The Right To Discriminate

HateCrime…or, depending on your viewpoint, the right to freedom of association, the right to be a bigot, or the right to uphold the principles of religion.

At first glance, it looks straightforward enough. Mike Pence, the Governor of the State of Indiana, is reported to have watered down a bill that would have protected Christian businesses from being forced to provide services which ran counter to their religious principles. The example most frequently cited is Christian bakeries and florists being forced to supply gay weddings.

There’s more than the usual amount of hypocrisy and grandstanding here. Apple CEO Tim Cook has gone public to declare any religious freedom legislation “dangerous”. Yet his own company does business without qualm with countries whose law mandates the throwing of homosexuals from the roof of high buildings. Strange, but I searched the internet high and low and can’t find any record of him condemning that freedom of religious expression. Similarly, any law in a Western nation generically forbidding the exercise of religious expression, if equally applied, is bound to hit hardest against Muslim minorities, whose cultural and religious norms are far more at odds with the Western liberal tradition, founded as it is on Judeo-Christian ethics. To demonstrate the point, this man went to thirteen well-known “gay” bakeries asking to order a wedding cake with an inscription that defended traditional marriage. Every one of them refused.

There’s a fairly straightforward Libertarian social and economic argument here. Private businesses should not be compelled to serve anyone. Let’s say a a gay couple in a certain town walk into a certain baker’s shop, “Praise The Lord Bakery”, to order a wedding cake. The owner apologizes, explaining his private religious convictions mean he cannot endorse gay weddings. The couple reply, okay, we’ll get our wedding cake somewhere else. So they walk a few blocks down the street, to another shop, “All Welcome Bakery”, run by someone who has no such reservations, and indeed is delighted to take their business. They order a magnificent, multi-layered, marzipan-covered extravaganza, topped with a pair of plastic tuxedoed grooms, and are more than happy to pay the outsize price tag. The couple are similarly delighted with the result on their big day, and consequently tell all their gay and straight friends that All Welcome is the place to go to order cakes, as well as pick up bread, rolls, buns and everything else that comes out of a baker’s oven. A free transaction, where all parties benefit. En passant, they also mention their rather unhappy experience with Praise The Lord, and the reputation of the two businesses spreads.

What do you think happens next? All Welcome Bakery increases its market share in town, at the expense of Praise The Lord, whose customer base is increasingly limited to an ever-diminishing population of ageing, hard-core Christians. Praise The Lord don’t mind this too much either, seeing it as the price they pay for their right to discriminate, and confident that He will right all wrongs on Judgement Day, rewarding them just as surely as He whirls the sodomites into eternal damnation and perdition. The government should not legislate against this sort of private bigotry; the free market will take care of it far more efficiently, and justly, then the state ever can.

If you are Libertarian-minded, no doubt you will agree with all the above. But not so fast: we have not yet explored the implications of the principle we have just established. Imagine if, the week after the bakery incident, the restaurant a few doors down from Praise The Lord Bakery puts out a sign in its window stating “Whites Only”. The owner of the hardware store next door puts a sign in his window which proclaims, “No Jews”. The kosher butcher across the street, in retaliation, puts up a sign in his window stating, “No Gentiles”. The only way a black can get onto the golf course is as a caddy or drinks waiter. Before long, half the businesses in town have their bigotry on open display, advertising who they will or won’t serve. The only two motels in town won’t serve Hispanics and Asians respectively and, before long, the entire town’s economy begins to dwindle.

Is that the sort of town you would be happy to live in? How long do you think the free market might take to sort out a mess like that?

My own view is that we should come down in favour of freedom of speech, and freedom of association, even if it implies the right to discriminate. It will mean that latent bigotry in our society which is festering beneath the surface anyway will be brought out into the open where it can be seen by everyone. I believe that enough people, appalled at its sight, will vote with their wallets to produce a just solution.

I know I would be disinclined to deal with any such businesses, and I’m guessing most of you would be as well. But what if there was only one hardware store in town, and the next town was an hour’s drive away? This is the sort of situation civil rights legislation is generally supposed to obviate. But maybe such heavy-handed state social engineering merely papers over real price of the rights we claim to hold dear: the responsibility to exercise them justly, and the preparedness to accept the consequences, however dire.

That is how it should be when it comes to private enterprise. Discrimination must, of course, end when it comes to the provision of taxpayer-funded services. There is no way, using the same logic, that a Christian fireman should be able to excuse himself from attending a blaze at the home of a gay couple, due to any personal convictions. A government registry employee must validate, stamp and record a gay marriage (in jurisdictions where it is legal) just as he would a straight marriage. Canteens and restaurants at government facilities like national parks would be similarly bound.

That’s my view, and it is meant only as a conversation starter: the first word, not the last. I’m sure you can see as well as I can the situations that it could potentially lead to. So how high a price do you believe we should pay for freedom of association, and the freedom to conduct business as and with whom we will? And would that freedom, unbridled at law, unleash a monster?

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8 Responses to The Right To Discriminate

  1. Ozboy says:

    And again:

    The proprietors of Memories Pizzeria, in the town of Walkerton, Indiana (pop. 2,200) were asked by a local radio station whether they would be prepared to cater for a gay wedding. Their response: No – we are a Christian establishment. A national media feeding frenzy ensued, with protestors demonstrating outside their store, and promising to run them out of business and out of town. As of last night, they have closed their doors.

    But then, conservative Texan journalist Lawrence Jones started up a funding drive to help them out. As I write this, it has raised over USD800,000. Free market in action.

  2. Ozboy says:

    Incidentally, I don’t buy the argument someone put to me earlier, that there is some sort of ethical difference between discrimination on the grounds of religion, race or sexual preference. There are still fundamentalist Christians around who believe that dark skin is the “mark of Cain”, imposed by God in the Book of Genesis for killing Abel, and believe it is therefore God’s will that they shun anyone with dark skin. So it means very little when the store owners say they are willing to serve gays, but not cater for a gay wedding. That’s a mighty small, um, fig leaf they are hiding behind 😆

  3. honestann says:

    Quote from article: But what if there was only one hardware store in town, and the next town was an hour’s drive away?
    Response: I’d love to open a hardware store in THAT town! Problem solved, though probably in less than one year my hardware store would be the only one remaining.
    Another response: So what if the town has zero hardware stores? So what? Is that discrimination too? Sheesh!

    G’day honestann and welcome to LibertyGibbert.

    OK, but I don’t see how that answers the question of whether we should allow freedom of association to the point that allows businesses to decide who they will and won’t serve. Could you perhaps elaborate? Oz

  4. izen says:

    ” Discrimination must, of course, end when it comes to the provision of taxpayer-funded services. There is no way, using the same logic, that a Christian fireman should be able to excuse himself from attending a blaze at the home of a gay couple, due to any personal convictions.”

    A hardline principle backed up with an easy to make case.
    But is there NO room for personal choice when working on the taxpayer dollar?
    What about the doctor/nurse who would refuse to participate in abortions; Or the teacher who will not teach evolution?
    Perhaps there are some beliefs that are incompatible with working in public service. The religious pharmacist who refuses contraceptives to the unmarried may be required to abandon one or the other as the two things are incompatible. They are not capable of being a good pharmacist and good religionist given the influence their theology has on their actions.

    “Response: I’d love to open a hardware store in THAT town! Problem solved, though probably in less than one year my hardware store would be the only one remaining.”

    It may not be so simple.
    Ozboy has a clear distinction between private enterprise that from absolute principle SHOULD be allowed to discriminate on ANY basis, … and then let the market decide. But government, public funded products and services must NOT discriminate on any basis other than those explicitly sanction by the state.

    There may be a gradation, and the distinction between private and government is less clear cut and important than it looks.
    Consider the private individual that provides to friends and family, then by word of mouth to a larger number, DIY and craft services and products. Each bit of work, or sold item is a direct individual exchange with open mutual agreement, the terms and conditions specific and negotiable.
    Discrimination is no problem and part of the casual, uncodified nature of the interchange.

    Then there is the single family run Builders, DIY and hardware store. (the only one in town?!) It has set prices, and outsourced products, many from companies that may have some interest in the way in which their product is marketed. The products the enterprise sells and the services they provide may have regulations and quality safeguards imposed for the general good that the enterprise has to show it complies with. Any personal discrimination they might exercise as a private individual in a private contract is relegated by the more public, and socially codified nature of their enterprise.

    Next up is the business chain, with multiple stores in many towns and cities. This is the ‘only store in town’ that is known for its discrimination against people that you intend to compete with.
    However they have market size with which to undercut you, sustain unprofitable operating for extended periods by cross-subsidies from the rest of the chain, run promotions and quite possibly influence local council planning decisions in their favour in view of the dominant position they hold in the economics of the service/retail sector.
    Discriminating against gays is such a small hit to their business, an such a small gain for your business that they can ensure they remain the only store and retain market share.
    So much for the ‘free market’ solving the problem.

    In case you think that the big chain discriminating is purely hypothetical look up Hobbylobby. In that case the US has managed to hold that a for-profit company can hold sincire relgious (but factually false) beliefs that contraceptives cause abortions and that therefore they can refuse to pay for medical insurance for employees that includes such clinical services.
    You couldn’t make it up!

    The larger, and greater the public size and power of a private enterprise or government service, the greater the need for discrimination on racial, sexual ethnic or any other un-meritocratic measure to be eliminated.

    There is a gradation from the discrimination at the individual level to tolerance at the institutional level that exists for all organisations, public and private.
    Many proffessions (including the oldest!) have a code of practise that allows an individual to refuse servie at will. They are not required to provide the service they may be licienced and regulated by the government (or not) to provide. They can refuse service on any basis. This is signalled by a declaration to be availble ‘BY APPOINMENT ONLY’.
    Larger organisations emplying a nu8mber of proffessional might be able to declare specific opening hours. secure in the knowledge that their enough staff to ensure individual choice, or that the staff are working at the organisation that they have reliquished their independent right to discriminate in ways that are NOT approved by the company, business, institution or brothel they work for.

    Meanwhile gay marriage and abortion are mainly tribal flags flown in an increasingly polarized culture war between the orthodox traditionalists and the social utopians within the American political theatre. Noticeably the equally biblically abominable sins of adultery and usury (divorce and finance) do not seem to require the same discriminatory response.
    In a country where the right-wing government legitimated gay marriage some years ago, it all seems rather silly.

    G’day Izen,

    You’ve comprehended my point very well. As to your observation, Perhaps there are some beliefs that are incompatible with working in public service, I would agree. But I infer from your context that pharmacists (or chemists, apothecaries, or whatever the local term) function purely as government-run dispensaries. That may be the case in Britain, but down here they are almost exclusively private. In fact, law (it’s state law here not federal, but it’s pretty uniform across Australia) dictates that pharmacies can only be owned and run by licensed and qualified pharmacists. Maybe a topic for a future thread – Oz

  5. izen says:

    ” But I infer from your context that pharmacists (or chemists, apothecaries, or whatever the local term) function purely as government-run dispensaries. That may be the case in Britain, but down here they are almost exclusively private. ”

    Sorry, that is not the implication I intended to convey.
    In the UK most of the chemists (who ~2 decades ago all got renamed pharmacists for no apparent reason!) are private businesses. Ranging from a small village shop run by a family, to multi-national retail chains like Boots.

    They are examples of private business that as part or all of their business plan, provide government funded services. A growing band with the enthusiasm for privatisation of public services from schools to refuse removal.
    Governments long ago discovered the problems with allowing the unregulated distribution of lethal products, so chemists are heavily regulated and require qualifications. They are in that large grey area where all, some or a small part of a private business is constrained by some form of government regulation and/or subsidy. It can be argued that ANY private business operates and gains a benefit from the legal framework and material infrastructure that a government provides, so none are truly ‘independent’ of the state.

    The real world examples of pharmacists/dispensing chemists refusing to provide contraceptives to unmarried women all come from the US. I don’t think there are any instances of men being denied sales in a similar fashion.

    It still seems pretty clear-cut to me. If the government is merely subsidizing some products the pharmacist would sell anyway, then the pharmacist is not acting as an agent of the state and should therefore be allowed to discriminate. If, however, the government actually pays the pharmacist to stock certain products, and this arrangement is formalized, then the pharmacist is indeed acting as an agent of the state, and cannot discriminate.

    I personally know Christian doctors who will not refer abortions, prescribe the morning-after pill, and so on. In practice, however, as soon as they understand the purpose of such consultations, they typically turn the patient over to a colleague. That way, the practitioners are free to follow their conscience, and patients get what the law says they can have. Wouldn’t work that way in a public hospital, obviously – Oz

  6. Ozboy says:

    Make that 75,001:

    H/T reader Magilla

  7. Ozboy says:

    Way OT, but vale one of the greatest Australians, Richie Benaud, who passed away today at 84 after a long illness. Richie captained Australia’s cricket Test side from 1958-1962, then commenced a second career as a journalist. As the voice of Kerry Packer’s World Series Cricket, he became the most respected commentator on the sport of his or possibly any generation.


    Sir Donald Bradman and Richie Benaud inspect the pitch, 1961

    Richie was the ultimate master of understatement. I remember him once on the mike while Dennis Lillee came charging in at an English batsman (Graham Gooch if I recall); for five deliveries straight Lillee peppered his hapless victim with short balls to the body. Richie said not a word. Then on the last delivery of the over, Lillee threw the “sucker ball” out wide, which Gooch dutifully nicked through to Rod Marsh behind the stumps. Quoth Benaud, simply: “Got him”.

    But perhaps his most-remembered quote was his commentary to Shane Warne’s ball of the century in the First Test at Old Trafford in the 1993 Ashes series, to a disbelieving Mike Gatting (and disbelieving Dickie Bird standing at the bowler’s end): “Gatting has absolutely no idea what has happened to it… he still doesn’t know!”

    Farewell to a legend.

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