February 16, 2014 by Julia
I wrote the following back in September, but I never got around to finishing and posting it. I think this might be a good time to do that. There is an update of sorts at the end with some newer thoughts and a tie-in to religion. This is going to be unpopular, I’m sure, but I just need to say it.
You can disagree with me about this, that’s cool. It’s the entire point, as a matter of fact. Also, this is just my opinion, and should not be imputed to Ish.
So by now, the online political commentariat has heard all about Sweet Cakes by Melissa, an Oregon bakery that declined to provide its cake-baking services for a lesbian wedding and ended up the subject of a state discrimination complaint, eventually closing due to a combination of harassment and a boycott. Sweet Cakes allegedly ran afoul of an Oregon anti-discrimination law:
(1)Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.…(3)It is an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section.
Okay, that’s simple. If you run “a place of public accommodation,” you cannot “deny full and equal accommodations, advantages, facilities and privileges” “on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.” The law does define “public accommodation,” although “accommodations, advantages, facilities and privileges” is a little vague (and the situation can be confused by a later reference to “any distinction, discrimination or restriction.”
I get what the law is trying to do. Seriously. Discrimination is bad, and if you choose to open a business that advertises to the public at large, you cannot refuse service to any member of the public at large on the basis of a certain list of factors, because it’s just plain not fair.
But here’s the thing. To me, it’s even more unfair to force a private individual to provide a good, service, or whatever against his or her will. I don’t do this often, but please allow me to quote the platform of the Libertarian Party (no, I am not a Libertarian, but I am libertarian-leaning, and yes, the capitalization is intentional):
Since governments, when instituted, must not violate individual rights, we oppose all interference by government in the areas of voluntary and contractual relations among individuals. People should not be forced to sacrifice their lives and property for the benefit of others. They should be left free by government to deal with one another as free traders; and the resultant economic system, the only one compatible with the protection of individual rights, is the free market.
The relationship between a service provider and a consumer is a private, contractual relationship–what business does the government have in getting involved, absent fraud? (As an aside, fraud is unacceptable, because the free market presupposes and requires the free exchange of accurate market information–so yes, fraud would be illegal in a libertarian or Libertarian state.) The two parties make a decision whether or not to enter into the contract based on the perceived costs and benefits of the contract, and no one else’s opinion of the costs and benefits are relevant. This is the same reason, by the way, that the insurance coverage requirements in the Affordable Care Act horrify me–if I wanted to pay for coverage for XYZ, I would have chosen to buy that coverage.
Yes, yes, service providers could simply choose not to have a business if they didn’t want to follow the law, so they’re not really being “forced” to do anything, because they could just not work at all. Because barriers to entry and higher unemployment always help the economy, right? But seriously, legislating that only people with certain correct beliefs can operate businesses is a scary proposition. Consider Jim Crow, government-enforced segregation–businesses had to discriminate, whether they wanted to or not. If the government gets to pick and choose whom you can and cannot serve in your business, sometimes you’re going to like the laws . . . and sometimes you won’t. Remember, never support the government grabbing more power if you wouldn’t want your enemies wielding that same power.
Rather than let the government decide who gets to shop in each store today (but maybe not tomorrow), I believe the owners of individual private businesses, operating on private land, as long as any private contracts allow it, should be able to legally discriminate against anyone they damn well please. Period. A white guy who owns a restaurant not allowing black people to eat there? A black guy who owns a book store refusing to sell to whites? A Muslim-owned electronics store turning away Christians? A bakery owned by a straight couple denying a cake to a gay couple? A bakery owned by a gay couple denying a cake to a straight couple? GO RIGHT AHEAD.
Would I be angry if a place I love to shop suddenly started turning me away because of my race, gender, sexuality, etc.? Probably, yeah, because I love their service or goods! But I would still think they had a right to do it. I have a right to tell people to get the heck out of my yard for any reason I want, so why don’t the same rights apply to private companies on private land? I wouldn’t take that right away from them, because I want it for myself. Seriously, if you’re in my yard, get out! (I was born a grumpy old lady, no lie)
Now, the effect of these rights wouldn’t be anywhere near as widespread and awful as you think, because (almost?) every franchise is going to include a non-discrimination clause in their franchise agreement right off the bat. Further, many lessors of commercial property are going to include non-discrimination clauses in their leases. Do I have a problem with that? Hell no, those are private contracts! The owner of a brand or commercial land also has the right to protect the value of their property by not associating it with discrimination.
Which brings me to the next point: between personal opinions, public pressures, and a desire to make as much money as possible, most individual business not under a restrictive lease are still not going to discriminate. First, not all people are outright bigots, so they have no desire to discriminate in the first place. Second, the public frowns on discrimination, and negative reviews are going to put pressure on discriminating businesses to stop, lest they lose more business than they expected. Third, by cutting its potential customer base, any business that discriminates will have to work an awful lot harder to turn a profit. Few people business owners are going to turn away more than a few paying customers–remember, humans are a greedy bunch.
So yeah, some people will likely run businesses that discriminate. Fine. Go for it. Because the last thing I want is the government to make more rules about with whom I can and can’t contract. If I owned a business (and some day I hope to), I can’t think of any one group I’d want to turn away. But maybe when that time comes, there will be some group of people even more annoying than hipster kids, and I’ll be like . . . get out of my store. I want the right to do that. I want everyone to have the right to control their private space as they see fit. If that means discriminating against me–or gays, straights, blacks, whites, Muslims, Christians, whatever–so be it. You may not like what people do with their freedom, but you advocate those people losing their freedom at your own peril.
As I prepare this for posting in February 2014, the internet is abuzz with people horrified about this Kansas bill (which is not yet a law at the time I write this). The bill is grossly misrepresented in general, and I’ve been eyeing with trepidation the various poorly-informed rantings and links in my Facebook feed. I gave Andrew Sullivan a try, though, because I still have a vestige of respect for him. Aside from the ludicrous statement that the bill “gives the full backing of the law to any restaurant or bar-owner who puts up a sign that says ‘No Gays Served'” (it doesn’t–at most, you would see “No gay wedding receptions” or “No gay bachelor/ette parties”) and other similar misrepresentations, he has some interesting things to say. Note, though, that “Republicans” support the Kansas bill, but “Southerners” supported Jim Crow. Also note that Sullivan thinks forcing business to segregate during Democrat-sponsored Jim Crow is the same as allowing business to segregate if they want to (see above for the distinction).
Anyway, where Sullivan is dead right is this:
As for the allegedly Christian nature of this legislation, let’s not mince words. This is the inversion of Christianity.
Even if you believe that gay people are going to Hell, that they have chosen evil, or are somehow trying to subvert society by seeking to commit to one another for life, it does not follow that you should ostracize them. The entire message of the Gospels is about embracing those minorities despised by popular opinion. Jesus made a point to associate with the worst sinners – collaborating tax-collectors, prostitutes or lepers whose disease was often perceived as a sign of moral failing. The idea that Christianity approves of segregating any group is anathema to what Jesus actually preached and the way he actually lived. The current Pope has explicitly opposed such ostracism. Christians, far from seeking distance from “sinners”, should be engaging them, listening to them, ministering to them – not telling them to leave the store or denying them a hotel room or firing them from their job. But then, as I’ve tried to argue for some time now, Christianism is not Christianity. In some practical ways, it is Christianity’s most tenacious foe.
But the gay rights movement, it seems to me, should tread a careful path. We should be wary of being seen to trample on religious freedom and be defined as discriminators of another sort. Allowing space for those in society whose religious convictions make homosexuality anathema, even Satanic, is what true liberals do. And to my mind, a better approach for gay couples and their families is not to try and coerce fundamentalist individuals and businesses into catering to them, but in publicizing the cases of discrimination and shaming them – and then actively seeking out and rewarding individuals and businesses who are not so constrained.
You counter rank discrimination with economic and cultural freedom. Because the side that tries to use the power of the state to enforce a single answer is the side that will seem to have over-stepped its bounds.
I support economic and cultural freedom. If you want to discriminate in your own private business, have fun with that. I think you should have the economic and cultural freedom to do so. No one has the right to force another person to provide him or her a service against his or her will. Christians should not discriminate, and should come to their own, individual conclusions about the extent to which this requires involvement in activities like gay marriage. I disapprove of the Left’s “shaming” ritual, because it feels too much to me like mob rule. Rewarding businesses and people who do not discriminate (which, as I set forth above, will likely be most of them) is a much better idea.