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Thursday, March 22, 2012

Barefooting in public buildings and the Ohio Statehouse barefoot rule.

Recently the Ohio state legislature passed a rule that all visitors to the statehouse must wear shoes.  This was after frequent barefooter, and Barefoot Runners Society member, Bob Neinast attempted to visit the public building sans shoes.  There was a lot of uproar in the barefoot community over this rule, and lots of lobbying to make sure the rule didn't go into effect.  It ultimately did, which wasn't surprising to me.  But the whole incident begs the question: is a rule like this legal?  Can your goverment require you to wear shoes in a public building? 

Since I recently answered the same question with respect to going barefoot in private businesses, I thought it was time to get my law on again.  So here you go...

For the most part, my answer to this question is going to be the same as for private businesses.  Under federal and state anti-discrimination laws, public and private buildings are treated identically.  That is, they are both defined as "public accomodations".  So your rights under these laws will also be identical while in each.  Under federal law, you have a right to be present in a public building, and cannot be removed because of your race, color, religion, national origin, or disability status.  States can, and have, added additional categories of protected groups.  But outside of those categories, the government can remove you from a public building for most any reason.  I say "most any reason" because unlike private citizens, when your government takes any action against its citizens it has to respect your constitutional rights. 

Now when I say "your rights", I don't mean the rights that you think you have.  Most people have no idea what their rights actually are (then again, the government probably doesn't either).  You might think you have a "right to be barefoot" or a "right to dress yourself in whatever stupid outfit you please" or the "right to drink Bud Light instead of Michelob Light".  And for the most part, your government won't hassle you over those things.  It doesn't care about your crappy light beer selection (though I do...drink a real beer for fuck's sake!).  That lack of concern doesn't make it a right.   Your rights are those specifically ennumerated in the federal and your state constitutions.  If it ain't there...it ain't a right, and your government is free to regulate that behavior unless it interferes with another actual right. 

So no...there is no "right to be barefoot".  But being in the barefoot state could be equated to other rights, such as the right to free speech (being barefoot as expressive speech...1st amendment), the right not to be deprived of a liberty interest (the freedom to make decisions about one's own body...9th amendment), and the right to equal protection and due process (14th amendment). 

Now, I don't like to do a lot of actual work to write these articles.  Luckily, Mr. Neinast has already done all the research here and argued that each of these rights were violated in 2003 (along with many others) after being thrown out of the Columbus Public Library for going barefoot.  If you want to read the legal analysis behind why each of these claims failed, here's a link to the case.  Needless to say, under this case it appears that the government does not violate any your rights by throwing you out of a public building for being barefoot. 

Of course, this case would only technically apply to folks in Ohio who go barefoot in federal government buildings.  But let's be real here.  I doubt another court would rule differently.  The court in that case did a great job of legal analysis in this case.  Nobody is going to recreate the wheel.  You might as well consider this good law all across our great nation.

For those who don't want to read the opinion, here's what these issues usually boil down to: the individual's interest in the conduct involved versus the government's interest in regulating it.  When the court decides that a government's interest is more important, you lose...and vice versa.  In general, it seems that the courts are concerned with an individual's freedoms and liberties so long as it doesn't infringe upon the government's ability to protect the health, safety, and welfare of its citizens. 

How courts strike this balance depends on the interest involved.  Courts are very suspicious about laws dealing with historically important issues like race, nationality, religion, gender, abortion, education, etc.  So the government needs a really good reason to regulate conduct involving those categories.  So they do not allow a government to pass laws on those topics unless that law has a very important purpose  (think affirmative action, or Title 9, or why we get all bent out of shape over abortion laws for example).  Laws and rules that do not meet this high level of scrutiny will be struck down by the courts as unconstitutional. 

Courts are less concerned about laws and rules involving "non-protected classes" or rights not traditionally recognized by the courts (i.e. made up rights).  Barefooters would be one such non-protected class, since have not been historically discriminated against or oppressed.  Similarly, going barefoot is not a right traditionally recognized by the courts or found in the constitution (i.e. a made up right).  So when governments make rules or decisions about barefooters or bare feet, it only needs a "rational basis" to do so.  A rational basis is what it sounds like...an actual reason to treat people differently or regulate conduct that makes sense.  If the government has a reason for passing a law or rule and isn't just making a decision by flipping a coin or playing Legislative Twister (not sure what that is, or if I want to know), the law is constitutional.  Under this standard, only absolutely arbitrary laws and rules will be found unconstitutional. 

So did the Ohio statehouse have a legal right to kick out Mr. Neinast?  Yup.  Is it legal to pass a rule prohibiting barefooters from entering the statehouse?  Yup.  Barefooting as an interest and barefooters as a group are not entitled to anything but the lowest level of protection under the Constitution.  So long as the Ohio legislature had a "rational basis" for the rule, it will be upheld by the courts.  Game over folks. 

Does it matter that to us barefooters, the reasons used to require shoes seem illogical and stupid?  Nope.  When passing laws and rules like this, your government is not required to act intelligently.  Otherwise nothing would ever happen in government (am I right, or am I right...or am I right...I feel like I need a snare drum for that joke).  A law can be based on a stupid reason so long as it was arrived at logically.  And likely, a court will see a rule against bare feet in a government building as neither stupid nor illogical. 

So what can you do about rules like this?  I think you do what the Primalfoot Alliance did and get out in opposition of the rule.  If you don't get your way, you continue the slow but steady process of educating people on the benefits of bare feet.  We're making progress on that front, but nothing is going to come overnight. 

Primalfoot is a great resource for how to interact with the shod community, as is the website of Dr. Daniel Powell.  Rather than just reiterating what they've already said on this site, just click over there.
Keep fighting the good fight citizens!  Cheers!


  1. C'mon man! "But the whole incident begs the question: is a rule like this legal?" It raises the question, but it doesn't beg the question. :-)

  2. Maybe not to you. But to a legal nerd like me...it was begging.

    1. Oh, I thought a legal nerd would be using the definition of 'begging the question' (and its variants) as understood by the school of logic.

    2. They don't teach logic at law school. They teach BS-ing and the school of "piling on".

  3. You, as a lawyer, ought to know not to take court opinions at face value. For instance, the "rational basis" that the 6th Circuit used was the fiscal integrity of the library, from a fear of being sued. Aside from the question of whether an unreasonable fear is "rational", in Ohio a library has (a limited) statutory immunity; they are only liable for physical defects of their property. Additionally, in Ohio, library patrons are licensees, not invitees, so all the library has to do is refrain from wanton or willful behavior. That pretty much removes the whole "fiscal integrity" argument.

    Yet, somehow, the 6th Circuit managed to forget that those issues had been argued and neglected to address them in its opinion.

  4. Actually, as a lawyer I know that court cases ARE to be taken at face value. It's a little thing called "precedence", meaning that if a court decides something once, it will generally decide the same thing again in the future.
    If we don't take court decisions at face value, then we just reinvent the law for every case.

    But if you'd like, you go ahead and litigate this issue in another jurisdiction, and see if the government cites this case or if the court reasons differently than in the 6th district's opinion.

    If they do, I'll buy you a steak dinner. I'm fairly certain I won't owe you any steak...

  5. Well, now you are playing word games. Of course they are precedent. But I suspect you knew what I was saying, which is that the rationales behind the opinions are often not based on the argument or the facts, but merely the judges' whims. Another example from the case: the judge noted a broken chair on the floor and stated that that was a danger to a barefooted patron. There was no evidence in the record to that effect (don't forget, this was summary judgment). In fact, there was no evidence in the record that anything they claimed was a hazard actually was a hazard.

    The one exception was a little girl who got her toe caught under a door, and that happened to woman, too. One was wearing shoes, and one wasn't. Of course, under rational basis, the government doesn't have to solve all instances of what they consider a problem.

    But let me make sure I get this right. According to you, the government can ban outdoor barefoot running, using all these same rationales? Or conversely, they could ban shoes outdoors, since it is easy to show that shoe-wearing does lead to some injuries?

    So, we don't really live under rule of law, or even rule of men, but really rule of whim?

  6. I'm just telling you what I think the law is man, not relitigating your case. Do I think it was the right outcome? No. Do I think it was the likely outcome of your case and ANY AND ALL future case on the issue? Yes. You can defend your position all you want. I'm just telling you the score.

    As for your hypotheticals, I don't give free legal advice, nor do I answer baited questions. But the answer is "it depends".

  7. In any case, a judge makes two decisions. There's the "fair and just decision", and "a bullshit decision". Which one it is depends on whether you won or lost.

  8. From your article, I understand that going barefoot in itself is not a protected right, but banning barefooters "may" infringe on other Constitutional rights such as the right not to be deprived of liberty and happiness. However, if there is a "rational" basis for making a law or rule that takes away a freedom, then the government has the right to do this. I understand this principle.

    However, how can the Ohio government say that this rule is even "rational"? When scrutinized at any level, it is not rational at all, and all reasons stated for making this rule don't hold any water whatsoever! Not only that, but this sets a dangerous precedent. It means that the government can create any laws that limit other freedoms as long as it is "rational" IN THEIR MINDS, and completely ignore any facts or logical reasoning that contradict their view points! This is terrible!!!!

    1. Well, remember a few things. First, not every issue only receives rational basis scrutiny. Some issues require much more scrutiny, and in those instances government can't infringe on your freedoms without a really good reason. It's just that barefooting isn't one of those issues...yet.

      As for whether or not these rules are rational, remember your frame of reference. These rules seem irrational to you, but that's because you are well informed on the subject. The general public is not well informed. Thus these rules seem completely rational to them. Remember that laws aren't always made because they are correct. They are always made because they are the will of the people. If a congressman makes a law that doesn't jive with popular opinion, he'll find himself out of a job really quick.

  9. Nice concise summary of the issues involved. Thanks. Limited government is the answer, or at least a step in the right direction.

  10. This debate is an interesting look at rights. Normally I am not even interested in anything that resemebles legaleize or the like, but this rule is just B.S.

    Your last post about being Barefoot in private business has given me a different perspective on that issue and however much I want to go through life barefoot, I also don't want to go through life picking fights. I absolutely have no right going into a persons private business to challenge them over this or any issue. Even the simplist of employees feel they can argue for their companies "No Shirt, No Shoes, No service" because they are arguing for their jobs. You put the $8 employee at risk for getting in trouble and they will defend whatever policy the store has to protect their employment. Its not good business to purposefully put them in a position of defence or drama just for the sake of going barefoot. I live in Michigan where its nearly impossible to go barefoot year round and the social norm is shoes. So I keep a pair of sandles with me. At Church they accept me how I am, in a private business, I must accept their rules. If I don't like them, there are plenty of other businesses to spend my money.

    Thanks for weighing in on the issue.

  11. Hey, I'm sure I won't get a response on this old post but is there any difference to be had with privately owned outdoor spaces? here are some examples:
    - a public city park
    - the outdoor grounds of a library
    - the outdoor grounds of a commercial building
    - the outside of a federal or state building

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