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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1093

1964     STATE CIVIL RIGHTS STATUTES     1093

of statutes in some way limit the right to freely insulate oneself against the heterogeneity of the general public. Yet they have been consistently upheld as a constitutional exercise of our governments' powers.101
    The absence of any absolute right to choose one's associates should be especially emphasized in a business context. Having entered into the conduct of such an enterprise, the individual necessarily abandons any unfettered liberty to choose the terms upon which he conducts it. This is because the entrepreneur's business behavior necessarily transcends his own personal interests and intimately affects the community and its members in a variety of ways.
   As a result, the businessman must stand ready to submit to the regulation of his commercial activities in the public interest. This is true even if his ability to freely choose those with whom he will associate in such endeavors is limited. Businessmen would have no more an absolute right to choose those with whom they will come in contact in their conduct of business than an individual who walks on the public thoroughfare. By engaging in such activity, the rights of both have unavoidably become circumscribed by the rights of others, as well as those of the community at large. Consequently, the entrepreneur's right to choose those with whom he will associate in his commercial affairs is only one of the values to be weighed by the legislature. Numerous cases have held that, within the limits of rationality dictated by due process, this interest may be subordinated to other values.102 Chief among them may be that of enlarging the opportunities of minority groups so that they may have an equal chance to obtain the fruits of our society.
    It seems clear, therefore, that legislation barring businessmen from discriminating on the basis of race, religion, and ethnic background in housing, employment, and public accommodations would be a valid
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place to discriminate against persons wearing military uniforms); N.J. STAT. ANN. 18:25-12b, -12c (Supp. 1963) (unlawful to discriminate in employment or union membership against persons because of susceptibility for service in the armed forces or membership therein); N.Y. EXECUTIVE LAW 296a (Supp. 1963) (unlawful for employer to discriminate on basis of age in hire or tenure of employees); N.Y. PEN. LAW 2041 (discrimination against children in renting of dwelling units is unlawful); PA. STAT. ANN. tit. 43, 955(a) (Supp, 1962) (same).
101 See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
102 The cases cited notes 88-96 supra, necessarily held that freedom of association in business affairs may be subordinated to other social values for a proper purpose. This is because those cases held that labor unions, employers, landlords, and proprietors of certain other kinds of business open to the public generally could be barred from discriminating on the grounds of race, religion, or ethnic background. Note also that the National Labor Relations Act was held constitutional despite the fact that it clearly impinged on the right to choose one's business associates.

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1964 STATE CIVIL RIGHTS STATUTES 1093 of statutes in some way limit the right to freely insulate oneself against the heterogeneity of the general public. Yet they have been consistently upheld as a constitutional exercise of our governments' powers.101 The absence of any absolute right to choose one's associates should be especially emphasized in a business context. Having entered into the conduct of such an enterprise, the individual necessarily abandons any unfettered liberty to choose the terms upon which he conducts it. This is because the entrepreneur's business behavior necessarily transcends his own personal interests and intimately affects the community and its members in a variety of ways. As a result, the businessman must stand ready to submit to the regulation of his commercial activities in the public interest. This is true even if his ability to freely choose those with whom he will associate in such endeavors is limited. Businessmen would have no more an absolute right to choose those with whom they will come in contact in their conduct of business than an individual who walks on the public thoroughfare. By engaging in such activity, the rights of both have unavoidably become circumscribed by the rights of others, as well as those of the community at large. Consequently, the entrepreneur's right to choose those with whom he will associate in his commercial affairs is only one of the values to be weighed by the legislature. Numerous cases have held that, within the limits of rationality dictated by due process, this interest may be subordinated to other values.102 Chief among them may be that of enlarging the opportunities of minority groups so that they may have an equal chance to obtain the fruits of our society. It seems clear, therefore, that legislation barring businessmen from discriminating on the basis of race, religion, and ethnic background in housing, employment, and public accommodations would be a valid _________________________ place to discriminate against persons wearing military uniforms); N.J. STAT. ANN. 18:25-12b, -12c (Supp. 1963) (unlawful to discriminate in employment or union membership against persons because of susceptibility for service in the armed forces or membership therein); N.Y. EXECUTIVE LAW 296a (Supp. 1963) (unlawful for employer to discriminate on basis of age in hire or tenure of employees); N.Y. PEN. LAW 2041 (discrimination against children in renting of dwelling units is unlawful); PA. STAT. ANN. tit. 43, 955(a) (Supp, 1962) (same). 101 See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 102 The cases cited notes 88-96 supra, necessarily held that freedom of association in business affairs may be subordinated to other social values for a proper purpose. This is because those cases held that labor unions, employers, landlords, and proprietors of certain other kinds of business open to the public generally could be barred from discriminating on the grounds of race, religion, or ethnic background. Note also that the National Labor Relations Act was held constitutional despite the fact that it clearly impinged on the right to choose one's business associates.