Monday, July 13, 2015

Anemia of the Conscience

ORS § 659A.403:
Discrimination in place of public accommodation prohibited
(1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older. 
(2) Subsection (1) of this section does not prohibit:
(a) The enforcement of laws governing the consumption of alcoholic beverages by minors and the frequenting by minors of places of public accommodation where alcoholic beverages are served; or (b) The offering of special rates or services to persons 50 years of age or older. 
(3) It is an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section.
Emphasis added. I picked the Oregon public accommodation statute for its recent relevance, but pretty much any state would do. Furthermore, I highlighted "sexual orientation" for the purposes of illustration, but you might imagine that there are edge cases for the other protected classes.

Before I pose my question, a quick review of etymology for those who may have forgotten:

Pederasty is an act. It is the sexual congress of an adult and a minor. In Anglophone jurisdictions, it is malum in se crime, an act of violence against an innocent. Coercion is assumed, with the possible exception of Romeo and Juliet laws where applicable. Conviction of this offense is typically accompanied by registration with the state and subsequent housing location restrictions after prison release.

Pedophilia is an orientation. It is the sexual attraction of an adult towards minors. Without an accompanying act, such as the possession of child pornography or the sexual assault of a minor, it is not a crime.

Pederasts do not constitute a protected class. Felons may be turned down for work simply because they are felons, no other reason given. They do not enjoy non-discrimination protections for equal housing. Sex offender registrees have it even worse (in some jurisdictions): even if a landlord is willing to rent or sell, proximity to schools or churches may statutorily prohibit the transaction.

Pedophiles are part of a protected class, at least in 21 or so states, depending on the specific language of the state statutes. The same goes for—again, according to the black letter of the statute—bigamists, ISIS members, former Nazis, or flatulent televangelists (curiously, veteran status is not listed in the Oregon statute). Running a business statutorily obviates conscience of association in commerce, both for good and for bad.

Exchange is lovely, doubly so if it's euvoluntary. Both parties are better off (or at least no worse off) for conducting a transaction of their own free and clear will. Under public accommodation statutes like the one above, it is sufficient that merely one party to the exchange is better off. Sellers are permitted neither the luxury nor the exercise of their conscience. Usually, most people will happily approve of the proposal that vendors aren't granted the liberty of indulging a rotten conscience: denying same sex (or mixed-race, or Irish, &al) couples access to market goods is a barbarism the silent majority of us have moved beyond. But the price of forcing this conversion with the hammer of the state is that there may remain some conscience violations many of us are not prepared to accept yet.

And so when the local kiddie pervo saunters into the Circle K to pick up a tub of hand lotion and a box of tissues from you, you are legally obliged to complete the transaction. The alternative social institutions is to allow rhetoric and persuasion to change merchants' minds on the sort of clients they're willing to serve. Perhaps rhetoric and persuasion aren't as powerful or swift as we might like.

1 comment:

  1. That's bullshit and you know it. Laws are interpreted by judges not computers and everyone knows the intended meaning of sexual orientation in this context refers to the *gender* of your preferred sexual partner.

    However, I actually think that buisnesses (indeed any establishment holding itself out as open to the general public) should not be able to deny service based on any characteristics not mandated by law, motivated by concerns of fraud/damage, or stemming from past buisness interactions with that individual. Why?

    Well let's consider what made racism so bad we needed laws to stop it. If some people had simply, following their own conscience, decided not to serve blacks their competitors would have taken care of the problem. The pernicious facet of the problem is the public pressure to comply with community moral standard. As long as you will lose more money to a boycott then you will gain by serving a disfavored group it isn't in your economic interests to serve them.

    As long as we are relatively anonymous this is no big deal. Apart from visible features like race and gender that are already legally protected anyone (even a pederast) can go into a big box store and buy what they need. In the not so distant future facial recognition, cell phone features and other tech will likely expose your identity to any store you enter. How long will it be before someone gets the bright idea of creating an online list of child molesters and encourages people to boycott any store serving them. Someone ends up on that list mistakenly (or even deservedly for a past crime they have served their time for) and they may well find themselves unable to buy any food, order any books, watch any paid internet content.

    This may sound very restrictive of the rights of businesses (and their owners) but if you think about it we already heavily restrict their rights of conscience. In a libertarian utopia the catholic hardware store could demand contractual guarantee that no tools bought from it would be used in the construction or maintenance of an abortion clinic and any subsequent buyer must also be so bound. We don't allow such restrictive contracts governing use of purchases (except sometimes software) because we feel retail sales only get to propose or deny a purchase not offer an arbitrary contract. All I'm suggesting is that we further narrow the scope to say that retail buisnesses may only propose a transaction to all parties or to none.

    I realize there is a potential high cost of compliance. To this end I would only allow lawsuits to succeed if they can show the business actively sought out or maintained a database for the purpose of illegally denying service to certain individuals.

    I don't like the restriction on liberty but it's a damn sight less invasive than what we would need to do to enforce a right of privacy.


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