Discriminatory Discrimination Laws |
Unless the Indy 500 is on or the Indianapolis Colts
are playing, Indiana is rarely in the news. Recently, however, the
Hoosier State made international headlines after the Religious
Freedom Restoration Act was signed into law on March 26.
SB 101,
as the bill is known, prohibits the state from “substantially burden[ing]
a person’s exercise of religion” except “in furtherance of a compelling
governmental interest” and even then only using the “least restrictive
means” possible. As originally enacted, the bill also allowed defendants
to invoke their religious beliefs as a shield against liability in a
civil suit.
The effect of that legal jargon was to eviscerate local bylaws
prohibiting discrimination on the basis of sexual orientation, for
example if a Christian restaurateur refused to cater a gay wedding.
After a global outcry over the legislation from academia, the world of
sports, and even religious institutions, it was amended to “clarify”
that it did not protect businesses against civil liability for
discrimination against potential customers, including homosexuals (a
“clarification” that went against the meaning of the law’s original
wording).
It is very difficult to defend SB 101 in its original form, as it gave
legal sanction only to discrimination by the religious against others.
While protecting the right of Christians to discriminate against gays,
it did not protect gays who want nothing to do with Christians. But
while the original law may have been odious, the broader principle that
a person should not be compelled to do business with anyone else is a
sound one.
To illustrate the point, take an example that was in the national news
in 2012: A woman was turned away from a Toronto barbershop by
a Muslim
owner
on the grounds that his religious beliefs prevented him from touching a
female who was not related to him. While the media defined the problem
as one of “colliding rights,”
this description mischaracterizes the issue. Rather than being a case of
his religious rights against her gender rights, it was a
case of his property rights against… nothing. As the owner
of the barbershop, it should be entirely within his discretion how to
use his business. He should be free to elect to cut the hair of only
men, or Muslims, or the overweight, or the left-handed. If he turns away
business, that is his decision and he will have to bear the
consequences.
Conversely, a prospective customer has no right to compel a business
owner to serve her if he chooses not to. Her recourse is simple: to take
her money elsewhere. If she feels especially strongly about the issue,
she can go further by urging others to vote with their dollars by also
withholding their patronage. In this particular case, however, not only
did the offended party contact the media, she also filed a complaint
with the Human Rights Tribunal of Ontario—presumably because she
believes that it is right to compel a barber to cut her hair under
threat of force. The issue would be the same in the case of a Christian
asked to cater a gay wedding, a gay print shop owner asked to make signs
for
the Westboro Baptist Church,
or a Jewish mechanic asked to repair the bikes of a gang of skinheads.
In no case should it be within the power of the rebuffed customer to use
the state’s monopoly on violence to require the business to provide the
service.
Some might distinguish on the basis that it’s one thing to turn people
away for what they believe—skinheads or homophobes, for
instance—but quite another to turn people away for what they are—women,
lesbians, Hispanics, etc. But the distinction is irrelevant, for the
simple reason that the business owner’s property rights trump these
other considerations. Few of us would disagree that private citizens
have absolute discretion in determining who may enter their homes, and
that even the most loathsome bigot has the right to refuse to host
people because of the colour of their skin or the religion they
practice. The same should be true of private businesses. While it is
repugnant to refuse to serve someone because of their sexual preferences
or ethnicity, that revulsion does not justify using force to compel
a business transaction to take place.
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“Even as a libertarian, I find
SB 101 repugnant because it was adopted not to protect
individual freedom, but instead to cater to special-interest
groups that exist largely in order to combat freedom and
equality for gays.” |
What’s more, there are many kinds of goods and services that cannot, or
should not, be provided through the gritted teeth of a person forced to
do something involuntarily. Granted, a homophobic store clerk will sell
the same hammer or dish detergent to a gay customer as he would to
anyone else. But a Muslim barber compelled to cut a woman’s hair may try
to avoid touching her all the same, causing him to do his work poorly.
Being human, he may take his frustration out on her by doing a lousy
job. He may sincerely do his best but fail because he is too flustered.
Or she might just be unsatisfied with the result, as happens normally on
occasion. But if she thinks that he has intentionally botched the job,
what then? Does she return to the human rights tribunal to force him to
patch it up as best he can? Or does she do what she should have done in
the first place: find a business willing to provide service with a
smile?
There are endless examples that illustrate the same problem. Imagine,
for example, a Christian forced to cater a gay wedding: If the guests
get food poisoning, is it because he was being petty, or simply because
it was a bad batch of shrimp? It’s unclear why anyone would want
to force someone who does not want to be serving them to do so, both
because of the risk of getting a disappointing result and because it
involves giving money to someone who wants nothing to do with you.
Ironically, the backlash over SB 101 demonstrated the power of moral
suasion and voluntary action in penalizing bigotry. Large and
influential businesses including Apple, the NBA, Eli Lily and Dow
AgroSciences decried the legislation. A large gamers’ convention held
annually in Indianapolis
threatened
to move elsewhere, while the NCAA criticized
the bill
ahead of the impending college basketball championship finals held this
year in the Indianan capital. The reputational and economic threat to
Indiana was such that the legislature had little choice but to walk back
the measure—it even moved them to insult our intelligence by denying
that there was ever any intention to sanction discrimination. The
widely-held sentiment of tolerance necessary to motivate politicians to
enact anti-discrimination laws can instead be tapped to punish any
business that turns away customers for bigoted reasons.
Crucially, the dynamics of the free market are such that anyone who
wishes to discriminate based on race, sexual orientation or any other
economically-irrelevant characteristic pays a penalty in the form of
lower profits. That incentive discourages bigotry not only in theory but
also in practice. For example, over a century ago
in the American South,
streetcar companies segregated users based not on their race but on
their use of tobacco (the smell being unpleasant for non-smokers). This
colour-blind policy was motivated not by compassion but by greed:
Segregation would require running more cars for the same number of
passengers. Moreover, it would upset paying black customers, something
that no profit-making business wants to do. It was not until the Jim
Crow laws were enacted that segregation as we know it came about. In
fact, the profit motive led the streetcar companies to fight segregation
laws for 15 years before the government finally forced them to
comply.
It’s important to emphasize that this argument does not extend to
the public sector. While we’re all free to take our business elsewhere
if a business refuses to serve us, we are anything but free to
simply patronize a different government office if the first one turns us
away. What’s more, we are compelled to fund the government on pain of
imprisonment. It would be obscene for an entity that takes our money by
force, and compels us to do “business” with it, to deny a person the
ability to, say, file a lawsuit or apply for a permit based on
considerations that are clearly irrelevant.
As mentioned earlier, even as a libertarian, I find SB 101 repugnant
because it was adopted not to protect individual freedom, but instead to
cater to special-interest groups that exist largely in order to combat
freedom and equality for gays. If, however, a legislator in Indiana or
elsewhere were to propose a principled and uniformly-applicable bill
that would repeal all laws that compel private citizens to do
business with others against their will, then I would support it
enthusiastically. It may be hard work to convince your fellow citizens
to be open-minded and tolerant, but ultimately it is social norms and
popular opinion—not government fiat—that offers the best protection
against discrimination. Voluntary cooperation can forge a more genuine
and lasting social peace than any piece of legislation ever could.
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From the same author |
▪
A Requiem for Spock
(no
330 – March 15, 2015)
▪
The Good Citizenship Award
(no
329 – February 15, 2015)
▪
Onward to Victory: Why Freedom Will Win
(no
328 – January 15, 2015)
▪
The New York Police Department: Striking Against the
Public Safety?
(no
328 – January 15, 2015)
▪
Another Year, Another War: How (Not) to Save the
Middle East
(no
325 – October 15, 2014)
▪
More...
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First written appearance of the
word 'liberty,' circa 2300 B.C. |
Le Québécois Libre
Promoting individual liberty, free markets and voluntary
cooperation since 1998.
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