Gay Marriage

The Supreme Court Probably Won't Restore Real Freedom of Association, But It's Nice to Dream

Public accommodation disputes treated as a First Amendment issue instead.

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"By the power of the State of New Mexico, I now200

Today the National Constitution Center, a nonpartisan nonprofit institution devoted to exploring the intricacies of the U.S. Constitution, has posted a lively podcast of two legal scholars of interest to those following the case of Elane Photography v. Willock. That's the New Mexico photographer who refused to shoot a gay wedding and got into legal trouble for violating the state's public accommodation and anti-discrimination laws. The photographer has lost every step of the way and is asking for a Supreme Court review.

I bring up the podcast because holding up the libertarian side of the debate is Richard Epstein of New York University, arguing against Michael Dorf of Cornell. Both men note that the case is based around whether Elane Photography can claim a First Amendment exemption from public accommodation laws, not the laws themselves. But Epstein would like to see a restoration of real, honest-to-god recognition of freedom of association, which he argues has been "dashed to bits" by Supreme Court decisions from the 1930s on:

"Every person has the ordinary liberty to pick the persons with whom he wishes to deal and the terms and conditions on which they wish to trade. … There is no theory that I am aware which indicates the heavy hand of the government with its elaborative administrative structure can do better than competitive markets to sort out all these issues."

Of course, the debate cannot help but to examine the Civil Rights Act of 1964 and how Southern racism has impacted business law. Epstein notes the significant amount of government force and monopolistic protection that was part and parcel of keeping racist business practices alive in the south. He defended anti-discrimination policies in situations where consumers honestly don't have many choices, but he does not see any behavior of that sort when analyzing a business's refusal to serve gay couples:

"This is a case in which there's an absolute juggernaut in favor of same sex marriage. The transformations in my lifetime from the time when it was a criminal offense to be gay to the time where it is in fact a preferred freedom is nothing short of astonishing."

Dorf invokes a concept of "economic citizenship" to explain the idea that the government can set the policies by which businesses and corporations offer their services. Epstein, though, notes that there are no reverse expectations. Customers still have their freedom of association. We would consider it unconscionable if a gay couple were ordered to purchase a cake or hire a photographer from a business who opposed their relationship. In his conclusion Epstein notes:

"I think the problem that we have is that some of us have such strong ideas about what a just society looks like that we don't think long and hard about whether or not we're entitled to impose our will. And the basic argument is this: The stronger the consensus for open public accommodations, the weaker the need for the law."

I previously wrote how these gay marriage conflicts were more about what we classify as public accommodations than who does or doesn't get exemptions under the First Amendment, so I'm pleased to see a constitutional scholar make a similar argument. Epstein, though, given his background, makes a much more articulate case than l'il ol' me.

Listen to the podcast below:

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  1. I still think the best approach for Elane Photography would have been to say “OK. We’ll photograph your wedding. But we’re going to donate the proceeds of the sale to the Westboro Baptist Church.”

    1. Or: “I’m not sure why the photo has a pinkish hue. And I don’t know how that My Little Pony border got around the frame. I can shoot it again? You want me to shoot it again?”

      1. OMG trigger words for a beat down!!!

      2. Actually, I suspect that the complainant would have loved that.

        They could have gotten a judgment against the photographer on both ‘discrimination” grounds and “ruining our perfect moment”.

        1. Yeah, then they’d just have a civil tort for breach of contract.

          1. Tortious breach? Doubt it.

        2. Once forced, the photographer should have shot the wedding two stops too dark. Period.

          1. I think Aresen’s suggestion is best. You don’t want to run further afoul of court proceedings so you just tell them you’re donating the money to WinShape or that you’re going to buy Chik-Fil-A for 25 of your closest friends.

            1. They paid for the photographer to be there. Done. Photograph everything. Done. They get copies. Done.
              Are we now going to litigate my skill that day as a photographer? How good an artist do you expect a slave to be? It’s tough to kneel and take good candid shots.
              That’s an idea! Shoot the entire wedding from a kneeling position. Whenever addressed, kowtow, grovel, fawn, cringe, toady, truckle, abase, bow and scrape. Anything but stand up to take pictures.

    2. “But we’re going to donate the proceeds of the sale to the Westboro Baptist Church”

      That’s beautiful.

  2. Dorf invokes a concept of “economic citizenship” to explain the idea that the government can set the policies by which businesses and corporations offer their services.

    Smells like Social Contract… the throw-away words which justify unlimited meddling by the government.

    Tea Bagger: I dunno, should we be putting the Japanese into an internment camp?

    FDR: Social contract, bitches.

  3. Dorf invokes a concept of “economic citizenship” to explain the idea that the government can set the policies by which businesses and corporations offer their services.

    That is not what economic citizenship means! It’s bad enough that Dorf is bullshitting, but he’s bullshitting with the term for an already established and well-known concept.

    1. See, you got me all confused.

      I was watching the video because I didn’t remember the part where Tim Conway started going off on economic issues (in a Swedish accent, while standing in a hole, with Vincent chiming in with ‘riiight’ every once in a while).

  4. THIS WHOLE COURT IS GAY!!

    1. Shhh! You want SugarFree to post more of his…er…prose?

  5. There is no theory that I am aware which indicates the heavy hand of the government with its elaborative administrative structure can do better than competitive markets to sort out all these issues.

    Two mighty titans battling it out, markets versus the state. I wonder which we’ll be turning to.

  6. Being free from discrimination in the commerce of your society based on minority characteristics is a legitimate rights claim. Being free to serve whom you wish is also a legitimate rights claim. They come into conflict when business owners are bigots. The state has to choose–it cannot remain neutral–between the bigots and the minority customers and their respective rights claims. Allowing discrimination is a policy choice just as much as forbidding it is. You guys will say that this means I think there is no escaping the state. That’s one way of looking at it, but it’s not like there has ever been such a thing as a business with no legal conditions set upon it. Or a parcel of private property. Or a person alone. The correct way of seeing this is competing rights claims, not freedom vs. tyranny.

    1. I’ll bite. Why is expecting another private actor to serve you a legitimate rights claim?

      1. The expectation comes from the sign out front that reads “Eat Here” or something similar.

        1. So, if I go into a clothing shop, and they don’t have anything in my size, they’ve violated my rights?

          1. You people are hopeless.

            1. Fuck off, homo.

          2. Don’t I have a right to buy clothes there because they have a sign out front that reads “Men’s Clothes” or something similar.

            If I have that right, as you posit, then isn’t that right violated if, in fact, I can’t buy clothes there?

            Does it matter if my rights are violated by the negligence of the owner, rather than by his intentional acts?

            1. Nobody’s discriminating against you over a suspect characteristic. The store just doesn’t have what you need.

              1. So, again like all statist, you resort to the ‘there are no principles, no right and wrong, only law’ school of thinking.

                Its how you excuses asset forfeiture – theft is only wrong when the state *says* its* wrong.

                And here you excuse discrimination by saying that discrimination is OK except in the situations where the state forbids it.

                Your only guiding principle is ‘might makes right’.

              2. Nobody’s discriminating against you over a suspect characteristic. The store just doesn’t have what you need.

                But the store could be compelled to produce what you need. Isn’t that how the “right” to healthcare works?

    2. Make me a sandwich!

      1. And hurry, because you need to finish before our trip to Warty’s Playhouse and Adult Emporium.

    3. Allowing discrimination is a policy choice just as much as forbidding it is.

      The state is not God, it is not responsible for every aspect of human behavior, and it does not need to weigh in on every matter.

      1. “Allowing discrimination is a policy choice just as much as forbidding it is.”

        Yeah.. Just like, Failure to purchase health insurance economic inactivity is an act of commerce… Any excuse is justification, and all answers given are correct when you are the all powerful Government?.

      2. But in many matters, not addressing them is to weigh in. If someone shoots you, the state not weighing in is making the positive statement that it condones murder.

        1. If someone shoots you, the state not weighing in is making the positive statement that it condones murder.

          Or, that it supports the right of self-defense.

          1. Either way.

        2. No, it doesn’t.

          Its been a long, long western legal principle that silence does not indicate agreement or consent.

          1. And it only looks like the state condones it when the state forbids you from defending yourself.

    4. Allowing discrimination is a policy choice just as much as forbidding it is.

      State inaction is state action. Freedom is slavery. Tony is a goodthinker who bellyfeels Ingsoc.

      1. Is inaction not also action? What does it really mean to be inactive? What does it mean to choose to be inactive? Is there not still a consequence?

        1. Of course all of our choices have consequences. Human beings are walking, talking consequence engines. So what? If you are going to use the mere existence of consequences to justify using state force, then you are basically handing the keys to totalitarianism. You can tell the totalitarian to drive carefully and even threaten to take away the keys when they get home if they don’t play nice, but it makes no difference. Once you hand them the keys, they don’t have to come home at all. They don’t need you anymore.

          1. I get why you’d react that way, but you’re not using totalitarian correctly. It is a form of government. I’m saying government, no matter its form, is indeed hard to get away from, but only because inaction is consequential. But it’s not all that radical a thing to say. Really, a law against murder is attached to you at all times and in all spaces. Government is in the shower with you. What alternative do you propose to describe? Sure there are lots of spaces government should keep itself out of, but given the demonstrated ability of governments to invade those spaces, it most definitely requires an active choice on the part of government to establish that policy of noninterference.

            1. Government is hard to get away from because there will always be people who are willing to use force to impose their will on others. It has nothing to do with the consequences of choices more generally. One of the great contributions of liberalism is to argue for a limited set of circumstances under which the use of force is justified.

              I’m not sure how the rest of your statements are relevant. Yes, laws against murder exist, and yes, it is illegal at all times and all places. Your point?

              1. One of the great contributions of liberalism is to argue for a limited set of circumstances under which the use of force is justified.

                Totally agreed. And my point is that antidiscrimination laws need to be evaluated on their merits just like everything else, not according to a checklist of libertarian policy preferences masquerading as the height of liberty in the abstract.

          2. Whether the state’s non involvement is an action or not doesn’t matter. What matters is negative individual rights, not Tony’s bullshit gay positive rights.

    5. And, again, Tony shows himself a good little totalitarian:

      In this case, by upholding the principle Nothing outside the state.

      Being free from discrimination in the commerce of your society based on minority characteristics is a legitimate rights claim.

      Only if you don’t understand what “rights” (as opposed to entitlements) really are.

      Here’s a hint: if a private actor does something without engaging in force or fraud, your rights aren’t violated.

      1. without engaging in force or fraud

        That little qualifier opens the door for others. What about “without engaging in force or fraud or discrimination”? You’ve never been able to present a good case for why only those two things should be government’s concern. That leaves out responding to natural disasters among many other useful things.

        1. without engaging in force or fraud or discrimination

          I think that’s a bit of question begging. At least in the sense of trying to determine if specific, deliberate inaction constitutes an action.

          1. “Deliberate inaction” says it all, doesn’t it?

        2. What about “without engaging in force or fraud or discrimination”?

          What about you figuring out what rights are, and why you have a right not to be discrimated against by the State, but no right not to be discriminated against by your fellow citizens?

          As a beginning, try to think of rights as something all (adult) citizens have in exactly equal proportion. When you start calling something a “right” that some people have, or don’t have, by virtue of their skin color, then you need to rethink whether that’s really a right.

          1. All adult citizens equally have the right not to be discriminated against over race, religion, etc. Even white Christian heterosexuals. These are not affirmative action policies!

            1. No, they don’t. Now fuck off, homo.

              1. The law refers to characteristics such as race, religion, and sex. It doesn’t say “can’t discriminate against black people, latinos, muslims, gays, etc.”

        3. You’ve never been able to present a good case for why only those two things should be government’s concern. That leaves out responding to natural disasters among many other useful things.

          1. Actually, we have.

          2. Yeah, why is it the government’s responsibility to respond to natural disasters?

          1. Well, that got cut off.

            Regarding the government’s duty to respond to natural disasters.

            That arises because and only because the people governed arrange for that sort of support from their government (and are willing to pay for it).

            AND/OR

            Because the government has decided *unilaterally* that it will be the primary responder and that all private responses will be under its control (and we see how well *that* sort of planning works out in real life don’t we).

            1. You’re crazy. Next you’ll be telling me that I don’t need government to force me to donate to the Red Cross or Catholic Relief Services.

    6. The correct way of seeing this is competing rights claims, not freedom vs. tyranny.

      The correct way of seeing this is that nobody has a right to my body unless I give them access to it. If someone forces me to do something I have not agreed to do, that is nothing more or less than involuntary servitude. The enslaved photographer should eat three gallons of ice cream before arriving, puke it all on the wedding party and the cake, then announce he might be getting sick. And that’s my nice version. Another involves showing up with a double-Michigan ax stuck in my belt, chicken blood on the head.

      1. If someone forces me to do something I have not agreed to do, that is nothing more or less than involuntary servitude.

        Nonsense. You think it’s OK for government to force you to refrain from murdering. It’s not slavery, it’s just the way people in societies get along.

        1. The government doesn’t force me to refrain.

          I’m perfectly free to kill. Got someone sleeping on the couch *right now*. I could pick up the gun that is lying next to me and blow his brains out.

          Its not the government that is preventing that. The government *can’t* prevent that.

          1. The government *can’t* prevent that.

            Practically, yes, but they can try. The result looks a lot like 1984 or Brave New World. Or, if you prefer non-fiction, North Korea.

            1. It would look more like a super-max prison. And even there the government can’t always stop people from killing each other.

          2. Pedantry. Laws against murder and the punishment involved are meant to be a deterrent.

        2. You think it’s OK for government to force you to refrain from murdering

          Like hell I do. This isn’t Minority Report. The government can’t act against me until *after* I’ve, to use your example, murdered someone, or taken definite positive steps towards doing so.

          If you’re OK with government forcing you to refrain from murder, then as I said above, you’ve opened the door to totalitarianism.

        3. You think it’s OK for government to force you to refrain from murdering.

          Tony, “murder” IS an aggressive, unjustified use of FORCE that violates someones right to life. Ergo, the government must prosecute this act.

          1. Not “ergo.” It’s a government deployment of force, usually a great evil, to a social end. Either you admit that such force is a useful tool to achieve social ends or you self-contradict.

    7. It you have “competing” rights claims, then you havn’t defined your rights properly.

      Either the gey couple has the right to have a particular photographer shoot their wedding. Or the photographer has the right to freedom of association. Not both.

  7. I discriminated when I picked my spouse. Is that a valid state interest?

    1. @douchebagtroll

    2. You can pick your spouse.

      You can pick your nose.

      But you cannot pick your spouse’s nose.

      1. LIAR!

      2. Actually, I think you can pick your spouse’s nose. I just depends on whether she’ll put up with it and won’t let you touch her at all.

    3. Only anti-uglo bigots would deny poor, ugly, stupid men the opportunity to sleep with just as many beautiful women as much as rich, handsome men.

      Using the word “discrimination” in a laudatory sense is waving a red flag in front of your average progressive. They’d rather chew off their own legs than admit that discrimination is usually a good thing, as it allows us to actively weigh the opportunity costs of how we spend our brief lives.

      1. Laugh all you want to, but one of the current fads among politically correct LGBT people is to try to shame gay men into abandoning any sort of preference that they may have for potential sexual or romantic partners. Yes, they have gone that far down the rabbit hole.

        1. Any sort of preference? Even the one for men?

        2. Doc, that’s nothing new.

          @Knarf – when is discrimination a bad thing?

          1. @Knarf – when is discrimination a bad thing?

            When the people with a legal monopoly on violence do it?

            1. I’d settle for “when it entails the threat of violence.”

        3. There seems to be a vague argument out there especially with respect to transgendered people that it’s bigoted to discriminate against them in choosing romantic partners. To the extent that argument is actually being made, I find it absurd. Same as anything else. I don’t do fatties, though I happen to be open to all races. Sorry fatties.

          1. though I happen to be open to all races.

            No wonder dog races are run so fast.

          2. That goes both ways with RadFems wondering if lesbians who date transpeople are “true lesbians”.

          3. But, but, you’re discriminating based on innate characteristics.

            Why is this a bad thing when people discriminate against characteristics *you* have, but acceptable when its against characteristics you *don’t* have.

            I know, it all boils down to your core principle – might makes right.

            Its ‘wrong’ to discriminate against homosexuals because the *state* says its wrong. And since the state is deploying its might to your benefit, you’re good with this.

    4. Not all by itself. It is if your spouse didn’t have an equal say in the matter.

      Also there’s a clear distinction being made between an individual’s right to discriminate and that of a business that serves the public.

      1. That crazy chick who wanted to marry me obviously wouldn’t agree. She desired something from me and I refused to provide said services.

        1. Have you tried Viagra?

      2. and that of a business that serves the public.

        My business was never there to serve the public. It was there to serve me. It traded with those who wanted what was offered and could pay enough to make us want to do it.
        We turned away lots of work. Mostly it was things we didn’t do, didn’t care to do, or things we turned away because we were busy doing other, more profitable work.

      3. Except that business don’t serve the public.

        They serve a selection of private parties.

      4. Also there’s a clear distinction being made between an individual’s right to discriminate and that of a business that serves the public.

        Businesses don’t have rights. Individuals who own businesses do.

      5. Also there’s a clear distinction being made between an individual’s right to discriminate and that of a business that serves the public.

        Tony, no, there is not. Businesses are owned by private individuals or groups of individuals that enter into voluntary contracts of ownership, co-ownership, and employment. Furthermore, business do NOT “serve the public.” Businesses serve private, willing customers. If one or the other party chooses not to participate, this party cannot be forced to do so on any moral grounds. If the non-agreeing party is forced into the transaction, it is the definition of involuntary servitude (slavery). That is all. End of story. Good day, sir.

        1. Businesses and individuals can be told and forced to do or refrain from doing all sorts of things. You just don’t like this restriction for some reason.

          1. I happen to believe in freedom of association in its truest and most absolute form. This is what we call a “principle”. A “principle” is this strange standard that allows one to be consistent from issue to issue. Also, just because the state has a restriction on something, does not make it moral, ethical, or otherwise right and just.

            1. No you don’t.

  8. “I think the problem that we have is that some of us have such strong ideas about what a just society looks like that we don’t think long and hard about whether or not we’re entitled to impose our will. And the basic argument is this: The stronger the consensus for open public accommodations, the weaker the need for the law.”

    Prof. Utilitarian sometimes gives my inner Rothbard the heebie-jeebies, but this is a good point for use with people who don’t grasp self-ownership and property rights. When business owners have enough sense to avoid alienating potential customers and at least a few customers would take their business elsewhere if discriminatory policies were implemented, there’s not even utilitarian justification for these laws.

    The “public accommodation” justification is transparent bs; we understand that a man who sleeps with every woman he can get his hands on still owns himself and his choice in sex partners, and the same is true of businesses who open their doors to passersby. Most educated people still grasp why the state doesn’t persecute the WBC for their offensive speech, but somehow it’s been lost as to why the state shouldn’t persecute people for making subjectively offensive choices in their associations.

    1. When business owners have enough sense to avoid alienating potential customers and at least a few customers would take their business elsewhere if discriminatory policies were implemented, there’s not even utilitarian justification for these laws.

      I like to make this point and to amplify it by pointing out that if it weren’t so, racist politicians would not have seen the need to impose Jim Crow laws. I have yet to hear a progressive response that doesn’t involve either ad hominem pot shots or lying about what Jim Crow was.

      1. If I understand correctly, the Jim Crow system was essentially a workaround of the 14th Amendment. “Yeah” went the logic “they’re equal alright…but separate”. No one really needed the encouragement.

        1. That, but it also codified discrimination – requiring it of people who otherwise wouldn’t have bothered.

          Imagine business owners grouped in three categories

          1. Won’t ever do business with blacks

          2. Don’t want to associate with them socially but Black money spends as well as white money

          3. Prefer to deal with blacks.

          The first group will support your ‘keep everything the same’ stance and the third will always oppose it but the second (the largest group by a wide margin) is ultimately motivated by greed and will go where the dollars are – and its those guys the JC laws were designed to lock into the status quo.

          1. I really don’t think that the middle is really the middle. It wouldn’t be the status quo otherwise, would it? It seems question begging though. I mean, if it hadn’t been generally accepted it wouldn’t have been so easy to establish, right?

            1. I don’t think you are examining the actual attitudes that were prominent during the Reconstruction period. Many white southerners were quite bitter that they had both lost the “War of Northern Aggression” (My uncle still refers to it that way), and had Republican carpet baggers forced upon them as their legislators. A lot of that middle was probably pretty irritated about that, so when in the 1870s, Democrats became viable candidates, the middle voted with the first group that didn’t want to deal with blacks at all in order to exert control over a bad situation (for them), and probably ended up with some unintended consequences. For instance, I didn’t think my vote for Bush in 2004 meant we were going to bail out big banks in his last year in office, yet the government did anyways.

    2. Most educated people still grasp why the state doesn’t persecute the WBC for their offensive speech

      I’m not sure I’m so optimistic. I suspect there are plenty of people, both progressive and conservative, that would happily ban speech they disagree with if they could. Or who would have government regulate a wider range of associations. It’s just that the 1st Amendment gets in the way.

      But when it comes to business associations, government runs wild. Apparently the act of exchanging money changes things. This seems especially true for progressives. I guess the courts go along with it because something something Commerce Clause. But as for a more fundamental reason why exchanging money changes things, I don’t know. Maybe Tony can weigh in…

      1. Money changing hands is not speech, it’s commerce. Speech is meant to be extremely loosely regulated, commerce more so. Not a controversial distinction.

        1. Speech is meant to be extremely loosely regulated, commerce more so.

          I love the way “shall make no law” becomes “extremely loosely regulated”.

          You literally cannot imagine anything being done without government oversight, can you?

          1. Come on, yelling fire in a crowded theater. It’s not in fact absolute. I’m using language to make things rhetorically parallel. Extremely unregulated is the same thing as extremely liberated from regulation. Neither is intended to connote any value judgments.

            1. “Yelling fire in a crowded theater”

              I think you mean “criticizing those in power” if you’re trying to refer to an actual Supreme Court decision.

            2. Come on, yelling fire in a crowded theater.

              …is perfectly legal.

            3. And Photography and baking wedding cakes don’t count as art to you? Because to me, a photographer, or a skilled cake decorator is an artist, and has both freedom of association and expression.

        2. Money, its so dirty that only government can be trusted with it. Trading is bad, mmmmkay?

          1. Trading is not bad but it can have negative social consequences. Speech is mostly unregulated because it is presumed that there is no such thing, with possible tiny exceptions, as speech that is socially harmful. Free speech is a pragmatic value–a laissez-faire approach really does, it’s generally agreed in the US, lead to the best outcomes. Very much not so with the market.

            1. How does the exchange of money cause social harms outside of the situations where money is changing hands for the purposes of coercion?

              What *is* a social harm? Do you remember the time when guys like you were persecuted because the state decided that you were a social harm? Wasn’t that long ago that bathhouse raids were the norm rather than some strange ‘WTF are vice doing this shit for’ occurrence.

              1. Yeah and? The people who win elections get to decide these things. With any luck the outcome of government action is that injustices are righted. Doesn’t always happen by a long shot, but you’re not saying what you would do about it except “have principles.”

        3. And commerce is different…why?

          Suppose Elaine only photographed weddings as a hobby, without ever taking money. Suppose the only thing she received in return was personal satisfaction. Can she discriminate then?

          1. I’d love a response to this if you are still around. And let me rephrase my question to make my meaning more clear.

            Can she discriminate then? Should the government be allowed to prevent her from discriminating?

            1. I doubt the state law in question would allow that, and the CRA is specific about places of public accommodation. Not all businesses are covered.

      2. I mean most of the mainstream academic left–who are, in my experience, nice and genial people–who don’t know much about politics or political philosophy, but have the usual herd mentality you would expect from people who’ve been hectored their whole lives by Alinskyites and have never been exposed to serious classical liberal arguments. The academics I know are the well-meaning ACLU types who defend the right to expression while attacking the right to associate.

        The socialist separation of property rights from personal rights has done a number on political philosophy to the point that most people don’t even understand that the separation is artificial. Outside of some dead philosophers who’re only read by specialists, we’re the only ones who insist that all human rights are property rights, and even American conservatives are flabbergasted by the idea more often than not.

  9. I think that is going to be really good in the long run.

    http://www.anonblitz.tk

  10. What we need to ask the Progressives is “Is an African American photographer required to provide services to a KKK chapter?”

    1. That won’t get you anywhere. For progressives, a different standard applies to groups that have suffered historical injustices.

      1. The different standard is that they would be discriminating for a reason that isn’t anyone’s idea of a protected characteristic: having chosen to join a club of racists.

        1. Which begs the question of why anything should be a protected characteristic. Why are some people more equal than others?

          1. Meathead spent the whole decade of the 1970s explaining that to Archie.

            See, after the government arbitrarily persecutes a group of people for a long period of time, it then needs to spend several decades/generations helping them by arbitrarily infringing on other people’s rights. At which point we will achieve cultural balance, the special legal protections and infringements on rights will disappear because no one has an incentive to ensure that his/her more-equal legal status remains under law, and nothing else happens.

          2. Some characteristics are protected because of the socially toxic existence of discrimination over them. But nobody’s more equal than anyone else. You don’t get to discriminate against whites and straights either.

            1. Check out the USPS hiring preferences and try that again.
              Same with college entrance preferences. 60% (and climbing) of graduates are now women, but the preferences are still there.

              Again, how do you expect people to become equal by treating them unequally?

            2. I heard a story (second hand, so I can’t independently verify its veracity) about a Harvard graduate admissions committee having to rescind offers to male students after they failed to achieve the desired balance of men and women. The decisions were originally made on merit, and the failure to achieve the desired social outcomes was only recognized by the relevant people after the offers went out.

            3. Which boils down t we don’t allow to disassociate yourself from people for certain reasons because you might actually do it.

          3. Because the state *said* so – that’s the sum total of his principles.

    2. Why go so far as KKK? I think discriminating against “privilege” would be acceptable behavior in their minds.

  11. Used to be. In the Before Time. Used to be that a customer could choose to not do business. Not anymore, not since The Obama and his PPACA Encyclical.

    Nowadays you are required to do business vendors, and keep records to ensure that you are not discriminating in your choice of purchases. Do you have any idea how many times I’ve had to purchase aluminum siding for my stucco house? All based on the percentage of aluminum siding businesses in the economy.

    Should it not be illegal for me to refuse to patronize organizations that employ people in protected classes? Should I not have to document the protected classes I do do business and open that data up to public scrutiny to ensure that I am not doing any ‘unconscious discrimination’, that my life isn’t structured with ‘institutional discrimination’?

    I wonder why there is a distinction made between business and customer in the first place. When I go into Jack In The Box to get a burger I am not simply making a purchase – I am also selling.

    I’m selling dollars. I’m selling dollars and taking burgers in trade.

    That’s why *both* parties say ‘thank you’ at the end of the transaction – we’re *trading* with each other.

    1. The distinction is easy. No good reason to restrict consumer choice in this way. Good reason to restrict bigoted business owners’ choice. Consistent adherence to principle is overrated.

      1. Consistent adherence to principle is overrated.

        Shorter Tony: Hypocrisy rules!!!

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