This comparative trajectory, which ranges from the struggle against racial segregation in the United States to the normative sophistication of the European Union, through Brazilian judicial activism and French normativity, demonstrates that the question of the right of access to restaurants is far from trivial. It touches on the core of the relationship between private autonomy and substantive equality. Critical hermeneutics requires us to recognise that a restaurant door is a symbolic frontier of citizenship: those who are admitted share in the public space of democracy; those who are excluded experience, albeit on a micro scale, the everyday face of injustice. II. CONSTITUTIONAL AND INTERNATIONAL FOUNDATIONS OF FREEDOM OF ACCESS Freedom of access to restaurants is not, as common sense might suggest, the positivisation of a supposed ‘right to dine out’. The correct, hermeneutically appropriate formulation is different: it is the right not to be excluded from common life on the basis of arbitrary criteria. This difference is decisive. It is not gastronomic luxury that is claimed as a fundamental right, but rather equal participation in the social spaces that structure community life. At the constitutional level, this reasoning is echoed in the structural clauses of equality and human dignity. In Brazil, Article 1, III, of the 1988 Constitution enshrines dignity as a foundation of the Republic, while Article 5, caput, and item XLI, establishes the state’s duty to curb discrimination of any kind. Case law has reinforced that these principles have horizontal effectiveness, binding not only the State, but also private individuals who engage in activities open to the public. In Portugal, the 1976 Constitution, in its Articles 13 (equality) and 26 (personality rights), leads to the same conclusion: the operation of an establishment that is open to the public implies the duty not to practise exclusions based on prejudice, under penalty of denying the very logic of the democratic rule of law. The Portuguese Constitutional Court, in Judgment No. 359/91, reaffirmed the binding nature of fundamental rights on private individuals, highlighting the need to prevent discriminatory practices in private relations.18 Within the requiring hotels and restaurants to accept customers regardless of race. Available at: https://supreme.justia.com/ cases/federal/us/379/241/. Accessed on: 5 Sept. 2025. 18 PORTUGAL. Constitutional Court. Judgment No. 359/91. Diário da República, Series II, 1991. Available at: <https://www.tribunalconstitucional.pt/tc/acordaos/19910359.html>. Accessed on: 5 Sept. 2025. 590 RUI AURÉLIO DE LACERDA BADARÓ
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