, and inspect all grounds, structures, public buildings, and public places in execution of a warrant issued in accordance with the constitution and laws of Louisiana,' and 'arrest * * * all persons violating any rule or regulation of the board or any article or provision of the sanitary code * * *.' Penalties are provided for code violations. See also New Orleans City Code, 1956, §§ 29-55, 56, and 58; Home Rule Charter of the City of New Orleans, § 4-1202(2).