Saturday, April 4, 2015

Freedom of Association, Private Discrimination, and Public Discrimination

Interesting article, though 12 years old, from Roger Pilon.


The “problem” of discrimination arises in the context of human association. We believe in freedom of association — it’s implicit in the First Amendment, in fact — but that freedom entails not only the right to associate with those willing to associate with us but the right not to associate — the right to discriminate, on any ground, good or bad, or no ground at all. Absent that, freedom of association is compromised. It means that others choose the grounds for us. Others tell us which grounds are and are not acceptable. That’s not freedom.

Raising the question:  when can businesses discriminate?  Can "we" substitute our judgment for the business's judgment about whom to hire, for example?  "We" have decided that we can, to some extent, when it comes to race and gender.  The stated reason is that the business wanted to use criteria not germane to the practice of business, but based only on personal predjudice.  How can "we" tell?  It's hard to read someone's mind, so we look at outcomes:  if there is a pattern of disparate treatment then we simply infer prejudice.

But sometimes businesses openly state a prejudice.  For example, A. Some businesses in Indiana more or less openly stated their unwillingness to serve gay couples in the actual process of getting married.  That is, a baker might be unwilling to be paid to put a same sex couple doll set on top of a wedding cake, or a photographer might be unwilling to take pictures of a same sex couple kissing.

Or, B, A business NOT in Indiana might more or less openly state their unwillingness to buy or sell from businesses in Indiana, because of the Indiana law that enables businesses there to exercise their freedom of association.

Many of my friends think open example of discrimination A is bad, and should be punished.  But open example of discrimination B is not only not bad, but good.  In fact, anyone NOT willing to engage in action B should be punished be also being discriminated against by having the refusal to do business extended.  So anyone who discriminates should be discriminated against, and anyone who refuses to discriminate against the original discriminator will also be discriminated against, just as if he or she were the original discriminator.  Failure to condemn the original discrimination is a sin just as bad as the original discrimination.

I can see their point.  But I am skeptical of their optimism about their ability to decide when discrimination is justified.  Remember, my friends are NOT condemning discrimination.  Far from it.  They are actively advocating discrimination.

Now, one could go through the above paragraphs and take out "discrimination" and substitute "commit acts of violence."  Would the argument go through?  After all initiating violence might be wrong, but then the person threatened might be justified in threatening violence in self-defense.  Most of us, even relative pacifists, would accept a "self-defense" exception to rules against commiting acts of violence?

Does discrimination work the same way?  I don't think so.   "I am hitting you a bat" is different from "I would prefer not to do business with you."

The point, as Pilon makes very clearly, is that there is a tension between "Arbitrary discrimination is bad" and "freedom of association of private persons is good, and in fact is a fundamental right."

So, the problem:  If I am forced to provide a service, that's not a voluntary exchange.

But if I am "open for business," I have an obligation to fulfill the implied contract.  If a sign says, "Wedding Cakes:  $75" that is an offer to do business.  I can't say, "Nope, no cake for you!" 

(Although..  (And some backstory.  Is this discrimination? Clearly a violation of the "open for business" rule...)

The bottom line for me is that I am disturbed at how many people, on both sides, think this is just an easy question.  It's not.  It's a hard question.


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Do you have suggestions on where we could find more examples of this phenomenon?