Discrimination and the Constitution

The 14th Amendment prevents discrimination by government entities. However, private organizations ARE allowed to discriminate even against protected classes (such as the Masons keeping out women). This right is protected by the 1st Amendment right to free association.

So why are PRIVATE corporations not allowed to discriminate under the 1st Amendment?

IANAL, but my guess would be that the courts consider Congress’s authority under the Commerce Clause to permit them to regulate discrimination by corporations. Since virtually all corporations are involved in “interstate commerce” either directly or as part of the “stream of commerce,” Congress has the power to regulate their actions.

Yeah, that’s it.

–Cliffy

Check this out.

Oh, cool, you joined. Welcome! (a little late)

My WAG would be that discrimination is a basic right of a person. We can choose our own friends, we don’t want the gov’t telling us that we must like a person. We can discriminate against a entire gender when it comes to choosing a mate. Arguabally private organizations are closer to the ‘personal’ level then coorperations, which corp’s most likely has some dealings directly with the public at large. Private organizations can isolate themselves from the public, coorporations, in order to stay in business usually has to access the free market (again dealing with everyone).

Because they’re doing more than just “associating”, they’re conducting commerce.

The words “freedom of association”, of course, don’t appear in the Constitution; the concept derives from the rights of speech, worship, assembly, and petition, which do appear. As long as you’re pursuing those activities, you can generally associate with whom you please; but if you’re conducting commerce, you’re subject to any number of state and federal laws.

Don’t forget that the purpose of the Constitution itself is to define our government. It sets out the form of the government, grants it certain powers and limits its powers in other ways. Therefore, only the government can do things that are unconstitutional.

To regulate the behavior of private individuals and corporations we pass laws.

Kanicbird is closer to the truth here than might be at first clear.

Individuals have the right to choose with whom to associate (and the concomitant right to choose whom not to associate with). Private associations can discriminate all they want, because they are made up of individuals exercising that right. If the Polish-American Veterans of Schenectady chooses to limit its membership to people who are (1) veterans, (2) of Polish descent, (3) who live in Schenectady, that’s their privilege. Groups for Catholics only, blacks only, etc., are welcome to form, and not even condemned by public opinion if there’s a reasonable purpose behind their exclusiveness.

On the other hand, the character of a commercial enterprise is that it holds itself open to the public for business. The fact that it’s privately owned does not enter into the issue here; it’s the character of the clientele, the general public, that matters. That invokes the (greatly expanded) Interstate Commerce Clause, and permits the Civil Rights Act of 1964 and related laws to intervene.

Simply, if you hold your business open to the public, that has to mean all the public (subject to reasonable permissible restrictions, e.g., a topless bar can set a minimum age, for good reasons). You can run a “private” business – a consultancy or practice that only works with contractual clients. But you cannot open the Moslems-only Motel, etc. You can cater to a select clientele; every kosher butcher does just that. But you cannot restrict your clientele on discriminatory grounds – without a sound “non-discriminatory” reason for doing so, one not contrary to public policy.

Say I run a very exclusive private club. Say the chapters of my exclusive club allow members to rent living quarters on a night-by-night basis in the attached dormitory. Also say that the chapters are open twenty four hours a day and if you meet the requirements you can apply for membership, pay your dues and get accepted instantly at any of the chapters. How is that not an exclusive hotel? (Or how is it illegal?)

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