Court News Ohio
Court News Ohio
Court News Ohio

A Promise of Freedom

Image of the text of the first two sections of the 1866 Civil Rights Act

Image of the text of the first two sections of the 1866 Civil Rights Act

Eight students who attended high school together in Shaker Heights reunited post-graduation to catch up. They traveled one evening to a nightclub, lining up outside the entrance. Four of the former classmates were white, and four were black. Bouncers who checked their identification allegedly asked the black men in the group for two forms of ID, while requesting only one ID from the white men.

Cleveland civil rights lawyer Avery Friedman filed a lawsuit for the former classmates against the nightclub and used a federal law to argue that the actions of the club’s employees were discriminatory. The law Friedman relied on – the Civil Rights Act of 1866 – might be considered a bit dusty at 150 years old. But Friedman has found during his decades-long legal career that the 1866 law “remains a very powerful weapon in the arsenal of America’s promise to ensure that all people are treated fairly.”

Friedman, who serves as CNN’s weekend legal analyst and teaches constitutional law at Ursuline College, recounted the nightclub case, which settled, and discussed the 1866 act’s legal history and significance at the Ohio Supreme Court’s 14th Forum on the Law. The October event commemorated the 150th anniversary of the act.

Congress Takes Action
The 1866 Civil Rights Act emerged from a complex historical context, following the 1863 order by President Abraham Lincoln emancipating slaves in the South, the end of the country’s tumultuous Civil War in 1865, and the ratification that same year of the U.S. Constitution’s Thirteenth Amendment, which embedded the national abolition of slavery and involuntary servitude into our constitution. The Thirteenth Amendment’s second clause gave Congress the power to enforce the country’s ban through legislation.

Congress wasted no time. A few weeks after the amendment was ratified, a U.S. senator introduced the proposed law that became the 1866 Civil Rights Act, said Professor Rebecca Zietlow of the University of Toledo College of Law. Congress passed it, and even overrode a veto by Lincoln’s successor, President Andrew Johnson, with a two-thirds majority supporting the measure.

The law states that people born in the country are United States citizens who “shall have the same right … as is enjoyed by white citizens”:

  • to make and enforce contracts
  • to sue, be parties, and give evidence
  • to inherit, purchase, lease, sell, hold, and convey real and personal property
  • to enjoy full and equal benefit of all laws and proceedings for the security of person and property

Freedom without rights is no different than servitude.
- Avery Friedman

Freedom without rights is no different than servitude.
- Avery Friedman

Spelling out the rights that could be enforced in court to eliminate slavery was a critical step, Friedman explained at the forum. Despite the Thirteenth Amendment, many freed slaves couldn’t escape their “masters” and their enslavement, he pointed out. And those who did encountered substantial barriers to their freedom. For example, Friedman said, former slaves were often prevented from purchasing basics, such as flour and eggs, because store owners wouldn’t accept their money.

“Freedom without rights is no different than servitude,” Friedman stressed. “It was clear that if you had no access to goods or services, or you had merchants or vendors or salesmen who wouldn’t sell you anything, you can’t survive.”

“Without equal economic power, it doesn’t work,” he added. “Economic factors fit into the equation of freedom.”

Government Fails to Enforce Act
The Fourteenth Amendment soon followed the passage of the 1866 act. Zietlow said the amendment’s language ensuring citizenship to those born or naturalized in the United States mirrors the words of the 1866 act. Her review of the debates at the time show that Congress intended to shield the 1866 legislation from possible repeal in the future by enshrining the citizenship right into the constitution. The Fifteenth Amendment guaranteeing men’s right to vote regardless of race was passed not long after, and African-Americans in some places exercised many of these rights for several years during the Reconstruction era. But opposition escalated, and the federal government subsequently stepped back from enforcing the measures.

“The country lost the political will to fight to ensure these rights,” Zietlow explained. “The presidents didn’t care, the federal government didn’t care, and they let Jim Crow segregation practices build in the South.”

“For a century, the [1866] law sat there without being enforced,” Friedman said.

U.S. Supreme Court Reviews Law in 1960s
It took until June 1968, but the U.S. Supreme Court breathed renewed life into the languishing 1866 law. At the center of the case before the court was a St. Louis couple who wanted to buy a house in a new development in 1965. The real estate company refused to sell to them because the man was African-American.

In our America, equality doesn’t happen automatically. But there’s a law. It’s out there. It’s 150 years old. And, for better or worse, we have to use it even today.
- Avery Friedman

In our America, equality doesn’t happen automatically. But there’s a law. It’s out there. It’s 150 years old. And, for better or worse, we have to use it even today.
- Avery Friedman

In Jones v. Alfred H. Mayer Co., the nation’s highest court examined the 1866 act’s history when reviewing and upholding a federal statute, § 1982, that was drafted directly from the property rights language in the 1866 law.

“On its face, therefore, § 1982 appears to prohibit all discrimination against Negroes in the sale or rental of property – discrimination by private owners as well as discrimination by public authorities,” the Court wrote in 1968. “Stressing what they consider to be the revolutionary implications of so literal a reading of § 1982, the [real estate company] argue[s] that Congress cannot possibly have intended any such result. Our examination of the relevant history, however, persuades us that Congress meant exactly what it said.”

Law Still Advantageous Today
After the forum, Friedman recalled that he first used the 1866 law in an early 1970s housing case involving racial discrimination. He noted that the law remains powerful today because it contains no exceptions, while the federal Fair Housing Act in 1968 exempted landlords from liability if they had fewer than four units and initially capped damages. And Title VII of the 1964 Civil Rights Act bars employment discrimination, but it exempts employers with fewer than 15 employees and, for years, prohibited recovery of damages in racial and certain other discrimination cases, Friedman noted.

Just recently, an African-American woman contacted Friedman about her experience at a local restaurant. After some shopping, she stopped in the restaurant for a meal. She said she sat for 45 minutes at a table waiting to be served, while white patrons around her, including people who arrived after her, were attended to. Friedman is citing the 1866 act in his federal lawsuit on the woman’s behalf.

“In our America, equality doesn’t happen automatically,” he stated. “But there’s a law. It’s out there. It’s 150 years old. And, for better or worse, we have to use it even today.”

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