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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!