Civil Liberties

Discriminating Between Discriminations

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Richmond Times-Dispatch columnist A. Barton Hinkle asks Rand Paul's critics how consistently the principle of nondiscrimination reflected in Title II of the Civil Rights Act should be applied. He mentions cases involving anti-gay discrimination by the Christian Legal Society and the Boy Scouts of America, where even some progressives (e.g., Washington Post editorialists and George Washington University law professor Jonathan Turley) see a freedom of association and freedom of religion case not just for letting the groups set their own rules but for granting them official recognition and subsidies on the same terms as other groups. And Hinkle cites several examples of private discrimination that most progressives would consider benign:

A lawyer friend in Northern Virginia asks, "Why shouldn't a business be able to offer a safe, gays-only retirement home?"

Even more pertinent: What about the scholarships offered exclusively to racial minorities—such as the Ford Foundation's Diversity Fellowships, the Southern Regional Education Board's Doctoral Scholars Program, the University of California President's Postdoctoral Fellowship Program, and the literally thousands of others like them?…

What about the comment by the Virginia NAACP's King Salim Khalfani, just the other day, that "We need race-conscious remedies because race-neutral does not work"? And what about the dozens of women's colleges across the country—which, although technically private, receive significant government funding? Or Curves, a chain of fitness clubs that caters to women and is, in some states, off-limits to men. Should it be forced to integrate?

One possible response to some of these questions is that the solution chosen for African Americans, with their unique history of slavery and oppression, was appropriate for them and them only. The most compelling argument offered by libertarian defenders of Title II's ban on discrimination in places of "public accommodation" (such as Richard Epstein, David Bernstein, and Julian Sanchez) is that segregation in the South was not just enforced by law and not just maintained by attitudes that the government shaped through centuries of racist policies but perpetuated by threats of private violence that police either endorsed or ignored. In such a situation, say Epstein and Bernstein, a federal ban on private discrimination gave business owners the freedom to integrate without fear of violent reprisals. The only alternative, Bernstein says, would have been a federal takeover of local law enforcement. Since racist (or cowardly) police forces that refuse to protect integrated businesses from violent bigots are a pretty strong reason for federal intervention under the 14th Amendment, I'm not sure that what looks like the easier solution was actually the right one. But the general point is that the treatment of blacks is a special case in American history that justified deviating from respect for property rights, freedom of contract, and freedom of association.

Libertarians such as Epstein, Bernstein, and Sanchez would like to have prevented this one exception from multiplying. "When you say, this is such a wonderful idea, let's carry it over to disability," Epstein says, "you create nightmares of the first order." But if one thing can be confidently predicted based on the history of U.S. government, it is that exceptions made for one particular purpose will be extended to others, to the point where they become the rule rather than the exception. (Likewise, while Randy Barnett argues that a 14th Amendment rationale for Title II could have prevented Congress from using the precedent to extend its reach beyond the limits set by the Framers, what actually happened is that the constitutional contortions necessary to justify Title II gave us an ever-expanding federal government under an infinitely adaptable Commerce Clause.) In the real world, rather than the one Epstein et al. would have preferred, we confront questions like those posed by Hinkle, and it's not clear what principles should be used to resolve them. Furthermore, the "special case" argument has been used to justify reverse discrimination by the government (via affirmative action programs) as well as private entities (through racial preferences such as the scholarships Hinkle mentions). If we accept the idea that one set of right violations can justify another, can we dismiss out of hand Khalfani's argument that, given the history of oppression that blacks have suffered, true equality requires unequal treatment?

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  1. But the general point is that the treatment of blacks is a special case in American history that justified deviating from respect for abrogating Constitutional guarantees of limited enumated powers and protection of property rights, freedom of contract, and freedom of association without amending the Constitution.

    I think this is a more accurate description of their position, and one that is far less easy to agree with.

    1. Yes, “abrogating Constitutional guarantees of limited, [enumerated] powers and protection of property rights, freedom of contract, and freedom of association without amending the Constitution” is more accurate.

      If it was so terribly necessary for government intervention then the appropriate thing would have been to make the 1964 Civil Rights Act a constitutional amendment.

  2. Show me that part in the Constitution where it says that “property rights” means that you can do anything you want with said property.

    1. Show me where it says you can’t.

    2. False dichotomy.

    3. BTW, Dan, you might want to read up on “negative rights.”

      1. Or he should stop fantasizing about non-existent positive rights…

    4. Show me where we have to feed you? Starve the troll, please. It’s not here to do anything but be annoying. If you come every time the baby cries, it will learn to cry constantly.

      1. I’m married. I come here to win arguments.

        1. That’s valid. But not replying to his drivel is winning.

          1. I thought that was forfeiting. I need a manual.

          2. But not replying to his drivel is winning.

            I must consider this.

            1. Exactly right, and the position I have taken. Although s/he goes there sometime, MNG is not a troll. Dan T and the others, not so much.

        2. Thanks for the laugh, Nick. Your original point was well stated, but likely lost on Dan. Good luck anyway.

      2. See, I have this crazy fantasy where, if we hit it with facts and reasoning hard enough and often enough, some of it – even just one tiny shard – might actually penetrate that hardened shell of dopium that seems to so thoroughly coat its exterior, and it might actually, finally, start to THINK. And maybe, one day, with all of our help, it might even be capable of rational, critical, analytical thought.

        But then again – eh, probably not so much.

        1. (You may, of course, do as you please.)

          But you see, unlike Tony, Dan’s not really stupid. He’s just a douche. He doesn’t care about the answers to his facile and febrile questions and he’s not here to debate. He already knows are “our” answers and doesn’t care. He’s just posting in bad faith. He’s scum that his wife won’t fuck, so he comes here to have a hategasm.

          Don’t be his porn.

        2. It’s not here to argue, it’s here to troll. Understand the difference.

          1. I’m with Nick. Maybe I need a manual.

    5. Show me that part in the Constitution where it says that “property rights” means that you can do anything you want with said property.

      The Fifth, Ninth, and Tenth Amendments.

      Was that so hard?

      1. Where does it say the government can do anything it wants with my property?

    6. Guys, I think we need to stop calling all leftists (and some conservatives, when they get too uppity) trolls. I don’t want to be like that. That’s what Daily Kos is like. I mean, yes Max is a troll, but Dan T. isn’t really. Neither is Tony, though he does seem like an asshole :D. Just argue with them. If it’s just a libertarian circle jerk then we don’t get experience defending our positions.

    7. The constitution was written to limit government. Show me where it gives the government power to dictate what I can and can’t do with my private property

  3. Although I admire Berstein’s work on Lochner and the New York state bakeshop act which gave rise to the case, I must disagree with his analysis here.

  4. But the general point is that the treatment of blacks is a special case in American history that justified deviating from respect for property rights, freedom of contract, and freedom of association.

    If you deviate from your principles for “special cases”, you have lost the entirety of your integrity. You can stop wasting my time now.

    1. Libertarianism–the OCD of political philosophies.

      1. Intellectual integrity = mental disability. Check.

      2. Intellectual integrity = mental disability. Check.

  5. IIRC, aren’t women more than 50% of the population now, as well as more than 50% of the college students?

    Please tell me that we’ve stopped giving them special treatment.

    1. I dunno about you, but I find I still have to give my woman special treatment, if only to ensure domestic tranquility.

    2. “Now”? Women have essentially always been more than 50% of the population.

      Am I missing a joke here?

  6. ‘Jim Crow laws’ were indeed laws, i.e., requirements that persons and businesses and government agencies must practice racial discrimination or face civil or criminal penalties.The Times editorial and other media pronouncements have perpetuated a drastic misreading of history and of government’s role in ending racial discrimination in this nation. This history is far more nuanced than is widely assumed. At the center of the Jim Crow system lay the “Jim Crow laws.” They were indeed laws, i.e., requirements that persons and businesses and government agencies must practice racial discrimination or face civil or criminal penalties. In other words, government had bolstered discrimination instead of suppressing it. For example, the famous 1896 Supreme Court decision in Plessy v. Ferguson, which endorsed “separate but equal” treatment in railroad travel and eventually in other spheres such as public education, was about whether an 1890 state law in Louisiana requiring segregation was constitutional. The court said it was.

    http://www.american.com/archiv…..ve-amnesia

    Yes, government did have to do something to end the racial discrimination that government espoused, created, and enforced.
    Again, it would have been best if government had not allowed slavery to begin with.

    What one should get out of all this that there would be no need for a civil rights law IF there had been no law allowing slavery.

    1. The distinction being that the feds could have said that the states could not enact or enforce such laws. But the feds went beyond that and made any discrimination by individual businesses illegal. So rather than properly and legally using the 14th Amendment to stop denying U.S. citizens equal protection under the law, the fed gov improperly stretched the commerce clause to dictate individual behavior and control who private citizens engage in business with.

      Now, don’t pull a lefty media bullshit maneuver on me, like they did with Rand Paul and start claiming in favor of lunch counter discrimination. In my estimation, if I ran a business like that, I would take money from whoever came in to spend it. But if some dope wants to limit his customer base to a certain demographic, it seems to me that should be his prerogative, whether we think it’s smart business or whether we think is “fair” or whatever. If the guy wants to run his business in a really stupid and unpopular way, he eventually will find himself out of business. But I’m not going to ask the government to force him to do business with me or anyone in particular.

      1. In my estimation, if I ran a business like that, I would take money from whoever came in to spend it

        Unless a significant amount of other customers refused to eat at a place that was willing to serve the darkies.

        Look, I support the right of bigots to be bigots in their personal and private lives, and to do what they want on their private property.

        But it’s rather naive to think that if people would have been allowed to do what they want segregation would have ended on its own because the almighty market would punish the discriminators.

        It’s much more likely that business owners who might not have been racists weren’t going to risk alienating their racist clientele and losing business to stand on principle.

        In fact, the public accommodations law would give cover to the non-racist business owner…they could claim that they HAD to integrate and mitigate potential losses.

        I like a world where places that are open to the public and do business with the public can’t discriminate and play favorites.

        I believe it’s a very fine line, but at the end it’s a net positive not a net negative. And I don’t see why there is so much outrage over it.

        If businesses want to discriminate than they should have to be some kind of private club or members only type thing (similar to a costco or a sam’s club) that requires a fee (not just hey membership is free but darkies can’t sign up loophole)

        1. Much of the Sane South would have desegregated without the CRA. Nashville and Oklahoma City had already desegregated, as did the famous lunch counter in Greensboro, North Carolina. I doubt Mississippi, Alabama, Arkansas, and South Carolina would have done it, at least not without massive nation-wide boycotts.

        2. At least for me, the outrage is not over the private business parts of the CRA. It is one of the least bad overreaches of power from the FedGov and I suspect probably a net good. What outrages me, and makes me think that discussing it is a good idea is the assholes who willfully refuse to acknowledge that there is a distinction to be made between favoring segregation and favoring allowing market forces to determine how people run their businesses. I find it quite similar to the bullshit and lies you hear constantly about Citizens United.

        3. “But it’s rather naive to think that if people would have been allowed to do what they want segregation would have ended on its own because the almighty market would punish the discriminators.”

          No. It’s merely naive to think that desegregation would have happened ALL AT ONCE without government force. You misunderstand how the ‘almighty market’ you cite works. It’s not at all that every business would instantly have allowed blacks in their establishments once the laws forcing them to exclude blacks had been repealed. It’s that blacks would have been free to establish their own businesses that competed with existing ones, which would draw business away from bigoted businesses. Or (more often, probably) white-owned businesses who were not the market leaders in the area would have opened their entire businesses to blacks in hopes of making more money. It would have taken a long time for complete desegregation to take place; in fact, there would likely even be a few, relic segregated businesses today. But it wouldn’t matter, because everyone would have plenty of choices to patronize.

  7. Feminist fatties on discrimination: remember how everyone came to hate smokers? Let’s somehow do the reverse of that for fatties. Yeah.

    1. So, am I committing a mental hate-crime when I get disgusted at the sight of a fattie in a belly shirt and boy shorts walking down the street? Is it doubly offensive if she is smoking a cigarette?

      When obesity is normalized, will I be morally compelled to find attractive features in a hairy, sweaty, beer-gutted bald guy just so I am no longer discriminating based on personal preferences?

      Will Caucasian girls have to date black or Asian or Hispanic men even if they don’t care to (and vice versa for other genders and ethnicities), or have lesbian experiences even if they are not gay, just to practice non-discrimination on the basis of race and sexual orientation?

      At what point does this stuff get out of hand?

      1. I’m mostly just unclear on what they mean by “normalized,” and I think they are too. And there’s a lot of magical thinking around the power of The Media to control people’s minds, which this crowd sees as A-OK when it’s the kind of controlling they’re interested in (more “body diversity” in fashion modelling! Yeah!). The fact that there are actual individuals who will perceive fat people as gross or groovy of their own volition is a scary thought to them.

      2. “Will Caucasian girls have to date black or Asian or Hispanic men even if they don’t care to (and vice versa for other genders and ethnicities), or have lesbian experiences even if they are not gay, just to practice non-discrimination on the basis of race and sexual orientation?”

        Hey, those lesbians and minorities pay for the roads you drive on. If you receive benefits from the government (say, living within borders protected by the US military), then anything you do is public, and subject to appropriate oversight and intervention in the name of social justice.

        It’s a very simple concept. Too bad libertarians are so childish and juvenile and whine about “not wanting to be forced to have sex against their will.”

  8. he eventually will find himself out of business

    Even if that happened in every single case, and we all knew it would, no one would be getting forced out of business, so people who strongly identify with the state (“libertarian defenders of Title II,” for example) can’t take any satisfaction from it. No one’s getting violently put in his place on their behalf.

    In the absence of legal slavery, Jim Crow laws, etc., something else has to satisfy the sadistic appetites state-identifying types are too cowardly to feed personally. Title II takes care of a few of them.

    Look how its defenders, in their hypotheticals, characterize those constrained by Title II. It’s always an exemplar of a group they hold a priori unfit for membership in society?Southern or otherwise non-urban whites, almost always, because Everyone Knows they’re inhuman, but I do mean all of their hypotheticals.
    Yes, all.

  9. As needed as Title II was in 1964, it has become a monster that needs to go. I will defend the need to pass it at the time to the death. But, it is not 1964 anymore no matter how much liberals want it to be. We have gone from ending Jim Crow to using the law to prevent someone from advertising for a “Christian roommate”. It is absurd. And you can’t have a society where some groups are allowed to discriminate and have black colleges and black scholarships but others are not. Maybe you can for a few decades after you end really bad formalized discrimination. But you can’t exist like that forever. At some point you have to hold everyone to the same standard or your society will split apart with recrimination and resentment.

  10. The latest in political correctness so stupidly insulting it needs a punch in the face.

    People pissed off that the Prince of Persia stars a white guy.

    http://www.theatlanticwire.com…..-Role-3763

    I tell you what you stupid fucks, why don’t you take a look at the etymology of the word ‘Iran’, and then get back to us on that.

    http://en.wikipedia.org/wiki/Iran_(word)

    1. People pissed off that the Prince of Persia stars a white guy.

      I wouldn’t say it pisses me off, but I do have to wonder…they couldn’t find someone more ethnic for that role?

      It’s not as offensive like Mickey Rooney in breakfast at Tiffany’s but it does make one wonder why they made the decision they did.

      1. But most real life Persians are very fair. They don’t look like Arabs. Actually Gyllenhall isn’t that far off in looks. It is about like having a dark haired French woman play an Italian.

        1. There are lots of fair skinned Arabs and lots of swarthy looking Persians. I have cousins that would pass for black, I also have cousins with green eyes and blond hair.

          1. There is a pretty sizable Arab minority in Iran. And there are lots of Arabs who are fair as you point out. People don’t always look like the stereo type.

            1. Yes, and since we’re talking about discrimination, it’s interesting that in general the Arabs are looked down on by the Persians in Iran. Sadly, disliking, or seeing as inferior, those who are different is a deeply rooted part of the human condition.

          2. I recall meeting a green eyed beauty from Ankara, Turkey many years back and I inquired about it. She informed me among her ancestors were Celts.

            http://en.wikipedia.org/wiki/Galatia

            The Middle East is such a brew of different influences it makes arguments like the one from that article ridiculous. Gyllenhall is perfect for the role because he has the lithe and angular body of a thief of Baghdad type that the Prince of Persia is drawn from It doesn’t hurt that he is a terrific actor.

            I have been looking forward to this movie for years now. I hate when the PC crowd tries to spoil the fun in order to bring about ‘greater awareness’ when they happen to be the least informed people of all.

            Are they saying Omar Sharif should have never been cast as Dr. Zhivago? What a horrible world their minds inhabit.

  11. Well, I’m pissed off that it stars a particular white guy.

    How stupid are these people, that they don’t realize that Persia became Iran, which translates as “Land of the Aryans”? They think the Prince of Persia should have been played by Denzel Washington?

    1. Well, I’m pissed off that it stars a particular white guy.

      That I can understand.

    2. RC,

      This is Hollywood. Every hooker has a golden heart. Every black man is wise and noble. And every man from the anywhere near the middle east looks like Omar Sharif. Don’t you know the rules?

      1. Omar Sharif is Egyptian, isn’t he?

      2. Sharif don’t like it!

  12. Makes me long for the time I lived in Malaysia. Very often I would see adverts for roommates stating “Chinese only”, “Indian Only”, “Malay Only”(This would be written in Bahasa usually).

    I asked someone about this once and they gave me the oddest expression, “Why would you want to live with some one so different from yourself?”

    I Think it is only in the West we believe forced integration is a good thing.

    1. Because you learn about yourself and what other people think. Without being exposed to ideas from outside of their culture, humanity would probably be stuck in the dark ages. Think about how much knowledge and advancement is due to people from different cultures and backgrounds mixing. It’s not like the Far East became industrialized before interacting with the West.

    2. I rent a property to an Indian (dot) couple with a three year old girl who is the smartest little booger you have ever met. You have not lived until a tot taps you on the knee to inform you, ‘that is not appropriate language’.

      1. What was your inappropriate langauge?

        1. Probably asking “dot or feather?”

    3. “Bahasa,” of course, simply being the word for “language.” The name of the language is Malay.

  13. I see Mo, By being forced into a relationship with some one is healthy dealing with them at terms that are agreeable to both parties is not.

    Thanks. 🙂

  14. I know the whole thing is a touchy subject, but those who don’t question the necessity of Title II are getting too many free passes IMO. Blacks are lagging behind other demographic groups by most metrics. Why then should we assume that the practical effects of Title II were a Good Thing?

    Specifically, did Title II cause a disorderly segregation of the black middle and lower classes? Did it accelerate a two-tiered educational system where the middle class attend diverse schools and go to diverse colleges and the lower class attend crappy inner city schools and academically awful HBCU’s (then teach in those inner-city schools)? Did removing overt racism from the “public” sphere create a reasonable paranoia about the practices of businesses? If so, is that ultimately better than a more organic and honest, albeit longer, desegregation would have been?

    These questions are from conversations I had in high school with a black teacher and coach who seemed most frustrated with lack of academic standards at the HBU he attended. Since then, I hadn’t really though much about them until this recent brouhaha. I still don’t know the answers, but I wish these types of conversations at least acknowledged the current state of the black nuclear family, crime rates, etc.

    1. Also, “racism” is being in a way that doesn’t differentiate white supremacy (slavery) and Jim Crow (primarily xenophobia).

  15. If we accept the idea that one set of right violations can justify another

    That’s an “if” we shouldn’t accept.

  16. …can we dismiss out of hand Khalfani’s argument that, given the history of oppression that blacks have suffered, true equality requires unequal treatment?

    We are all equal at the end of a gun barrel. Is that the sort of equality we are looking for?

    1. No, there are two ends to a gun barrel.

      1. Only one end matters, but I hear ya.

        I remember reading Friedman on discrimination and how the market minimizes it, and realizing that he was pitching a story, one that wasn’t really compelling. On the other hand, when raw force is the only other solution, it would seem that you’ve found a problem without any viable mitigation.

  17. How does Title II work for barber shops?

  18. Well, the next time that my gym advertises for a women’s locker room attendant, I’m gonna apply. I’m a (straight) dude, but that shouldn’t matter right? After all, no business should be allowed to discriminate based on gender.

  19. . The only alternative, Bernstein says, would have been a federal takeover of local law enforcement. Since racist (or cowardly) police forces that refuse to protect integrated businesses from violent bigots are a pretty strong reason for federal intervention under the 14th Amendment, I’m not sure that what looks like the easier solution was actually the right one.

    Agreed. Why do people suggest that Title II was the “lesser” evil, considering it left in place racist local police forces that continued (and still continue) to harass blacks? Wouldn’t the next 40 years of African American history have been BETTER if the feds HAD taken over local law enforcement?

  20. It looks like one self-described libertarian already put a health club to the test.

    I do find it interesting that a Curves allowed a transvestite to join. One wonders what the members thought about that.

    Let the guys smoke their cigars in big leather chairs and the women have Curves, and the world would be a better place.

  21. Libertarians such as Epstein, Bernstein, and Sanchez would like to have prevented this one exception from multiplying.

    What do libertarians such as Bill Maher, Kerry Howley, Terry Michael, Matthew Yglesias,Glenn Greenwald,and Dennis Miller have to say about it?

    Is Janeane Garafalo a libertarian yet? Get her a job at Cato and she will be.

  22. “Because you learn about yourself and what other people think”

    But what if I don’t want to? What if I want to live my life, and run a private business, making the willful choice to only hang around and serve in my private business people who look like me?

    You can call it unenlightened, you can call it racist, you can call if ignorant, you can call it whatever you like – but, at the end of the day, if I decide to make that choice that decision should be mine, no? In a truly *free* society, that is.

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