Is Support for Freedom of Association Fanatical?

I’m not sure I’d even take that as criticism (though I know that’s how he meant it). Perhaps we should all aspire to be fanatical in our defense of individual freedom.

Have you ever noticed how many people change their views on a subject solely based on whether money exchanges hands or not? Most people would defend freedom of association if no money changes hands, but we are supposed to believe that business is somehow different.

If a gay person asks someone to bake them a wedding cake, and the other person refuses, there would be little uproar. But if the gay person offered money in exchange for baking a wedding cake, then suddenly the other person supposedly has no right to refuse.

Of course I don’t believe this. I believe that we have the right to refuse to do business with anyone at any time for any reason whatsoever. The reason doesn’t even have to be a good one.

But then again, I’m “fanatical” about freedom of association. 🙂

Hazel – I know that the subject of discrimination gets a lot of libertarians (such as you) wrapped around the axle. But I think that the answer to your questions arises from the fact that this country is fundamentally a democracy.

Therefore, the fact that we have a comprehensive set of anti-discrimination laws is a consequence of the fact that most people are against discrimination. Therefore, we would not have widespread discrimination if those laws went away.

In the 1930s, we had widespread discrimination because most people thought that was just fine and dandy. The laws only came in when most people turned against it after WWII.

Yes, there would be local and sporadic discrimination. Even now we allow rudeness, and boycotting.

So I respectfully disagree with your opening comment that the issue is complex.

A horribly stratified racial caste society is incompatible with a growing economy, so I think even the wealthiest progressives in San Francisco in Seattle would eventually reach a point when they say, “Our zoning laws are really, really effective at grinding the noses of the poor already, right this minute, as it is.”

You’d have to be really pessimistic to think that there is literally no chance that wealthy progressives will never one day say, “We’ve done enough already with licensing laws and the tax code and the minimum wage to really hurt blacks and to make them suffer, and we don’t need to go any further towards creating an even more horribly stratified racial caste society. The horribly stratified racial caste society that we’ve created thus far is perfectly stratified for anyone, now, so let’s stop here.” Right?

Plus, there’s very little likelihood of wealthy racist progressives not loudly saying, all the time, that anti-gay Christians must not go around being rude to gays. Enforcing hugely destructive racist policies and also saying, very loudly, that other people are intolerant and cruel people is what we call “a package deal.” The first is bundled up with the second.

Exactly what amount of prejudice are we required to put up with? Well that depends on whether you’re Brandon Eich or Barack Obama. They were both prejudiced, but they weren’t both fired for it, so the villagers with pitchforks have been treating it as a case by case thing.

I think when I have Ak Mike and Chris coming at me from opposite directions, I might have hit a sweet spot which prove the point that the issue is pretty complex.

I’m inclined to agree with Chris that there WOULD be lots of discrimination, some of it which might be justifiable (does every restaurant really need to be wheelchair accessible? Really?), some very much not and which would demand a significant social response to counteract. Personally, I suspect that there are probably many places where open racism against blacks, as well as hispanics, would return if people tolerated it.

Personally, I wouldn’t boycott a cake baker just because he didn’t want to serve gay weddings, but I probably would if he refused to serve gays generally, or any other minority. I don’t think that would be intolerant of me. Indeed, it would be necessary to creating a tolerant society in my view. In the end, in the absence of laws, we’re all just going to have to try to enforce the social norms that support the sort of society we want. May the best social norms win.

@Hazel

I’m not sure I see how “social rules” could possibly be enforced, or if they even would be enforceable in areas where a large portion, if not majority, of people hold the discriminatory viewpoint. It seems like in many areas the “social rules” would do the opposite: enforce discrimination (businesses in the south not serving homosexuals due to public pressure, for example).

Generally, if you’re using the terms “enforce” or “forbid” you require a body that has the power to perform those two roles. That’s one of the primary reasons why we have governments; we give authority to a body (the government) to enforce specific rules that serve the greater good at the expense of the individual. Without this authoritative body, you have no power to enforce any rule, unless you personally, or as part of a group, have enough might (economic or physical) to provide that enforcement.

Show me any society or large group that functions without a governing body with authority and I will start taking “social rules” seriously.

@Mark

Legitimately, show me a group that functions without developing an authority. I don’t think it exists. It’s not so much that I trust a government, but that they will essentially come into existing in any society or group of a large enough size. Typically they enforce the will of the powerful, but in a democracy they theoretically enforce the will of the people. There is no time in history where you could have existed outside the power of a government of some sort, whether you would like to or not.

Our specific government is largely guided and limited by a document that enshrines specific rights, but in protecting some rights, it also limits other rights. For instance, you have the right to free speech, but do not have the right to yell fire in a crowded theater because doing so would infringe upon the safety of others. There are similar shades of grey for almost any other right. The grey area between freedom of association and freedom from discrimination is largely what is being decided in this case. When does my right not to serve another unduly burden the right to equality of another?

Also, you chose one of many of my examples to pick on, and I wasn’t describing a specific location. There have historically been legitimate issues with blacks not being served, gays not being served, the handicap not being served, the poor not being served, etc. and it took government action to push back against this discrimination in each case to avoid a large number of people from being excluded from markets and equal access to essential services. It’s easy for you to point to one specific example and say discrimination isn’t a big deal, but that is cherry picking. There are plenty of recent historical examples and plenty of research showing systematic discrimination taking place against various groups in various areas each with significant and demonstrable hardships for those groups. Blacks were kept out of the housing market by redlining, homosexuals weren’t able to claim the same tax benefits as other couples until marriage equality, wheelchair bound people were significantly limited in the businesses they could access, limiting their access to many essential services and forcing them to make significant compromises on housing locations in order or pay substantial additional costs to upgrade housing they may not even own. None of this discrimination is ancient history, it was all addressed in the last 50 years and while progressive attitudes in some areas meant it wasn’t problem everywhere, conservative attitudes in many areas meant it was still a problem for a huge number of people.

Chris,

You’re moving the goalposts by miles. Eliminating public accommodation laws doesn’t equal anarchism. I happen to agree that government is inevitable, but that doesn’t in anyway justify it’s unending enlargement; rather, imo, it means it should be kept only as large as is necessary to keep it from being supplanted by another, worse, government.

You’re also incorrect about there never having existed a time or place outside the reach of governments. I’d refer you to the works of James Scott; but beyond that, even in most of the West, particularly rural areas, for most of history, most of the population had relatively little interaction with the state. There was some taxation (which many didn’t pay) and virtually 0 public services.

“When does my right not to serve another unduly burden the right to equality of another?”
No one has a right to be treated equally by others. Let’s establish that first. People have a right to be treated equally under the law, but that’s it. If someone wants to treat a particular group of people differently in friendship, in how they greet them, in whether they let them into their home, you don’t have the right to punish them for doing so or force them to do otherwise. I just happen to think the same applies to commercial transactions. All rights, imo, are negative in nature; they mean a right not to be forced to do something against their will. Forcing someone to serve someone they don’t want to is a violation of their right; you are coercing them. Them denying someone service isn’t analogous; they aren’t forcing the person their denying service anything other than *their own property.* And no matter how bad the reason is, they have the right to distribute their property however they please; otherwise, it’s not really their property.

And the fire in a ‘crowded theater example’ doesn’t apply here because refusing to bake someone a cake is not a threat to their physical well-being. I know some people want to go down the road where hurt feelings are regarded as qualitatively similar to physical harm, but I don’t. Ironically, the ‘fire in a crowded theater’ analogy was first used by Justice Holmes to rationalize upholding the prosecution of an anti-war (WW1) socialist pamphleteer. It wasn’t even valid in its original use.

Lastly, that was the example you gave, so that was the one I responded to. I would argue that in most cases, laws follow rather than precede cultural norms; and today, by the time such laws are broadly supported, they no longer seem necessary.

I also question the net utility of government attempts to suppress private discrimination. Many progressives before the housing crisis complained a great deal about black applicants being less likely to get mortgage loans, and were generally deaf to people pointing out that there were confounding variables associated with race and inability to repay one’s mortgage (or the fact that black women had higher acceptance rates than men, even though most bankers are white men, contradicting the ‘privilege’ explanation for mortgage discrimination); we ended up with regulations that effectively imposed quotas on banks to artificially inflate minority loans. Then, after the crisis, what happened? Minorities were disproportionately the victims of foreclosures, and the same people demanding more minority loans were now calling banks racist for having to foreclose disproportionately on minority homes, missing the irony of the fact that the former helped cause the latter.

Now, I don’t doubt that some mortgage originators were discriminatory. But all in all, even ethnic minorities likely would’ve been better off had the intervention ostensibly in their favor, not taken place, and that the cost of many loans that likely shouldn’t have been originated ending in foreclosure likely outweighed whatever actual discrimination was actually prevented.

The overarching point illustrated by that example being, efforts to stamp out ‘systemic racism’ from markets by the state, especially given the tendency of racial activist to ignore confounding variables or to use questionable indices of racism (e.g., implicit bias response), often cause distortions that ultimately cause more harm than good, even to those they’re designed to help.

Lastly, if conservative attitudes are so threatening to, say, black people, I have to wonder why there is significant net migration of blacks from the north to the south today? Now, maybe you would say that it’s purely for economic reasons and that it doesn’t suggest the south isn’t less hospitable to blacks than the north, but it does seem to be a nice example of economic interests trumping personal attitudes in economic interactions. It would seem, if we accept your view of the south, that more blacks are willing to leave a heavily regulated, hospitable, progressive state with fewer jobs to a less regulated, racist, conservative state with better employment opportunities than vice versa.

@Mark

First, thank you for the detailed discussion, you make well thought out points and This has been a good debate.

The American West you use as your example was defined by the government action of military action removing s population from the land and maintaining a military force to ensure they stayed off. When my great great grandparents claimed land out west, they did so because a military protected them from Native Americans and they registered their land claim at the local government outpost so that they maintained a claim on that land if anyone else tried to take it by force. Later, the west would be bailed out by the government when crop prices crashed and the federal government paid farmers to burn crops. In the dust bowls, farmers would leave the west and partake in a government taking of land by living in Hoover towns.

Honestly, I don’t disagree with your second statement, which is why a case like this is so interesting. I believe people should be able to serve who they like, but I also believe that right shouldn’t force people out of a market or be caused substantial hardship because of who they are. While one couple and a cake seems inconsequential in the big scheme, an example like the bank redlining I gave previously caused actual harm because it was widespread enough to significantly push a group out of a market.

Concerning the details of redlining, I don’t disagree that it’s always more complicated than a simple cause and reaction situation, but the bank redlining practice did have huge consequences for African Americans. Additionally, I believe you are conflating the restrictive mortgage practices of the 60s and 70s with the lose lending practices and predatory lending practices of the 90s and 00s. The economic impact of redlining did influence the number of African Americans that were financially unstable in the 90s and were then more likely to take on dangerous mortgages or fall prey to the predatory lending practices that specifically targeted minorities in the 90s.

I both disagree with your examples that you say show the negative impact of regulating anti-discrimination and disagree with you in principle. Your argument against anti-discrimination laws seems similar to those regarding Jim Crow laws and in favor of segregation in general. Essentially, “leave it alone; they could just move elsewhere or wait until social conditions change”.

Lastly, again, I didn’t name a specific location so the assumption that I think the whole of the south is racist/bigoted isn’t correct. There are areas where racism continues to be prevalent enough that a typical minority will encounter it frequently in their interactions. That doesn’t mean the entire south is a no-go zone for minorities.

@Chris,

Absolutely, I don’t think there is any guarentee that we will wind up with social norms that enforce anti-discrimination. I don’t quite think that justifies having government enforced anti-discrimination laws though. It just takes constant work to push that sort of social progress forward. If there’s enough prejudice around that you would wind up with social norms that enforce discrimination, a democratic government probably wouldn’t be able to enforce anti-discrimination law anyway.

Also, I think there are some cases where socially enforced discrimination might be a good idea – like against extremist religious cults or very sexist or cultural practices. i.e. maybe you should have the right to not rent to a fundamentalist Muslim if they are going to force their daughters to wear veils. If you just have laws which ban anyone from discriminating for any reason, there’s no room for society to organically evolve, no flexibility. And I don’t think we can trust the government to know which rules ought to prevail – it has to be worked out organically. We just have to work so that those social rules which we think are morally just prevail organically, via persuasion rather than force, even if that means we have to take the risk that they might now. It enhances our moral obligation to speak out against injustices in everyday life.

Seth,

TV stations do reject some ads.

Chris,

“Your argument against anti-discrimination laws seems similar to those regarding Jim Crow laws and in favor of segregation in general.”
How so? I see my position is precisely the opposite. The Jim Crow laws mandated discrimination, and were therefore a clear violation of freedom of association.

“Essentially, “leave it alone; they could just move elsewhere or wait until social conditions change”.”
I don’t think there’s any region in the country where life would be so intolerable for any given ethnic minority even absent anti-discrimination laws; even in the deepest parts of Alabama, I am confidant the vast majority of businesses would remain open, and sell at the same prices, to people regardless of race, religion, etc.. If we’re talking about being exposed to ambivalent attitudes or derogatory words and ideas, just how socially hospitable does a city or neighborhood legally *have* to be? And how far does this principle extend? There are neighborhoods in Portland and San Francisco that are rather unfriendly to Christians. There are certainly plenty of neighborhoods in Midwestern cities where one gets a lot of negative attention for being white. Certainly, there are many Asian and hispanic exclaves where non-Asians or non-hispanics who live there are almost invariably treated as outsiders; or imagine being a non-Mormon in certain parts of Utah.

These places, however, are generally but a small portion of the country. The state has an obligation to protect people from violence, but does it have an obligation to make sure that every county in the country is comfortable, in more of a social or cultural sense, to live in? I would say no.

Back to the issue though, I actually somewhat agree with what Thaomas just said.

If, say, no one in your state is willing to sell food or basic necessities to people of your ethnicity, then I think taxing/fining businesses denying service to subsidize anyone willing to provide services (which I think is greatly preferable to outright shutting businesses down).

But if it’s .01% of bakers or florists refusing to provide a rather peripheral service, then I don’t think intervention is remotely warranted. There are hypothetical conditions in which public accommodation laws exist (and a handful of particular services, like emergency room care, where the principle may apply generally); but for the vast majority of markets, in the US today, I don’t think such conditions are any where near being met.