The Kansas and Arizona legislatures recently made national news by passing bills allowing for individuals, businesses, and (in the Kansas case) government employees to decline service to other individuals based on religious objections. Sponsors have said these bills are a response to recent legal decisions in favor of gay plaintiffs in discrimination suits. Religious individuals are concerned they might be forced by the government to serve people that engage in behavior that is perceived by them as abominable. The gay community is outraged that businesses in these states might be closed to their patronage if these bills become law, and are making comparisons to last century’s Jim Crow laws. Ultimately both bills fizzled: the Kansas bill was effectively stopped in the senate and the Arizona bill was vetoed by the governor, though some other states have similar bills in the works.
I think these particular bills are awful because they are focused in attempting to target specific groups for either protection (the religious) or discrimination (teh gays). I found the Kansas bill particularly troubling because it permitted even government employees to engage in discrimination, a definite no-no. Nevertheless, there remains in my mind a niggling notion that using the full force of government to require a private business owner/operator to associate, however fleetingly, with a person or entity with whom they morally object can be wrong. If you think long and hard enough, I am certain there is a class of people that you would refuse service if they arrived in your business. (Hint: think beyond the classes who currently enjoy legal protections.)
The fundamental question here is whether a business has the right to engage in commerce with absolute freedom of association. US law says no, providing anti-discrimination protections for race, religion, and gender, among other protected characteristics. Other forms of discrimination are perfectly legal and sometimes even socially acceptable. Consider the high falutin restaurant that bans kids or the convenience store owner that refuses to hire a highly qualified individual who happens to have a 20-year old felony conviction.
So what is the principled position behind anti-discrimination laws? It certainly isn’t limited to characteristics an individual involuntarily inherits as a result of their birth such as race or gender (worth noting that gender is not a binary state as many previously understood or accepted it). Religion is a protected class under law, but individuals are free to choose or change their religion as they see fit. Pregnancy is protected despite being a voluntary (with rare exceptions) condition. Likewise, not all involuntarily inherited characteristics are protected. Perhaps I could open a store and serve only those customers that have an “innie” belly button or only those that are right-handed or people named Steve. I suspect if I opened such a store, it would be viewed with equal parts bemusement and confusion as opposed to the visceral reaction that would be received for refusing service to homosexuals or Latinos.
My only conclusion is that there is no fundamental principle that forms the basis of current anti-discrimination law. It is a piece-meal construct built a bit at a time, and only once a particular class has achieved sufficient economic and political power to demand action can they achieve some level of government protection. At that point, the need for said protection is already in decline, so the action becomes more about vindication than true protection. With such a patchwork some groups are protected, some are unprotected, and yet some others may be actively repressed. This seems to me to be a hazardous approach to public policy. If there is no principle behind a policy, then it becomes extraordinarily difficult to apply the policy consistently and impartially.
Winding back to that niggle in my brain; I still have not resolved my conflicting thoughts on this subject. I can think of many scenarios where the principle of non-discrimination would force me to associate with people I find to be detestable. For example, I would not want to sell a Sturdley’s Magical Mystical Blog coffee mug (note: no such product exists…yet) to Fred Phelps for the simple reason that I do not want to be even remotely associated with such a disgusting example of humanity. The reality is that in the right circumstances I could be forced to do so by the government because it is currently illegal to discriminate on the basis of religious beliefs. If my hand were forced in this manner, what are my options? Grudgingly accept the decision? Close up shop rather than comply? Go in the back room and find that mug with a chipped rim and give it to him hoping he won’t notice? Maybe I could come up with some other pretense for refusing service, basing it on something unlikely to result in a devastating lawsuit against my (very) small business, and hoping to hell my true motives are never revealed. This last strategy is likely being employed by many as a means to continue their discriminatory practices under the radar.
As can be easily demonstrated with anti-drug, anti-gun, and anti-sex-work laws, making a “thing” illegal is often an ineffective method of preventing people doing the “thing.” Making a thing illegal drives people doing that thing underground where the behavior is obfuscated and more difficult to detect. My personal preference is to live in a society where the bigots, racists, chauvinists, etc. are free to make their beliefs known rather than to hide them out of fear of being sued or jailed. Whether they’re just an average jerk spouting idiotic speech or a business owner turning away customers, I want to know who these people are. I want to be able to call them out, from the rooftops if necessary, for their asshattery. I want to be able to stand outside their business and say to people, “if you go in there, you’re supporting a business run by a twat-waffle that fires women when they get pregnant.” I want to bring my friends along so we can all pour our collective contempt upon their front door and anyone that passes through them. I don’t want to live in a society where I cannot tell which store is hiding these disgusting people and policies behind a veneer of phony tolerance because that means I may inadvertently support them.
This line of thinking leads away from supporting anti-discrimination legislation, and though I have not adopted this position, I do have a significant number of doubts about the effectiveness and reasonableness of such legislation. There are a number of situations where I would be inclined to side with the discriminatory party, and many where I would not. Consider the following hypothetical situations:
- Should a Christian baker be obligated to produce a cake for Gillian’s post-abortion celebration?
- Should a pro-choice baker be obligated to produce a cake for Joe’s pro-life rally, including a graphic representation of an abortion in red icing?
- Should a Catholic printer be obligated to produce invitations to Bob’s 8th divorce party?
- Should a Baptist sign-maker be obligated to produce signs saying, “Allahu Akbar” for a mosque?
- Should a Sunni Muslim graphic artist be obligated to produce an advertisement containing a visual representation of the prophet Muhammad?
- Should a Jewish photographer be obligated to photograph Ahmadinejad’s 2015 Holocaust Denier’s Expo?
- Should an atheist plastic-maker be obligated to produce Christian-themed toys?
- Should a black tailor be obligated to sew hoods and cloaks for the local KKK chapter?
- Should a gay photographer be obligated to take photographs of a wedding held at the Westboro Baptist Church?
- Should a liberal restaurateur be obligated to serve food for a table seated by a group of hardcore (from the owner’s point of view) conservatives?
Did you answer the same for all items? I admit I answered no to every last item, yet I still struggle with reaching a principled conclusion that lies firmly on one side of the issue. Time to do some more thinking.