Laws forbidding private businesses from discriminating are a bad idea

A recent bill in Arizona claims to give private businesses the right to refuse services to customers for religious reasons, causing the outrage of many. I, however, would argue that businesses have the moral right and ought to have the legal right to refuse to business with anyone they wish (including customers and employees) for any reason they wish, even if that reason is bigoted and irrational.


1) Compelling businesses to interact with people they would rather avoid is unethical. Every human being has the inherent natural right of free association. No one should be compelled to associate with other people for any reason. Practically everyone agrees with this when it involves a person's home. No one would defend a long forcing to invite someone into your home you don't want to have there. The fact that the reason may be bigoted does not change this. People are free to say bigoted things. People are free to boycott businesses and quit jobs for bigoted reasons. They are also free to segregate themselves from other groups of people on their own property.

Why should this viewpoint suddenly change when it involves a for-profit business? I realize businesses are not people, bu they are owned by people; why should these people be compelled to dispense with rights they otherwise have simply because they choose to conduct acts of trade on their own property? The usual argument is that a business is a public accommodation, which means it holds itself open to the public, meaning everybody. I don't accept this argument. Simply because a person decides to use his or her property to conduct acts of commerce does not mean he or she is intending to invite everyone in the community onto it. Perhaps the property owner only wishes to conduct commerce with certain persons. The choice to conduct commerce on one's property does not equate to an agreement to give up rights over that property. Furthermore, the state allows business owners to keep people off their property to various reasons, so even the state does not really accept the idea that business owners give up this right.

Therefore, anti-discrimination laws violate the rights of persons to their property.


2) Such laws are also counterproductive. They are liable to harm the very groups of people they claim to help, particularly in the realm of employment. Firstly, by establishing certain groups of people as protected classes, they make it more risky for employers to hire them, since they are then much more difficult to fire without risking a lawsuit. Employers therefore may be more likely to avoid hiring to many people in protected classes in the first place, which is easier to do under the radar. Empirical evidence suggests that anti-discrimination has not really improved the economic lot of blacks, one of the first groups of people to presumably benefit from such laws. See [here]and here; black people are lagging as far behind white people in income and employment today as they were 40 or 50 years ago, if not further.

Let us also look disabled persons. The Americans with Disabilities Act was supposed to help improve employment opportunities for them. Yet not only does it make them a hiring risk due to the possibility of lawsuits, but it also imposes costs on employers who are them compelled to make often expensive accessibility improvements to their facilities, even when less costly accommodations may have sufficed. Unsurprisingly, unemployment for persons with disabilities has actually increased since the ADA was passed, even though it wasn't before: see here.

Another reason that anti-discrimination laws are counterproductive is because they may create backlash by placing bigoted business owners in the role of victims. Let us take the current issue regarding business owners like bakers and florists refusing to provide services for same-sex weddings. This is likely to make those business owners look nasty and petty to many people. They may be subject to protests and boycotts. However, once the force of the law compels them to serve people, they become victims of that compulsion. The LGBT-rights movement has spent decades arguing that it does not want to force anything on anybody--churches will not be forced to perform same-sex weddings; nobody will be compelled to approve of them. And yet it undermines its own argument if it encourages such compulsion on private business owners. Once again, the presumption appears to be the business owners don't count when it comes to the right of association. The LGBT-rights movement is making a mistake cede moral high ground and make bigots claim the role of victim. We can handle the Boy Scouts' legal right to kick out openly gay teens and even the Westboro cult's freedom to picket the funerals of school shooting victims with lewd slogans--as well we might, since it only makes them look bad and makes their targets look sympathetic. But we can't handle some wedding photographer making himself look foolish?


3) Finally, such laws are unnecessary. The marketplace includes its own incentives to punish irrational and bigoted discrimination. Business owners who engage in such discrimination limit their own customer base and labor pool; they also open themselves to negative PR. They do not need to be punished; they punish themselves in the exact amount they irrationally discriminate (it can be argued that there is such a this as rational discrimination by a business--for example, a casting director who only hires white people as extras in a movie that takes place in Medieval Norway).

Now, I'm not going to claim that no business will discriminate thanks to market forces. But I will argue that market forces tend to marginalize such businesses while rewarding more sensible businesses. I think people can deal with a few homophobic bed-and-breakfast owners or some racist bar in the boondocks. People are unlikely to severely inconvenienced by these establishments, and as has often been said, why would you want to give money to them anyway? Isn't it better to want to know who they are precisely so you want *avoid* them?

Of course, the number-one argument against this is the history of Jim Crow. Under Jim Crow, blacks were hugely inconvenienced by private business discrimination; they often could not find hotels or gas stations to use while on car rides. Why didn't the market punish this? Well, under Jim Crow, the market wasn't really allowed to function. Jim Crow was a racial caste system that was enforced through violence, both by the state and by private persons. Many businesses had to fear vandalism if they chose to integrate. Look at this Wikipedia entry at how the market responded to the Montgomery bus boycott (itself a private, nonviolent, pro-market action in response to anti-market local law) and how the state and private criminals responded to the market:

"Instead of riding buses, boycotters organized a system of carpools, with car owners volunteering their vehicles or themselves driving people to various destinations. Some white housewives also drove their black domestic servants to work. When the city pressured local insurance companies to stop insuring cars used in the carpools, the boycott leaders arranged policies with Lloyd's of London Black taxi drivers charged ten cents per ride, a fare equal to the cost to ride the bus, in support of the boycott. When word of this reached city officials on December 8, the order went out to fine any cab driver who charged a rider less than 45 cents....The councils sometimes resorted to violence: King's and Abernathy's houses were firebombed, as were four black Baptist churches. Boycotters were often physically attacked....King and 89 other boycott leaders and carpool drivers were indicted for conspiring to interfere with a business under a 1921 ordinance."

Why would we expect the market economy to function properly in an atmosphere of such aggressive violence? The pro-market response to battle the violence, as the bus boycotters. It is not to respond with another form of coercion: that of undermining and watering down the right of free association.

 

I don't care if there's a business that discriminates, but if they are going to discriminate, they need to be up-front about it. If they don't want to serve gays, they need to put a sign up in their window that enunciates the excluded parties, and such service must be blanket. If the business owner wants to not serve gays, he then cannot serve his gay cousin because "he's an okay guy" or "he's family".

However, you cannot legislate that they must serve all, and you cannot legislate that they can serve whoever they want. That goes to two of my deeply-held beliefs that you cannot legislate morality or, in the United States, codify discrimination. This law in Arizona, if signed, will not only, not last, will also significantly mar any chance Jan Brewer has of being elected to a higher office, if not end her chances of winning another term in the Arizona Governor's Mansion if she is eligible.