In the “No Compromise” thread on Family Scholars Blog, David writes:
One conclusion I draw from this thread is that it would be a good idea for someone (presumably someone opposed to ssm) to state with some specificity the actual content of desirable and permissable protections of religious liberty and the rights of conscience with respect to laws permitting same-sex marriage.
But in the essay David links to, Robert George says what he thinks the content of those laws should be.
“We will accept the legal redefinition of marriage; you will respect our right to act on our consciences without penalty, discrimination, or civil disabilities of any type. Same-sex partners will get marriage licenses, but no one will be forced for any reason to recognize those marriages or suffer discrimination or disabilities for declining to recognize them.”
If Professor George is serious about this language — and there’s no reason to think he was joking — then what he wants is for no one, in any circumstance, ever, to be pressured in any way whatsoever to recognize a same-sex marriage.
So, for example, if Chick-Fil-A wants to provide health insurance coverage for the legal spouses of heterosexual workers, but not the legal spouses of similarly situated homosexual workers, Chick-Fil-A should have that right.
If a city clerk working in a small, one-clerk town wants to refuse to issue a marriage license to a same-sex couple, she should have that right. Let them drive to the next town over and try their luck there. Firing her because she’s effectively refusing to perform her job duties would surely be an example of a “penalty” and thus is not allowed.
If a bank clerk wants to refuse to accept a mortgage application from the same-sex couple, because they checked off the “married” box on their form, that should be acceptable behavior, according to Mr. George’s standards, and for the bank manager to discipline or fire that employee should presumably be illegal.
If a hospital or doctor decides not to recognize a same-sex marriage, and therefore refuses to accept a sick or injured person’s insurance from their same-sex spouse’s employment, they should face no penalty, according to George. They cannot be “forced to recognize those marriages,” after all.
Professor George is quite right to say that the “grand bargain,” as he describes it, would not be acceptable to many SSM advocates all. What George calls for is nothing less than permanent second-class status for all same-sex couples.
A different sort of “grand bargain” is certainly possible, however. I don’t know a single SSM who wants to see unwilling ministers forced to officiate at same-sex ceremonies, for example, or unwilling Churches forced to host same-sex ceremonies in their chapels. There are gray areas to be hashed out, but there is in fact quite a lot of agreement, from both SSM opponents and SSM advocates, of what such a “grand bargain” would look like.
There may be a few extremists on the pro-SSM side who oppose any religious exemptions at all – although if they exist, they are not prominent leaders of the movement. On the anti-SSM side, there are a few extremists, Professor George included, whose views would effectively condemn married same-sex couples to permanent second-class citizenship. Fortunately, I think most people’s views are actually in the middle, and in the next decade or two we will see a reasonable grand bargain, effectively (if imperfectly) protecting both gay rights and religious liberty, emerge in most states.
That’s not a compromise at all, and George’s calling it a compromise is complete bull. That’s saying “Sure, have your legal marriage, and give us the legal right to ignore it, so that you’re not actually legally married.” What the heck is the point of legal protections that anybody who feels like it can ignore?
How about this compromise? If the person or organization would not be legally permitted to discriminate against an oppposite-sex couple for similar religious reasons, they don’t get to discriminate against a same-sex couple because of their religious objections.
Pastor doesn’t want to marry a same-sex couple? Well, would he have to marry an opposite-sex couple whose marriage in some way violated his religion (say, they’re both divorced)? No, he wouldn’t.
But recognition of a legal relationship should be independent of what anybody else thinks about that relationship. Nobody at the DMV gets to say, “Oh, you got married by a justice of the peace? Well, I don’t think you’re really married because I believe marriage is a religious sacrament. No new driver’s license for you.” If your religious belief is that everyone should have as many children as possible, and you own a business, you don’t get to only provide spouse benefits to couples who have had children.
I think the main gray areas are the cases where multiple, contradictory rules could apply. (Like the photographer who didn’t want to photograph a same-sex wedding–is that a freedom of speech issue or a public accommodation issue?)
In other, shorter, words, I agree with you. :)
Substitute “Mixed race marriage” for “Same sex marriage” in the compromise. Anything I wouldn’t agree to for the former, I wouldn’t agree to for the latter.
I certainly wouldn’t want ministers forced to preside over a ceremony they didn’t wish to, for whatever reason. Churches I’m torn on. They’re subsidized by the public in a variety of ways, and I’m not sure I’m comfortable with “Yeah, you can take Bob and Dave’s money, but you shouldn’t have to acknowledge their existence.”. They could always have a choice (Something they take great glee in denying others): Give up being subsidized by taxpayers, or stop being bigots.
If that makes me an extremist, I can live with that.
For most religious institutions, there isn’t much distinction between whether the minister would preside over the ceremony and whether the building would host the ceremony. Most churches, synagogues, etc. aren’t just available for rent like a social hall.
We already have this issue. Most rabbis – including most Reform rabbis – won’t preside over marriages between Jews and non-Jews. That has no bearing on the legal status of my marriage, my ability to get insurance benefits, etc.
I would like Robert George, et al, to explain why their objection to gay marriage is qualitatively different and worthy of greater protection than the average rabbi’s objection to intermarriage.
Right, although a lot of churches do have halls they rent out. That may be one of those really contentious gray areas.
Because they’re Christian and their religious freedom is more important than everybody else’s? (I mean, that’s not the explanation the
Oops! Continuing…
…not the explanation they’d give, but I tend to think that’s what it boils down to.)
One straightforward way to have exactly that compromise is to get the government out of the marriage business – have the state only do civil unions, have religious institutions do religious weddings with no legal implications. That way everyone can freely ignore everyone else’s marriage if they want. Not their civil unions, of course.
A catholic university I know doesn’t recognize same-sex marriage, but lets you assign your benefits to any one person of your choice. Although that’s not adequate, I think it does point to a way for people who oppose same-sex marriage not to recognize it as ‘marriage’, just to recognize it as a legitimate way to assign every single right you’d assign to your spouse.
Deborah, I think that’s a good idea only in theory, because in practice it would require a massive overhaul of every law ever where marriage is mentioned. It would also take away a socially recognized status from people who had “only” a civil ceremony, because they would no longer be “married” but just “civil unioned.” Because marriage has such huge social and cultural significance, I don’t think getting rid of it as a legal concept would ever fly. (It’s also worth noting that, at least in European history, marriage was a civil thing before it was a religious thing.)
I would absolutely like to see civil marriage and religious marriage pretty thoroughly disentangled, but I don’t think that requires calling all legal marriages civil unions. A word can have multiple overlapping meanings without having to invent new terms, as long as people clarify which meaning they’re referring to when 1) it’s one and not both and 2) it actually matters.
Caution: Ginormous Tangent Ahead
One example of how I think religious and civil marriage should be disentangled is that I don’t think a religious officiant should be signing a marriage license, as currently happens at least in some states (I think most, but I only have experience with PA). As a legal, not religious, thing, that should be done by a judge or someone at the courthouse. I would also love to see PA do away with its requirements on who counts as clergy to perform a wedding.
Admittedly, the requirements are minimal: “A minister, priest or rabbi of any regularly established church or congregation.” But it does rule out having a friend who gets ordained online do your ceremony.
It can also mean that there are extra hoops to jump through if you’re getting married in a religion that doesn’t *have* clergy (e.g., Quakers). In Philly, for example, a regular marriage license costs $80, and a self-uniting license (with signature lines for witnesses rather than an officiant) costs $90.
Yes, that’s pretty minor in the grand scheme of things, but as long as you’re legally eligible, you pay the fee, and you fill out the paperwork correctly, it , shouldn’t matter to the state whether you’re married by a minister, a rabbi, your cousin Bubba Joe-Bob, or a priestess of the Flying Spaghetti Monster.
End of Ginormous Tangent
Many Latin American countries have civil and religious marriage as two separate institutions, a holdover of anti-clerical battles in the past. The civil marriage is done by a justice of peace and counts as marriage for all civil purposes. You have to have a civil marriage to have a religious ceremony, but not vice-versa. The religious marriage is only relevant for church purposes.
But there is no way to disentangle them in the United States without it being called an assault on marriage, so … not gonna happen.
Yeah, I don’t think it’s going to happen (and would not want to see any push for it detract or distract from the move to legalize same-sex marriage). I just really think it would be a good thing. And while I’m wishing, I’d like a unicorn.
How many countries other than the US have this mixup of civil and religious marriage? I can’t think of a lot of european ones.
If all civil marriages were just called civil unions, you know what would happen? People would call them marriages just like they do now. The only reason there’s a distinction now is that civil unions still confer fewer rights and responsibilities.
My “can you even discuss this rationally” questions usually involve the provision of governmental services.
Question: Do you believe that a government worker should be able to selectively refuse to provide government services to U.S. citizens, based on their own personal beliefs?
Anyone who would answer “yes” to that question is, in my mind, a waste of time.
Outside that question, there is a lot of debate about the circumstances in which NON-governmental people and entities who provide a NON-governmental service should be compelled to act against their wishes. In my view, those debates are “real” and have good arguments for both sides even when the reasons for action are bigoted and hateful. There are good necessity and balancing arguments, of course, when it comes to things like the provision of emergency medical services or life-sustaining things.
But it is worth noting that as a society, we generally find it much worse to be compelled to do something, than we do when something is unavailable. “You can’t eat that” is unpleasant, but “you must eat that” is much worse.
That’s one important reason that we don’t permit something called “specific performance” in personal services contracts or judgments.
If I owe you money, you can’t make me mop your floor. Even if I originally promise to mop your floor and I refuse, you can sue me for the cost of hiring a replacement but you can’t get a court order compelling me to personally mop the floor.
The philosophical problem in general is that these laws compel folks to do something they don’t want to do: “interact with ___ people.” We don’t usually make people do that.
The compulsion is obviously fine in the context of government services (it’s necessary for all employees, otherwise government wouldn’t function) and it’s fine in the context of certain limited things like hospitals (in the balance.) But it’s unclear how or why it’s philosophically justified for a doughnut shop.
G&W – so, if my wife and I were to move to the US tomorrow, and we were to go to a bank and apply for a mortgage, and the particular bank employee we were dealing with was an Orthodox Jew, would have refuse to recognize our wedding because it is a mixed faith wedding? After all, from his perspective, our wedding certificate is a meaningless piece of paper – as a Jew myself, I can only be married to a Jewish woman in accordance to Jewish law, and the civil ceremony in which my wife and I exchanged vows is nothing more than playacting, whatever the laws of the UK or the US state.
Eytan – first, welcome to America.
Second – wrong question. The bank employee’s job is to follow the bank’s policies. So his opinion of your shameful harlotrous pseudomarriage is immaterial; all he is supposed to do is check that you’re legally married.
Now, when he goes to his night job as the owner of a small apartment building, can he refuse to rent to you because he has a policy of only renting to properly-married Orthodox couples? Arguably, yes. (Not under current US law, but current US law is wrong.)
Robert, a place to live is a pretty basic need, though. In small communities where prejudices are widely shared, you’re arguing that it should be legal to effectively prevent groups you (generic you) don’t like from living in your town.
It’s already legal to do that, as long as the group identifier isn’t one of the protected classes. Nothing stops the bigoted folk of Randville from refusing to rent or sell to socialists or hippies.
In the bad old days it was rare to see a community-wide ban. Instead there were segregated neighborhoods. I agree that segregated neighborhoods are bad; I am not sure that taking away a conscience right isn’t worse. But it’s a tough question, not a slam dunk.
Robert – I recognize that a bank clerk is supposed to follow the bank’s policies; but that’s not what Robert George is saying. He’s arguing that individuals should be allowed to refuse to recognize SSM, and must not be discriminated against for refusing to do so. Presumably, a bank policy that would require Christian bank clerks to merely check if people are legally married and not judge the matter for themselves would be subject to lawsuits on the grounds that it is indirect discrimination, same as a bank policy that requires its Jewish employees to work on the Sabbath.
So let me rephrase my question to G&W – is the Jewish bank clerk’s discriminated against by his employer, or by the government, if he is required by bank policy to treat me and my wife as a married couple?
I think, and this is something that the recent Crooked Timber critique of libertarian policies towards workplace coercion addresses very well, that we have to consider more than one sort of restriction of freedom.
I’m down with the maximum freedom for as many people as possible, but I don’t think that a situation where the (ethnic/sexual/religious) majority denies full civic participation to the (ethnic/sexual/religious) minority is somehow more free than a situation in which they are not allowed to. For my part, that’s because I don’t think government action is the only sort of liberty-restriction worth considering.
It’s true that requiring all business persons to conduct their businesses in a non-discriminatory way infringes their liberty, I just think that the overall freedom is greater when there’s a commitment to full public participation. Also, of course, there’s a sense in which we think of that infringement as less important than ensuring that people be able to carry out their affairs (more or less) free of discrimination. It’s less ‘bad’ for a pharmacist to have to give medicine to a black guy than it is for the black guy to be unable to get medicine (or to have to acquire it at prohibitive cost, distance, or effort).
—Myca
That isn’t true. “Sundown towns” were widespread until the quite recent past. Whether one’s talking about sexual orientation, race, gender expression, or any other marker of difference, “conscience exemptions” in the service of allowing people to discriminate in the provision of public services is invidious. And history demonstrates the consequences are anything but haphazard.
I’m impressed that we now have both Robert and g&w arguing that maybe we shouldn’t have ended legal segregation in the US.
g&w, let me just quote you back at yourself on this:
[Should clerks at a Dunkin’ Donuts be legally allowed to refuse service to all black people? Was ending legal segregation worth the restrictions placed on people who run public businesses?]
“Anyone who would answer “yes” to [those questions] is, in my mind, a waste of time.”
Ending segregation was a good thing. Those laws were passed a long time ago. The balance of outcomes NOW from not having the laws is different than the balance would have been then. So it’s worth thinking about, though I don’t think precipitous action ought to be taken.
This thread is kind of amazing. You’re saying what? That because most businesses wouldn’t discriminate today, it’s okay for those whose owners (or employees?) feel really strongly about it to do so today?
If most businesses hadn’t been discriminating back then, the civil rights laws would not have passed constitutional muster. In a world where a few people don’t like group X but most people don’t care, then the right of individual association is more important because group X is not going to be meaningfully oppressed. There are people who hate me because of my incredible good looks. But the number of them who won’t rent to me or serve me at a restaurant is small enough that any law making it illegal to discriminate against the incredibly handsome would run afoul of the right to associate.
When lots of people don’t like group X, and group X effectively cannot get served or rented to or what have you, then the enjoyment of public accommodations becomes more important than association.
If this offends or bothers you, I don’t know what to tell you. People are free to engage in bigotry and dislike and discrimination against *all sorts of folks*, with perfect legality, RIGHT NOW under the civil rights laws – because those laws didn’t establish “you can’t discriminate against anyone”, they established that “you can’t discriminate against these particular classes of people”. And those classes were identified mostly if not entirely on the basis of how people CURRENTLY and ACTIVELY treated those groups at the time the laws were passed, or at the time(s) they were litigated.
So if that changes, then the justification for the law changes, and the balance of rights changes. Has it changed enough that it would be not-terribly-oppressive to (say) black or Jewish people to remove their protection? Dunno. But it’s possible.
Robert,
I assume you are aware, maybe on some vague, theoretical, doesn’t-affect-me level, but nonetheless aware, that businesses and employers still discriminate against people in protected classes for all the traditional reasons – even though it’s illegal. And I assume you are also aware that are people who are the subject of widespread bigotry in our society, such that by all rights they should be a protected class, but they aren’t because the people who want to keep discriminating against them continue to hold enough political power to maintain that ability. I know that hyperbolic examples are kind of your schtick and all, but, yeah, it offends me that you would compare tossing someone’s job application in the trash because they’re black to something that has never happened ever.
Robert George is using a very old rhetorical tactic: offer your opponent a ‘compromise’ you know is unacceptable, and pretend they are unreasonable for refusing it.
There actually has been a Grand Compromise offered in some states: where there is SSM, we will pass laws making explicit the Establishment Clause protections for religious groups. (That is, churches do not have to perform marriages, etc. if doing so would violate their religious beliefs; only when they act as secular institutions must they follow the law.) Anti-equality groups fight such laws tooth and nail.
Oh hey, a variant on the question from Robert. Let me revise and quote g&w again.
Is continuing to legally bar segregation worth the restrictions placed on people who run public businesses?
Anyone who raises this question is specifically a waste of time. Someone who raises it to answer yes is a waste of time. Someone who raises it to say that it is difficult to answer is a waste of even more time.
Chingona – Yes, I’m aware of the existence of current discrimination, even though, as you note, it doesn’t generally hit me where I live. As for making a hyperbolic example – well, if you can think of a way I can exemplify someone *not being systemically oppressed* without it being offensive that I’d compare that to real oppression, I’d love to know how. That was the whole point; there are some discriminations that simply don’t arise to the level that has to be reached before we can justify restricting individual freedom.
You mention new classes that deserve the same level of protection because they reach the same standard. With respect to my gay and lesbian friends (I assume that’s the main group you’re referring to), I don’t think so. The level against gays and lesbians is pretty bad, but – without playing oppression olympics – I don’t think it reaches the level of, say, black people in 1950. Did you know that in the first half of the 20th century, black people self-published travel books that would list the (few) restaurants and motels along the ‘blue highways’ where a black family could stop and probably get service? Those books passed into history around the time of the civil rights laws – partly from the laws, partly from increasing desegregation that happened voluntarily – but they bespeak a time of widespread, universal discrimination that I don’t hear my gay friends experiencing. My gay friends travel across the country and mention the one guy who was an asshole or the one restaurant that treated them badly; black people didn’t travel when they didn’t have to because they we1re afraid they’d be murdered. This isn’t to say “life is grand for gays today!”, but that (leaving marriage out of the equation, and marriage rights aren’t addressed by the civil rights laws) the level of discrimination isn’t where it was for blacks back then.
There’s one unprotected group I can think of that could well arise to that level. Transsexuals suffer a level of discrimination (to the point of lethal violence) that is appalling.
I think that for most racial minorities, we’ve seen racist discrimination dwindle to a level that is still objectionable but not 1940s-bad. There are places where I think the level is as bad as it used to be or worse – I honestly think a black person in a small mostly-white town in Mississippi would have been better off in 1954 than they are today. The existence of those pockets, and possibly even the level overall, could still justify the civil rights laws for those groups, simply because we can’t really say “you’re allowed to discriminate in Kansas but not in Alabama”. But hard objective data is difficult to come by, so it’s an open question in my mind.
For some groups, I don’t think the level is still there. Anti-semitism is still problematic, but the level is drastically reduced. I don’t think Jews ought to be a protected class anymore. Muslims, maybe, but there’s a fairly thin historical and statistical record there simply because we haven’t had substantial Muslim populations for very long.
Charles thinks it a waste of time to engage these questions. I think that is deeply misguided, on two levels. One, on the legal-historical level, the simple fact is that FACTUAL discrimination is material to the Constitutionality of the civil rights laws. You cannot get a 1964-mimicking civil rights law past the Supremes that bars discrimination against handsome people, because the oppression simply isn’t there. Refusing to even think about where the oppression level is, is just a recipe to get blindsided by a legal challenge.
On the personal-transformative level, although progressive racial theorists will say that it isn’t sufficient for individuals to get over their racism, I think most of them would agree that it sure would be a good start if more people tried. A necessary part of that individual transformation is the ability to have honest conversations about racial matters. If we’re obliged to look at our black President and array of civil rights protections and highly functional black middle and upper class, and insist that there is no substantive difference between the picture today and the picture 50 years ago, then that conversation fails to happen. The narrative that black people (and other members of racial, ethnic, religious, or other minorities) tell their majoritarian neighbors is important, and it can help lead to individual decisions to attempt transformation; but the narrative can’t survive cognitive straightjacketing about acceptable discourses. The people who aren’t worth wasting any time on, are neighbors and fellow citizens whose attitudes and opinions are going to weigh in the balance. It’s already easy and tempting for majority people to dismiss minority realities and concerns; making that justifiable by inextricably tying those concerns to false-to-fact mandatory narratives takes what’s easy and adds to it the temptation of being rational.
Yusifu – there isn’t a “conscience exemption”. Individual choice and freedom of association are the default – they are birthrights of every free person. We have overridden that default setting – with justification, in many times and places – for certain groups. You are correct, though, about the sundown towns and I stand corrected about that. Sorry, personal-timeframe bias; in my lifetime the segregation problem has been a lot more about neighborhoods than about communities as a whole. I’ve lived in lots of places; none of them have been monoracial or even tried, but plenty of them have had de facto segregation so I tend to put that first in my mental map. Thanks for the reminder.
Eytan, thanks for the rephrasing. I am going to come down and say yes, the bank clerk IS being discriminated against by his or her employer (and possibly the government, depending on the government’s rules). I am also going to say, too bad for the bank clerk. There is a remedy for people who object to an organization’s rules, and that remedy is to dissociate oneself from the organization. (Similarly, I think that a pharmacist working for Safeway doesn’t get to have a conscience right to prescribe certain drugs, but a pharmacist working as a sole practitioner does.)
Myca, I actually agree with your formulation. I think that ‘full civic participation’ is something that people should be able to expect, and I think it a useful metric for determining the balance between individual freedom and forbidden discrimination. When 90% of restaurants won’t serve a black family, black people are denied civic participation. If 5% won’t, I think the individual right ought to be more highly weighted. The grey area comes in times like today, when (absent government rules) I am pretty sure that more than 5% of the restaurants would discriminate, but also less than 90%. Is it 10% or 80% or 50%? I really don’t know, thus my wishy-washiness on the question of whether the law should still be in place for that group.
Robert – you say that ” Individual choice and freedom of association are the default – they are birthrights of every free person”; could you please explain how disallowing discrimination in business/service transactions in any way impinges on the freedom of association? And, for that matter, explain who gets to decide what the birthrights of every free person are? Note that the US constitution, for example, does not reference a right called “individual choice”, and I know of no free country or international resolution that does (though that may well be ignorance on my behalf).
The first part seems obvious. You despise Albanians, either because of their beady eyes or because your family was oppressed there or just because you hate the letter A. You open a taco stand. You decide you only want to do business with (associate with) decent, non-Albanian folks. You don’t hire or serve Albanians. The government sues you for violating the national origin clause of several federal laws. You either shut down, or start associating with Albanians. So you either lose your pursuit-of-happiness right, or your association right.
Who decides? Theoretically, “nature’s God”. Practically, anyone who organizes with his or her fellows and takes the rights, against whichever local tyrant says nay.
Individual choice derives from a number of places, movements, philosophies. It’s implicit in the pursuit of happiness clause (Declaration of Independence, not Constitution). Most of the concepts IN the Constitution only make sense if you’re assuming free people making their own choices; the subsequent history of the expansion of freedom beyond the starting group of white male mostly-landowners only, supports the idea of free choice. The absence of that choice for slaves, women, etc. was (legitimately and correctly) attacked as a violation of the liberating spirit behind those founding documents. More broadly, freedom of choice was an Enlightenment ideal, though probably not the most important one in the minds of those philosophers.
Internationally – if the Declaration of the Rights of Man is too old or French for your tastes, then I’ll refer you to the UN Universal Declaration of Human Rights, article three. http://www.un.org/en/documents/udhr/
The right of association gives you the positive right to associate with whomever you want. It does not give you the right to also avoid associating with others.
I definitely support everyone’s rights to life, liberty and security of person. I’m not sure how you can read “individual choice” into that, unless you take a pretty extreme interpretation of what “liberty” means there. I also support the right for the pursuit of happiness, but note that that’s not the same as the right for happiness. The anti-Albanian bigot may be unhappy that he’s forced to hire and serve Albanians, but he’s free to pursue happiness by, say, closing his business and getting employment somewhere where he doesn’t have to deal with other people directly. He may also pursue happiness by learning to overcome his prejudices so that he learns to be happy with the situation he’s in.
Part of the reason there have been declarations of human rights, and bills of rights, and all sorts of such stuff is because there is no, and should be no, universal right to just do whatever you want. That’s not a matter of a compromise where it’s necessary to give up some aspect of one right to maintain others. Individual choice is an ideal – a really nice one – and one that’s lovely to have as a privilege, but it’s not a right, and should not be defended as one.
I can’t speak to the bad old days from any first-hand experience, but I can say without a doubt that in the town where I grew up, right now in 2012, would hang up a big sign that says “No blacks, no gays” if it were legal to do so. And many of the surrounding ones would do the same. Admittedly, I have the dubious honor of having grown up in one of the more racist places in the country, at least based on Google searches for the n-word
That would be bizarre. Most conservatives are very invested in the employer/employee relationship.
No, because the employer/employee relationship provides an “out.” The employee can refuse to write loans for non-Orthodox Jews and the employee can work at the bank… but not both. The employer sets the rules.
I wouldn’t call that “discrimination” in either sense, but anyway: No. The person who bears the brunt of the enforcement is the emploYER, not the emploYEE.
Robert,
You must have led a pretty sheltered life if you’ve never been actually discriminated against for a legal reason. I’ve had a landlord refuse to rent to me because I wasn’t married, and I’ve been refused service in townie bars because I wasn’t local. I can’t be fired because I’m pregnant, but I could be fired for not returning to work immediately after the birth of a baby if my employer is too small to have to comply with FMLA. Oh, look at that. I’m actually aware of how this works. But please, explain it to me some more.
I hope one of our resident lawyers will correct me if I’m wrong, but I don’t believe “Jewish” is a protected class. Rather, it is not legal to discriminate in housing, employment, accommodation on the basis of religion. It would be equally illegal for me to refuse to rent an apartment to an evangelical Christian as to a Muslim. On that basis, I believe your understanding of the basis for developing protected classes (discrimination was SO BAD, SO WIDESPREAD that we needed to engage in social engineering) is not entirely correct. Again, one of our lawyers can correct me if I’m wrong. However, if I’m right, that has some implications for the conclusions you draw that once it’s not Jim Crow-and-lynchings bad, we can do away with legal protections.
There’s another balancing test that you seem to ignore, and that’s the level of harm. If I cannot be sure that I can walk into a restaurant with shoes, a shirt and cash in my pocket and be served – because I’m black or female or gay, the harm to my ability to participate in public life is greater than whether I get my coffee and donut at that particular establishment. It might be the only donut-shop in town, but even if it’s not, the harm is greater to me than the harm to the business owner from having to take my filthy, race- or gender-tainted money. If a gay person cannot be by their partner’s side while they are sick and hurt in the hospital, the harm to them is greater than the harm to the hospital employee who has to tolerate the existence of people with different values (like, say, compassion). You haven’t provided any reason why we should value the bigot’s right to not associate with the objects of their hate over the right of all people to full participation in public life.
Eytan – you have the right of free speech. This is a positive right, in that you are allowed to say what you want to say. If I pass a law that compels you to read a denunciation of Amp in the public square at noon, even though you are actually madly in love with Amp, I’m not interfering with your right of free speech. Free speech isn’t the right NOT to say something.
See the problem?
Chingona – Maybe I’m not expressing myself very well, I don’t know. I am sure that I have been legally discriminated against many times. I don’t have a problem with that. Discrimination is something that every human being does every day. Our society decided that some relatively-easy-to-define types of discrimination were so pernicious in their effects that they had to be banned. I don’t object to you not being able to get service because you aren’t local, or not being rented to because of your marital status, or not being kept on if you couldn’t meet your employer’s needs. I wouldn’t object to those things happening to me. Or to anyone.
It’s only when it’s massive, systemic, and unfair that we raise a flag.
Taking kid to amusement park today, so dump on my evil meanieness in peace if you like, I’ll come survey the rubble this evening. ;)
But super-quickly:
“You haven’t provided any reason why we should value the bigot’s right to not associate with the objects of their hate over the right of all people to full participation in public life.”
Because full participation in public life includes the right not to associate with people one does not care to associate with. And therefore we must balance two people, each of whom have a claim to a right, rather than one person who has a categorical right against another who has no right at all.
Yes. that was a good article and comment thread. I think that the CT folks were a bit extreme in their language but the underlying point remains valid: there’s lots of ways to define freedom and “free from government coercion” is only one of them. I think that they’re really stretching their definition of “coercion” though.
That’s an interesting choice of phrase, because “commitment” implies some sort of voluntary status.
And there’s no question about it: it would be MUCH better if everyone would do these things voluntarily. There is no problem inherent to a lack of assholery. All of the problems stem from the governmental coercion required to enforce it.
I also agree with this, generally speaking.
But this isn’t a static situation, right? As society changes, we see constant changes in the types of discrimination we do, or don’t allow. And every time that we add a protected category or actions, especially when those rules are enforced by the government, we accomplish three things:
1) More freedom for the newly-protected group;
2) Less freedom for the group-haters; and
3) More government supervision of people, generally–often in areas which are becoming more and more difficult to define.
I think there’s a tendency to focus on the wonders of #1, but to ignore #2 because the #2 folks are “bad” and not worthy of real consideration. That’s not necessarily dangerous, but it does interfere with any objective attempts to evaluate overall freedom.
But I think there’s a VERY dangerous tendency to ignore the pernicious effects of #3.
I’m all for adding a protected class. But when you make a change to something which was a delicate balance to start with, it can require a reassessment of the overall balance of governmental intervention.
Just out of curiosity, how exactly does one enjoy liberty without the exercise of individual choice? “Hooray, I’m free, I have total liberty to do whatever it is that [the church] [the state] [my owner] tells me to do!”
Other than the fact that I’m not actually arguing that, it’s a good quote ;)
Let me get this clear:
Imagine that there’s a fast food corridor (I’ve seen many of them) with 5 donut shops in a 1/4 mile stretch.
Obviously, it is preferable if all 5 open their doors to everyone–well, almost everyone. (I’d like the owners to have the right to refuse to serve a group of skinheads wearing Nazi tattoos, for example. Wouldn’t you?)
But we’re not talking about preference here. We’re talking about government compulsion to achieve a broad societal goal.
Let’s imagine that we’re talking about a single shop. That means we’re discussing the rational basis for requiring that FIVE donut shops in 1/4 mile be available to any particular group, as opposed to FOUR donut shops in 1/4 mile.
It may well be that in the balance, it makes sense to compel all five owners to provide donuts. But this hypothetical involves a truly non-essential product (donuts) and an immediately available comparable alternative (four other donut shops).
In the context of this hypthetical: Is the answer to so obviously “yes, the government should compel the shop owners to serve customers they dislike” that it can’t even be rationally discussed? I have trouble imagining that, unless you are vastly prioritizing your own preferences over those of everyone else. If you think so, then I agree that you and I shouldn’t waste our time.
Robert – I do see the problem, and I should amend what I said. The right to freedom of association does not equate to the right to have full control over the level of contact you have with other individuals. The US constitution does not recognize the freedom of association, and, according to wikipedia, the superme court recognized it specifically within the context of banding together to exercise the right of free speech. The European Convention of Human Rights recognizes it specifically within the context of forming trade unions. And indeed, I agree that no-one should be forced to form or join a trade union, or be forced to band with others to speak on a topic.
But I’m sure you’d agree there’s a big difference between joining a trade union and selling the trade union doughnuts. And an even bigger difference between joining a trade union and selling a doughnut to someone who happens to be a member of said union.
But at the basis of this, there’s another issue here – I don’t believe that the same rights exist in the case of commercial transactions or services that exist in the case of individual decisions. If you want to fry up a batch of doughnuts in your kitchen and serve them to your friends, the government has no business telling you who to give them to. If you have a spare bedroom and want to let someone stay over, by all means, pick someone you know and like and is a member of all the right ethnic, gender, and religious groups. The moment you make your doughnuts or flat into a source of income and open them to the public, you no longer have any right to determine what segment of the public you interact with in that capacity.
Edited: g&w, I understand you’re frustrated at someone who says ‘there’s no point in discussing this, case closed’, but still, you and I probably deal with the whole ‘if you were rational you’d be open to discussing an issue no matter how obvious’ gambit in our day jobs that I think it’s unworthy of you here.
Charles, would you please stop rewriting my words to suit your argument, and then referring to it as “quoting G&W?”
An argument is an argument. A quote is a quote. Stop mixing them up.
Headscratch.
That’s a balancing question: see the “worth” up there? Therefore the answer to that is AS PER YOUR OWN QUOTE, entirely dependent on
(a) the degree of segregation that you are restricting; and
(b) the degree of harm to those who are restricted (which increases along with the things you restrict); and
(c) the degree of benefit to those who are now able to go to the businesses (which also increases along with the things you restrict)?
Talking about balance requires that you evaluate both sides. If you suggest that you can answer your own question WITHOUT talking about those three issues–or that you can answer it only by talking about (c)–then you’re being illogical and frankly insensible.
If you’re in the “my position is so obvious that it requires no discussion or argument or defense, and anyone who even questions me is wasting my time” category, then I fail to understand why you’re posting on this thread. Or any thread.
Huh? Charles has made posts suggesting that even TALKING about this is a “waste of time,” along with a post which suggests that I might have wanted to retain segregation in the US. In the “offensive implication” category, I don’t get why you’re targeting me.
But maybe I’m missing something. Is my post really that offensive? I’m not intending it, and I still don’t see it on a reread, but I’ll try to avoid it.
g&w, the answer to your donut hypothetical is that you’re introducing considerations that are entirely orthogonal. What’s “non-essential”? (Those donuts may be pretty damn essential if there’s no other establishment selling food in a fifty-mile radius.) Why do “alternatives” defeat the purpose of such laws? (I have to serve Christians just because I opened my donut shop first, and guy #5 can do whatever he likes because he free-rides off us other donut-sellers?)
Your hypothetical also invites more, not less, government supervision. Now the government has to determine whether my business sells “non-essential” goods – a real headache if I am running a general store, rather than a business that only sells a single product – and whether there are alternatives to my business. It has to weigh the rights of competing businesses: are four donut shops enough? Who gets to comply and who gets to point to everybody else to say they don’t have to follow a law? What if I close up my donut shop and re-open it under a different name; am I now #5 in line and so I can refuse to serve Hanseatics?
I dunno. All your points/questions seem perfectly valid.
I haven’t thought about the hypothetical in detail, other than to conclude that “being restricted to four adjacent donut shops instead of five” might be a minimal enough harm that government intervention might not be justified.
Robert erred:
So freedom of religion isn’t the right NOT to practice a religion. You can practice any religion you want, as long as you’re practicing one. Right? Right?
In the right circumstances, silence can communicate very powerfully. Are you serious arguing that I have no right to choose to communicate in that manner?
Grace
Robert,
My point was that you using something as ridiculous as being refused service because you’re too good-looking (innkeeper perhaps worried about his daughter’s virtue?) is offensive (to me, anyway) as an example when you’re arguing for racial discrimination to be legal again.
My other point is that the philosophical framework you’re laying out doesn’t have that much overlap with the philosophical framework of the law as I understand it.
I never said that bigots have NO free association rights. Private membership organizations continue to be able to discriminate, even against protected classes. But if you want to run a business that serves the public, you have to serve the public. Even the black members of the public. Don’t want to associate with those people? Don’t open a business that serves the public. The level of harm created by allowing discrimination on the basis of race, gender, etc., is much greater than the level of harm done to bigots who have to sometimes take cash from people they look down on.
Grace @46 – not that I wish to side with Robert, but what you’re quoting is him practising reductio ad absurdum on my earlier post, not something he is actually seriously proposing.
Yes, exactly.
Furthermore, owning and operating a business is a public act, one which requires the kind of infrastructure that a well-oiled society provides. It’s perfectly reasonable for that society to insist on certain standards of public accommodation for those businesses.
You’re perfectly free to associate (or not) with whomever you like in your private life. You’re perfectly free to be a raging bigot all the day long … except of course while you are operating your business.
But, hey, good news! Nobody is going to force you to open a business! Yay!
See? Problem solved.
—Myca
I know what you’re trying to say, but in most cases a similarly situated homosexual worker will be a closeted gay – any no-one really has a problem with that. ‘Similarly situated’ in the context you’re talking has very real effects on insurance risk. Insurance premiums and AIDS is the really obvious example, gay men were genuinely at higher risk of dying and insurers were sincerely worried about bankrupcy if they set premiums too low. Gender is a major predictor of health. It makes very little sense to ignore that and talk about “similarly situated except for being married to a man/woman” in that context because unlike buying donuts the “except for” has a huge impact.
Again what’s wrong with that? Insurance/credit decisions are about trying to estimate risk. At the moment we have plenty of data on opposite sex couples, but not much on same sex couples – so any decision about them will be more of a risk. And when we do get data it might turn out that same-sex couples who check off the “married” box on their form are a higher credit risk – who knows? You don’t. And you can’t just assume it will make no difference on the basis of no factual evidence, and expect everyone to follow those underwriting rules.
Don’t know about that one – isn’t the insurance company doing the recognising, the hospital is just taking payment. An offer to pay in legal tender extinguishes debt. You can’t refuse someone’s cash to settle a debt because they got it from means you consider morally wrong. Pecunia non olet.
There’s a lot in your post that I don’t particularly want to address because I can’t figure out if you’re deliberately trolling or not, but I should point out that a similarly situated homosexual worker in this case refers to a homosexual legally married to another homosexual man. If any of them manages to do so while remaining closeted, I’d be quite impressed.
It occurred to me too late to edit the previous post that I made the assumption that the homosexual worker is a male homosexual. My sincere apologies for this.
Coming very late to this, but IIRC, people are allowed to discriminate against protected classes in housing, if the housing arrangment is something small (I think I remember >15 units) or if the arrangement is a personal one (we are sharing a room/common areas.)
You just can’t advertise that you’re discriminating. That’s the limitation.
Does that strike anyone as … worse?
Like, “It’s okay to be a big racist landlord, as long as you waste the time of a lot of tenants you have no intention of renting to.”
Thanks, guys. Much better.
—Myca
The Fair Housing Act exempts owner-occupied properties with less than four units, single-family housing that is rented out without the use of a professional broker or agent, and housing that is operated by a membership-based organization for the occupancy of its members.
It is indeed the case that while you can have whatever actual policy you want for your small self-occupied unit or whatever, you are not allowed to disclose that intention in your advertising. Along with Myca, I find that ridiculous and a net harm to the people who are going to be discriminated against. I suspect that the reasoning is monkey-see, monkey-do – if the people with FHA-exempt housing are advertising “no Catholic Albanians need apply” then people with non-exempt housing may reasonably conclude that such discrimination is legal per se and start discriminating/advertising the same as well.
Which doesn’t make it suck less to be a Catholic Albanian trekking from rental to rental and having the door slammed on you.
4 units is the cut-off, and it applies only to owner-occupied housing (so if you live in one unit of your quad-plex, you can discriminate, but not if you live in one unit of an 5+ plex).
http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/FHLaws/yourrights
Also, bizarrely, you can discriminate if you rent single-family homes without using a broker. I can half understand that if it were restricted to people who rent only a single house (who are often people renting a house that they consider their own home, rather than just a rental property), but it seems like a big loophole for people who are active landlords of multiple single family homes.
The courts have speculated that the blanket ban on discriminatory advertising is because (a) discriminatory advertising gives the impression that certain areas of a city or town are discriminatory, discouraging members of protected classes from seeking housing in those areas (b) discriminatory advertising gives the impression that discrimination in housing is legal (c) discriminatory advertising causes emotional damage to large numbers of people (many more than will be damaged specifically by interacting with a landlord who is permitted to discriminate.
http://indylaw.indiana.edu/ilr/pdf/vol43p1125.pdf
page 1138
To my mind, there is an additional benefit that it is sometimes harder to be discriminatory towards an individual than it is towards a generic class, so if you have to say to someone’s face that you won’t rent to them, that is harder to do than if you can just put in your ad that they shouldn’t apply. Likewise, being forbidden from putting it in the ad makes it clear that discriminating in housing violates a social norm and therefore probably discourages some people from actually discriminating in housing who are legally permitted to discriminate.
[edited to remove an erroneous paragraph about marital status discrimination in housing. I was confusing marital status and familial status. You can’t discriminate against a renter or purchaser because they have kids, you can discriminate against them because they are unmarried.]
Again, y’all, do consider that housing is governed not just by federal law but by state and local law.
I suppose the existence of gay travel guides and formal/informal networks of information on where it is safe to go and be publicly gay (like… holding hands with your partner) has missed you? The fact that Olivia Cruise lines exists, that there are gay-oriented travel groups and golf tournaments and days at Disney because it can be anything from uncomfortable to unsafe to impossible to “travel while gay” in various venues and settings?
Yeah, no one is ever murdered or beaten or raped for traveling or eating in restaurants or walking around in public while gay.
http://en.wikipedia.org/wiki/History_of_violence_against_LGBT_people_in_the_United_States
(check the 1988 entry – an infamous “lesbian while camping” murder.)
Having stopped for gas in the middle of the night in a very backwoods part of central Ohio while wearing a leather jacket with Pride rings attached… Well, one effect was that I could go back to my friends of color in my grad school program and say “I am starting to get the difference between race and sexual orientation oppressions, because I could have taken that jacket off before getting out of the car.” But my gender presentation is pretty stereotypically femme, if “weird/goth,” and not every queer person has the ability to pass in that way.
I can tell you that I felt very clearly afraid, particularly when I saw that all the customers were men, and I don’t know that it would have been better if I’d been accompanied by a same sex partner. Maybe better at the gas station; probably much worse at the motel where I eventually stopped.
You know, I’m honestly not sure whether it’s better or worse. I do think that seeing an ad with “[insert racial or sexual orientation slur here]s need not apply” would be a kick in the face for a lot more people than the ones who actually do apply to rent the place. I also kind of like the idea of making it clear that you’re getting a pass because of the size of your rental operation or the fact that you live there, not that the discrimination is socially acceptable in any way.
I wonder too if it has to do with the idea that, while a small-time landlord might not be subject to discrimination laws, a newspaper is.
I also tend to think it’s too broad. If you’re renting a single-family house you don’t live in, that’s a business venture. Maybe not one you wanted to get into if you’re renting your previous home instead of selling it, but I think that’s very different from, say, renting your extra bedroom and actually living with someone. Once you’re sharing living space, sure, discriminate on whatever stupid criteria you want.
Is it reasonable no matter what the standards are? For example, should we have an “everyone must serve” policy, so that Mirka, who owns and operates her own donut shop, will be required to serve the head of the U.S. Nazi Party? The head of the KKK?
Is it reasonable no matter what the alternatives are? Using the donut shop example: if there were some means of ensuring that everyone could access donuts and coffee, would it still be reasonable to require Mirka to serve him?
I don’t know about you but I’d like to retain the right to discriminate in my work, thank you very much: the fact that I generally discriminate in favor of consumers and liberal causes doesn’t magically take it out of the “discrimination” category.
I’m hearing a lot of conclusions like ‘It’s reasonable” and “it’s obvious” and so on. That doesn’t seem to be more than a generic assertion that equality of opportunity trumps individual choice. But that’s a pretty broad statement, ya know?
Maybe y’all can’t see this as a generic question? The issue may be obvious when you ask “should I be able to refuse to treat POC in my emergency room?” but that doesn’t answer the GENERAL question “under what circumstances should the government be able to compel me to provide services to someone I dislike?”
Maybe it’s that people undervalue the worth of those who they think are bigots? That they give less weight to harm if the only harm is borne by bigots?
If so: Must I state the obvious and point out that there are plenty of people who think YOUR views (and mine) are equally worthless; and that you (and I) are equally ignorable due to our positions? Do you really want to go with a “majority rules w/r/t morality” view, at the same time you’re arguing AGAINST the majority being able to impose their own morality on others?
Yes, absolutely. It is my believe that a person who operates a shop should not be allowed to consider the demographics, history, or political affiliations of people coming into the shop when making the decision whether or not to serve them. That holds true even if I find those people’s history and political affiliations despicable.
Yes, I believe it is.
You are a lawyer, are you not? I think there is a substantial difference here beyween your line of work and that of a shop owner (or my own life of work as an educator), in that your work specifically requires you to argue for and against causes (either individual or more general). I think that your occupation should be judged by a different standard.
I can see that this is a generic question. It’s just that my starting assumption is very different than yours. But since you phrase your question as a question about what the government should be *able* to do, rather than on what it best do, my answer is easy – “under ALL circumstances, assuming that this is a service you otherwise provide, on a paid basis, to others, and that the service itself is not a form of personal expression”. So, yes, I think the government is within its rights to compel doughnut shop owners to sell doughnuts to people they dislike. The government is not within its rights to compel doughnut shop owners to tell customers they dislike to have a nice day.
For me, at least, bigotry is not particularly relevant in forming my opinion. I think you (and Robert) overvalue the ability to make individual choices in a business context.
Yes, I am. However, I’ve worked at many other professions, and in large and small businesses. My statements weren’t intended to be limited to law. To use personal examples, I wouldn’t want to rebuild the porch of the head KKK wizard, either; nor would I want to plant his trees, mow his lawn, or associate with him in any way.
Well, that’s pleasantly clear! I suppose we just have a fundamental disagreement; this is, after all, a moral thing.
I’m more on the free speech side: in an ideal world, just as folks should be able to express their displeasure by boycotting a business if they disagree with its owner’s policies or if they don’t like the politics, the reverse should also be true. Actions are speech.
Of course, there will be many exception and there has to be some concept of overall balance. But if Carl and Olivia hate each other, it seems odd to privilege one person’s ability to control their interaction just because the other one opens an ice cream cart.
No, there can reasonably be limits. Give me an example.
Sure, though I think it’s reasonable to refuse to serve those people if they’re behaving in such a manner as to disrupt your business or upset your other customers.
My argument isn’t that equality of opportunity trumps individual choice always and forever, but that running a business is a chosen, public act, and that for it to curtail your freedom of association or freedom of speech is no more oppressive than the fact that my job curtails my freedom of association and freedom of speech. I chose to take this job. People choose to open businesses.
Thus, though equality of opportunity does not trump individual choice in all situations, I think the question is as simple as “do we want all public business to be open to all citizens,” rather than “but how do we avoid hurting the tender feelings of those poor poor bigots?”
We might reasonably carve out some limits from this general principle … maybe it’s acceptable to refuse to serve felons, or people who don’t meet a minimum standard of hygiene or something … but I think starting with full equality and then seeing if there are exceptions we want to make is the way to go, rather than starting from a position of general discrimination and then seeing if there are groups we’d like to have special protection from that discrimination.
Never. I don’t think the government should be able to compel me to sell a sandwich/provide CPR/vaccinate to someone I don’t like … unless, of course, I open up a first-aid-and-sandwich shop, in which case it’s my own fault, and if I don’t like it I can shut up.
I would rephrase this. I don’t give less weight to harm borne by bigots. I give less weight to harm caused by violating bigotry. The white racist who has to serve black people in his diner has suffered zero harm that I care about. Zero. None whatsoever.
Sure, but they’re wrong. I’m not a relativist. Not all difference of opinion is bigotry, and not all difference of opinion must be taken seriously or treated as equal. Racists are wrong. Homophobes are wrong.
Of course they think I’m wrong too, but that’s trivial.
This is the fallacy of moderation (or something very like it). “Frank says that we should barbecue and eat all human babies. Joe says we should not! How on earth can we ever choose? They both say the other one is wrong!”
Not only am I comfortable choosing between these positions, but I also think it’s perfectly acceptable, as a matter of public policy, for our government to choose. And no, I don’t recognize that a harm has been done to Frank vis-a-vis the restrictions on his cookout.
Two things:
1) I want to go with an “err on the side of full civic inclusion” view.
2) You’re using majority in two senses here. I made specific reference to ethnic, sexual, and religious majorities oppressing ethnic, sexual, and religious minorities. Within that, it’s still entirely possible to have a legislative majority protecting the rights of the ethnic, sexual, or religious minority.
That is: it’s possible for black people to be oppressed, as a group, by white people as a group, and still for anti-racial-discrimination statutes to win at the ballot due to coalition voting.
—Myca
I’m surprised.
I chose that example deliberately: Obviously, being the head of the KKK or the Nazi party is not immutable.
I don’t care if your business is putatively public or not, I generally think you should be able to refuse to serve or interact with people who voluntarily choose to dance in the street with “I hate Myca and wish Myca was dead” signs. And that you ideally shouldn’t be forced to decide between “running a store” (or anything else, really) and “aiding Myca’s sworn enemies.”
I’m fine, I suppose, with exceptions for things like a public corporation (too big for individual issues to matter) or a hospital (too important to allow exceptions) and so on. And of course I except for government. But I think that the cutoff is way above “public.”
So forget for a minute about the issue of defining bigotry. We don’t even need to go there: If you don’t even want store-owner Mirka allowed to refuse the head of the KKK and the Nazi party unless they actually cause a disturbance… well, I respect your right to have a different perspective but I think we’ve reached the “friendly moral disagreement” category and that further argument is probably pointless.
*shrug*
Sure, maybe. I could probably be convinced to shift my position some. I guess my thing is mostly that I don’t draw as sharp a distinction between private freedom-restriction and government freedom-restriction as some do.
I think that there’s a power trick that has been played over the years by folks who object strongly to any government restriction of freedom, but insist that all private restriction of others’ freedom is a matter of individual rights (property, speech, association). What they’re effectively doing is saying “the most powerful private citizens ought to have near-unfettered freedom, while using their power and freedom to ensure that the less powerful have less and less of both, and the government isn’t allowed to do anything about that.”
That’s horseshit.
In another thread we have Robert defending the firing of employees for private sexual behavior their employer deems ‘sinful’. If what we’re weighing on the one hand is a private citizen’s right to exist as a self-determined person, and on the other hand an employer’s right to be a giant dick … I’ve got no problem saying that the government should stop the employer. And I’ve got no problem saying that that’s the position in favor of maximal liberty and freedom. The ‘libertarian’ position here endorses massive coercion.
The whole ‘would you serve coffee to the head of the American Nazi party’ issue? Sure, maybe that’s too far. Like I said, I’m convincable. But as a broad statement, I think it would do more good than harm to say that business owners ought to butt out of the private existences of their employees and customers. I think we need to be a society that minds its own fucking business more.
—Myca
I think it’s more accurate to say that those folks are well aware of the power of government and believe (often with good reason) that the power of government is (a) easily abused; (b) and often abused; (c) with bad effects; (d) which are difficult to change.
So for example, one may believe that it is inappropriate to use “hate speech.” But the experiences of folks in Europe and Canada have shown that a lot of “hate speech” laws can be used in a manner which I, for one, find very disturbing. There’s a large push by many religious groups, for example, to make it so that criticizing their religion falls within the grounds of hate speech.
Or one may believe that it’s inappropriate for folks to discriminate against people for their political beliefs, or their actions. But you probably don’t mean that in its fullgrown form: for example, I suspect that you didn’t oppose the Prop 8 lobbying or boycott (or that even if you opposed it, you wouldn’t want to have been illegal.) But other states which have tried to go there have found that there’s not always a bright line sensible way to distinguish between “I’m obliged to serve the Prop 8 sponsors in my restaurant even if I think my actions will change their behavior, because I need to avoid the harm stemming from their political views” and “I’m permitted to actively try to cause them harm as a means of changing their behavior, through publicizing information about them and fomenting a boycott.”
Or, there are lot of speech laws floating around that are amazingly widespread. Problem is they are usually TOO widespread. You disagree with my position, of course: but do you believe that my belief regarding the importance of expression should be enough to get me fired, or sued, even if you think the outcome is that it may increase discrimination?
If you’ve got a problem with an individual, it sucks but at least you generally have somewhere else to turn. If you’ve got a problem with government, you don’t have that option. People focus on government because government is SCARY.
You will not like this article, or agree with it. I don’t either: http://www.macleans.ca/culture/entertainment/article.jsp?content=20061023_134898_134898
But I am sure you’d still be disturbed to know that the writers of that article were hauled before various commissions in Canada to defend themselves against punishment for the “violations of human rights” caused by publishing it.
Myca – an Iraqi girl who was raped by US soldiers moves to Chicago and opens a tea room. Alderman Zweig tells her that she cannot bar soldiers as customers.
Do you care that her rights are being infringed?
Robert,
that’s not even slightly fair. Myca is VERY clear that he believes her rights and those of others in her situation are important.
Also, although we disagree about generalities he’s said that he might agree to exceptions in that sort of extreme situation. And he’s been VERY straightforward in acknowledging the tradeoffs between individuals and society, even though we disagree about the outcome of the balance.
Concluding that the balance falls one side or the other doesn’t mean that you think it doesn’t exist. Suggesting that Myca doesn’t even care about her rights is like asking me (or you) if we “want the CRA to be repealed and Jim Crow re-established.”
Don’t be one of those people. You should take that post down.
An Iraqi girl who was raped by US soldiers moves to Chicago and takes a job in a tea room. Her boss tells her that she cannot refuse to serve soldiers.
Do you care that her rights are being infringed?
Substitute your boss telling you that you must serve the head of the KKK or the America Nazi Party or firing you for your private sexual behavior or whatever.
And let’s be realistic. The Iraqi girl moving to Chicago. Is she more likely to be an employee or an employer?
This is my point.
It’s not that I think government can never do bad or private control can never do good … it’s that I have a hell of a problem with the idea that the same damned thing is perfectly acceptable is done by a private party and the first step on the road to serfdom when done by the government.
Additionally, of course:
1) There are more employees in America than employers.
2) Employers generally have more money and options than employees.
3) Employers are in a position of direct and personal power over employees that has no parallel in the business owner/government relationship.
4) The choice to open a business is much more likely to be an ‘un-compelled’ choice than the choice to take a job.
So of the two, I’m more worried about one than the other.
Like I said, I absolutely believe that there are and ought to be reasonable limits to government restriction of the freedom of businesses. I can be convinced that where I draw the line should shift.
I won’t be convinced, though that it’s a bigger violation of individual freedom to pass a law against firing people because they’re gay than it is to fire someone because he’s gay.
—Myca
PS. And yeah, I agree about restrictions on free speech, GNW. I certainly think that government can do bad things.
I was referencing this:
“I don’t give less weight to harm borne by bigots. I give less weight to harm caused by violating bigotry. The white racist who has to serve black people in his diner has suffered zero harm that I care about. Zero. None whatsoever.”
The traumatized Iraqi is being a bigot; she isn’t refusing service to the people who harmed her, she’s refusing it to different people who dress the same way. Her bigotry is a lot more sympathetic than the white racists’, but LEGALLY I do not see any way to draw a distinction between them. Myca said that he doesn’t care about harm done when someone isn’t allowed to be a bigot. I’m inquiring whether this is a categorical statement, or one limited to the kinds of bigots that Myca doesn’t personally like.
Jesus, really? This is not the time or place to debate whether traumatized rape victims are bigots. Any more posts on that topic will be deleted with great prejudice.
This is not about disagreeing with me. Feel free to disagree. Find a new (less egregiously offensive) analogy.
—Myca
Use whichever analogy suits you; there are lots of people who have reasonable grounds to distrust or fear [group X], but whose distrust and fear are bigotry. You don’t think there are white people who fear black people because they got mugged or lost a family member to a black criminal? Or black people who fear whites for similar reasons?
Bigotry doesn’t have to be irrational or unexplainable or unsympathetic.
I disagree, but sure, for the sake of discussion, I do value that harm.
Granting that, do you think that it’s an unreasonable violation of personal freedom for a boss to insist that their white racist employee serve a black customer? If you think it’s acceptable for the employer but not the government, why?
I’ve already given the reasons that I think violation of employee freedom by employers is a bigger problem than violation of employer freedom by the government.
—Myca
It is acceptable for the employer to require (just about) any behavior from an employee.
There are many things that are acceptable for an employer to require, that would not be acceptable from the government. The reasons seem obvious: it is a fundamentally different relationship. Just as one example, I don’t work for the government; the government works for me. The government is MY servant. (Ours, actually, but you didn’t ask about you.) My employees are MY servants; I am a servant to MY employers. My clients can tell me what to do, I can tell my employees what to do, those employees and clients and I can all jointly tell the government what to do.
Sorry – I made a reply here to Robert that on reflection was not particularly pertinent (and ignored some of what he said), so I’ve edited it away.
I’ll post again if and when I figure out how to express what I was actually trying to say.
Attempt the second (sort of) to respond to Robert-
I guess part of the reason I’m finding it hard to put in words what I think is wrong with your argument is that I can’t even seem to hold a coherent view of what it is you believe. I think I understand a lot of the specific aspects but I just can’t put them together. For example, I find it hard to reconcile your latest posts with some of your earlier posts in the discussion. I just don’t get where this distinction between the government and employers comes from. If “individual choice” is an inalienable human right that needs to be defended, than surely it needs to be protected from employers as well as from the government? I realize that the relationship is not the same; but human rights are human rights – they hold regardless of context. Your employer isn’t allowed to kill you, for example, even while you are on the clock. And you can’t take your employees children away, or demand that they give you the keys to their house. If individual choice was a right of equal status to the rights to life or property, why this distinction?
That’s an excellent question and I will answer it in a few hours after I get the kid put to bed.
Brief answer: if it doesn’t satisfy, I’ll write a longer one.
You can contract away inalienable rights to a private individual who has no particularly unfair power over you. (An employer does not have that level of power.) For example, you can give away your inalienable right to the pursuit of happiness to a spouse; Mythago is allowed to be pissed off at her husband when he cheats on her with me and the pool boy. His “but I have a right to pursue happiness” complaint cuts no ice with anyone; he gave up a subset of that right when he promised fidelity, the weasely little cocksucker. Between private actors, contracts can be allowed which would not be acceptable for the state to impose or engage in.
And at the same time, those contracted-away rights can be reclaimed from the private party. Mr. Mythago can file the divorce papers and join me and the pool boy in the RV of Love and if she doesn’t like it she can go pound sand; the ending of the contract also ended her putative control on his behavior. If you don’t like the fact that your employer makes you fill birth control prescriptions or tells you NOT to fill birth control prescriptions, you can go work somewhere else. The inconvenience or nonavailability of a perfect replacement job are immaterial; your recourse for a job contract you dislike is to quit.
There is an exception to this, and that exception covers things like no-taking-your-employees-children-as-sacrifices-to-Moloch: the employer can’t break the law. Childnapping and human sacrifice are illegal per se; therefore there cannot be a private contract that validly permits them. Ditto for trespassing. Mythago can’t make a contract wherein she gets to break one of Mr. Mythago’s ribs every time she catches him playing Brokeback Mountain. She can end the contract, or the contract can have legally-acceptable punitive clauses, but he can’t agree to let her break the law.
So to sum up: employers can do more with their contracts than government can with its citizens, but are still bound by the law. That’s why your boss can infringe (somewhat) on your Constitutional rights, but the government cannot. If you are interested in WHY this distinction exists, it’s a rich area of libertarian thought. Two second version, because you can escape individual contracts and individual people (even super-powerful people) have way less power than the state does; if I don’t want to work for Bill Gates I can still be a computer programmer, but if I don’t want to obey government-directive-X I have much less (and much more drastic) recourse.
My Hereville 2 deadline is a week from Monday, and I have no time to contribute to this thread, but I’m gonna be a jerk and just drop a question in while not giving any sort of response to your comment, Robert.
What about the example of an employer saying to an employee, “if you want this promotion, you’ve got to start having sex with me”? (From a libertarian point of view, prostitution shouldn’t be illegal, as I understand it.)
It should be legal, but isn’t; ergo, such a condition is unacceptable. “I’ll pay you in cocaine” also ought to be legal, etc.
I concede that yes, in a theoretically proper libertarian universe, sex as a condition of employment would be something that could happen. That would indeed raise ugly questions. The defense is twofold: one, sex AACOE happens anyway; it happens now; we just don’t hear about it. Better open policy than secret codicil. Two, as a pragmatic factor, the public disapproval of such shenanigans would be business poison, and that would limit the practice. (And I guess, three, don’t be such a prude, sex is just exercise, what’s wrong with a little mandatory PE???)
It is a legitimate objection in my view though, defenses aside.
I think one of the things that gets overlooked by the libertarian point of view is the amount of control exercised over you by someone who essentially controls whether or not you get to continue having a roof over your head. Not every employer has that kind of power, of course, but plenty do, and whether they have that power is based on a whole mix of things–what are your prospects for another job, does your family have other income, what are your rent/mortgage payments like, do you have savings, etc. etc. etc.? The *practical* ability to quit an awful job is a privilege that a lot of people don’t have. Even though everybody has that ability in theory, “quit and go live on the street” is not exactly a valid choice.
I have a family member who just quit a really horrible job without another one lined up. She’s a nurse at a nursing home that is continually short-staffed. The management is verbally abusive to their staff members, and their turnover rate is over 60%. Most of the crap they pull isn’t illegal, although they do sometimes expect work off the clock from hourly employees, and the short-staffing results in med errors and critical lab values being missed. (I don’t know if that legally counts as negligence or anything similar, but if I were the person whose labs got ignored, I’d certainly want it too.)
She was able to quit without something else lined up because her husband has a decent-paying job, and she also has a pension as a result of having previously been a county employee for 20 years. It also helps that their kids are grown and on their own. Had she been in that same position 15 years ago, with two kids and no pension, she probably would’ve had to just suck it up.
I think the thing that makes employer power complicated is that it’s not identical from situation to situation. That makes it easy to look at a relatively privileged situation and decide that that power is really minimal, when there are other people for whom their employer exercises nearly as much control over them as the government. And it wouldn’t make sense to base employment law on whether or not people have other options. You can’t very well say, sure, the computer programmer can work lots of places, so their boss is free to require sex as a condition of employment, while the factory worker in a town where pretty much everybody works at the factory is more limited, so they should be protected from having prostitution added to their list of duties.
I also think there’s a double standard in the way “you don’t *have* to work there” is trotted out as the answer to employer power, but “you didn’t *have* to start a business in that field, under those laws” doesn’t seem to hold any weight at all.
From a libertarian perspective, is there anything wrong with a “company town” and paying employees in scrip for the “company store” where employees are *technically* free to leave any time they want, but because they keep building up greater and greater debt to the company, in practice they may as well be serfs? (Other than the fact that that’s currently not legal, I mean.)
Depends. Are they going into debt because the company charges $5 for a loaf of bread and uses force or fraud to prevent competition, or because the company sells whiskey for $1/gallon and employs alcoholics?
Most company town arrangements involve force or fraud.
What competition? They’re paying in CompanyBucks, not in money you can spend elsewhere.
If the scrip has market value in the company store, then there will be an exchange rate. Under the circumstances, prohibiting exchange would be tantamount to force.
Forcible or fraudulent prevention of competition is also tantamount to either force or fraud.
The “company town” scenario does not pose a meaningful challenge to libertarian thought; it’s always either going to have force or fraud in it, or it’s going to be a optional quasi-utopia that is basically an employee benefit. (Microsoft has a ‘company town’; their employees can buy software and delicious food on-site at below-market rates. You are free to buy your copy of Word at Best Buy; you’re just a dumbass if you do.)
Most, Robert, but not all. If the next general store over is 100 miles away, the company is not actually *forcing* you to shop there rather than at Wal-Mart. It’s just relying on the fact that you either cannot physically go elsewhere, or that your savings in terms of time, travel expenses, etc. are not worth it – particularly if your work schedule is such that it is highly impractical to take the time to travel.
Microsoft runs a company store, but Redmond is not a company town. There is a difference.
But what if exchange isn’t prohibited so much as unfeasible? Competing businesses aren’t allowed on company land. That’s not force, that’s just deciding what to do with your own property. You just happen to own all the property in a sixty-mile radius.
So, to exchange that scrip for real-world money, you have to spend more in gas (if you go spend it somewhere else) or shipping (if you use the actual money to shop online) or both than you can get for it in exchange.
Also, if they own the store, they’re entitled to set whatever restrictions they want on use of their scrip at their store, aren’t they? Scrip could have an expiration date (coupons do, after all). Mythago’s point about work schedule is also pretty relevant. Jobs that require on-call time are perfectly entitled to restrict how far you can go from the office while you’re on call.
I think it really depends on what you define as force and fraud. If someone theoretically could do something, but practically really can’t, are they “forced”? You can *prevent* someone from doing something without *forcing* them.
First and most obviously, it’s an issue of enforcement. Employers can only enforce by firing or by suing. Employers may easily be subjected to counter-suits and unemployment claims; they are also limited by their budget. Government has the ability to abuse the process without incurring direct and trackable costs; without having a particular person who is responsible, and without the same liability for countersuit. That’s why it’s much scarier to get a letter from the U.S. attorney than it to get a letter from me.
The second one is that of alternatives. There are a gazillion different employers and only 51 governments. Alternate employers exist in a variety of places from “next door” to “same town;” alternate governments exist only in another state or, if it’s federal, outside the US. And of course, employers offer widely different benefits packages NOW, so the concept of “work for the best fit that you can manage” is already in place.
Third, employers are sufficiently individual (in the cases we’re talking about) to make it a tradeoff between two individual rights. The government is entirely non-individual, so it involves a sacrifice of rights to benefit society at large. Mirka’s opinions don’t become irrelevant to the tradeoff when she’s selling bagels, and then return to relevance when she shops at the store next door.
Fourth, we’re trying to increase employing in general. It’s OK to put some limits on certain fields–you can’t operate an unregulated ER in a city center–but generally speaking we WANT as many Mirkas as possible to open as many delis as they can. If Mirka can operate her business profitably (and therefore benefit both her customers and her employees) then even if she’s unfairly bigoted against Nazi party members (!) that can be an overall benefit.
Who says it’s acceptable? Bigoted behavior–hell, even a lot of behavior which is simply polite–is not acceptable. It can (and often should) be condemned by all sorts of various folks.
We’re not talking about whether something is acceptable, we’re talking about whether something is legally permitted. Lots of things are bad, but don’t fit well into law.
And every employer who has 50 workers has to find 50 people who are willing to work for them. John Doe may be able to find 1 person in his town willing to take minimum wage and walk around with a “join the Nazis!” sandwich board. But he may have a lot of trouble finding 500 of them.
Bigger employers affect more employees but are also subject to the demands of more employees.
Moreover, you want more employers, right? It would be odd to argue “there aren’t enough employers!” and “stay out of the market if you don’t like the rules, employers!” in the same thread.
This is not often the case, for many small employers. But even when it is: the employers also have more responsibility and risk. Those two things go together.
I just personally lost half of my wife’s yearly income when an asshole OP declared bankruptcy. I still have to pay my assistant, though, even though i can’t afford it. If she wants to take on the risk of collections and billings (she doesn’t, and it’s not legal in any case) then she’d theoretically be entitled to more.
Of course, I could go work for someone else. Not doing so is my choice.
And the reverse is also true: the government is in a position of direct and personal power over employers that has no parallel in the employer/employee relationship.
I’m not convinced by this. The excesses of employer power can be controlled by appropriate laws.
This is entirely true. It’s also not something that we necessarily care about.
From a societal perspective, Indiscriminate Irina and Radical Rick are equally valuable. Imagine that they’re competing for a job:
If there’s one slot and no discrimination, either one of them will get the job.
If there’s a slot and the employer discriminates against radicals, then Rick will not get the job.
If there’s a slot and the employer discriminates in favor of radicals, then Irina will not get the job.
In the end, the employer’s discrimination doesn’t affect society as a whole.
Now, let me ask a question: Given that is it OK for me to post on the Internet and attempt to get people to boycott KKK-owned businesses, why shouldn’t I be able to refuse to sell T-shirts to people who elect to join the KKK?
If I was allowed to support a boycott of South African industry (which, like all general acts, surely hurt some innocent folks who were against apartheid) then why can’t I refuse to transact business with a person who clearly states their belief in the rightness of apartheid?
If I run an Internet cafe: does my ability to demonstrate my opinions through action entirely depend on whether I’m acting as a customer or ringing up a sale? Can I go online and rage about Ron Paul, and still be obligated to sell time to someone who wants to support him?
You say that our positions don’t make sense, but I’m really not getting how you resolve this conflict. We take actions that hurt people’s interests ALL THE TIME. Why should we magically give those up as an automatic condition of opening a business?
Your hypothetical employer could decide to only employ women as cashiers and only employ men in the backstore (or other more physical job) regardless of the person’s qualification, interest or capacities (wether physical or otherwise) to do the job.
In fact, it’s been my personal experience that I VERY rarely see male cashiers, except in general/convenience stores (where all employees probably have the formation to “be alone there”, which means manning the cash register as well as stocking up the shelves).
Hypothetical employers also like to enforce sex-specific but completely randomly-chosen (as in: there is no compelling reason for the difference) dress codes or uniforms.
Their “god-given right” to decide what’s appropriate based on what’s between their employee’s legs (barring jobs where only one sex is hired, like Hooters), has been approved by SCOTUS, because separate but equal is fine when it comes to uniforms.
So almost ALL employers who tend to restrict dress codes or require uniforms are going to do so in a sexist manner, for no reason whatsoever besides “social norms, they exist”, no compelling reason for forbidding both sexes from having the other’s uniform, hair length, nail length, lack or presence of make-up. No compelling reason for this state-sanctioned double standard, if only that some people are incredibly insecure about being able to “tell the sexes apart”, lest we become some asexual genderless dystopia, where people dress the way they prefer, not the way their bits dictate.
Oh and employers use this god-given right (of requiring sex-based clothing and norms) to justify not employing transgender and transsexual employees. If they’re not trying to use the semi-benevolent excuse that their employee will be harassed, and better spare them the hurt by not hiring them (because being homeless is better, for sure).
So you can’t really have non-discrimination policies for transgender and transsexual people without repelling the requirement of sex-different norms “just because”. Because transgender people are not going to transition to some other legal sex, they might not even present in public as the same sex 100% of the time. Transsexual people might not legally become the other sex (since it requires surgery), preferring to go all the way “just short of that”, and thus be legally one sex and socially another (as I am), probably with a name changed legally to go with the socially-presenting sex (ie Sara, legally male).
What do you think this will do to employers’s “right” to refuse to employ or service “those weirdos” who don’t even follow their completely arbitrary gender norms? (I’m using some snark, but some people would really mean this)
G&W @87 – those are all legitimate differences between governments and employers. But your response has very little to do with the question I asked and that you quoted. I’m not disputing that governments and employers are different from each other. I’m pointing out that human rights are *universal*, and that they should apply for *all* types of entities, not just some, and that Robert was clearly making a distinction there.
(Robert’s response in @78 does address my question quite well – though I don’t agree with his conclusions – and I will reply to it properly. I’ve just been too busy over the last few days as I am currently on a brief visit in Israel for my brother’s wedding)
Some policies are bad policies, to be sure: strict dress codes in call centers are a great example.
Other policies are in place for various reasons that the employers, no doubt, find compelling enough: “We are trying to make our restaurant feel formal and evoke a sense of bygone eras” may translate to a certain type of dress code. You may think they’re bad; they disagree.
Are you intending to suggest that this is irrelevant?
If you serve the public and if you want to make them happy and keep your business open, then you pretty much have to respect the social preferences of your target population. If you’re trying to attract hip 30 year olds to your bar, then your bartender can have a ripped t shirt and messy hair and facial tattoos and present as a different gender on a daily basis, and it’s a benefit. If you put that same bartender at a fancy restaurant that caters to conservative older people on business trips, it’s a detriment.
I find it interesting that you frame this as being partially the fault of the state, when what is actually happening is that the state ISN’T telling people what to do. The state is just letting folks do what they want. And this is what you’re asking for, right? More freedom to do what you want?
If you’re asking for state interference here, what you are actually asking for is simple: You want the state to tell Group A to suck it up and be unhappy, so that Group B can do more of what they want. Great if you’re in group B; not so great if you’re in Group A.
I’m still wondering about the donut shops. If it’s OK that one of 5 discriminates, who gets to be the one? What happens if one of the non-discriminating ones wants to change its status? What if a discriminating donut shop from another town want to open up a branch on the donut-shop strip? Seems like this would require huge amounts of government supervision to maintain.
Sure, Paul, that might be so. There are all sorts of practical reasons why it might not be a good idea.
But I think it’s important to distinguish between decisions that are made as a practical tradeoff and those which are made on a moral basis. If it’s immoral for even one donut shop to be unavailable to even one group, then that’s that. If it’s moral but simply isn’t practical, then it’s just a problem like any other: it may be solved now, later, or never, but there’s nothing wrong with discussing it.
Of course, decisions can actually be both!
All bullying non-acceptance of gay people stems from ignorance and hatred. Nobody should be allowed to deny services to gay people and/or gay couples, for the same reasons that bus drivers can’t tell all people of color to move to the back of the bus. Tough shit if bigots don’t like it.