The constitutional right of non-association

© 2008 Michael Swickard, Ph.D.

My friend Bob was at a buffet. After his sixth trip, the owner came over and said, “This is an all-you-can-eat buffet and Bob, that is all you can eat.” Bob laughed, but there is a constitutional issue at stake that came out last week when a buffet owner back east banned three regulars because they ate too much. Lots of people immediately asked, can they do that?

Indeed, do business owner have the right to refuse service to anyone? Some say when a door is open to the public for commercial exchange it is open to everyone. Others, myself included, feel that everyone does have a right of association guaranteed by our constitution.

Our constitution seems to divide the right of association into two areas: government and private. When we deal with the government, the right of association is not in force. Privately, the constitution suggests you do not have to associate with anyone that you would rather not.

While making a designation between government and private, the constitution does not make a designation between private and private-for-money. There is no loss of constitutional rights because you are involved in a commercial venture.

The market will correct for people who are not nice. If a restaurant does not wish to serve someone, say military veterans, the word would go out and business would drop considerably. Do they have a right to refuse service? They do, even if they do so with evil in their heart.

Constitutional rights are not those things you can do; rather, they are those things that you cannot be forced to do. We know we are a free people when you can refuse service to anyone for any reason. If you have to explain to some higher authority why you banned someone, then you do not have the right of association.

And, if people are not satisfied with what the constitution says, they are always free to change it using the mechanism of change that the forefathers built into it.

A slippery slope

The right of association is interesting. I am not troubled that the government can prohibit my association with terrorist groups; again, what I am interested in is my ability privately to manage my own associations.

Our most valued associations are social. What if the government tried to say you could not exercise your right of association within social contexts? That when someone called a woman for a date she had to go on that date. Outrageous! But what is the difference when someone opens the business door but does not wish to transact business with some people?

Someone is open to dates, but as I experienced earlier in life says, “I cannot go out Friday night. I have to stay home and wash my hair.” That is “get lost” spelled politely. Do people who then go out with a better-looking man have the right of association? I support that right even if I do not like my outcome.

When we start mandating that businesses cannot decide who they associate with, we are on a very slippery slope. Apartment owners cannot discriminate against extremely irresponsible, exuberant college students. That troubles me. We know where we want to start, but do we know where to draw the line? We either have the constitutional right of association or we do not.

In cattle country

I was in a small, rural cafe when a car with California plates pulled up. I watched a young man get out and walk in. He had on a T-shirt with the constitutionally protected speech, “I love Sheep,” printed on it. The picture on the front of the T-shirt made the statement more than a double entendre of bestiality. It seemed to proclaim that he enjoys sexual congress with sheep.

Besides the problem of bad taste, this was cattle country.

The kid had just sat down at a table when the cafe owner saw the message. He jumped up, grabbed the kid and hustled him out of the cafe saying, “You and your T-shirt are outta here. You’re outta this cafe, outta this town and outta this state. You head for the state line and don’t stop; I’ll be behind you. Now, git going outta here!”

The kid spun the wheels of his car leaving the parking lot. There was a look of fear in his eyes even though he had a “No Fear” bumper sticker on his car. Perhaps out in California the shirt was a real hoot, but not in our cafe, even if we all laughed about it afterwards.

The business owner did have the right to throw the kid out of his business for something as harmless as wearing a message on his shirt, but he did not have the right to throw him out of our state. Still, we coffee drinkers stood and applauded the cafe owner when he came back in the cafe. That was cattle country, you know.

And I applaud any American citizen’s right to decide his or her own associations, even if someone says, “I’m not serving the likes of a columnist like you.” I will be fine.

Swickard is a weekly columnist for this site. You can reach him at michael@swickard.com.