Smart Thinking: Discriminating Between Discriminations
Julian Sanchez blogs:
As I argued in Newsweek a few years back, the "purist" libertarian position that condemns all anti-discrimination laws, including the 1964 Civil Rights Act, as a priori unjust violations of sacrosanct property rights is profoundly misguided and historically blinkered. We were not starting from Year Zero in a Lockean state of nature, but dealing with the aftermath of centuries of government-enforced slavery and segregation--which had not only hopelessly tainted property distributions but created deficits in economic and social capital transmitted across generations to the descendants of slaves. The legacy of state-supported white supremacism, combined with the very real threat of violence against businesses that wished to integrate, created a racist structure so pervasive that unregulated "private" discrimination would have and did effectively deprive black citizens of civic equality and a fair opportunity to participate in American public life.We ultimately settled on rules barring race discrimination in employment, housing, and access to "public accommodations"--which, though it clearly restricted the associational freedom of some racist business owners within a limited domain, was nevertheless justifiable under the circumstances: The interest in restoring civic equality was so compelling that it trumped the interest in associational choice within that sphere. But we didn't deny the existence of that interest--appalling as the racist's exercise of it might be--and continue to recognize it in other domains. A racist can still invite only neighbors of certain races to dinner parties, or form exclusive private associations, or as a prospective employee choose to consider only job offers from firms run or staffed primarily by members of their own race. Partly, of course, this is because regulations in these domains would be difficult or impossible to enforce--but partly it's because the burden on associational freedom involved in requiring nondiscrimination in these realms would be unacceptably high.
He is with me on the notion that cake bakers and photographers should not be forced to create work that goes against their religious beliefs (or simply that is not in tune with their "bigotry," though I don't think every person who refuses to, say, photograph a gay wedding is "bigoted"; they might truly just be keeping to their religion):
The discrimination involved here doesn't plausibly deny the gay couples effective civic equality: There are plenty of bakers and photographers who would be only too happy to take their money. Under the circumstances, the urge to either fine or compel the services of these misguided homophobes comes across as having less to do with avoiding dire practical consequences for the denied couple than it does with symbolically punishing a few retrograde yokels for their reprehensible views. And much as I'd like for us all to pressure them to change those views--or at the very least shame them into changing their practices--if there turn out to be few enough of them that they're not creating a systemic problem for gay citizens, it's hard to see an interest sufficiently compelling to justify legal compulsion--especially in professions with an inherently expressive character, like photography. In short: Yes, these people are assholes, but that alone doesn't tell us how to balance their interest in expressive association against competing interests at this particular point in our history.In a sense, bigotry in the economic realm is a bit like pollution: Whether a prohibition is justifiable--and how stringent the limits should be--will depend on whether enough people are doing it that you have an appreciable aggregate harm. We don't just deem carbon emission an intrinsic wrong and categorically ban it--we recognize that industrial smokestacks are probably worth regulating fairly strictly, while banning fireplaces would limit individuals freedom to use their property more severely than can be justified by the public interest in avoiding the marginal ecological harm imposed, given levels of fireplace usage observed in the real world.
...The point is that treating private discrimination as either a categorical wrong committed by troglodytes with no liberty interests meriting consideration or an utterly inviolable right of conscience, divorced from either historical context or practical consequence, seems like a stupid way to approach the issue. If there are still enough hardcore bigots to justify restricting their expressive association in the economic domain--or in subsets of that domain--then I hope their numbers soon dwindle to the point where those restrictions become unnecessary. But at some point, I would hope we can at least agree in principle, they become a sufficiently irrelevant minority that we are not entitled to inflict legal penalties strictly as a means of signalling our superior enlightenment and symbolic disapproval.
It's not about bigotry. It's about idiocy - as in what sort idiot would want to eat and serve to friends and love ones a cake that was created behind closed doors by someone who believes you should be burning in Hell.
Wfjag at April 3, 2015 11:33 PM
Exactly. I also wouldn't want to patronize the business of the lady who told my mom "You're not like those other Jews."
Amy Alkon at April 3, 2015 11:49 PM
(or simply that is not in tune with their "bigotry," though I don't think every person who refuses to, say, photograph a gay wedding is "bigoted"; they might truly just be keeping to their religion):
****
And people who stone adulterers aren't violent, they might truly just be trying to keep to their religion.
NicoleK at April 4, 2015 12:51 AM
Government imposed discrimination is not a solution to government or societal discrimination. This is just repeating the mistakes of the past in a new way. It doesn't matter we don't all start from the same spot. No matter what we won't all start from the same spot, skin color or no skin color. Bill Gate's kids and Oprah's kids start with far more wealth than I did or my kids will. And that is OK. The truth is while parental wealth may be predictive of child wealth it is not causal. Both are caused by culture. And while a culture is often inherited from the parent there is no guarantee.
Protective classes of people are antithetical to democracy and often harm the people they claim to protect.
Ben at April 4, 2015 2:43 AM
Well done, NicoleK! I was just going to respond to that. I was going to say something like this:
Bigotry wrapped in religious trappings is still bigotry. I couldn't stay in a religion that forced me to have prejudices that I don't have.
Patrick at April 4, 2015 3:15 AM
Declining to bake a cake isn't quite equivalent to stoning a person.
That kind of extreme analogy misses the point of the article entirely. I'm happy to listen to arguments against (or for) the author's view. But this knee-jerk superiority doesn't add to the conversation.
I am more interested in figuring out *how* we decide when this happens, in a legal and political sense:
"If there are still enough hardcore bigots to justify restricting their expressive association in the economic domain--or in subsets of that domain--then I hope their numbers soon dwindle to the point where those restrictions become unnecessary."
How do we, as a government, draw the line and say, freedom of association is *now* a more-important freedom, than effective civic equality. Yesterday it was not, but today it is.
Because until we figure out that criteria, the machinery of making and enforcing laws can't change.
flbeachmom at April 4, 2015 4:23 AM
The test for whether or not someone has the right to do something is not "do I agree with the person's beliefs?" but rather "if it were me and my principles, would I want the freedom?"
An alternate example: suppose a person vehemently opposed to guns runs a bake shop. She has all kinds of people come through her store, no problem. She also makes cakes for special events, and delivers them to the events.
One day, a customer comes in, asks her to bake a special cake for his gun-rights rally. He wants it in the shape of an AR-15 and have it say "No More Gun Control" on it. He wants this cake delivered to his rally.
Should the baker be required to make a cake and take it to a party that it is direct violation of her own beliefs?
I believe she should not. I believe that she has the right to say that this violates her core principles. And therefore everyone does.
The Original Kit at April 4, 2015 4:58 AM
flbeachmom: Declining to bake a cake isn't quite equivalent to stoning a person.
That kind of extreme analogy misses the point of the article entirely.
Actually, it's you that missed the point entirely. First, that comment was not in response to the article itself. It was a response to Amy's comment suggest that people who refuse to photograph a gay wedding might not truly be bigoted, but only marching in lockstep to the dictates of their religion.
Which is just like saying that those who stone adulterers (and gays) aren't truly violent, but keeping to their religion.
Yes, refusing to bake a cake does not equal stoning a person.
However, the idea that those who refuse to photograph a gay wedding might not be bigoted is just as dumb as suggesting that those who stone people might not truly be violent.
Patrick at April 4, 2015 5:14 AM
"However, the idea that those who refuse to photograph a gay wedding might not be bigoted is just as dumb as suggesting that those who stone people might not truly be violent. " aka Patrick
There is a difference between simply wishing to live as one believes and wishing harm to someone that thinks differently.
If you and the article writer thinks that those persuaded by your words to not be a bigot, dumb, idiot, and so on ACTUALLY believe you are correct, then do so. Just make sure you get paid in cash because they may change their minds for the next bullying article by someone else.
Personally, if I have to ignore being called a bigot or an idiot multiple times in a conversation I typically agree and move on. No further thoughts on the subject's possible truthfulness despite my thoughts on it at moment.
I don't mind improving/evolving but not under a bully's thumb. If I'm truly being threatened by someone to "improve" then I have a different problem requiring a different thought process.
Bob in Texas at April 4, 2015 6:48 AM
****
And people who stone adulterers aren't violent, they might truly just be trying to keep to their religion.
Ridiculous. Know any Christians? I think religious beliefs are ridiculous but people who have non-evidence-based beliefs that they will go to hell for not following certain tenets do not necessarily wish gay people harm or hate them; they just think they cannot support gay weddings.
I say this as somebody who is an atheist who has been in support of gay marriage from the start.
Amy Alkon at April 4, 2015 7:18 AM
@ Patrick
ex. How many "good" conversations have you had w/someone asking "Are you a faggot?"
Hoping you've never experienced that situation, but I suggest that if you do that the person asking may not be looking for a peaceful bout of dialogue.
(hint: Threat/vulnerability assessment and risk analysis)
Bob in Texas at April 4, 2015 7:21 AM
"religious beliefs are ridiculous but people who have non-evidence-based beliefs that they will go to hell for not following certain tenets do not necessarily wish gay people harm or hate them; "
We all have non *evidence based* beliefs, but most of us won't admit it is because we are just not that good at evaluating the *evidence*.
And only some of those beliefs are necessarily traditional religion.
We all believe a lot of things, that are based on very sketchy evidence.
For example, the climate change hysteria.
The point is, being a bigot or a racist shouldn't be illegal, in and of itself.
My mother still hates Japanese men (not Chinese men or Thai men) At 90, I am not going to change her mind, and I suspect the number of friends she lost on Bataan and Corregidor and in the Japanese prison camps afterwards, has something to do with it.
Isab at April 4, 2015 8:12 AM
Amy writes: I think religious beliefs are ridiculous but people who have non-evidence-based beliefs that they will go to hell for not following certain tenets do not necessarily wish gay people harm or hate them; they just think they cannot support gay weddings.
No, they just think that God has decreed that we will burn in Hell for all eternity, and that we chose to be gay. But they don't hate us.
Patrick at April 4, 2015 9:52 AM
A free society is one where it is safe to be unpopular.
Nick at April 4, 2015 10:20 AM
No, they just think that God has decreed that we will burn in Hell for all eternity, and that we chose to be gay. But they don't hate us.
Some do, some dont. Fascinating thing about cognitive dissonance.
lujlp at April 4, 2015 12:15 PM
Thanks for the post and the link to his previous Newsweek article, Amy.
Sanchez: The point is that treating private discrimination as either a categorical wrong committed by troglodytes with no liberty interests meriting consideration or an utterly inviolable right of conscience, divorced from either historical context or practical consequence, seems like a stupid way to approach the issue.
I certainly wouldn't say that there are no liberty interests meriting consideration, but I'd also say that a business owner who wants to exercise his/her liberty interests by refusing to serve a group of people based on an immutable characteristic -- "WOMEN NOT ALLOWED", "NO BLACKS", "OLD FARTS STAY AWAY", "WE DON'T SERVE HANDICAPPED PEOPLE", "GAYS & LESBIANS: GO ELSEWHERE (LIKE TO HELL)" -- is a troglodyte.
Note that religion, which is typically included as a protected class, is an outlier among the classes. While it is a characteristic ("a special quality or trait that makes a person, thing, or group different from others") that characteristic is a choice. In this respect, it is no different than membership in the KKK or the Nazi Party. If a business owner is not permitted to refuse service to Muslims, then he/she should not be permitted to refuse service to Klansmen or neo-Nazis.
JD at April 4, 2015 12:35 PM
Amy: though I don't think every person who refuses to, say, photograph a gay wedding is "bigoted"; they might truly just be keeping to their religion)
Actually, if they're a Christian, they're not keeping to their religion. Their God didn't say that the punishment for gays is for their wedding to not be photographed. Their God said that the punishment is death.
You think their God is going to be all like "Hey, you refused to photograph those two dudes getting hitched...I'm so proud of you...way to go!" No way. He's going to be all like "You big pussy. THIS is your 'big stand' against homos? You had the perfect opportunity to obey my command. You should have gone to the wedding with a bomb in your camera and whey they said 'Cheese' you could've said 'I've got your cheese right here' and blown the dudes to smithereens. That would have been awesome."
JD at April 4, 2015 1:14 PM
The point is, being a bigot or a racist shouldn't be illegal, in and of itself.
Is anyone arguing that it should be?
What many people do argue is that bigotry or racism (or sexism) shouldn't be legal to practice in commerce.
I wonder what percentage of Americans would be in favor of elimination all anti-discrimination laws, as Amy is? My guess is that it's very small and that anyone advocating for this, no matter how persuasively they make their case, or explain themselves ("I'm not in favor of discrimation, I'm just in favor of business owners having the freedom to choose to discriminate.") is not going to get much traction.
JD at April 4, 2015 1:34 PM
"bigoted"
"cognitive dissonance"
"Troglodyte"
Sigh. Taking a deep breath from laughing too much. Did someone's feelings get hurt? I've not heard so much whining since being on the playground.
Seriously, if you think forcing a naive middle-age white business owner to take your wedding pictures is a significant civil rights gain then you really are a special cupcake. (As has been pointed out savvy parties know what to say to accomplish their goals.)
The people that are advocating doing harm to gays (and others) are not people that (save one) religions today desire to have as members.
So yell on. You've picked a safe target and a safe location.
You are not changing any minds w/your choice of words but that is not your intent is it.
Bob in Texas at April 4, 2015 1:53 PM
A free society is one where it is safe to be unpopular.
And we don't have a free society. We're living in a soft tyranny. For now. Until someone burns down a pizza shop.
I saw a list the other day of people you shouldn't talk to without your lawyer present. Included where cops and other people's lawyers. I would add an addendum: reporters.
I R A Darth Aggie at April 4, 2015 2:08 PM
No, they just think that God has decreed that we will burn in Hell for all eternity, and that we chose to be gay. But they don't hate us.
Hate the sin, love the sinner.
Matthew 18:21-22 and the read the rest of the chapter for the parable of the unmerciful servant.
I R A Darth Aggie at April 4, 2015 2:15 PM
Hate the sin, love the sinner.
Sometimes this distinction makes sense. If someone steals a bike, for example, that theft isn't a fundamental part of who they are. So you can hate what they did but still love them.
But when it comes to gays & lesbians, who they love is a very fundamental part of who they are (the same as it is for us straight people.) So hating who they love while loving them is a pretty bizarre distinction.
Also, while the Christian God said that gay men should be put to death (he was mum about lesbians) Jesus never said anything about same-sex love being a sin. So Christians should either clamor for gay men to be killed or, if they prefer Jesus to the Old Testament God, shut their yaps about same-sex love being a sin. And, in my opinion, real Christians (i.e. those who follow the teachings and acts of Christ) do just that; they don't consider same-sex love to be a sin.
JD at April 4, 2015 2:28 PM
but I'd also say that a business owner who wants to exercise his/her liberty interests by refusing to serve a group of people based on an immutable characteristic -- . . . -- is a troglodyte.
So then, do you rail against women only gyms, county clubs, and battered women's shelters just as much as you do soft bigots refusing to participate in weddings?
lujlp at April 4, 2015 2:34 PM
"I wonder what percentage of Americans would be in favor of elimination all anti-discrimination laws, as Amy is? My guess is that it's very small and that anyone advocating for this, no matter how persuasively they make their case, or explain themselves ("I'm not in favor of discrimation, I'm just in favor of business owners having the freedom to choose to discriminate.") is not going to get much traction."
Here is a mind bender for you JD.
Suppose a doctor refuses to accept Medicaid patients, which many lower income Obamacare patients now are.
A high percentage of Medicaid patients are minorities, and all are below a certain income level.
Discrimination or not?
Should it be illegal?
And if the government forces you to treat people who not only cannot pay you, but by law sets the Medicaid reimbursement levels so low, that they don't even cover your costs, is this involuntary servitude for the doctors?
Isab at April 4, 2015 2:36 PM
So then, do you rail against women only gyms, county clubs, and battered women's shelters just as much as you do soft bigots refusing to participate in weddings?
You bet! In fact, I've been at this for a long time. Starting back in junior high school, I was railing against girls-only showers.
JD at April 4, 2015 3:27 PM
And here's a mindbender for you, Isab:
What was Wayne Fontana's connection with Elvis Presley?
JD at April 4, 2015 3:32 PM
JD most all Christians do not have the stance on homosexuality that is referred to in the Old Testament. Christians extract their views from the New Testament, mostly from Romans.
Anyway, when I was about 19 years old I was asked by a married woman I knew to sing a song (Joe Cocker's "You are So Beautiful") as a surprise for her friend's birthday. After asking around a little bit, I realized this was a lesbian friend and the marriage was crumbling and the married lady wanted me to serenade this to her friend. Taken into context, this made me VERY uncomfortable. I called and backed out and was very apologetic. I am not a bigot, but I absolutely was not comfortable with what this lady wanted me to do, and I would have backed out if she had wanted me to sing to another man, by the way. I'm thinking if I were a professional singer, I would want to have the same right to be able to decline/accept work based on whether I was comfortable or not with each scenario.
gooseegg at April 4, 2015 4:27 PM
JD:
Those Christians who actually understand that no one chooses to be gay are an outright scream. Their solution, since we can't help but be homosexuals, is to live our entire lives in celibacy. One such Christian once told me, that even if I am never "healed of homosexuality," it "doesn't matter all that much."
Her reasoning is that if I stay celibate, I can still go to heaven for all eternity, and unfulfilled needs for intimacy, love and closeness on this earth won't matter.
Patrick at April 4, 2015 5:52 PM
I believe everyone has to come to terms with what they believe and why. My personal beliefs are coupled with knowing young people who do not yet know they are homosexual, but I strongly suspect it. If they never are at peace with this, then that is their burden to bear, but if they finally realize it, I definitely know that it was not a decision that was out of experimentation or lasciviousness. I don't believe God makes mistakes. I believe there's something missing from the Bible when it comes to homosexuality. I believe God is loving and that Jesus himself would be friends with homosexuals just as he was the tax collectors and the woman at the well with 5 husbands. I believe that sex is designed for monogamy. And I believe that the story of Sodom and Gomorrah focused not just on homosexuality, but a sexual lifestyle that had gone so far off of the norm that no one was safe, not 2 angels, not virgin girls, no one. That's what I believe is wrong - but I believe that about carnal heterosexuality too. It's just the thing to do right now, to point out homosexuals as being deviant, whenever most Christians could be talking about their own households, stone cold truth be told. He who is without sin, cast the first stone, ya know.
gooseegg at April 4, 2015 6:31 PM
It is also entirely possible to not view homosexual sex as a sin and still not approve of same-sex marriage.
Even further it is possible not all Christians are assholes even though all the ones who got in your face about homosexuality were. Just like not all Atheists are assholes, but the evangelical ones sure are.
Ben at April 4, 2015 7:21 PM
I believe God is loving and that Jesus himself would be friends with homosexuals just as he was the tax collectors and the woman at the well with 5 husbands.
Well, Jesus did spend all his time down at the dock trolling for longshoremen, urging them to leave their wives and join his all male troop to go out looking for even MORE men, so . . .
lujlp at April 4, 2015 8:07 PM
There's some debate as to whether the sins of Sodom had anything to do with homosexuality.
Patrick at April 5, 2015 4:52 AM
Also, in Matthew 19 there's a big debate about Jesus describing reasons to not enter into heterosexual marriage, legitimizing natural borne eunuchs (homosexuals) as a different yet equal path to take. It would fly in the face of the teaching that all homosexual acts are sinful, cause he sure said they were born this way, and did not condemn them at all.
gooseegg at April 5, 2015 12:19 PM
gooseegg: JD most all Christians do not have the stance on homosexuality that is referred to in the Old Testament. Christians extract their views from the New Testament, mostly from Romans.
Well they ("they" being conservative Christians; liberal Christians don't have a problem with homosexuality) should have the stance on homosexuality that is referred to in the Old Testament. After all, that's God talking. Romans is merely Paul's opinion and he's human so he's fallible. God is infallible and God said that gay men (and bi men, and even straight men who have a fling with another man) should be put to death.
Let's sum up:
God (divine): kill homos (or homo dudes anyway; God was silent about lesbians)
Jesus (divine): said nothing negative about gays & lesbians. True, he said nothing positive either but you'd think that if he viewed same-sex love as such a HORRIBLE ABOMINATION he could've at least squeezed out one condemnation of it. Even an itsy-bitsy one.
Paul (mortal): said it's wrong* when both chicks and dudes do it with the same sex (unlike God, Paul wasn't turned on by lesbians.)
* actually there is debate about this. Paul wrote: or even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another;
Religious conservatives argue that "natural" means God naturally makes men attracted to women and vice-versa. On the other hand, religious liberals argue that "natural" is what's in a person's nature and if a person is born naturally attracted to the opposite sex then it would be unnatural for them get naked with someone of the same sex. But if it's in a person's nature to be attracted to the same sex, then it would be unnatural for them to romp around in bed with someone of the opposite sex. It should come as no surprise, of course, that religious conservatives continue to insist that same-sex attraction is a choice, that God doesn't create people with a same-sex attraction.
JD at April 5, 2015 5:50 PM
Patrick: Those Christians who actually understand that no one chooses to be gay are an outright scream. Their solution, since we can't help but be homosexuals, is to live our entire lives in celibacy. One such Christian once told me, that even if I am never "healed of homosexuality," it "doesn't matter all that much."
Conservative Christians, I'm sure you mean. I think most liberal Christians understand that people are born attracted to one sex or the other and they also don't view same-sex sex/intimacy as anything wrong. Anyway, yes, in discussing this topic with conservative Christians like you describe, I agree with them that sex itself (as well as other types of physical intimacy) is a choice, even though who you're attracted to isn't. But I always go on to say that I consider them mean-spirited for expecting that gays and lesbians are supposed to deny themselves any physical intimacy with another person that they love. (Of course they don't agree; they always blather that they're doing it "out of love".)
JD at April 5, 2015 6:43 PM
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