Re Arizona

I realize I’m late to the party, but here are a few thoughts on Arizona Senate Bill 1062:

1) A law allowing people to pick and choose whom they want to transact with would be a very good law. Not as good as eliminating the other laws that make this law necessary, but still a big improvement over the status quo.

2) Senate bill 1062, however, was not that law. Instead it was a law allowing people to pick and choose who they want to transact with provided they have (or claim to have) a religious basis for their preference.

3) This raises the question of how we should feel about good laws that exempt only the politically favored from onerous requirements of other laws. How should we feel, for example, about a law that allows only white people, or only black people, or only Muslims, or only art history majors to practice cosmetology without a license — while continuing the status quo for everyone else?

4) One could argue that a good law applying to some people, while not as good as a good law applying to all people, is better than no good law at all. This would be an argument in favor of SB 1062.

5) There are, however, at least two problems with that philosophy. First: Discrimination in favor of a selected group creates an artificial incentive to become a member of that selected group, which leads to wasted resources. If freedom of speech or freedom of association or freedom to start a business depends on being an art history major, then some people who should have been math majors will major in art history instead.

6) That’s a good argument against laws that favor art history majors. It is not, however, a good argument against a law that favors blacks, or a law that favors whites, because, for the most part, changing one’s race is prohibitively expensive. It is probably not a good argument against a law that favors men, or a law that favors women, because, for the most part, changing one’s sex is, if not prohibitively expensive, then almost so. In this case, we’re talking about a law that favors the religious. Changing one’s religion — or creating the appearance thereof — is surely a lot cheaper than changing one’s race or changing one’s sex, so there might be more of a problem here, and that’s one reason to oppose this law.

7) On the other hand, it might be that changing one’s stated religion for the purpose of claiming the benefits of this law would have been almost costless, in which case the objection largely disappears.

8) The second problem with favoring good laws with limited application is this: If we allow ourselves to write laws that grant extra rights to politically favored groups, we are headed down an extremely slippery and unpleasant slope. That, presumably, is why the US constitution attempts to guarantee equal protection of the laws. The message is, roughly, that if you’re not willing to oppress everyone, then we won’t let you oppress anyone. That seems like a pretty good principle.

9) So what’s the bottom line on Arizona? I dunno. I think freedom, including the freedom to serve who you want to serve at your pharmacy or your restaurant or your gas station, is a really good thing. I also think that granting freedoms to one group that you’re not willing to grant to all groups is a really bad thing. On balance, I have no idea whether to be happy that the governor has vetoed this law.

10) I do note that much of the opposition to the law has come from the crowd that opposes freedom generally, and I do hate to see those guys happy. But the joy of seeing one’s opponents is disheartened is a poor basis for making law. So I remain ambivalent.

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67 Responses to “Re Arizona”


  1. 1 1 Steve S

    I am extremely proud of myself for coming to the same conclusions as Mr. Landsburg prior to reading his analysis. (That’s a compliment for you, Steve, and a humblebrag for myself!)

    If we pretend for a second that the religion-based text was not included, I thought the events that unfolded were wildly interesting. Follow me for a second:

    The “Left” is upset that people might be free to discriminate/refuse business. How do they respond? By using other private enterprises (Apple, NFL, etc.) to discriminate against / refuse business in Arizona. The law swings both ways. I know it’s hurtful to think of a gay man getting turned away at a wedding cake shop, but wouldn’t you love just as much to refuse NFL tickets to anyone who opposes gay marriage?

    Is this too negative of a worldview? That we deny good and services to others to make a statement or satisfy our personal beliefs? Are there negative externalities in having to run through a list of acceptable political affiliations before choosing to do business?

  2. 2 2 nobody.really

    Somewhat off-topic — How’s this for the Grand (Libertarian) Bargain:

    1. Adopt a Basic Income Guarantee (BIG) – and a reasonably generous one. Some will complain that BIG policies will depress labor force participation rates. But that’s the idea: Let’s make a plausible argument that work is discretionary.

    2. Repeal all civil rights and labor laws. Employers can make factories as dangerous as they like, and can demand sexual favors from their subordinates while they do it. Don’t like those working conditions? Your remedy is not in the courts; it’s in the BIG.

    The BIG becomes the equivalent of worker’s compensation laws – a fixed settlement offered in lieu of litigation.

  3. 3 3 Steve Landsburg

    nobody.really: I applaud your creativity. But what happens when the civil rights and labor laws start gradually being reinstated, while the BIG has become politically untouchable?

  4. 4 4 JamesFromPittsburgh

    This law was grandstanding by the state legislature. Arizona doesn’t have a law on the books requiring that businesses serve gays or lesbians. The law was a response to cases in other states with laws that prohibit discrimination based on sexual orientation in which businesses were compelled to provide services they objected to on religious grounds.

    For my part, I find both the discrimination and this law repugnant.

  5. 5 5 Daniel R. Grayson
  6. 6 6 James

    One misfortune in all of this is that supporters of the bill were using religion to mean conscience. I can imagine that plenty of non religious people would, for reasons of conscience, find cases where they don’t want to associate with certain groups e.g. doctors who perform late term abortions, people who advocate for the acceptance of pedophilia, people who make their money importing and reselling the products of slave labor, drug dealers, drug warriors, libertarians, trade union leaders, communists, etc. Everyone must have some group that they would shun if given the choice.

    I have no idea what the odds are, but I’d be happy to see a bill introduced stating that while the government can forbid actions the government can not compel anyone to act against their own conscience.

  7. 7 7 Roger

    This story shows that the liberals will do whatever they can to force photographers to do gay weddings, whether they like it or not.

  8. 8 8 nobody.really

    I think freedom, including the freedom to serve who you want to serve at your pharmacy or your restaurant or your gas station, is a really good thing.

    1. What should we think about antitrust policies prohibiting price-fixing or other forms of collusion? Are these bad things because they impede freedom of price-fixers?

    2. If we think of the Civil Rights Act of 1964 as a kind of antitrust policy, breaking the collusive practices of private firms that refused to deal with oppressed groups regarding jobs/housing/public accommodations, does it then become more palatable?

    3. Could we apply antitrust principles to limit the reach of civil rights laws? In 1964 we prohibited EVERYONE from engaging in certain kinds of discrimination as a means to ensure that minority groups would not be impeded in traveling in/working in interstate commerce. Arguably that was overreach. That is, we only needed to ensure that minorities have an adequate supply of jobs/housing/public accommodations (at prevailing market prices/quality/etc.) Presumably interstate commerce is not impaired by the existence of people who will not provide certain things to minorities, assuming there are enough people who will.

    So, when I’m accused of discriminating in the provision of jobs/housing/public accommodations to a member of a protected minority, perhaps I should have the opportunity to offer an affirmative defense of “competitive substitution.“ That is, I could offer evidence that the defendant was not harmed by my discrimination because he could have found, with reasonable effort, comparable jobs/housing/public accommodations elsewhere.

    For example, a cake decorate could scream in my face, “GET OUT OF MY SHOP, YOU GOD-FORSAKEN FAGGOT!” and I’d have no cause of action, provided there was a comparable cake shop next door that would take my business on comparable terms. A taxi driver waiting in the taxi line at the airport could refuse to pick up blacks, or single women, or women without burkas, or people with dogs or alcohol, etc., because there is an obvious supply of other taxis willing to serve these other customers. A pharmacist could refuse to provide certain forms of birth control provided that there were other pharmacists on duty at the same establishment, or a nearby one, that would. Etc.

    Whadaya say?

  9. 9 9 suckmydictum

    “…it might be that changing one’s stated religion for the purpose of claiming the benefits of this law would have been almost costless, in which case the objection largely disappears.”

    If this is costless, and people would readily change religious preferences in order to legally discriminate against gays, SL is presuming that (being a bigot) causes (religious fanaticism) and not (religious fanaticism) causes (being a bigot). To me, the latter is a bit more likely than the former especially since there are plenty of non-religious bigots, but there might not be conclusive evidence either way. given this, I’m not sure the objection disappears as easily as SL would like.

  10. 10 10 Kevin Erdmann

    You’re right, Steve. And, it’s even worse than you let on. There is a universally accepted American principle: the government can’t discriminate, but citizens can.

    Imagine a gay couple having a wedding ceremony. Their parents may have abandoned them. Perfectly legal. Many friends may have left them. Perfectly legal. Churches would have refused to do the service. Perfectly legal. Marchers may be outside the church with offensive signs, protesting gay marriage. Perfectly legal. If the couple getting married owned a local business, and townsfolk refused to shop there…perfectly legal. Local workers could refuse to work there. Perfectly legal. A photographer worker for the photography studio could refuse to work the wedding. Perfectly legal. But, if the photography studio refuses to photograph the wedding…that’s illegal.

    Now, this is probably just about the least tragic and the least likely of all of these terrible possible problems that the poor couple might face. Except for the studio, none of the other people involved here would even need to worry about claiming a religious exemption. They can say, “I’m a homophobic bigot, and I’m going to discriminate against this couple.” Nobody is calling for laws against any of that.

    But, the photography studio has to have an excuse. And, if you try to pass a law that gives them an excuse, by God, there’s marching at the statehouse.

    This isn’t about gay rights. This is about political tribal bullying.

    Note, also, the irony that one of the tools of the bullies is always to threaten to boycott businesses where the law is being considered. They take for granted that they can choose not to contract with others precisely because they have different religious or political beliefs, with the purpose of harming them. They take this for granted, for Pete’s sake. And, yet, politics is such a maniacal business, the irony is hardly noticed.

  11. 11 11 Jonathan Kariv

    Also in the category of “bad things in aarizona” and “bad things for gay rights”, which I think should probably be getting abit more media attention than they are:

    1. Uganda http://en.wikipedia.org/wiki/Uganda_Anti-Homosexuality_Act,_2014

    2. Arizona using letters in maths class makes it “fuzzy math”. http://azstarnet.com/news/local/education/arizona-senate-panel-votes-to-dump-common-core/article_512d157d-054f-5bc0-8a29-2076f69cc35a.html

    @nobody #2 and Steve #3: I love this idea in principal at least. I’m not 100% sure that the BIG would be harder to push around than the labour laws. You can always fudge the amount (presumably we’re planning to increase it periodically for inflation at least). Of course even if you buy that the BIG would be as fudgeable as the labour laws there would probably be some kind of unforeseen politicing involved.

    @Kevin #10: It strikes me as hard to legislate against “not working at store A (maybe I got a better offer at store B)” or ” not seeing old friends for a long long while” (maybe we just lost touch, maybe it’s a stalker claiming to be ab old friend and not an old friend) or “not shopping at a particular store” (I didn’t need anything they sold, they’re in another state etc). While there is a big asymmetry here at least part of the reason is that passing some kinds of laws is harder than others. Although maybe I’ just not being imaginative enough about what laws could be passed.

  12. 12 12 Alan Gunn

    “The crowd that opposes freedom generally” includes a lot of religious people, including the Pope, who wants governments to control economies (only to do good, of course). Giving these people exemptions that nobody else can have wouldn’t do anything to reduce this tendency. On the other hand, it is sad to see a law defeated mostly because its opponents lied about what it would do, as the piece in the link in comment 5 points out. I doubt that there are many churches whose tenets include requiring segregated lunch counters, and someone who made the argument that their religion required that would almost surely have lost, even if the law had been adopted.

  13. 13 13 Harold

    I do not agree that any law restricting freedom of interactions is bad, but that is not the main point. If I accept for the point of argument that in this case it is a good thing.

    #9. “given this, I’m not sure the objection disappears as easily as SL would like.” I Interpreted Steve to mean that if you could claim religious reasons without having to actually do much, then one could easily comply with the law at little cost. i.e. bigots would not actually have to be religious to discriminate if they were prepared to merely claim a religious motivation. According to the article linked by Daniel Grayson, “they would have to prove a substantial burden on a sincere religious practice”, so I think it would not be almost costless.

    Nobody.really: “That is, we only needed to ensure that minorities have an adequate supply of jobs/housing/public accommodations (at prevailing market prices/quality/etc.)” Surely this is the reason for introducing legislation for specific groups – this should only be done where the level of prejudice is high enough to restrict the supply. The idea of “competitive substitution” may work for a cake shop, but it sounds rather too like “separate but equal” to me.

  14. 14 14 Ken B

    I too am ambivalent. Rather than principles I look to examples.
    Do I favor letting Muslim taxi drivers refuse seeing eye dogs or Jews? Emphatically not, although licencing complicates the issue. Letting the religious refuse medical care for their children? Accept women in burkas testifying in court? These are not made up examples, they are Canadian ones. I also have little sympathy for atheists who object to In God We Trust, as being so trivial.
    So I find myself skeptical of this kind of religious accomodation. In all these cases it’s not the law intruding into purely private matters, but regulating interactions. Forced to choose I think I choose “veto good”.

  15. 15 15 Ted Levy

    When Ken B thinks about examples in a case such as this, he should be clear that the Catholic photographer or baker is not desirous of refusing service to gays PER SE, but merely to not being involved in a particular celebration of theirs. I’ve heard of no Catholic baker refusing to bake a birthday cake for a gay man, or a Catholic photographer doing a Glamor shot for a lesbian.

  16. 16 16 Ted Levy

    I wonder if the following hypothetical (and, granted, not libertarian) law would make people feel better: Anyone, for any reason, can refuse service to anyone. To do so legally, however, they must announce their policy in a prominent place of entrance to their place of business. I wonder if the baker or photographer who does not wish to take wedding business from gays is willing to so announce to the general public? (If they’re happy to do so, creating both a niche business for some customers and a loss of patronage from others, great!)

  17. 17 17 nobody.really

    Let me address what it perhaps Landsburg’s central point: Should we support a law that promotes a good outcome, but only for a few?

    Clearly, such laws erode solidarity, thus making it harder for those left behind to achieve their objectives. In 1869 long-time friends Frederick Douglass and Susan B. Anthony found themselves on opposing sides of the debate about the 14th and 15th Amendments, which would grant voting rights to blacks – provided they were male. Anthony was unwilling to support the expansion of voting rights that did not include rights for women. And, indeed, women did not get federal voting rights until 1920.

    Similarly, there has been much discussion within the lesbian, gay, bisexual, and transgendered community about the growing acceptance of homosexuality, and even bisexuality – but not so much for transsexuality. Just ask Deirdre McCloskey: we’re still suffering from “Low T.”

    And think about it: If the Montgomery Bus Company had capitulated to Rosa Parks and agreed that she could maintain her seat even as other black passengers had to yield to white patrons, that would be a bit of progress. Better than no accommodation, right? In retrospect, no – getting no accommodation was better, because it provided a basis for organizing and litigation to end segregation in public transportation. Solidarity was key.

    But the flip side of the argument seems more compelling: The fact that we have these examples of how certain groups get left behind seems to vindicate the idea that this is overwhelmingly how social progress happens. We don’t begin by repealing slavery. Rather, first the nobles extract a measure of autonomy from the king via Magna Charta, and we build from there. It’s incremental. It’s arbitrary. It’s unjust. It’s fraught with opportunities for bad faith. And it appears to be the primary path forward regarding large social change.

  18. 18 18 Kevin Erdmann

    Jonathan #11: If it was just a matter of practicalities, then the public conversation would have the tone of ambivalence. There might be tweaking of policies in a number of these contexts – tests of where mandates seem to be effective.

    The actual tone of the public conversation betrays the more likely motivations. In substantially every non-commercial private context, mandates are such a non-starter that we generally don’t even realize that they don’t exist – like fish in water. But, if a law is proposed that might allow freedoms for employers, even when that law is acknowledged to be pointless, symbolic, and unnecessary, you get mobs of people at the statehouse yelling about hate and injustice and threatening boycotts.

  19. 19 19 Harold

    In the Rosa Parks case there was nothing that differentiated Rosa from all black people. It would have been different if they allowed, say, black people who owned property on the front of the bus. Once Rosa got her concession, there was nothing to stop the next person doing the same.

    Re voting rights, there were clearly two separate issues – treating men and women the same and treating blacks and whites the same. I would have agreed with Anthony if white women had the vote and the proposal was to give the vote only to black men. As it was then one battle at a time is fine.

  20. 20 20 GabbyD

    “I dunno. I think freedom, including the freedom to serve who you want to serve at your pharmacy or your restaurant or your gas station, is a really good thing. ”

    why is this a good thing? would u expand on this?

    why shouldnt we just focus on standard criteria for all, like least prices (or highest prices, depending on context).

  21. 21 21 Tony N

    Steve,

    As usual, well analyzed. But I think the exception for religious objection might have more to do with pragmatism than political favoritism. The unfortunate precedent of the government regulating association when commerce is purportedly involved is too robust to overcome without the help of a trump card. By characterizing objections as expressions of religious belief, you pit solid first-amendment interests against more dubious appeals to commerce and equal protection interests.

    You’re still right, and in a just world, good ol’ freedom of association wins the day. But this isn’t a just world, clearly.

  22. 22 22 Advo

    I find it amazing that there are so many people who think that disallowing discrimination for reasons of skin color is a good thing.
    It’s easy to advocate that position if you’re a well-off white man.

  23. 23 23 Kevin Erdmann

    Advo #22, I assume you mean “allowing” instead of “disallowing”?

    Discrimination is allowed in the vast majority of private interactions. There is universal support for this principle. If you are actually advocating universally applied legal limits on discrimination, you would be far outside the American consensus.

  24. 24 24 nobody.really

    nobody.really: I applaud your creativity. But what happens when the civil rights and labor laws start gradually being reinstated, while the BIG has become politically untouchable?

    I’ve been trying to think up pithy rejoinders all morning. I’ve never failed to be underwhelmed by Landsburg’s political analyses — until now. Foo.

    (Who invited him to post on this blog, anyway?)

  25. 25 25 Alan Wexelblat

    What about the factor of unnecessary laws? Gov Brewer, in her statement regarding vetoing the bill, said that she was not aware of any situations in AZ that this bill would have addressed. Surely unnecessary laws are an added burden on everyone and should be avoided wherever possible.

    In the Volokh post linked to by Daniel Grayson, an argument is made that the purpose of the law was to address situations that had arisen in other jurisdictions, with different RFRA-like laws. That may be true, but it’s hardly a good justification for adding more laws. You could use such reasoning, for example, to justify the creation of something like “tidal flood preparedness” legislation in Arizona which seems silly on the face of it.

    Oh, and snide remarks about “the crowd that opposes freedom generally” don’t do your argument any good. At bare minimum they provide an irrelevant arguable point that distracts from the case you’re trying to make.

  26. 26 26 Harold

    #23 There is a big difference between vast majority and all interactions. I suspect the American consensus supports limiting discrimination in some cases.

    “I think freedom, including the freedom to serve who you want to serve at your pharmacy or your restaurant or your gas station, is a really good thing.” Why it is a good thing bears examination. Generally, allowing people to choose how they interact maximises the benefits of the interactions. But there are limits. We limit the capacity of sellers to persuade buyers through false information – I think most people believe that is also a good thing because otherwise the benefits are not maximised. I believe there exists “false information” about groups of people – racism and homophobia for example. The best solution would be education – we should enlighten people of the false basis of their beliefs, which is a low cost cost solution and restores us to the benefit maximising situation. However, these beliefs are resistant to change. The next best thing arguably is to compel people to act as though they did not hold these beliefs. This is not cost-free, but if the discrimination is severe enough the benefits outweigh the costs as it gets us closer to the benefit maximising situation. As a welcome effect, it is also educational.

    We get to a can of worms where religious discrimination is involved. Is it a reasonable basis for discrimination that you believe God compels it? I do not believe so, especially as what God apparently views as anathema seems to be constantly changing. Nonetheless, we are trying to maximise benefits, so where the practice is not very harmful, and the intransigence of the believer is so great that they will suffer considerable harm from enforcement, there may be a case for exceptions.

  27. 27 27 Brian

    “Instead it was a law allowing people to pick and choose who they want to transact with provided they have (or claim to have) a religious basis for their preference….This raises the question of how we should feel about good laws that exempt only the politically favored from onerous requirements of other laws. How should we feel, for example, about a law that allows only white people, or only black people, or only Muslims, or only art history majors to practice cosmetology without a license — while continuing the status quo for everyone else?”

    Steve,

    Your logic here is not sound. “Religious” beliefs is a general term that applies to anyone and everyone. It does not constitute the characteristic of a particular group. Your analogy with race and “only white people” would be equivalent if the law said “only Catholics” or “only atheists.” More specifically, religious belief is already a category for decision-making enumerated by the Constitution, and cannot be taken to refer to a specific group or class of people.

  28. 28 28 Steve Landsburg

    Surely unnecessary laws are an added burden on everyone and should be avoided wherever possible.

    I’m glad we can all agree on this. And indeed, as I said in the post, the ideal solution here would be not to pass a new law, but to repeal the laws that made this legislation seem necessary in the first place.

  29. 29 29 nobody.really

    That’s a good argument against laws that favor art history majors.

    For what it’s worth, art history majors are growing tired of being everybody’s punching bag.

  30. 30 30 James Kahn

    Doesn’t the “politically favored” status of religion come from the 1st Amendment? While one of the concerns about having a bill of rights was precisely that it would be viewed as limiting them, the fact is that claims regarding the “free exercise” of religion have special protection by virtue of being singled out in the 1st Amendment. That special status may not be a good thing, but it’s an important practical consideration.

    More important, the special status of religion can be a wedge to gain more freedom generally. The same issue arises with the Obamacare contraception mandate. It’s being attacked on freedom of religion grounds, but the result could be a more general freedom gained from the mandate being declared unconstitutional. Obama is trying to preempt that by coming up with some narrow workaround that the Catholics aren’t buying. So in this case the Catholics are doing the heavy lifting for the cause of freedom more generally.

  31. 31 31 Steve Landsburg

    James Kahn:

    So in this case the Catholics are doing the heavy lifting for the cause of freedom more generally.

    That’s one story. An alternative story is that if the Catholics do manage to preserve their own freedom on this issue, they’ll lose interest in fighting to preserve anyone else’s, whereas if we insist that freedom is either for everyone or nobody, the Catholics will have no choice but to fight the battle on a wider front.

  32. 32 32 neil

    I am glad the bill was vetoed, but here is my devil’s advocate argument.

    As an atheist, I think that religious people are badly mistaken. They listen to the wrong people. But if someone discriminates by mistake, it is not as bad as if they discriminate on purpose.

    A religious person discriminates because they wrongly believe that there is a god who will punish them, perhaps send them to hell, for condoning the sin of homosexuality. If an atheist, like me, discriminates, it is because we hate homosexuals since we cannot think homosexuality is a sin.

    Compare a man who kills someone because he hates them to one who kills someone because he mistakenly believes he was a threat to him. Do we not give a free pass to the Zimmermans of the world? Why should it be different here?

  33. 33 33 Scott F

    Being intolerant of another group of people is not necessarily a bad a thing so long as they have other places to e.g. eat, you’ve done no harm other than to yourself by limiting your customer base. However, if we’re talking about laws, or their absence, setting the wrong precedent, then I’d like to being up the following possibility. Laws (or a lack of laws) that allow for people to be intolerant of one another for any reason (in this case sexual orientation), make any moral claims about other types of discrimination (e.g. against having a certain income I.e. through progressive taxation) become less coherent. Perhaps, having a consistent agenda of no intolerance, orientation and income alike, would ve preferable to one where certain intolerances are deemed acceptable and others are not (like our current system). Not sure if orientation and income are apples and oranges, but I don’t see why they would be.

  34. 34 34 Scott F

    Bring up*

  35. 35 35 Jimbino

    If folks were able to reject potential clients based on religion, there would be no end to complications. Single women, people with dogs and those carrying booze could be stranded at airports with mostly Muslim taxi drivers. Gays or just two guys or two gals traveling together might have to sleep on the street. We’d end up with a country of safe houses for Jews, gays, single women, blacks and so on. We’d end up being asked whether we’re circumcised, atheist, pregnant, gay and whatnot in order to get a hotel room or a wedding cake.

    I’ve had to deal with a similar problem personally. I won’t submit to a drug test for employment, since it violates my libertarian principles. I obviously can’t put that in my resume, and some companies hide their policy in the matter. I actually was hired by Siemens of Austin, only to have a requirement for a drug-screening sprung on me the day I first showed up for work. At least they wasted as much time and money as I did in the matter, and the headhunter maybe learned a lesson.

    A half-way solution might be for everyone who claims the right to reject a potential client on any grounds, not just religious, to boldly advertise the fact. That’s what’s done in cases of “no smoking, no pets.” Why not entertain the possibility of seeing ads for hotels, restaurants, and rental housing for “no Jews,” “no kids,” “no gays.” and “no atheists”?

  36. 36 36 Karst

    How about school teachers? They perform a service, serve a clientele. Should they have the right to refuse to teach blacks, Asians, indigenous peoples, non-Christians, Muslims? Should they be able to refuse to teach the disabled? Those with IEPs? Those with ADHD, autism?

    Do we allow the creationist biology teacher to discriminate against students who accept and can provide evidence for evolution?

    Do we even allow creationist nonsense to be taught in the classroom? A creationist teacher might refuse to teach evolution because it is against that teacher’s religious beliefs and teach creationism instead. Surely it is restricting the teacher’s (religious) freedom to require the teacher to teach that which might be seen by that teacher as abhorrent?

    Can the teacher refuse to teach students that the teacher believes to be gay/lesbian/bisexual? After all, they could go to a different school, right?

    Do we allow all of the above in the name of maximizing freedom for those who provide services?

    Or do we accept that there are competing “freedoms” and that we need to find reasonable ways to balance “competing freedoms”.

  37. 37 37 Steve Landsburg

    Karst: It seems to me that your questions are easy to answer. However, the easy answer is different depending on whether we’re talking about a private school or a school run by the government. Which did you have in mind?

  38. 38 38 Karst

    Public schools, run by the government. Private schools, also, if they receive any public funding in any ways, including tax breaks and vouchers. Also, all religious schools that accept tax breaks in any form.

    If civil rights are to have any real meaning, then, to steal your words: “…if you’re not willing to oppress everyone, then we won’t let you oppress anyone”. If you offer services to the public, then you must not turn down serving all of the public based on mere whim, bias, religious doctrine, or prejudice against those who are minoritized.

    A minoritized group is “A social group that is devalued in society. This devaluing encompasses how the group is represented, what degree of access to resources it is granted, and how the unequal access is rationalized. Traditionally, a group in this position has been referred to as a minority group. However, this language has been replaced with the term minoritized in order to capture the active dynamics that create the lower status in society and also to signal that a group’s status is not necessarily related to how many or few of them are in the population at large.” (See Sensoy, Ozlem and Robin DiAngelo, 2012, Is everyone really equal? An introduction to key concepts in social justice education, p. 186)

  39. 39 39 Brian

    “If folks were able to reject potential clients based on religion, there would be no end to complications. Single women, people with dogs and those carrying booze could be stranded at airports with mostly Muslim taxi drivers. Gays or just two guys or two gals traveling together might have to sleep on the street.”

    “How about school teachers? They perform a service, serve a clientele. Should they have the right to refuse to teach blacks, Asians, indigenous peoples, non-Christians, Muslims?”

    As interesting as such questions are, they have nothing to do with the Arizona legislation. I am not aware of any religious tradition that requires its adherents to refuse service generally, so no one could attempt to justify such an act on religious grounds. The issue is whether business people are required to participate in acts that violate their conscience. For the baker, the issue is whether he or she can participate in a gay wedding celebration, say, by baking a cake without violating his or her conscience. This is different than baking a cake for the same gay person for his birthday. An analogy, though operating on a different ethical level, would be whether a doctor or nurse could be legally and professionally compelled to perform an abortion in violation of his or her conscience.

    Karst, the answer to your school question is easy. Yes, of course teachers have the right to refuse to teach anyone they like. The school is also free to fire them, in which case the teacher is free to find another school that accepts that choice, or to start his or her own school. I’m not sure what you object to there.

    More generally, I think people are underestimating the capability of communities to police their own environment, independent of government interference. If a sore owner chose not to serve certain types of people, most communities these days would find that choice to be distasteful and would choose to take their business elsewhere. In cases where the community agrees with the discrimination, the offended parties are free to go elsewhere.

    A good example occurs in Philly, where one of the two original cheesesteak creators demands that customers speak English only (a sign is posted at the order window). Non-English speakers are not welcome. No one seems to mind too much, and the non-English speakers are free to patronize the equally famous competitor across the street. In the end, no one is really harmed, other than knowing a cheesesteak business owner doesn’t like it when people in America don’t try to speak English. It’s a point he wishes to make and he’s free to make it. It’s hard to see why everyone shouldn’t have the same freedom.

  40. 40 40 Ken B

    @Ted Levy,
    Fair point. Just as the muslim cabbie refuses to let seeing eye dogs or Jews into his cab. He isn’t asking to keep them out of the city entirely.
    So, I stivk with my answer.

  41. 41 41 Steve Landsburg

    Karst: I think it is good general policy to allow private citizens to discriminate as arbitrarily or capriciously as they want to, but to require the government (which in principle belongs to everyone) to treat everyone equally.

    Indeed, as an earlier commenter noted, we seem to pretty much all agree on this. Almost nobody thinks you should be required to date people you don’t like, or to have them as guests in your home, no matter how little the rest of us might sympathize with your dislike. By the same principle, neither should you be required to hire, rent an apartment to, or serve as a customer someone you don’t like. Although we normally grant private citizens the right to dislike anyone they want to, and to act accordingly, we do not normally grant the same “right” to agencies of the government. So, since you’ve specified that you’re talking about government schools, the easy answer to your question is: No, teachers should not have the privilege of refusing to serve certain students. (Nor, of course, should teachers who have voluntarily signed employment contracts with private schools and thereby waived this privilege.)

  42. 42 42 nobody.really

    Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.

    We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was “well timed” in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word “Wait!” It rings in the ear of every Negro with piercing familiarity. This “Wait” has almost always meant “Never.” We must come to see, with one of our distinguished jurists, that “justice too long delayed is justice denied.”

    We have waited for more than 340 years for our constitutional and God given rights. [W]e still creep at horse and buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, “Wait.” But when you have seen … the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: “Daddy, why do white people treat colored people so mean?”; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger,” your middle name becomes “boy” (however old you are) and your last name becomes “John,” and your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodiness”–then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair.

    Damn — What a gloomy gus that Martin Luther King Jr. was! Why couldn’t he be like the rest of us, celebrating all these manifestations of freedom?

  43. 43 43 nobody.really

    The longer, less snarky, version:

    Some classical enlightenment /libertarian theory regards individuals as autonomous and atomistic. An individual’s interests are enveloped within a sphere of autonomy which should only be intruded upon by consent; other intrusions – or, at least, harmful intrusions – should trigger liability to the individual on the part of the intruder.

    We recognize that this is merely a model, an approximation of the world we experience. But I suspect we can underestimate how weak the relationship is between the model and the life we experience.

    New research suggests that the laws of supply and demand may apply to abstract qualities such as decisiveness and personal resolve. If you resist eating the muffin at the morning conference, you’ll be more susceptible to having that extra glass of wine at the evening reception. Each of these temptations takes from your resolve in a manner that may be unbidden, and uncompensated. Your autonomy is intruded upon; you are impoverished without your consent – at least, relative to the world of the autonomous bubble.

    And these “exceptional” circumstances are not all that exceptional: Stress makes a person more susceptible to illness and may affect the course of disease. (Keltner & Dowben, 2007; Underwood, 2005). Recently bereaved widows are 3-12 time more likely to die than similarly-situated married women. Tax accountant are more susceptible to heart attacks around April 15. People residing in high-noise airport areas have more medical complaints and hypertension. Air traffic controllers suffer from hypertension at a rate four times higher than the general population. (Luoma, Pearson, & Pearson, 2002; Wilding, 1984).

    Social scientists have developed the Social Readjustment Rates Scale in an attempt to catalogue and measure life events and the relative degree of stress they cause – and then to measure the consequences of cumulative stressful events. The research suggests that as people incur ever more “life change units,” they accrue ever more, and ever more serious, health problems. 93% of all infections, allergy events, bone/muscle injuries, and psychosomatic illness occur in patients with 150 LCUs (“mild crisis”) or more. (deJong, Timmerman, & Emmelkamp, 1996; Holmes & Holmes, 1970; Rahe, 1994).

    This research builds on older research on microaggressions. Research show that people exposed to regular, repeated reminders of their “otherness” incur a cost in terms of 1) physiology (blood pressure, heart rate, etc.) and the immune system, 2) depressed cognitive speeds, 3) anger, rate, anxiety, depression, and hopelessness, and 4) reduced capacity for coping with later stresses. (Barrett & Logan, 2002), Feagin, 2006; Fisk, 1993; Glick & Fiske, 1996; Greene, 2000; Hamilton & Mahalik, 2009; Harrell, 200; Harrell, Hall, & Taliaferro, 2003; Stambor, 2006). For example, women in the workplace experience greater levels of fibrinogen, a blood-clotting compound associated with heart disease, than do women outside the workplace or men. (Davis, Mathews, Meilahn, & Kiss, 1995). Black men in the US experience higher heart rate, blood pressure, and other cardiovascular responses than do white men in the US – or black men in Africa. (Clark, 2006; Merritt, Bennett, Williams, Edwards, & Sollers, 2006; Utsey & Hook, 2007). See generally Derald Wing Sue’s Microaggressions in Everyday Life (2010).

    Should we assume that people who are experiencing all these adverse consequences from microaggressions are freely choosing these outcomes? Or should we conclude that people are experiencing these outcomes unwillingly? That those who “exercise their liberty” to engage in invidious discrimination are, in fact, inflicting injuries on people – injuries for which civil rights laws provide only the barest of compensation?

    The idea that we live in hermetically sealed bubbles of autonomy is a myth. Perhaps your right to swing your arm ends at my nose – but once we remove the illusion of the bubble, we discover that people’s noses are all pressed up against your fist almost constantly. You cannot help bumping into them – nor they into you. Thus, there really is no private sphere here: the extent to which you can swing your arm without compensating others, and the point at which others can begin demanding compensation, is entirely a social decision.

    Bottom line: “Freedom” isn’t free. Sometimes we compel young men to sacrifice for it – and sometimes 6-yr-old black girls.

    But the study of economics suggests that the incremental benefit of all desirable things will eventually exceed its cost. At some point we conclude that the benefits we derive from the things we’d need to sacrifice – say, equality — exceed the benefits of than next increment of freedom. And when we reach that point, we should no longer make the exchange. I humbly suggest that we’d reached that point by 1964 – if not well before.

  44. 44 44 Anonym NYC

    @nobody.really #8 (and everyone),

    I have two broader, more fundamental constitutional questions:

    If I understand correctly, the federal law that prohibits discrimination on the basis of race and some other designated bases is the Civil Rights Act of 1964 (specifically Title II), which (1) applied only to “public accommodations” businesses, and (2) the law’s constitutionality was upheld on the basis of Congress’ power to regulate interstate commerce.

    Is the current interpretation of that commerce clause of the Constitution so loose and broad that EVERY business is presumed to be engaged in or sufficiently effecting interstate commerce such that NO business can be exempt from Congress’ power to regulate it as part of regulating interstate commerce?

    And is that federal law interpreted so broadly (inappropriately) that EVERY business considered to be a “public accommodations” business, or could, say, a wedding photographer refuse to photograph a black wedding on the basis of race?

  45. 45 45 Martin-2

    @nobody.really (43) – Excellent post. One thing;

    “93% of all infections, allergy events, bone/muscle injuries, and psychosomatic illness occur in patients with 150 LCUs (“mild crisis”) or more”

    What fraction of the population has at least 150 LCUs?

  46. 46 46 Kevin Erdmann

    nobody.really (42),

    That really is a stirring speech, and a list of oppressions that all of us agree are atrocious. But, it does nothing to answer the question at hand. I will ignore the fact that segregation was legally imposed and that it was business owners who were the plaintiffs arguing against it in landmark cases like Plessy v. Ferguson.

    What distinction says that it should not be legal in principle for private citizens to turn away customers at a place of business, but that it should be legal in principle to line the sidewalks and shout hatefully at a minority child who has been given the right to attend a school, or to pull your children out of a school and send them to another school because of your racism, or to picket a gay pride parade shouting hateful things, or to refuse to work for a black employer or hire a black babysitter, etc. etc.

    There are an awful lot of atrocities you are willing to allow. I think you might be taking that for granted. So why is your comment #43 a challenge to the right to associate commercially as a business owner, but not to free speech, freedom of religion, or the right to associate in other private or commercial contexts?

  47. 47 47 nobody.really

    So why is your comment #43 a challenge to the right to associate commercially as a business owner, but not to free speech, freedom of religion, or the right to associate in other private or commercial contexts?

    The thrust of comments #42 and 43 is to argue that pursuing freedom at the expense of all else is a sub-optimal strategy, and that the trade-offs often require a collective/social decision rather than a private decision.

    Because free speech, freedom of religion, and the right to associate in other private or commercial contexts can be traded-off for other benefits, comment #34 is a challenge to those rights. And, indeed, we do restrict all of those rights in the pursuit of other benefits. The US restricts disclosure of national security materials. Courts restrict speech that may be admitted before juries. The military restricts the type of speech that subordinates may offer to superior officers. Various educational institutions have adopted speech codes. The US does not permit human sacrifice as part of religious rituals (or otherwise, to my knowledge). The US restricts trafficking in a variety of contraband, and a variety of services. The US forbids gathering and conversing for criminal purposes, including criminal commercial purposes. Etc.

    Are there still more restrictions one might adopt? Sure. And perhaps we will. Or perhaps we’ll conclude that the benefits of freedom exceed the benefits that would come from further restrictions on freedom. I wouldn’t be surprised if people’s opinions on these matters shift over time, responding to circumstances. Again, the point is that freedom is not, and should not be, pursued without limit and without regard to cost. But precisely HOW we make the trade-off – that’s a judgment call.

  48. 48 48 Steve Landsburg

    Kevin Erdmann: Thank you for this comment; it’s exactly what I was hoping to find the time to say, but hadn’t yet, and you’ve said it better than I would have.

    nobody.really: You’ve been (as always) very thoughtful and eloquent in this discussion. I’ll be particularly interested to see any response you have to Kevin Erdmann.

  49. 49 49 Harold

    #41 “So, since you’ve specified that you’re talking about government schools…”
    The implication is that if we were talking about private schools, the opposite would be true. However, we have a potential conflict of interests between the parent and the child. Are children property to be disposed of according to the parents’ wishes? Through deliberately poor education, the parents can severely limit the freedom of children for the rest of their lives.

  50. 50 50 Al V.

    I think in general, the idea that any private business or other organization should be able to discriminate seems reasonable. After all, as many have noted, potential patrons are free to take their business elsewhere. I could see alternate exclusions, some of which already exist: a business refuses to serve people with NRA stickers on their vehicles; businesses refuse to serve people carrying weapons; businesses refuse to serve oil company employees; bars refuse to serve men, or women, or straight people in general; etc. Why not?

    I live in Queens, and there are businesses that refuse to allow anyone but Muslim women through the door. Why? Doing so allows patrons to remove their chadors or head scarves. Obviously discriminatory, but most people and the city turn a blind eye.

    However, I would make a few caveats:
    - As was suggested above, any organization receiving public funds should not be allowed to discriminate. For example, charter schools, private schools accepting vouchers, or colleges. Or stores accepting food stamps.
    - I would exclude monopolies, such as utilities or cable television providers. It seems obvious that an electric utility must provide electricity to all who ask.

  51. 51 51 Jack

    Of course in theory you want people to be able to transact with whom they want. But there’s such a thing as the real world and the importance of context.

    Imagine you are a white business owner living in, say, the 1930s southern US and don’t happen to give a shit what color the person is you serve. That is, your preference is to serve without discrimination. But in many MANY cases in the South you couldn’t blacks not ONLY because it may have happened to be technically illegal but your establishment would also be colluded against by other whites. So in other words white people were expected to collude with other white people to not serve blacks.

    This freedom to discriminate actually limited choices for business owners due to this collusion.

    Making it illegal to choose who you serve based on race can be viewed as an attempt to kill this collusion. How else was it to be done ? So yes perhaps making it illegal to discriminate based on race is bad for the world and private rights but is it any worse than the limitations that the white collusion imposed on w
    whites ? If not, then I choose anti-discrimination laws.

  52. 52 52 nobody.really

    [T]he idea that any private business or other organization should be able to discriminate seems reasonable. After all, as many have noted, potential patrons are free to take their business elsewhere….
    However, I would make a few caveats:…
    - I would exclude monopolies, such as utilities or cable television providers. It seems obvious that an electric utility must provide electricity to all who ask.

    [W]hite people were expected to collude with other white people to not serve blacks.

    Again, I’d suggest an antitrust-type analysis. Yes, we should exclude monopolies, because a monopoly that discriminates defeats the rationale that “potential patrons are free to take their business elsewhere….”

    But effective monopolies can be create by collusion, including tacit collusion. Thus, if a block of landlords in a relevant market all refuse to rent to black people, that might suffice to justify regulation. Now, all that’s left is to decide who should bear the burden of demonstrating the collusion, or lack thereof. That is, do you make collusion part of the prima facie case (to be proven by the plaintiff), or acknowledge that the existence of competitive substitutes is an affirmative defense (to be proven by the defendant)?

  53. 53 53 nobody.really

    On civil rights and federalism: If the purpose of civil rights is to facilitate interstate commerce, there is a way to achieve this end that doesn’t involve direct regulation of private firms. Specifically, the US could create federally-run placed of employment, housing, and public accommodation throughout the nation. Congratulations, you no longer have to serve black people at your lunch counter. Rather, you have to pay additional taxes so that the government can open a rival lunch counter across the street from you that will serve black people. And house black people. And provide employment to black people.

    In the absence of market discipline, I’d expect these establishments might not be the most efficient – and thus might require taxpayer subsidies. But hey, that’d be just another part of the cost of freedom. And at least these costs would be shared among all taxpayers, rather than borne only by people preferring to offer segregated jobs/housing/public accommodations.

  54. 54 54 nobody.really

    93% of all infections, allergy events, bone/muscle injuries, and psychosomatic illness occur in patients with 150 LCUs [live change units] (“mild crisis”) or more [using the Social Readjustment Rates Scale].

    What fraction of the population has at least 150 LCUs?

    That’s a good question! If 93% of people have LCUs of 150 or more, then this statistic seems much less remarkable.

    Alas, I got the 93% figure from the book MIcroaggressions in Daily Life, and I can’t find the information we’re looking for there. I surmise the author acquired the statistic from a paper that’s hiding behind a $40 paywall, and I’m too cheap to check.

    But to provide some context, Wikipedia has a nice article on the Social Readjustment Rates Scale. Your score is derived from the amount of life-change events that occur within a year, and the magnitude of those events. Death of a spouse: 100 units. Divorce: 73 units. Imprisonment: 63 units. Change in sleeping habits: 16 units.

    My friend’s husband has been becoming increasingly erratic and aggressive. Last month she finally got a divorce, but the guy has only gotten loopier. Oh wait – perhaps that’s because he’s now been diagnosed with a Stage Four inoperable brain tumor. Ugh. So it’s gonna be a stressful year – and an unhealthy year — all around.

  55. 55 55 nobody.really

    One misfortune in all of this is that supporters of the bill were using religion to mean conscience. I can imagine that plenty of non religious people would, for reasons of conscience, find cases where they don’t want to associate with certain groups e.g. doctors who perform late term abortions, people who advocate for the acceptance of pedophilia, people who make their money importing and reselling the products of slave labor, drug dealers, drug warriors, libertarians, trade union leaders, communists, etc. Everyone must have some group that they would shun if given the choice.

    Doesn’t the “politically favored” status of religion come from the 1st Amendment? While one of the concerns about having a bill of rights was precisely that it would be viewed as limiting them, the fact is that claims regarding the “free exercise” of religion have special protection by virtue of being singled out in the 1st Amendment.

    For what it’s worth, last month the Social Science Research Network published a paper entitled Defining Religion in American Law: Psychic Sophie and the Rise of the Nones — that is, the rise of people who respond to questionnaires about religious affiliation by checking “none.” These people do not necessarily reject religion, but they reject religious affiliation. For purposes of US constitutional law (not the Arizona law), can you be a religion of one? It many contexts, it’s an open question.

    But the author argues that the social value of religion – the thing that arguably justified its special status in the 1st Amendment – depends on religion’s collective character. Moreover, treating every individual as his own religion would be impractical to administer:

    [In] Wisconsin v. Yoder … the Supreme Court had distinguished the Old Order Amish, an insular, hyper-traditional Christian group with roots in Anabaptism, from the nineteenth-century Transcendentalist, Henry David Thoreau. Both the Amish and Thoreau had chosen seclusion from society, the Yoder Court reasoned, but only the Amish qualified as a religion. For them, quietism was not merely a personal and philosophical choice, but a “‘deep religious conviction, shared by an organized group, and intimately related to daily living.’” Indeed, if the state had to accommodate merely personal, philosophical preferences like Thoreau’s, anarchy would result. “[T]he very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”

    Indeed, Thoreau found government so bad that he felt conscience-bound to withhold his taxes. And he went to jail until the taxes were paid. Granting every tax protestor a free pass would be problematic, to say the least.

  56. 56 56 Kevin Erdmann

    Jack (#51) and others who have made the anti-collusion point,

    I think that is an excellent point, and probably a good enough point to serve as a policy justification.

    But, that being said, I think the public reaction to these matters is telling. The policy you describe, applied to employers and business owners, was basically enacted as part of Civil Rights legislation, and attempts to roll that back are met with hot-tempered outrage.

    Similar policies could also be applied relating to consumers, parents, laborers, and private citizens in other contexts, and where they have been attempted, they have been met with hot-tempered outrage.

    So, first, there is an extreme double standard being applied by the public at large. And, second, I wonder if these different social contexts could be compared as counterfactuals. For instance, has there been more progress in employment, where anti-discrimination policies have been enacted, compared to, say, mate selection, where they have not?

  57. 57 57 Karst

    Based on the following by nobody.really (@43), I have a few comments.

    “Should we assume that people who are experiencing all these adverse consequences from microaggressions are freely choosing these outcomes? Or should we conclude that people are experiencing these outcomes unwillingly? That those who “exercise their liberty” to engage in invidious discrimination are, in fact, inflicting injuries on people – injuries for which civil rights laws provide only the barest of compensation?

    The idea that we live in hermetically sealed bubbles of autonomy is a myth. Perhaps your right to swing your arm ends at my nose – but once we remove the illusion of the bubble, we discover that people’s noses are all pressed up against your fist almost constantly. You cannot help bumping into them – nor they into you. Thus, there really is no private sphere here: the extent to which you can swing your arm without compensating others, and the point at which others can begin demanding compensation, is entirely a social decision.”

    Now, I would say that those who argue for social justice are arguing that indeed, there “is no private sphere”. That once one leaves one’s own private residential property, one necessarily is in a public sphere. And once one is in a public sphere, certain discriminations (individual freedoms) are not to be tolerated in a fair and just society. Thus certain freedoms are lost: the right to unilaterally choose who to serve (or sell products to) for money, which is a public good and a necessity for survival in the public and private spheres.

    When one offers products or services to the public, pays for a business license, etc., one has left the private sphere (where one can pick one’s friends, lovers, golf partners at will) and entered the public sphere.

    Then it is a matter of coming to reasonable agreements about what rights and duties are allowed or required in the public sphere. That is what at least some of what the culture wars is all about.

    Finally, with regard to microaggressions (racial, sexual, religious, cultural, or otherwise): such indignities are ever present as a daily gauntlet to be run and endured by those who are minoritized.

    For those without ready access to Derald Wing Sue’s “Microaggressions in Everyday Life (2010) it is worth digging up (can be found free online) Sue et al. 2007 Racial Microaggressions in Everyday Life: Implications for Clinical Practice, American Psychologist vol 62, no 4, p 271-286.

    The paper offers a typology of racial microaggressions:

    (1) Microinsults: ascriptions of intelligence; second class citizen, pathologizing cultural values/communication styles; assumption of criminal status).

    (2) Microassaults: explicit verbal or nonverbal attacks through name-calling, avoidant behavior or purposeful discriminatory actions.

    (3) Microinvalidations: alien in own land, color blindness, myth of meritocracy, denial of individual racism.

    The paper also discusses a real incident on an airplane that makes clear the difficulties and complications that can arise in dealing with microaggressions—their invisibility to the perpetrators and oftentimes to the recipients (p 275) and the dilemmas facing recipients in putting up with such indignities on a daily, if not hourly basis.

    (Aside: any economist could readily come up with at least one reason why the flight attendant’s action might be reasonable on her part, and not in any way constitute a deliberate microaggression. So what? Yes, she could probably have avoided the whole issue with some public statement and explanation from the pilots beforehand. But in context, the recipients are already primed, from prior daily experience, to experience the situation as a potential microaggression. One can hope that this incident caused the airline to think through various ways to avoid such difficulties up front.)

  58. 58 58 nobody.really

    [H]as there been more progress in employment, where anti-discrimination policies have been enacted, compared to, say, mate selection, where they have not?

    That’s fun! And I’d guess there’s data on it somewhere.

    So now Landsburg has the next chapter for Return of the Armchair Economist.

  59. 59 59 Harold

    “Of course in theory you want people to be able to transact with whom they want.” Not my first choice. I want people to interact with others on a reasonable basis. Then we would not even need to consider regulation. We could come with a definition of reasonable.

    “For instance, has there been more progress in employment, where anti-discrimination policies have been enacted, compared to, say, mate selection, where they have not?”

    Interesting point. The two are inextricably linked, of course. How many people meet their partner at work, for example? And how many people having worked with other races find those of other races more appealing?

    I was horrified to find that until 1994 over half of Americans disapproved of interracial marriage. In 2011 84% approved, and 97% in the 18-37 age range.

    It is noticeable that mixed couples are seldom seen in the US media. Since Star Trek boldly went where no TV show had gone before, remarkably few have followed. Some adverts break the mould. There was a Cheerios advert depicting a mixed race family. I would be interested to hear how that was perceived in the States. A recent advert for Halifax bank in the UK depicted a black man with a white partner. I was not aware of any controversy, but youtube comments were disabled due to racist comments, and I did find one site criticising it, but that was a moronic white supremacist site.

    I would guess that a survey in 1994 asking if employment should be based on race would have had a greater than 50% saying that race should not be an issue. Surely, I can’t be wrong in that can I? So we could say that employment has moved further than relationships toward a non-racist position. Maybe the legislation helped?

    There has been discussion of why we regulate some things and not others. Some time ago I suggested a criterion for this. We could consider regulation only where there was a potential for a monopoly – this is rather similar to Nobody.really’s discussion about antitrust. It is impossible for the white majority to prevent a black couple from meeting, and this cannot have a monopoly on potential partners. It is not impossible for a white majority to own every shop or employer in a vicinity. So couple choice would not be regulated, whereas employment and shopping might be.

  60. 60 60 iceman

    Like most people perhaps, I find myself looking for a justification to restrict the types of transactions and interactions we permit in this area, and there’s some good stuff offered here. I guess my main stumbling block is the idea that freedom of assembly, like freedom of association, only has meaning to the extent to which it’s extended to those with whom we might disagree. It seems one requires here an underlying presumption of “because I’m so obviously and “objectively” right and they’re so wrong” which makes me a bit uncomfortable, at least insofar as it’s being applied not against actions that seek to directly harm others, but in support of ‘negative’ rights that people must take actions for the benefit of others (or else suffer consequences like closing their business). I’m sure we can imagine scenarios where we wouldn’t want to simply go with “whatever the consensus says” (in fact we’ve arguably been on the other side of these issues on that basis before). I’m even looking for a line to prevent this from being extrapolated to the written or spoken word as well, e.g. “what’s the point anyway of allowing people to say things that are clearly wrong-headed, especially if they could influence others to want to restrict their actual interactions?”

    It might help if someone could better explain to me the distinction between a private club and what specifically it means to “serve the public”, because the weak link there as a basis for restrictions would seem to be “wait a minute, they never said they wanted to serve ALL of “the public”, you slipped that in there”. Do we mean some higher standard kicks in once we decide to serve anyone we don’t personally know? E.g. could one operate something outside of their personal home but only for family and friends? What about anyone referred by family and friends (on whatever basis they people choose to make such referrals)? What about a club that offers free on-the-spot “membership” to certain previously unknown persons? The “serve the public” things just feels a bit too facile or reverse engineered to me

  61. 61 61 nobody.really

    What exactly is a business of “public accommodation”? And which organizations are “private clubs,” beyond the reach of civil rights laws? These are famously ambiguous terms.

    If I recall correctly, the Supreme Court ruled that the Jaycees are a place of public accommodation, whereas the Boy Scouts are a private club. Doubtless people have devised arguments to rationalize these distinctions, but the one that appeals to me is political: A progressive-minded court wanted an excuse to advice the equality of women, and thus ruled against the all-male Jaycees, whereas a conservative court with six Catholic members wanted an excuse to deny homosexuals equality – or, at least, access to the Boy Scouts, that bastion of Normal Rockwell innocence and purity.

    Private clubs should be able to control their membership. But, as others have remarked here, government should not be in the business of subsidizing clubs that discriminate; otherwise, it begins to look like public discrimination being laundered through private hands. Heck, some will remember that the US withheld tax-exempt status from Bob Jones University because they had discriminatory policies. (I have misgivings with that precedent, but if we’re going down that road there’s no reason the Boy Scouts of America should get a pass.)

    So go here and search for “scout” in the United States Code. You’ll find a variety of special provisions for them. Then write your congressman and tell’em to knock it off.

  62. 62 62 Anonym NYC

    @nobody.really #61,

    I didn’t get a response to my #44 (a little help here please? I mean, whose leg does a dog have to hump?), but let me ask again in response to your #61:

    Is [Title II of the Civil Rights Act of 1964] interpreted so broadly (inappropriately) that EVERY business considered to be a “public accommodations” business, or could, say, a wedding photographer refuse to photograph a black wedding on the basis of race?

    Surely common sense would not lead us to think that every business/organization other than a “private club” is a “public accommodations” business. I would think the photographer in my hypothetical would be exempt. Does anyone know?

    And my other question regarded what would it take for a business to be sufficiently uninvolved in and not “substantially” affecting interstate commerce such that Congress has no constitutional power to regulate it via the Civil Rights Act or any other means. Anyone have some guidance on that one?

    thanks

  63. 63 63 nobody.really

    Is [Title II of the Civil Rights Act of 1964] interpreted so broadly (inappropriately) that EVERY business is considered to be a “public accommodations” business, or could, say, a wedding photographer refuse to photograph a black wedding on the basis of race?
    * * *
    [W]hat would it take for a business to be sufficiently uninvolved in and not “substantially” affecting interstate commerce such that Congress has no constitutional power to regulate it via the Civil Rights Act or any other means?

    Short version: People write entire books to address these questions. As far as I know, many of these matters remain contested.

    Wikipedia provides a nice discussion of the Commerce Clause. Yes, some things are outside the scope of interstate commerce, but it’s not clear where the line falls. In practice, we learn where these lines are through experience – that is, via accumulating precedent.

    For example, behavior that influences the supply of things sold in interstate commerce (manufacture, agriculture, mining) affects interstate commerce, even if the specific objects created/grown/mined never cross a state line. But the Supreme Court rejected the idea that Congress could justify the individual mandate of the ACA (“ObamaCare”) on the theory that interstate commerce is affected by people who consume health care without paying for it.

    I seem to recall that one gang of Amish attacked another and chopped off their beards – and federal prosecutors successfully argued that they had jurisdiction to prosecute this crime on the grounds that the weapon (scissors) had traveled in interstate commerce. Go figure.

    Regarding Title II of the 1964 Civil Rights Act, I know of cases finding restaurants and amusement parks to be public accommodations affecting interstate commerce. Is a photography studio a public accommodation affecting interstate commerce within the meaning of the 1964 Act? I haven’t found any case on point.

    But even where a business is not in interstate commerce, it remains subject to state law – and many states have adopted civil rights/anti-discrimination policies. The New Mexico case of Elane Photogrpahy v. Willock, finding photographers liable for refusing to photograph a same-sex wedding, was pursued under state law, not the federal Act.

  64. 64 64 iceman

    So it’s as clear as mud, and appeals to “precedence” are merely a stirring stick. I also see in 60 I referred to “negative” rights when I meant “positive”.

  65. 65 65 Anonym NYC

    @nobody.really #63,

    Thanks for your response.

    As a note, I wasn’t even talking about a photography studio or any facility with public access. I had in mind a professional wedding photographer who does not have a work facility that clients visit. Let’s say he works out of his home. I would think Title II should not apply to him, and thus the Civil Rights Act would not prohibit him from refusing to photograph a wedding on the basis of race, religion, etc. And yes, I realize state laws may so prohibit, and I know that New Mexico case involved state law (and was discrimination on a different basis). But I think most people assume Title II bans racial discrimination by any business, and I’m wondering if courts have ruled to the contrary, and if so, what businesses qualified. If anyone has examples, I’d be interested.

    Re: interstate commerce, the tricky thing is that one could make an argument that any purchase or sale of ANYTHING affects a market for something sold across state lines. The ruling on the ACA mandate may be categorically different from most “commerce clause” rulings because it related to justifying a compulsion to purchase a product (insurance) on the basis that if someone purchases a different service (healthcare) without having purchased that product (insurance), doing so would affect interstate markets. So I’m wondering if/where courts have (within the last couple of decades) found businesses/transactions to be NOT subject to the “commerce clause” regulatory powers, and on what basis. Again, any examples are welcome.

  66. 66 66 David W

    @AnonymNYC: I believe you will not find any examples of limits on the Commerce Clause like you want. I could only find one example of a case where the Commerce Clause was considered to have a limit (1995), and the ruling was explicitly based on the principle that the conduct regulated was not commerce and not close enough to commerce. That was United States vs Lopez: http://en.wikipedia.org/wiki/United_States_v._Lopez.

    As far as I understand, not being a lawyer, Wickard vs Filburn is still governing precedent, and it stipulates that Congress indeed has the power as specified in your argument. More, that Congress can regulate non-purchase actions if they might affect someone else’s interstate commerce; the case in point was about a farmer growing wheat for his own use, which was deemed illegal. I believe this is the justification for Federal Drug laws, including those that merely govern possession and use.

    Really, the general principle is that the Federal Government has the guns, so they may do anything they can agree to do. The only limit is that there are some things Congress is not willing to ban.

  67. 67 67 Anonym NYC

    Thanks DavidW for #66.

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