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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1099

1964]     STATE CIVIL RIGHTS STATUTES     1099

the undoubted right to select the objects of his bounty, and [can] ... exclude all ... colored people, ... all Jews, or all Adventists for reasons which to him might seem sufficient. These reasons may be based upon race or religious prejudice, and yet the court would not be justified in saying that any right had been invaded.123

   The essential difficulty int he coverage of this state's public accommodations statute is its unduly restricted nature.124 "Having named such things as lodging houses, restaurants and places of amusement ... the expression 'expressio unius est exclusio alterius' is applicable."125 In other words, because the public accommodations provision specifically enumerated "all ... places where refreshments are served, public conveyances, barber shops, bathhouses ... and all ... places of amusement," it necessarily meant to exclude from its operation those facilities not so listed. Consequently, many kinds of establishments catering to the public generally for a pecuniary quid pro quo are left untouched by this provision; they retain an unfettered discretion to discriminate among their patrons on such bases as race, religion, or ethnic background. Among these places open to the general public for a fee that are exempt from the proscriptions of the Iowa Civil Rights Act are retail stores of all kinds, reducing salons, beauty shops,126 parking lots, gas stations, schools, health clinics, doctors' and dentists' offices, hospitals, banks, loan companies, lawyers' offices, real estate brokers' offices, employment agency offices, and many, many others.
   There is no reason why the kinds of establishments catering to the public for a fee that are beyond the coverage of the Civil Rights Act should remain so. In reconciling the conflict between the entrepreneur's freedom of association and others' rights to equal opportunity, the accommodation worked under this Iowa provision seems inadequate.
   In this context, freedom of association obtains its due consideration by an exemption for those establishments that are distinctly private because they do not cater to the general public. The interest in freedom of association outweighs the interest in equal opportunity in these circumstances because the relationship is ordinarily heavily social and the establishment is not open to a substantial public; it caters only
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123 Id. at 104-05, 123 N.W. at 236.
124 See Rice v. Sioux City Memorial Park Cemetery, 245 Iowa 147 60 N.W.2d 110 (1953), aff'd 348 U.S. 880 (1954) (per curiam by equally divided court). That case held that private cemeteries were not within the act's proscriptions. As a result, the Iowa legislature enacted Iowa Code 556A.8 (1962), making it unlawful for any cemetery "to deny privilege of interment of the remains of any deceased person ... solely because of the race or color of such deceased person."
125 Rice v. Sioux City Memorial Park Cemetery, supra note 124, at 157-57, 60 N.W.2d at 116. (Emphasis added.)
126 OP. ATT'Y GEN. # 63-2-1 (Iowa 1963).

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1964] STATE CIVIL RIGHTS STATUTES 1099 the undoubted right to select the objects of his bounty, and [can] ... exclude all ... colored people, ... all Jews, or all Adventists for reasons which to him might seem sufficient. These reasons may be based upon race or religious prejudice, and yet the court would not be justified in saying that any right had been invaded.123 The essential difficulty int he coverage of this state's public accommodations statute is its unduly restricted nature.124 "Having named such things as lodging houses, restaurants and places of amusement ... the expression 'expressio unius est exclusio alterius' is applicable."125 In other words, because the public accommodations provision specifically enumerated "all ... places where refreshments are served, public conveyances, barber shops, bathhouses ... and all ... places of amusement," it necessarily meant to exclude from its operation those facilities not so listed. Consequently, many kinds of establishments catering to the public generally for a pecuniary quid pro quo are left untouched by this provision; they retain an unfettered discretion to discriminate among their patrons on such bases as race, religion, or ethnic background. Among these places open to the general public for a fee that are exempt from the proscriptions of the Iowa Civil Rights Act are retail stores of all kinds, reducing salons, beauty shops,126 parking lots, gas stations, schools, health clinics, doctors' and dentists' offices, hospitals, banks, loan companies, lawyers' offices, real estate brokers' offices, employment agency offices, and many, many others. There is no reason why the kinds of establishments catering to the public for a fee that are beyond the coverage of the Civil Rights Act should remain so. In reconciling the conflict between the entrepreneur's freedom of association and others' rights to equal opportunity, the accommodation worked under this Iowa provision seems inadequate. In this context, freedom of association obtains its due consideration by an exemption for those establishments that are distinctly private because they do not cater to the general public. The interest in freedom of association outweighs the interest in equal opportunity in these circumstances because the relationship is ordinarily heavily social and the establishment is not open to a substantial public; it caters only ________________________ 123 Id. at 104-05, 123 N.W. at 236. 124 See Rice v. Sioux City Memorial Park Cemetery, 245 Iowa 147 60 N.W.2d 110 (1953), aff'd 348 U.S. 880 (1954) (per curiam by equally divided court). That case held that private cemeteries were not within the act's proscriptions. As a result, the Iowa legislature enacted Iowa Code 556A.8 (1962), making it unlawful for any cemetery "to deny privilege of interment of the remains of any deceased person ... solely because of the race or color of such deceased person." 125 Rice v. Sioux City Memorial Park Cemetery, supra note 124, at 157-57, 60 N.W.2d at 116. (Emphasis added.) 126 OP. ATT'Y GEN. # 63-2-1 (Iowa 1963).