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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1094

1094     IOWA LAW REVIEW    [Vol. 49

exercise of a state's police power.103 This is subject, of course, to the general qualification that any classification embodied in the coverage of such statutes must be consistent with our doctrine of equal protection. That notion as embodied in the fourteenth amendment requires that the police power treat all individuals in an even-handed way unless there exists some reasonable basis for differentiation between them. In other words, equal protection demands that ll persons similarly situated with respect to the evil which a law seeks to avoid be similarly treated by that law.104 In the words of the United States Supreme court:

"1. The equal protection clause of the fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis but it is essentially arbitrary."105

At this juncture several preliminary points should be made. Consistent with the mandates of equal protection, laws may proscribe discrimination solely on the basis of race, religion, and ethnic background in those business dealings involving access to housing, employment, and places of public accommodation. The state's authority to deal with discrimination based upon these separable criteria, and involving business dealings106 solely in these separable areas, is well recognized
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103 This is true whether the "businessmen" sought to be regulated operate for profit or not. Under its police powers the state can bar all persons who offer a commodity, service, or facility to the public for a fee, or employ others for a fee, from discriminating in such "business" or "commercial" transactions. The reason why the profit or nonprofit status of the "businessmen" is irrelevant is that the  injury suffered by society due to denials of equal opportunity in housing, public accommodations, and employment does not depend upon this factor. It should be noted, however, that the general power of the state to bar discrimination on the basis of race, religion, and ethnic background in transactions conducted for a fee, may be limited to some extent by the protection accorded the free exercise of religion under our Constitution. See note 135 infra, and accompanying text.
104 Morey v. Doud, 354 U.S. 457 (1957); Williamson v. Lee Optical, 348 U.S. 483 (1955); Tussman & tenBroek, The Equal Protection of the Laws, 37 CALIF. L. REV. 341 (1949).
105 Morey v. Doud, 354 U.S. 457, 463-64 (1957) (quoting from Lindsley v. Natural Carbonic Gas Co., 2020 U.S. 61, 78-79 (1911)).
106 Classifications distinguishing between actions undertaken in pursuit of a pecuniary quid pro quo and those done without such a purpose have been uni-

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1094 IOWA LAW REVIEW [Vol. 49 exercise of a state's police power.103 This is subject, of course, to the general qualification that any classification embodied in the coverage of such statutes must be consistent with our doctrine of equal protection. That notion as embodied in the fourteenth amendment requires that the police power treat all individuals in an even-handed way unless there exists some reasonable basis for differentiation between them. In other words, equal protection demands that ll persons similarly situated with respect to the evil which a law seeks to avoid be similarly treated by that law.104 In the words of the United States Supreme court: "1. The equal protection clause of the fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis but it is essentially arbitrary."105 At this juncture several preliminary points should be made. Consistent with the mandates of equal protection, laws may proscribe discrimination solely on the basis of race, religion, and ethnic background in those business dealings involving access to housing, employment, and places of public accommodation. The state's authority to deal with discrimination based upon these separable criteria, and involving business dealings106 solely in these separable areas, is well recognized _________________________ 103 This is true whether the "businessmen" sought to be regulated operate for profit or not. Under its police powers the state can bar all persons who offer a commodity, service, or facility to the public for a fee, or employ others for a fee, from discriminating in such "business" or "commercial" transactions. The reason why the profit or nonprofit status of the "businessmen" is irrelevant is that the injury suffered by society due to denials of equal opportunity in housing, public accommodations, and employment does not depend upon this factor. It should be noted, however, that the general power of the state to bar discrimination on the basis of race, religion, and ethnic background in transactions conducted for a fee, may be limited to some extent by the protection accorded the free exercise of religion under our Constitution. See note 135 infra, and accompanying text. 104 Morey v. Doud, 354 U.S. 457 (1957); Williamson v. Lee Optical, 348 U.S. 483 (1955); Tussman & tenBroek, The Equal Protection of the Laws, 37 CALIF. L. REV. 341 (1949). 105 Morey v. Doud, 354 U.S. 457, 463-64 (1957) (quoting from Lindsley v. Natural Carbonic Gas Co., 2020 U.S. 61, 78-79 (1911)). 106 Classifications distinguishing between actions undertaken in pursuit of a pecuniary quid pro quo and those done without such a purpose have been uni-