A Few Questions About The Socially Acceptable Range of Discrimination

319 Responses

  1. silverpie says:

    Here's a difference. I doubt he'd have any objection to selling a gay couple a dozen cookies (assuming he sells cookies out of the bakery) any more than anyone else. But making a wedding cake goes a bit farther–it's a kind of participation in the ceremony itself.

  2. Clark says:

    Federal anti-discrimination laws prevent stuff.

    This generates relatively little outrage.

    As a consistent libertarian, I am outraged that laws prevent all of this. I value your freedom, Ken, to refuse to represent me for all sorts of reasons.

    It would be sweet and nice if you never ever wanted to discriminate against me or anyone else, and I never ever wanted to discriminate against you or anyone else, but people have all sorts of preferences. Freedom is not, contrary to Puritan statements, about people being legally free to be saints. Freedom is about people being free to do all sorts of things, including anti-social things, self-destructive things, and more.

    A freedom that allows people to eat only broccoli and say only nice things to each other is no freedom at all. We need the freedom to eat double fried snicker bars and tell people to get take their ugly wop faces back to Eeee-taly. We also need the freedom to point and laugh at the people who exercise those freedoms.

  3. MEP says:

    "Is the answer merely that anti-gay religious sentiment is relatively mainstream, but racist or racial separatist religious sentiment is steadily more and more marginalized and unusual in American society?"

    Yes. I would welcome a more nuanced examination of discrimination in general, and just what the "freedom of religion" really means in those instances where religious practice contravenes the rule of law, but the root of the issue is precisely that some people don't really think that anti-gay discrimination is a form of discrimination so much as a generally accepted way to behave in a civilized society (in their estimation of things).

  4. xkaren08 says:

    @silverpie: And if it was an interracial couple? Or a second marriage post-divorce if the bakery owner was a devout Catholic? Or a cake for Atheists having a civil ceremony? And if the issue is commerce=endorsement/participation does that mean a drug store can refuse to sell condoms to gay men? Where does the line get drawn?

  5. John Kindley says:

    I don't know if it's a good reason, but a principled reason would be that a Jew or an African-American is born such, while certain bakers believe getting gay married, if not being gay, is a choice, with which those bakers disagree. Couldn't a baker decline to bake a "Happy Birthday Hitler!" cake, or a Satanist cake? I can understand why a baker with certain religious beliefs or prejudices would feel about as reluctant to top a cake he made with two grooms as he would to bake to order one of those "naughty" cakes made to look like a naked woman or a penis or some such.

  6. MoP says:

    The error is assuming that the government should force you to serve anyone. The government should be neutral, any one else should be allowed to be as dumb as they wish to be. If you have 2 companies A and B , and company A decides no women and company B says we serve everyone. Company A loses over 70% if its income the 50% from females and since it was getting 1/2 of the men 25% of the total business. So they will take at least a 50% cut in income, but fixed cost will stay the same.

    Company B will just have to hire more workers, and/or raise prices to service the people that company A won't. Discrimination is bad in government, not in business. I bet you discriminate, You don't take every pro bono case. and you turn down some cases that would sicken you if you had to defend them. Other cases you take due to it being something that you would like to defend.

  7. Aridog says:

    Thanks…you can delete the test. I wanted to see how my nick and avatar were recognized, in case I want to comment in the future.

  8. Dan Weber says:

    There's something that sticks in my craw when Colorado does not recognize same-sex marriage but is willing to prosecute its citizens for not recognizing same-sex marriage.

    (They do allow civil unions, which kind of messes up my poetry, but I think New Jersey didn't even have that when it tried to force one of its citizens to photograph a same-sex wedding.)

    This "don't be on the same side as the racists" trick can be flipped around: should a print-shop be allowed to refuse service to the KKK when they want to print up a bunch of signs for their rally? Can I refuse to bake a cake for Paula Dean's brother's wedding? What if I just lie and say I don't know how to make fondant into blackface?

    I think it matters how much artistic interpretation goes into the work. If I'm selling the same identical good to thousands of people, I ought to have a bit less freedom to say "you suck so I won't serve you" than if I'm making a custom good.

  9. Ken White says:

    @Clark: even if I disagree on the outcome, you at least apply your view consistently.

    @John Kindley:

    I don't know if it's a good reason, but a principled reason would be that a Jew or an African-American is born such, while certain bakers believe getting gay married, if not being gay, is a choice, with which those bakers disagree.

    But you're speaking from your religious/social belief — that there's a meaningful distinction between choice and heritage — which may not be the individual's religious/social belief. People believe in original sin, after all. So my question remains the same: what's the principled reason for protecting some beliefs and not others?

  10. Chris says:

    Bravo, Clark. That was perfectly stated.

    Also, the problem with the "nature vs. choice" argument is that I'm willing to bet most of the people who make it would still discriminate against a convicted pedophile when hiring a babysitter for their kids, even if it was proven that pedophilia had a genetic component.

  11. AlphaCentauri says:

    I think that in cases where businesses that don't discriminate get firebombed, there is a reason to intervene in what would normally be a market-driven decision. As MoP said, a business that discriminates is turning down income, and that's their choice. And it's their choice to risk a boycott from other people who believe in discrimination or a boycott from people who oppose it.

    But there can't be a company B if they're afraid to serve everyone because of a small number of violent terrorists.

  12. Grifter says:

    I think it really does boil down to a societal impression that it's a "choice".

    I also think that there is a difference between baking a cake for a wedding and simply refusing a customer altogether. Wouldn't the better analogy be between refusing service to a "black pride" group? Or an interracial or subsequent marriage (as Xkaren noted).

    I think the difference is between the person and the event. If this was simply "I heard they're gay, so they're outta here", I suspect it would receive the same low level of attention as the other things you noted, Ken. But perhaps I'm just optimistic and trying to find a way for them not to be massively bigoted hypocrites.

  13. mcinsand says:

    A concern that I have is that the antidiscrimination laws shield some bigots from consequences of being bigots, as well as driving them to force their beliefs underground. To be sure, this is not an effect that I suspect, but one that I know of. I like to support local businesses, but I would like to know if any had beliefs like the examples cited; I would take my business elsewhere as would a number of others.

    Where the laws do serve a purpose is to address societally and legally entrenched problems. Such laws shouldn't be on the books forever, though. Race is a good example, and I would not mind if owners with racist attitudes were allowed to run themselves out of business.

  14. Anton Sirius says:

    "Free market solutions" has become something of a punchline, but in situations like these it does seem appropriate. Private businesses should be free to serve or not serve whoever they want, and potential customers should be free to patronize or not patronize that business based on those policies. A baker who refuses to make a wedding cake with two grooms perched on top of it might see it impact their bottom line, and might re-consider their opposition accordingly. (While a baker who refuses to make a Happy Birthday Hitler cake should see a spike in business with any kind of decent PR campaign.)

  15. Ryan says:

    I have a bit of a libertarian streak, and I invoke Mill and On Liberty to deal with this issue. If your freedoms do not harm anyone else, then they should be unrestricted. Liberty should only be restricted when it causes harm. Discrimination has been extensively studied and has been shown to cause harm, particularly to identifiable minority groups. Therefore, the restriction of liberty is justified in these circumstances. One cannot discriminate in services provided to groups based on a broad-based stereotype or identifiable characteristic.

    I have no problem with a business refusing to provide service to someone who doesn't pay their bills. I have a big problem with a business refusing service to someone based on an innate trait that they find personally objectionable but does not in any way impact a business transaction.

  16. Ryan says:

    Incidentally, Clark, since you state you are a consistent libertarian I am somewhat surprised that you don't appear to be familiar with Mill's harm principle, as it is a central tenet of libertarianism.

  17. aczarnowski says:

    +1 Clark's excellent summary.

  18. Qitaana says:

    I'm of the opinion that businesses should have the right to serve only those customers they wish to. I'm also of the opinion that they then get to accept the consequences: people who choose not to do business with them, people protesting their decisions, people ensuring other people know that XYC Company discriminates against .

  19. xkaren08 says:

    In theory, I actually like the idea of "let the market decide" and it makes perfect sense in urban areas. Like mcinsand said, it would be kind of nice to know which businesses to avoid as a consumer (I don't eat at Chik-fil-a for example). The issue for me comes in small rural communities where there may only be 1 or 2 service providers/businesses in given field.

  20. AlphaCentauri says:

    Some things are not harmful if only one person does it, but would be very harmful if everyone did it. Some libertarians seem to assume they are special snowflakes and can act in ways they would not actually want the rest of the world to imitate.

  21. aczarnowski says:

    @Ryan I'm unclear about how a baker refusing to sell me a cake constitutes harm.

  22. wolfefan says:

    Hi Clark – Thanks for your comment. You write, "Freedom is about people being free to do all sorts of things, including anti-social things, self-destructive things, and more." What does this actually mean? I don't think anyone disagrees with this statement; rather, the differences are about where the lines are drawn (or perhaps if any lines are drawn at all.) Your concluding paragraph uses examples of people doing things harmful or embarrassing to themselves. What about actions that harm or embarrass others? How anti-social does something have to be until the limits of freedom are reached? Where does the line fall between being a consistent libertarian and an anarchist?

  23. Ryan says:

    @aczarnowski It's not the refusal to provide a cake that causes harm, it's the stated reason. Discrimination on arbirtrary grounds such as race, sex, sexual orientation, mental health, size, etc etc has been studied at length and has significant harmful effect. Have a look at some of the links provided by a simple Google search: https://www.google.ca/search?q=harm+caused+by+discrimination+ncbi

    Had the baker merely said "I can't make a cake for you" and left it at that, there is no discrimination. The baker made this about discrimination, and there is therefore harm associated. According to fundamental principles of liberty as stated by early libertarians, that behaviour should be legally sanctioned.

    Mill was quite careful to apply the harm principle broadly; some libertarians (which Clark appears to exemplify) only want this applied narrowly in scope to personal interests. Mill included social harm in his definition.

  24. Felsi says:

    Wow. We have in these comments implications that gay marriage = pedophilia!

    And being gay is like being in the KKK, ie speech not nature.

    Many of the arguments for the right to discriminate seem to be that being gay is not the same as being a member of a class that deserves protection from discrimination.

  25. AlphaCentauri says:

    @aczarnowski, what if every time you went into a shop, you had to be ready to be refused service? Except maybe they weren't so honest about the reason — they would just serve other people ahead of you and make you wait a long time, or they would give you all the fruit with bruises, or they would act like the money you touched was contaminated, or they would say rude things to you in front of your spouse and children? Maybe only half the businesses would act that way, but you'd possibly have to deal with this each time you patronized a new business. Your valuable time would be wasted when you could be doing something productive. And you'd then have to try to explain to your children why they should work hard and be honest when their gangster classmates seem to have plenty of respect. You'd have to hope your boss wouldn't avoid putting you in a position of responsibility, lest the company lose business from those prejudiced people, and maybe your only option would be to move to a new company and try starting from scratch if you found yourself hitting a glass ceiling.

    When discrimination is practiced by a few nutty people, it's easy to avoid, but when it's so widespread that people don't understand how it is influencing their own behavior — like the boss that doesn't want to risk having a Black employee in a prominent position, even though he's not personally opposed to Black executives — it does cause harm.

  26. John Levine says:

    It's what my friend Doug Muder has called privileged distress, they know they can't win honestly so they play faux victim.

    See this most enlightening article reporting on what happened when reporters called to ask two principled Christian bakeries about cakes for divorces, babies of unwed mothers, stem cell cloning, and pagan solstice.

    http://www.wweek.com/portland/article-20698-the_cake_wars.html

  27. Uncivil Libertarian says:

    Note further that a vigorous defense of matters of conscience ought touch on other discriminations as well. Must a Catholic baker be compelled to produce a wedding cake for the remarriage of a divorced Protestant, or may the baker turn away his business as that of an unrepentant bigamist? May an apartment property manager refuse to rent to interfaith couples, whose marriages he considers illegitimate? May a restaurant refuse to seat people who cross-dress, holding that women who wear pants are presuming to hold a social position of authority which scripture specifically forbids?

  28. bralex says:

    A couple of posters have touched on what I see as a couple of tightly related points. Consider an engraver at one of those little mall gift stores. A devout Muslim, he is asked to engrave a beer stein to extol pork eating and worshiping Kali. Is he within his rights to refuse to do so? There is some kind of moral and (presumably) legal line between selling a product without discrimination, and _producing_ a product to which you might object. The bake shop might sell a cake to someone intending it for a gay wedding, but might not be willing to custom-build one for same. No idea if this makes sense outside my own head.

    For the record, I support legal marriage for any gender mix interested in commiting to it.

  29. AlphaCentauri says:

    @Felsi, the point is not whether the person being discriminated against deserves it or not. The point is that market forces will control some types of discrimination because being a jerk causes people to shop elsewhere. In the case where there are organized hate groups that will seek revenge against anyone who doesn't practice the discrimination they preach, you can't rely on market forces.

    That may be the case with providing certain services to gay people in certain areas, but at least where I live, a bakery that made a cake with two grooms would not have to fear reprisals.

  30. As an anarcho-capitalist libertarian I support the right of any business to limit its customer base in whatever silly way they choose.

    I also support the right of those who have been offended by the exclusion to stand in the public right-of-way outside the business and tell everyone about it.

    Getting the government involved every time you get your feelings hurt doesn't solve any problems and only adds to the "scope-creep" that is already rampant.

  31. Wick Deer says:

    The whole choice/born distinction takes you to some weird places. You wouldn't discriminate against a person who is born into a Jewish family, but would descriminate against someone who converted?

  32. John Kindley says:

    @Ken: "So my question remains the same: what's the principled reason for protecting some beliefs and not others?"

    The belief that there's some things you can change and some things you can't, while maybe wrong (I've been on a Spinoza kick lately), is quite mainstream, and I'd suggest this mainstreamity rather than the mainstreamity of religious-based anti-gay sentiment relative to racist sentiment might explain the disparity in outrage you note. And even determinists recognize that behavior affects behavior (e.g., punishment can still prevent crime), while nothing can make a Jew or a black anything other than a Jew or a black.

    The highest "principle" we have in the law is the presumption of innocence. They're threatening to send this baker to jail. In my judgment and apparently in the judgment of many others racial discrimination is so awful (because so obviously devoid of any redeeming qualities) that it arguably overcomes the presumption of innocence. Anti-gay discrimination is more arguable, at least in certain contexts, like this one. Gay marriage is arguably not a good idea. Even some gays agree. (Personally I don't have strong feelings either way.) This baker apparently feels, not entirely irrationally, that by putting two grooms on top of a cake he made he'd be contributing to the normalization of gay marriage, or even to the mockery of traditional marriage. And this holds whether or not being gay is in fact a choice. The presumption should be against putting him in jail for that.

  33. josh says:

    @Ken

    I'm just curious, do you know of any case law for this subject? Has this kind of discrimination gone to trial before and received a verdict? You don't have to summarize for me, just hit me with a link to the legal thinking behind it. I'm not a lawyer, and apparently my google-fu doesn't stretch to legal matters as I couldn't find anything.

  34. Mike says:

    Many here are saying that we should leave the decision whether discriminate in these circumstances to individuals. If that's all that happened, then all's well and good. But you have to add the fun result of the bar owner calling police to remove black customers who just won't leave even though he's explained to them over and over that he just doesn't serve their kind. And police arresting black people even though they wouldn't arrest white people in the same place (the bar) trying to do the exact same thing (buy a beer). (Yes, I'm completely aware this already happens, but at least now we pretend it shouldn't.) And courts punishing black people when they wouldn't punish white people for doing the exact same thing. (Ditto.)

    As much as I sympathize with some libertarian views, with places of public service, I think you can't separate private discrimination from state discrimination that easily. Before it's brought up, I don't think the argument that police would also have to arrest whites in black-only establishments carry much water. We already tried separate but equal and found it severely lacking, and already struggle with racially-challenged police forces. I doubt legalizing discrimination in public-service establishments would make that situation any better.

  35. Kilroy says:

    The joy of reading such awful arguments in a comment and patiently waiting for Ken's repose is one that more people should experience. Thank you.

  36. marianne jones says:

    Take "baker" and replace with "doctor", replace "bakery" with "hospital", replace "cake" with a "medically required abortion" or "emergency contraception after a rape", and you can see what's happening to women at hospitals. Doctors are being encouraged by pro-lifers to refuse treatment on moral grounds. Somewhat regretful to highjack this topic with a divert to the abortion topic, but reading this, the parallels could not have been more apparent. Feel sorry for gay folks about their cakes, but the issues faced by women have greater import on their lives.

    http://www.news9.com/category/116601/video-page?autoStart=true&topVideoCatNo=default&clipId=7337429

  37. lelnet says:

    Count me with Clark.

    Any person ought to have the right to refuse to do business with any other person, for any reason or no reason, without it being any of the government's business. Period. If they state a reason, and I think that reason is stupid, then I'll probably say that I think their reason is stupid. I might refuse to do business with them in turn.

    The alternative, as we can see in operation, is for government to shove its nose into the affairs of private entities to the extent that all commerce becomes reduced to special pleadings by interest groups screaming at each other about who's the most oppressed, which then escalates into lawyers and judges trying to read minds, because those who don't wish to do business with certain classes of customers simply stop stating their reasons — leading to such travesties as "disparate impact analysis" as part of an ever-escalating scheme of mutually disingenuous official deception.

    (Also, for anyone who believes in freedom of association, it's simply Wrong, as a first principle. But I figured I might as well make a utilitarian-consequentialist argument as well.)

  38. Bob says:

    Isn't the idea of democratically defined protected classes the actual "special pleading?" You can, after all, discriminate against fat or ugly people, even though they may not be able to help being fat or ugly, and that fatness or ugliness certainly negatively impacts their lives. I think the answer is that we ban race discrimination because it has a specially problematic history in this country, and therefore we have democratically granted it the special pleading that it should be illegal while other forms of discrimination aren't. So adding sexual orientation to the list of protected classes is the special pleading – one we will probably never extend to many other groups who are disadvantaged from their birth.

  39. nl7 says:

    The argument in favor of anti-discrimination laws is itself void of consistent principles. Nobody is in favor of banning everything that it bad or undesirable (if only for lack of resources to do so). So everybody draws lines on what should be illegal, what should be discouraged, and what should be ignored. Those lines are drawn on the basis of habit and tradition as much as anything else.

    So it's entirely legal for a boss to berate his employees as stupid, incompetent, hopeless ingrates, but not to offer a backhanded compliment dipped in a little racism or sexism ("good job, for a [blank]"). Which seems weird, since cruelty ought to be worse.

    The whole thing is just a big mess of signaling and personal identity. It's not really principled at all, it just helps people feel better about themselves to be anti-discrimination. And it some cases, it helps people feel better about themselves to be anti-gay. Then you have libertarians, for whom reasoned consistency and anti-majoritarian contrariness are very fulfilling (as I can vouch!).

  40. Mark says:

    I'm thinking along the same lines as @bralex. The difference in the cake case isn't that it involves "gay marriage" or a forced sale to a homosexual couple but that we've stepped up from "must serve" to "must produce artwork for". This hits the same note as requiring anyone in the photography business to attend events they don't wish to attend and create works for people they don't wish to.

    The line I would draw is that creating a custom cake is commissioning a work of art, not making a purchase. There is more to it than a big white cake off the menu and two male toppers off the shelf in the back.

    Even to my normally libertarian mind the public accommodation rule (if you want to have a public business, you can't be picky in our "melting pot" society") is an OK compromise versus the madness of having effectively race*orientation*religion*etc sub-societies all interleaved in one city. (I'm white, male, straight, lapsed-protestant, and libertarian-ish so I can shop at the down-town supermarket as long as I don't ask for or mention my love of Mexican food.)

    Would we also force an advertising agency to work on a campaign for the KKK simply because they offer their services to public? Would we force every lawyer that handles defense to take every client that walks in the door?

    Asking someone to produce creative works that promote or glorify something they dislike is a lot different than asking them to sell something to someone they dislike.

  41. josh says:

    I've tried to find some more information about this, so I'm a little shaky on the law, but most articles are comparing not baking a cake to not feeding someone at a diner or refusing X service to X group.

    In reality, I feel like that comparison is apples to oranges. A wedding cake isn't just a meal. I imagine that if you asked the bakers for a sheet cake for a "celebration" they wouldn't care one whit about sexual orientation or anything else. They would bake a cake and give it to you.

    But a wedding cake is more like a work of art. In that case, it's less about providing a service, and more about commissioning a work. The only comparison I can think of is asking someone to paint a particular subject that they don't really want to paint. Were I an artist, could a client (or the government in the client's behalf) compel me to paint something against my wishes? I have no idea what the law says, but I fell like that's a more salient comparison. Does anyone know if I, an artist, could be so forced?

  42. josh says:

    Wow, way to beat me by one minute @Mark

  43. Dale says:

    I know several instances of small business people whose businesses primarily exist due to their participation in organized groups By that I mean that the majority of their customers come from the members of these organized groups. This baker could also view making this cake as something that could be detrimental to his business if a large percentage of his customers are from his religous group. Does he have the right to refuse if it would actually hurt his business?

  44. aczarnowski says:

    I've got strong opinions weakly held. Thanks for the responses. I'll find some time to roll them around my head.

    @Ryan I'm not sure I agree the legal imposition to not discriminate addresses the harm. This seems dangerously close to thought crime which is a cure worse than the disease. Right now I'd prefer the transparency over the emotional suppression, which manifests in, I believe, uglier ways.

    @AlphaCentauri The big L libertarian response to "everybody is discriminating all the time" is "go somewhere else." I struggle with this on a practical level; I am looking for someplace else myself and the lunar colonies aren't coming together as planned. ;) Is balkanization always a bad thing? Is avoiding hardship a good enough reason to restrict individuals? We're all struggling anyway, right? I'm not sure about all this yet.

  45. Kevin says:

    I see only two valid options:

    1. The government stays out of it and allows people who own a business to sell (or not sell) to whoever they want.

    2. The government decides to continue over extending their regulation and force business owners to sell to everyone.

    I'm a firm believer in letting people do whatever they want. If the populace at large decides they don't like a proprietor's policies, they won't go there and the business will fail. I felt the same way about the smoking bans of the last couple of decades – just let business owners and the market decide what will and won't work.

  46. Chris K. says:

    Ryan • Jul 9, 2013 @9:16 am

    You don't know much about libertarian thought, so please don't say you have a "libertarian streak".

    No serious A-C or even weak Libertarian gives Mill and utilitarianism any cred.

  47. Robert says:

    I got stuck at "Happy Birthday Hitler". Part of me wants to make this cake!

  48. ULTRAGOTHA says:

    John Kindley on Jul 9, 2013 @8:50 am

    I don't know if it's a good reason, but a principled reason would be that a Jew or an African-American is born such, while certain bakers believe getting gay married, if not being gay, is a choice, with which those bakers disagree.

    A white woman marrying a black man is a choice, with which the GFWBC disagrees. So you’re saying it’s a principled reason that they can refuse to serve shave ice to the Lovings at their local county fair?

    Being a Catholic or a Muslim or a Baptist or an Atheist is a choice, even for those born into the religion. Being a practicing Jew is a choice. The Cake Makers can refuse to bake cakes for Muslim weddings? For Atheist Weddings? For the wedding of my mother (divorcee) to my stepfather (widower)?

    Clark (and others) • Jul 9, 2013 @8:32 am

    As a consistent libertarian, I am outraged that laws prevent all of this. I value your freedom, Ken, to refuse to represent me for all sorts of reasons.

    And if there is only one store in town? One fuel oil company? One LPG delivery company? One electrician? One volunteer fire department? What if all the septic tank pumping companies refuse to serve blacks? What if the white-owned rural electrical co-op won’t hook up houses owned by blacks to their grid? What if the Real Estate Association refuses to sell houses in most neighborhoods to blacks? I lived in not-even-that-rural Virginia for a while and all the poor black people who lived around me had no reliable cars to get to even the nearest tiny village. The all-purpose store across the Route 301 was the only store they could get to for their shopping. What if that store didn’t serve Blacks? Pure libertarianism is a luxury that best works in a society that doesn’t have horrible social imbalance.

    AlphaCentauri • Jul 9, 2013 @9:35 am

    You'd have to hope your boss wouldn't avoid putting you in a position of responsibility, lest the company lose business from those prejudiced people, and maybe your only option would be to move to a new company and try starting from scratch if you found yourself hitting a glass ceiling.

    And that’s exactly what we used to have, and will have again under the libertarian ideal I see espoused on this thread.

    John Kindley • Jul 9, 2013 @9:51 am

    The highest "principle" we have in the law is the presumption of innocence. They're threatening to send this baker to jail. In my judgment and apparently in the judgment of many others racial discrimination is so awful (because so obviously devoid of any redeeming qualities) that it arguably overcomes the presumption of innocence.

    I don’t understand what you’re saying here. Anyone accused of breaking discrimination laws is presumed to be innocent in the court of law before being found either guilty or not guilty. No one is being sent to jail without due process. Being accused of discrimination isn’t having one’s presumption of innocence overcome any more than being accused of murder is having one’s presumption of innocence overcome.

  49. Matt says:

    The only question I have for Clark, and the posters who came after, is what happens when it's on a mass scale?

    Shelley v. Kraemer was decided incorrectly? Large, affluent neighborhoods can exclude black people from living there? Those people end up forced into shoddy housing in terrible school districts, and the next generation is forced to repeat the pattern?

    I'm not saying that things have been fixed since anti-discrimination laws have been made and enforced. But I feel like we'd be in a very different place societally if any business owner, or private individual, was able to discriminate based on any reason they want.

    My main issue with the libertarian argument espoused here is that it starts from RIGHT NOW, and assumes that everyone is on a level playing field, and that discrimination will be rooted out by the kind souls who stop patronizing businesses that discriminate. In some places that will be the case; in others, and possibly a lot of others, it will just mean that black people (or Jews, or Protestants, or Asians) will have to move because they can't buy groceries (or open a grocery store, or buy a car from the dealership, or even buy a house) in a particularly discriminatory town.

  50. Erik says:

    How does "social harm" not constitute grounds for banning heresy and apostasy because these could induce severe discord in what would otherwise be a mono-religious community?

  51. Kilroy says:

    Libertarianism and communism suffer the same failing of human nature. Both provide visions of ideal communities living in perfect harmony, but ignore the fact that people are not generally not good when there aren't penalties in place for bad behavior.

  52. John Kindley says:

    ULTRAGOTHA: I think the presumption of innocence should be applied first and foremost in the making of laws in the first place. Nothing should be outlawed unless something like 90% of a people agree it should be outlawed.

    I mostly agree with Clark's ultra-libertarian, free association position, whereby the market can sort out the goats from the lambs. But if 90% of a people want to outlaw private racial discrimination I have no problem with that. There's no doubt in my mind private racial discrimination is morally wrong. Whether people should be threatened with jail for doing it is a different question.

  53. Kilroy says:

    @John: nobody has been threatened with Jail for not baking a gay-marriage wedding cake. The threat of jail comes from ignoring a court order. Very separate things.

  54. James Pollock says:

    " is there a principled reason that some people are outraged when anti-discrimination laws are applied to forbid discrimination against gays, but not to discrimination against Jews, or African-Americans, or any other group?"
    I think you were close. The notions that Jews are people, too, is fairly well-established now. (I notice that you picked Jews rather than Muslims. Intentional? There are still people who assert that the public should have the ability to forbid construction of a mosque on privately-owned land… people who were able to lead the polls in running for the Presidential nomination of a major party.) Because the notion that Jews are people too is well-established, you can't get much traction fear-mongering that Jews are asking for "special treatment". (This doesn't mean that people won't try, just that such attempts will be recognized as "fringe" by most Americans.) Ditto for race, and mostly ditto for national origin.
    But there IS still room to fear-monger against gay people. Don't you know that they and their allies won't stop until churches are forced to perform gay marriages even though their teachings are against it? Until ministers and others preaching the faith are jailed for their hate-speech when the quote (whatever Bible verse it is). Until the church is forced to change its teachings? Letting same-gender couples get legally married at the courthouse is just the first step! See how they target anyone who disagrees with their homosexual agenda! It's all part of their secret plan to corrupt America. And so on.

    So, Ken, you asked for a principled reason why enforcing anti-discrimination of gays is different. I don't have one. But the practical reason is clear… because they can get away with it. Give us 50 years, and this will mostly go away… not because of the law (although the law will help) but because the marketplace will adapt. (OK, 50 years may be on the short end, because anti-boycotts will reduce the natural market forces that will leech business away from those businesses that attempt to refuse to serve gays, or that comply with the law by intentionally doing a half-assed job. Businesses that embrace every customer, and do their best for every customer, will outperform those that artificially limit their own markets in the long run.)

  55. Tyler M. says:

    @Dale

    This baker could also view making this cake as something that could be detrimental to his business if a large percentage of his customers are from his religous group. Does he have the right to refuse if it would actually hurt his business?

    One of the arguments in favor of anti-discrimination laws is that it mitigates precisely the harm you identify. If someone must serve all customers on equal terms, there is little basis for concluding that serving a particular customer constitutes an endorsement of his or her beliefs/purposes/sexual orientation, etc., and hence little basis for a boycott.

  56. Ken in NH says:

    I agree with Clark wholeheartedly, but that is sidestepping the question. Since we are not likely to repeal anti-discrimination laws during my lifetime, we do have to be able to draw a line at where these laws cross over from merely freedom-reducing PC absurdity to first amendment erasing thuggery.

    I think you should consider one bright-line difference between this baker's actions (and those of the NM photographer and the small but growing number of cases across the country) and the racial parallels you draw. Prohibition against homosexual conduct is well documented in all three Abrahamic religions. (There is some documentation of a similar prohibition in Hindu, but I won't consider that because I find it difficult in my ignorance to abstract pure Hinduism from Indian culture.)

    Now when determining whether a discriminatory action is a sincere expression of religion or merely covered by the fig leaf of religious prescription, I think we need to consider two items, the religious texts and how long such a tradition has existed. In the case of racial discrimination, there is no supporting text in Christianity or Judaism. I cannot speak to the Koran though. Also, while I do see a cultural tradition of racial discrimination in the originating cultures of all three, there is very little, if any, evidence of a tradition of prescriptions for racial discrimination is any of the three. To the contrary, with the exception of Judaism in the main, these religions actually seek to make converts from all people regardless of race. (And Judaism generally accepts all races in the religion as long as they are converted or can show a matrilineal heritage.)

    Another item that makes the baker's case murky with regard to labeling it as unacceptable discrimination is the baker's willingness to serve homosexual customers in other areas. Had this been a purely disgust or hate driven action, surely he would have refused to serve them altogether. Rather he chose to serve them happily up to the point where their activity offended his religious beliefs. So his discriminatory action was not aimed at them or their class, but at a particular activity which his religion prohibits in the foundational texts and historically.

  57. ULTRAGOTHA says:

    John Kindley • Jul 9, 2013 @10:46 am

    ULTRAGOTHA: I think the presumption of innocence should be applied first and foremost in the making of laws in the first place. Nothing should be outlawed unless something like 90% of a people agree it should be outlawed.

    So, you don’t support the Bill of Rights? One of the central tenants of the Bill of Rights is to avoid the tyranny of the majority. You want to repeal all the civil rights legislation and bring us back to the days when beating up gay people and lynching blacks was acceptable? Where the Lovings couldn’t get married? Where blacks sat in the back of the bus?

    Wow. Just… Ewww.

  58. Zach says:

    @Kilroy

    That is just semantics. So the guy is being threatened with jail time for defying a court order, which would be to bake a cake for a gay-marriage wedding cake, so he is being threatened with jail time for not baking the cake.

  59. I suspect that the differences in treatment arise from beliefs regarding the nature of homosexuality vs the nature of race. If you believe that homosexuality is a lifestyle choice, then one could argue that in order to obtain a wedding cake, the two grooms could elect to marry women instead of men, while person of , say, Aboriginal Australian descent could not choose to become a white person of European descent. If you believe that homosexuality is a fundamental characteristic than it follows that you have no recourse to obtain the wedding cake because you cannot choose to want to marry a woman. I still don't think this justifies a legal scenario wherein one could discriminate based on whether objectionable traits are mutable or fixed. It makes more sense to me to make both actions perfectly legal and allow the free market to select against those businesses which engage in socially unacceptable practices. May the force be with you.

  60. ULTRAGOTHA says:

    Marcellus, what about a case where a Catholic baker won't make a cake for a divorced man getting re-married? Or a Baptist won't ring up a six pack of beer? Or a Shaker won't fill a prescription for viagra? Or a Muslim won't bag up a pound of bacon?

    One's religion is also a choice.

  61. Kevin says:

    @Felsi

    Wow. We have in these comments implications that gay marriage = pedophilia!

    And being gay is like being in the KKK, ie speech not nature.

    You are wildly misinterpreting the comments in question. That's not what was being said at all.

    @Ryan: You seem to be using a very left-libertarian definition of the word "harm"… which is fine, but I think the whole "wow you must not have read Mill if you disagree with my definition of harm" is a bit much, considering that your position is well outside the mainstream of libertarian thought.

    Personally, I'm with Clark on this, although I recognize that there is a principled moral case to be made for other positions. The problem is that there is no principled way to implement a legally-enforced anti-discrimination regime, since at some point it's going to have to involve a bureaucrat, or a committee of bureaucrats, deciding on what is "goodthink" and what is "badthink". There's just no way around that, and that always leads to Very Bad Things. It's easy to look at isolated cases and say "well I think all reasonable people can agree that discrimination based on X is wrong, so what's the harm in carving out an exception to freedom of association for this one particular X". The problem though is that there are always going to be values of X for which all reasonable people DON'T agree.

  62. Erik Carlseen says:

    All I know is that because of various anti-discrimination laws, my preference for not giving money to businesses run and/or controlled by small-minded bigots is being discriminated against. I am probably, on a daily basis and without any knowledge or malice, actually contributing to the profits of these pimples on the ass of society, all because government prohibits them from expressing their idiotic douchebaggery so that I and millions like myself can avoid them like the intellectual plague they are.

  63. Gabriel says:

    AlphaCentauri & Ultragotha: You both raise the question of "what if there's only one provider of this service". In that scenario, you are no worse off than you would be if there were no service provider at all. For whites, a town with one black racist electrician is exactly the same as a town with no electrician. Should the black people in that town be denied the electrician's services just to make everything fair? That doesn't help anyone. The discriminated-against party has the same options as does any other member of an unserved market: import talent, DIY, move… and no more claim on others' unwilling labor than any other autonomous rightsholder. And the free market hates unserved demand.

    The free market does not operate with perfect efficiency. Not all needs will be met, and that is inevitably inconvenient for some. But it's better than an unfree market which is both inefficient AND illiberal.

    For whoever was posting about the frustration and uncertainty of attempting to procure services without knowing whether or why or how honestly you might be denied service: People had the same problem with credit cards, which was solved by putting stickers on the door. A "your money's good here, friend" sticker would both address that uncertainty and provide competitive advantage to the extent that people prefer to frequent nondiscriminatory vendors.

  64. Bob K says:

    Should a property owner of whatever race be able to discriminate in renting a portion of that property to someone thought/known to be bigoted against that race? What if it is also partially owner occupied?

  65. Ryan says:

    @kevin – a point of clarification: my position is well outstide of mainstream of what passes for libertarian thought in the United States, which has a large religious component to it (consider the Paul family and what champions of libertarianism in the US think of them, generally).

    Back to the subject material – "that no one should be forcibly prevented from acting in any way he chooses provided his acts are not invasive of the free acts of others" [John Stuart Mill, On Liberty, 1859].

    Here's the trouble with discrimination – not only does discrimination impede the free acts of others, it unjustly causes harm by invading the free acts of others on a wide scale.

    I'd love it if free-market principles put discriminatory business owners into cardboard boxes in back alleys, but unfortunately we have a great deal of evidence from the United States' not-so-distant-past that this is not the case. In many cases, those who do the discriminating benefit from their bigotry.

    Libertarianism is not supposed to be akin to anarchy; there are important caveats that come with its principles, which Clark (and those agreeing with him) seem happy to ignore.

    By Mill's standard of harm and liberty, anti-discrimination legislation is perfectly legitimate because of the social harms associated with it. Individual discrimination – "thanks, sir, but I'd rather not do business with you personally" – is still completely fair game.

  66. David W says:

    I don't see a principled argument separating the cases. I do see a pragmatic one.

    The KKK and Jim Crow were evil enough that federal involvement was a lesser evil. The Feds were absolutely justified in stomping out the lynches and firebombings and beatings. And even the jury nullifications for white-on-black crime. As in all government actions, there was collateral damage and high cost, but given the scale of the problem, it was justified.

    I think that now, today, the Feds should declare victory and stop the mission creep. But that's because I really do believe they won, for the most part. At this point, racism is small enough that time, persuasion, and the market can finish the job. And even here, uncertainty about my conclusion limits my outrage.

    Having trouble buying a gay wedding cake, though, is not nearly as bad. Thus, the government is no longer the lesser evil. It's not that the baker's action is right, it's that the response is disproportionate.

    All this said, I think we can agree that antidiscrimination law is not the worst thing the Federal Government does? So even a principled libertarian could reasonably have higher priorities?

  67. Ken White says:

    A couple of comments:

    1. I know I don't get to determine which way the comments go on a post, but my aim was not to start an argument about whether anti-discrimination laws can be reconciled with free association of freedom of religion, but to ask why they are criticized inconsistently. That's why I am not engaging in the larger argument.

    2. If you are interested in the proposition that some activities are so inherently expressive that they can't be governed by anti-discrimination laws (like playing music, IIRC), Volokh Conspiracy has a series of posts about it.

    3. I trust everyone will behave.

    4. I am informed that I am a bad person for allowing discussions including views that some people find offensive, and letting them continue. So, beware: you are commenting on the blog of a bad person who makes bad things more bad. Or something.

  68. Daniel Taylor says:

    Most of the people I have encountered that have no problem with discrimination have never been subject to discrimination that meant more than a momentary inconvenience.

    "Go somewhere else" is only a viable option if there is somewhere else, and if the service or product needed is not particularly urgent, and even then being discriminated against hurts on a very visceral level.

    If you wouldn't support someone's right to punch someone in the gut for a particular reason you shouldn't support their right to discriminate against them.

  69. lelnet says:

    "I am informed that I am a bad person for allowing discussions including views that some people find offensive, and letting them continue."

    Well, you're also a person whose "day job" includes preventing people who have been accused of crimes from being punished…some of whom are probably guilty.

    So I'd imagine you're used to having groups of ignorant and shortsighted people think you're a bad person. :)

    In both cases, it is essential for the proper functioning of our society that somebody or other step up and do what you're doing. I commend and thank you for being that "somebody", regardless of whether or not I agree with your opinions, or those of any given subset of your other commenters.

  70. Jonathan says:

    A number of folks have already raised the question that came to my mind: Is there a meaningful difference between refusing to sell a product or service to someone you don't like or disagree with, and refusing to *create* a custom product or service (esp. artwork) for someone or something you disagree with?

    What is the difference, if any, between refusing to rent a dining hall for a gay marriage reception, and refusing to create a custom wedding cake for the same wedding?

  71. CJColucci says:

    Where does this idea that people have or should have a right to do business with anyone they choose on any terms they see fit, and not do business with anyone they choose, for whatever reason they see fit come from? It's not baked into the cake of the moral universe, as far as I can see. It has no backing in history. As far back as we have records of these things, people in certain sorts of businesses were required to serve anyone who came to buy subject to such exceptions — like solvency, behavior, or hygiene — that society was prepared to recognize as reasonable.
    To be sure, rational businesspeople do not turn away customers for no good reason, and the reasons society is prepared to accept as good are many and varied and not specifiable in advance; so, as a rule of thumb, the idea that unless the law says otherwise you can do business with whom you will works as a first approximation. And if some quirky milliner refuses to sell hats to libertarians, that's just not a big enough deal to gin up the public force to stop.
    But the kinds of discrimination generally outlawed today created serious inconveniences for a lot of people, so, in applying the actual general rule — serve everyone unless you have a reason society is prepared to recognize as good not to — rather than the hypothetical one we limited the inconvenience.
    That won't satisfy anyone who has certain ideas about the rights people ought to have, but I ask again, where do they come from?

  72. lexxius says:

    There was once a joke about a physicist who tried to find a strategy to determine a horse race winner and developed a math model of spherical horse in vacuum. That what is this libertarian BS is.
    For some reason people who promote these ideas tend to forget two things:
    1. That the perimitive "market forces", esily explainable using "company A and B" example, don't really work anymore in our enormous and enormously complicated society. The reaction time of such huge system is such that before this forces achieve the result the enormous losses will occur. This is the reason of establishing the govermnment agensies and regulators. E.g., will the market be able to self regulate the medicines if we remove the FDA from the picture? Probably yes, but the death toll will be staggering.

    2. The laws, including anti-discrimination laws, did not just come to existense because of legislators' fantasies. If "company A and B" logic worked say in the South in the 40s do you think these laws would be adopted?

    That being said, I actually think that the baker had all the right to do what he did. There is only certain number of protected characteristics which can be subject to discrimination and they are all related to the person inherent properties. Business can't refuse the service to the person beacause of what he is, but can because certain actions of a person. It seems that the guy don't agree with them getting married, rather than just being gay, and it is not even legal in Colorado. Also, the anti-discrimination laws are about serving all customers equally. In this case the cakes are individually made, so he may raise an argument that these clients requred specialized service ("gay marriage cake") he is not doing. It is like coming to plumber asking him to mow the loan. I don't think it is legally possible to force business owner to expand his business in such way.

  73. Tony Muhlenkamp says:

    Agree with Clark at 0832; haven't read all the comments following so this point may have already been made. But here goes. There are economic consequences to refusing service to any and all of the people mentioned which typically get overlooked and which will either correct or reinforce that behavior . If refusing to to make wedding cakes for same gender couples, or food for the sons of Ham, or shaved ice for mixed race families impacts my ability to feed my family then I'm going to have to take a long hard look at my "principles" and the religion behind them.I favor economic consequences but decry legal prohibitions.

  74. Renee Marie Jones says:

    Most people do not have a reason. They do not think about it. They just mindlessly do whatever their political controllers tell them to do.

  75. Hoare says:

    Preacher Arrested for Calling Homosexuality a Sin

    http://radio.foxnews.com/toddstarnes/top-stories/preacher-arrested-for-calling-homosexuality-a-sin.html

    Is stating that something is a "sin" hate speech?
    why would the word "sin" even bother an atheist?

    reminds me of the open letter to Dr Laura years ago LOL

  76. perlhaqr says:

    Dan Weber: That was New Mexico. Please don't mistake New Mexico for New Jersey. *shudder*

    Even though I think the NM ruling was completely stupid, I don't want to be associated with Jersey. Blech.

    Ryan: You're advocating threatening lethal force against people for their having hurt someone else's feelings. You really think that's appropriate?

    Mike: You missed the "trespassing on private property" part. In your scenario, the police aren't arresting anyone for "trying to buy a beer", they're arresting them for not ceasing their trespass when informed that they are unwelcome.

  77. Kevin says:

    @CJColucci

    Where does this idea that people have or should have a right to do business with anyone they choose on any terms they see fit, and not do business with anyone they choose, for whatever reason they see fit come from? It's not baked into the cake of the moral universe, as far as I can see.

    Actually, it kind of is. The freedom to do business with whomever you choose is just a matter of the freedom to discharge of your own private property as you choose, i.e. property rights. And property rights flow naturally from the laws of physics, which is pretty much as "baked into the cake of the [a]moral universe" as it gets.

  78. Nigel Declan says:

    The problem with the strictly libertarian market is that it assumes that people behave rationally and that personal liberty trumps all. This means that if all the bakers in Town X refuse to make cakes for individuals in same-sex relationships, then either market forces will fix it or, if the market doesn't, then not getting cakes is a just outcome, since if same-sex couples truly wanted cakes, they would either start their own bakeries, organize bakery boycotts or move. But what if none of these so-called alternatives are available and, furthermore, what if in Town X, the citizenry who do not support same-sex marriage make it perfectly clear that all bakeries which sell cakes to same-sex couples will be the subject of boycotts and protests, such that these bakeries will be driven out of business? What if the same-sex couples in Town X lack the resources or the job opportunities to leave Town X?

    Even if we were to assume that the market will eventually resolve the cake problem, how do we know that such a solution will happen in our lifetime? In our children's lifetime? Long-run solutions are fine but, as Keynes famously pointed out, in the long-run, we are all dead. For example, perhaps non-governmental discrimination against minorites in the Southern United States would have resolved itself, whether through evolving attitudes, demographic shifts, or merely the eventual death of its strongest proponents, without government intervention on either side, but how can we say that the solution wouldn't have taken 500+ years? Is it nonetheless fair to say that the minorities who are the subject of rampant discrimination are enjoying "maximum liberty"? It strikes me as somewhat of a Candidean argument, that the "most free" of worlds is necessarily the best of worlds.

    As to the question posed by the original post, I suspect that the relatively mainstream nature of Christianity and the belief that homosexuality is wrong is the key difference. Freedom of religion has always been subject to a "smell test" of sorts, rightly or wrongly: to the extent that holding religious beliefs confers benefits either from the government or which are recognized by the government, there has been a perceived need to ensure that these beliefs are "legitimate". As certain religious attitudes become less mainstream and fall out of favor within recognized religions, so too will public support for people who support such attitudes. In theory, the popularity of one's religious beliefs shouldn't matter; however, protected rights intersect in real life in ways which often make it impossible for everyone to walk away with his/her rights fully respected. The inevitable result of this is some sort of balancing test, though some may feel that the appropriate "balance" in certain circumstances should be absolute deference to particular rights at the expense of others (for example, strict libertarians as it relates to personal autonomy in cases such as this).

  79. bill says:

    It'd be nice if we get to the point where religious stuff doesn't affect anything, from commerce to government. Dawkins still has a few good years left in him, Sam Harris has plenty, I can only hope.

    P.S. Clark's first response was awesome, even if I don't eat snickers

  80. Ken in NH says:

    My previous comment was a little lengthy, so let me make a pithy comment to throw some gasoline on the fire:

    Most of you are just wrong and arguing the wrong point. The baker did not discriminate against a class of people but against a particular action he found religiously offensive. Here are three examples where someone of the baker's reported religious convictions might also choose refuse service:

    - A bigamist requests a wedding cake for his nth wedding where n > 1.

    - A heterosexual couple wishing to celebrate their divorce orders a cake with the words, "Thank God it's over."

    - A heterosexual couple that asked for the words, "May our illicit affair thrive forever and never be discovered."

    Now, I have given you three examples where he may refuse to provide his service to a heterosexual couple though he might serve them under different circumstances, is he some kind of heterophobe?

  81. Chris K. says:

    perlhaqr • Jul 9, 2013 @12:05 pm

    Don't knock Ryan. He still doesn't understand that Utilitarianism and Libertarianism are incompatible.

  82. Ryan says:

    Ryan: You're advocating threatening lethal force against people for their having hurt someone else's feelings. You really think that's appropriate?

    Say what now? Where on Earth did I advocate lethal force for anything?

    I said that discrimination causes social harm, and therefore should be sanctioned by law. I don't recall advocating capital punishment for bigots.

  83. Chris K. says:

    Ryan, you idiot. ALL government action is force. and the end result of force is always death.

  84. Ryan says:

    @Chris K. While Mill did not technically identify as a libertarian, the harm principle has long-since been co-opted by libertarians and is considered a fundamental principle of libertarianism. Both derive from Enlightened-era philosophy and are fundamentally connected because of their assertions concerning free will.

  85. Ryan says:

    Ryan, you idiot. ALL government action is force. and the end result of force is always death.

    Wow. Oh just wow. Since I respond well neither to insult nor general nuttiness, I'm out.

  86. Chris K. says:

    Ryan,
    WRONG! NAP does not equal Harm Principle.

  87. Chris K. says:

    Adios.

  88. Kevin says:

    @Ryan, let me try to do a better job of explaining the concept to you (i.e. without calling you names like Chris K).

    If something is "sanctioned by law", what does that mean? Well, it means the government can fine you for doing it. And what if you refuse to pay the fine? Well, the government can arrest you. And what if you refuse to be arrested? Well, then the government can shoot you.

    All government power ultimately flows from the barrel of a gun, and all "sanctions" are backed by bullets. Sometimes the threat of violence is explicit, usually it's implicit, but either way, the threat of lethal violence is the only reason people pay any attention to the government at all. If you could just rip up judgements against you with no worry that it might eventually lead to getting shot, then it wouldn't really be a government.

    All demands, when printed on the letterhead of a government agency, ultimately come along with an implicit "or else we might shoot you" at the end.

  89. Xenocles says:

    I suppose you might have a principled reason if you thought that homosexuality were different from race, gender, or religion in some crucial way.

    But as to my thoughts, I agree with Clark. Put as simply as my time will allow, you aren't free unless you're free to be wrong.

  90. Shane says:

    FFS if I don't have the right to be a douche canoe, then what am I? Freedom of Association is a very important principle, because society gets into some pretty reeeedickalous extremes.

    An alternate view of this is: wouldn't society be up in arms if in the 1930's ish a black couple went to get a cake from a white family baker. So we have to force the white baker to make the cake for the black couple?

    My final thought is this, what if all that could be obtained from this is that the baker make the cake for the couple. If you were a part of that couple why on fucking gawds green earth would you want someone that hates you for w/e reason to make a cake for such an important day in your life?

    This is about money pure and simple, but as usual we throw the principle under the bus until that principle is driving the bus and runs us over with it. Short sighted, stupid and typical.

  91. GuestPoster says:

    The two arguments I'm most familiar with, one of which is marginally less terrible than the other, are that A) being a Jew/Black/etc. is not a choice, while sexual orientation IS, and even if it isn't, it's still a choice to indulge that preference. Which is both bogus, and would leave the third example around (after all, if marrying the same gender is a choice [which it is], then so is marrying a different race. The marginally less terrible one is B) the constitution specifically protects women, and protects based on race, religion, and creed, but doesn't say word one about homosexuals being humans endowed with rights, so you can be as terrible as you want to them.

    Not that I buy into either, mind. My feeling is that the government can't force you not to speak (or to be nice, or even polite), but that it CAN set reasonable limits on business function. And if your speech needs mean you can't fulfill the basic requirements of business, well… what you do for a living is DEFINITELY a choice, and you can just leave the business which requires you to interact with those of whom you disapprove.

  92. Erroll-Flynn says:

    @Kevin.
    I'm pretty sure they'll just garnish some wages or discover some assets and take those long before they deal with the mess of arresting/shooting you.

    But I'm gonna go ahead and hazard that most people do not respond to gov't requests out of mortal fear. This is a slippery slope that does makes a scintilla of abstract sense, but is so out of touch with how people interact with (1st world) governments as to be useless as a paradigm for this particular discussion. Would that line of reasoning apply to North Korea? Sure. Canada/USA/GBR/etc.? Not so much.

    So accusations that someone is advocating "lethal force" for "hurt feelings," is a completely spurious and time-wasting argument. (I know you didn't make those assertions, just pointing out why @Ryans incredulity was totally warranted).

  93. Ken White says:

    Ryan, you idiot. ALL government action is force. and the end result of force is always death.

    Reconsider your approach.

  94. Chris K. says:

    Actually Erroll, I only pay my taxes as to not go to jail.

    I paid for National Firearms Act stamps for my Title 2 firearms because the alternative is going to jail. And the stoogies that enforce that law love shooting/burning people to the ground.

    So I'd say Mao's quote about political power is just as true in the good Ole' U S of A as it was in his China.

  95. "My question is this: is there a principled reason that some people are outraged when anti-discrimination laws are applied to forbid discrimination against gays, but not to discrimination against Jews, or African-Americans, or any other group?"

    It might be that some people believe that being homosexual is a choice, while being Semitic or African-American is not a choice. I think a more apt comparison would be homophobic discrimination versus religious discrimination, particularly the denomination of the person choosing to discriminate against homosexuals.

  96. Erroll-Flynn says:

    @Chris K, that example won't help you. The conversation is still about civil fines for discrimination, not flagrant violation of regulations concerning firearms specifically designed to kill humans with extreme efficiency.

  97. Shane says:

    @Ken

    I love you man (not that way). You refuse to allow yourself to become the cult of personality :)

  98. Xoshe says:

    Is the answer merely that anti-gay religious sentiment is relatively mainstream, but racist or racial separatist religious sentiment is steadily more and more marginalized and unusual in American society?

    In my opinion, the answer is yes. While I don't have research in front of me right now, I have absolutely no doubts that if you rewound the clock 50 or 100 years and replaced the gay couple with a minority or mixed couple, you would have exactly the same sequence of events.

    If we fast-forward the clock 50 or 100 years, we will instead be seeing this exact same sequence of events with the new discrimination of the day, be it mental illnesses, weight, or space aliens.

    In the end, history will continue to repeat itself.

  99. Chris K. says:

    Erroll, Christ, can you not draw parallels?

    How about my first example Erroll? THE ONLY REASON I pay taxes is because of the fear of jail. That's it.

  100. Chris K. says:

    @Xoshe • Jul 9, 2013 @1:28 pm

    And there is the problem, we have defined discrimination down to having a differing view.

    The government is making basically outlawing shunning/free association. And that is wrong.

  101. Paul Baxter says:

    I think this is an example, as Mr. Fish might put it, of the fact that principles only get you so far.

    I see Ken's conflict here as a genuine conflict, i.e. it is not at all obvious to me that one single principle makes the whole question clear. I imagine that folks older than I probably remember a time when people invoked, with little resistance, the right of free association particularly to discriminate based on race. If a society is structured such that that action excites no conflict, then that's just what's going to happen.

    Societal changes, including changes in application of law, don't generally occur simply because they are logical applications of a particular principal. They actually require some sort of movement of change among some significant portion of society.

    One example might be the fact that it is extremely rare for a retail store to set up it's shelf inventory such that it is all accessible to potential patrons who are dwarfs. Dwarfism is uncommon enough that it just doesn't enter people's minds. If there were some sort of mass campaign to raise awareness of the difficulties faced by those who are very short, then the issue might be framed in terms of discrimination or application of the ADA or something similar.

  102. CJColucci says:

    @CJColucci

    "Where does this idea that people have or should have a right to do business with anyone they choose on any terms they see fit, and not do business with anyone they choose, for whatever reason they see fit come from? It's not baked into the cake of the moral universe, as far as I can see."

    Actually, it kind of is. The freedom to do business with whomever you choose is just a matter of the freedom to discharge of your own private property as you choose, i.e. property rights. And property rights flow naturally from the laws of physics, which is pretty much as "baked into the cake of the [a]moral universe" as it gets.

    No, seriously, I was looking for an explanation. If you just want to tell me it's a fundamental axiom in certain systems of thought, I already knew that.

  103. Erroll-Flynn says:

    @Chris K.
    I can but I need a compass and a straightedge.

    If you truly only pay taxes, especially taxes on Title 2 Firearms, out of fear of incarceration, then that indicates, in my opinion, at the very least some non-normative tendencies in your thought process.

    The (original) point is that your doomsday scenario is NOT the reason the overwhelming majority of people would comply with a gov't enforced anti-discrimination norm. Reasons like respect for the rule of law, a sense of civic justice, deference to the democratic process, etc. Your personal reasons for complying with gov't regulation of your firearms has essentially no bearing on that point.

  104. Chris K. says:

    Erroll,
    Here is a news story about the lawsuit, notice the last sentence.

    "The complaint seeks to force Masterpiece Cakeshop to inform the public that their business is open to everyone and to "cease and desist" the refusal of wedding cakes to gay couples.
    If Phillips loses the case, he would face fines of $500 per incident and up to a year in jail."

    If he doesn't pay those fines he goes to jail, and when the government enforcers come to haul him away they will come with guns on their hips. If he doesn't go willingly they will grab him, if he fights back they will SHOOT him.

    It really is that simple.

  105. Shane says:

    @Ryan

    Please get off of the Libertarian bus, you don't belong.

    Free acts of others. I have property (land). You are no longer able to walk on or use or destroy or w/e on that property. I am therefore removing freedom from you. Just so that we are clear on what you are advocating, you want to perform what ever freedom you think is appropriate to my property. Hmmmm wonder what that deed I paid for with my labor means now?

    Which caveats are those? Please articulate

  106. Chris K. says:

    And Erroll your use of pyscho-babble words like "non-normative" are a not so veiled way of labeling me crazy, and I don't appreciate it.

  107. Shane says:

    @Ryan

    I am not familiar with Mill, but his thinking sounds utilitarian to me, please provide the facts that support the co-opt that you speak of?

  108. Richard says:

    @Kevin:

    I felt the same way about the smoking bans of the last couple of decades – just let business owners and the market decide what will and won't work.

    The most persuasive argument against smoking bans isn't what smoking does to the patrons – they have the choice to leave at any time, they have the choice not to smoke, or to frequent a less-smoky atmosphere. The best argument for a smoking ban is what it does to the employees of the establishment – "But they can quit if they don't like it!" is not a persuasive argument, especially in today's job market.

    Anyway, to the larger issue.
    In my opinion, a person is free to set whatever price he chooses for his work, or to refuse to undertake any work he chooses. However, once he has publicly offered a good or service for a specific price, and the offer has been accepted, that creates a contract. So, if the couple tried to order a standard wedding cake off of a list of prices, I'd say that the baker is obliged to hold up his end of the contract. If, however, they requested a custom cake (which, with the vast breadth of varieties of cakes out there, probably has an "inquire about prices" entry on the price list), the baker is free to refuse to do it for any price. I may not agree with his reasons for doing so, but there is no contract there.

    If the baker refuses to post prices, well, then he's going to lose a ton of business, because people like to know what things cost.

  109. Chris K. says:

    I'm sorry Erroll I don't believe a suppressor or a SBR make my AR15 some super accurate, death from above killing machine either.

  110. Xoshe says:

    @ Chris K.

    However I would like to throw out the suggestion that if it wasn't for these laws, my timeline could have instead been 500 years or longer.

    As much as I may believe in a free market, I do not believe in allowing harm to continue until the good graces of humanity decide it's been long enough. There's been plenty of examples in the past to show that "long enough" would have been "forever" if the right (wrong?) people had their way.

    To put it simply, I do not have that much faith in humanity as a whole.

  111. Shane says:

    @Daniel Taylor

    Welcome! welcome to the big beautiful, difficult visceral world. I would bet that everyone on this board has experienced some type of discrimination. If you have been passed over in an interview then you have been discriminated against, so please email your local congressman so that we can end this madness (sic). Because you know it hurts.

  112. Daniel says:

    @Ken White — Your question

    is exactly the right question, however paradoxical. Any "principled reason" is still based on a belief/worldview, which will be rejected by at least a minority of a pluralistic society.

    As much as I might be labelled a cynic, I think that the US ultimately defines its own principles from a worldview that favors keeping society in a (comparatively) calm and orderly state and allows a governing apparatus to maintain that state. A secondary consideration relates to the need of a political party to maintain its governing power. Higher ideals of freedom, etc., are semi-malleable boundaries that are tightened and loosened according to need.

    Thus, some beliefs–such as forcing a minority of business owners to violate her/his conscience–are less important now to societal stability than the rights of another minority to not be discriminated.

  113. Erroll-Flynn says:

    @Chris.
    I apologize I should have used the word extreme. Because again, the point is that this particular theory of government coerciveness, while it has philosophical merit, does not describe the general populace's interaction with its gov't. People comply with court orders, and anti-discrimination regulations without your end game in mind. That is all.

    But as an aside, I'd like to point out some quotes of yours:
    "Ryan, you idiot."
    "Erroll, Christ,"
    "your use of pyscho-babble"

    A: non-normative really isn't psycho-babble.
    B: People in glass houses, pots & kettles, etc.

  114. Shane says:

    @lexxius

    I will address only one aspect of what you said. Those angels at the FDA, they are somehow impervious to vice and corruption? And they are really concerned about your precious life? Really? If this is what you believe then when you get sick from ecoli in your lettuce then you deserved that. Human beings don't morph into some type of uber being just be because they are handed a job working as alleged public servants.

  115. lelnet says:

    "I do not have that much faith in humanity as a whole."

    Neither do I. Which is why I don't trust government (which is, I hope I needn't point out, composed entirely of humans, and moreover, disproportionately the sort of humans who get their jollies from bossing other people around) to decide who I may, may not, or must do business with.

  116. Mercury says:

    If I understand this correctly the bakery isn’t refusing to make a cake for these people because they are gay but because the cake would be intended/designed for something that isn’t technically legal in Colorado…or at least that’s how they should be presenting their defense.

    Lots of things aren’t legal in Colorado that are legal elsewhere. Should this bakery also be forced to bake a cake celebrating a female circumcision which was actually performed in some locale where that is legal?

    Can’t these two very annoying looking people of dubious motive get a cake made somewhere else? Why would you want someone so obviously antagonistic to prepare special foodstuffs for you and your friends?

    Tiffany once refused to engrave one of their products which I had purchased with “Fat City Yacht Club Intergalactic Championship Regatta – First Place” even though I had papers identifying myself as Commodore and Chief Bad Ass Moutherfucker. Do you think I have a case?

  117. anne mouse says:

    The baker did not discriminate against a class of people but against a particular action he found religiously offensive.

    This is sophistry. The action in this case is precisely the same action that all his other customers hire him for. The only difference is how he classifies the customer.

    That's also true of your other examples, but to answer your question, I would not call him a "heterophobe" for those examples any more than I'd call him an "anthropophobe" in the actual case.

    He's an X-phobe if he unreasonably refuses to do business with people because they belong to class X. The evidence strongly suggests that he considers homosexuals such a class, but "heterosexual" is not the class delimited by any of your examples. "Bigamophobe", for example, would be perfectly appropriate.

  118. Richard says:

    @Kevin
    And property rights flow naturally from the laws of physics, which is pretty much as "baked into the cake of the [a]moral universe" as it gets.
    Okay, I get how the laws of physics say that this piece of matter is physically distinct from that (and every other) piece of matter.
    I do not get how the laws of physics say "A person is allowed to claim sole ownership of this piece of matter."

  119. lexxius says:

    @Shane
    Nobody is perfect and you can't gaurantee anything 100%. What you do is try to reduce the possibility of bad things happening, given the resourses you have. And believe me they reduce it.
    BTW I know qite a number of people there, some are my good friends. And, yes – they care about people health and life.

  120. Shane says:

    @Nigel Declan

    This is the frustrating part of your argument, I call it failure of imagination. Many options are available to all of us, but we either don't see them or don't want to see them. Libertarinism puts the heavy burden on us to find them.

    I have been poor for so long that I am good at finding ways around and that is what you area advocating that no one should have to do … I disagree. Simple idea, couldn't one of our gay couples make their own cake? Maybe one of their friends?

    In all of our moral outrage all we want to do is punish, to hurt for causing an affront to our fine sensibilities. Get over it move on and solve the problem. Otherwise be stuck in a time wasting attempt to exact revenge for the alleged slight. And worse get a law written that may hurt the person that you are mad at, but be used against others in unpredictable ways.

  121. Kevin says:

    @Erroll-Flynn

    People comply with court orders, and anti-discrimination regulations without your end game in mind. That is all.

    Only to the extent that they're not thinking about the end game at all, and just operating on autopilot and saying "I guess you have to do what the government says", without stopping to think about why. But are you seriously suggesting that if a person gets a traffic ticket, and I told him "hey, you know you don't actually have to pay that – you can just throw it out, and nothing bad will ever come of it" (and somehow actually convinced him of that proposition), that he would go ahead and pay it anyway, just out of a sense of civic duty?

    non-normative really isn't psycho-babble

    It isn't when used correctly. But the way you used it didn't make any sense. You probably meant non-normal (i.e. abnormal), rather than non-normative.

  122. Tori says:

    @Jonathan,
    I would also be interested in hearing more opinions on this. Selling & baking a cake design out of the bakery's catalog seems quite different from the "commissioning of art" that a fully custom-designed cake could be seen as. In this case it's unclear exactly which category the couple's denied request falls under.

  123. Shane says:

    @lexxius

    The problem is that I don't believe you, and I won't take your word for it.

    You are correct nobody is perfect, that is why I would rather have a competitor keeping things honest than a watcher who derives an income by saying that all is well.

  124. Chris K. says:

    @Erroll-Flynn • Jul 9, 2013 @1:58 pm

    Ryan called himself a libertarian and then didn't understand government=force. That makes him either an idiot or a liar.

    "Erroll, Christ!" was more an exclamation than an insult when said in my head.

    "psycho-babble" I meant that with derision as I saw it as an insult, and in general I don't think much of shrinks.

    As to glass houses, point taken.

    Would like to hear your thoughts on my previous comment with the news quote.

  125. lexxius says:

    @Shane
    Well, good luck then…
    I my opinion trusting the parties, whose sole purpose is to make a money off you more than the party you actually pay to keep things safe is not a sane approach.

    P.S. I think I understand why you "have been poor for so long". Calling people liars baselessly doesn't make a friends, and you need friends in this life.

  126. Kevin says:

    @Richard

    I do not get how the laws of physics say "A person is allowed to claim sole ownership of this piece of matter."

    Because it says that a given piece of physical matter can only be in a single place at a single time… i.e. excludability. If I have an iPhone in my hand, it can't also be in your hand at the same time. The only way to get it out of my hand and into yours is by application of force. If that force is applied by me, then the transaction is voluntary, and if the force it applied by you, then it's involuntary.

    So this principle of physics maps directly to this principle of economics.

    Incidentally, this is also why the concept of "intellectual property" is a fundamentally confused idea: ideas are not composed of fermions, and are therefore exempt from Pauli exclusion.

  127. Chris K. says:

    lexxius,
    If you believe that those fucktards in DC or at any state office are really there for your benefit and not because they are either a) lazy or b) malicious assholes, you have obviously lived a charmed life without any or very little interaction with "the Man".

  128. Shane says:

    @Mercury

    Should this bakery also be forced to bake a cake celebrating a female circumcision

    What would be on top of this cake frightens me.

  129. z! says:

    One thing so far ignored is the baker's privilege to do business at all.

    Our society has decided that only "wholesome" food will be sold to the public, for that the seller needs various licenses and inspections. They are not "free" to sell sawdust & chalk cakes from a filthy storefront*. Nor are they required to be bakers at all (it's a choice). Most municipalities consider doing business with the public to be a privilege and extract a fee for that. And with most privileges come obligations, both legal or societal, like actually selling to whomever comes in the door with legal tender. The same could be said for any licensed trade, electrician, plumber, real-estate agent, etc; for the privilege of holding a license, you're obligated to serve everyone.

    *yep, more Gub'ment regulation.

    On a side note- I don't buy the "art" argument for wedding cakes. Maybe some artistic talent is needed for fancy frosting designs, but the basic cake with some flowers and a couple of figures stuck on the top is skilled craft, not art. (Just like electrical work or repairing a car.)

  130. Chris K. says:

    I agree Z! obligations come along with licensing. Lets eliminate licensing.

  131. whheydt says:

    On the whole jail aspect… I am reminded of the prosecutorial habit during the Viet Nam War of charging anti-war demonstrators with 'felony conspiracy to commit a misdemeanor'.

    (And if you want something really wild, just the other day I saw a writeup about a case in Nevada where someone is charging some local cops with, among other things, violating the Third Amendment to the US Constitution.)

  132. lexxius says:

    @Chris
    So you are fine with "selling sawdust & chalk cakes from a filthy storefront"?

  133. Void says:

    Clark that is just silly, there is no such thing as uninhibited freedom. I do not have the freedom to stab people in the face, therefore one of my freedoms is revoked. The justification being that if my freedom harms another then it is acceptable to restrict. So there are obviously lines to where freedom is cut off. Do I have the freedom to take actions that inhibit your freedom? If not why are you restricting my freedom with the defense of yours? And vice versa. So if we have all these unspoken rules about what freedoms are actually acceptable where does this line for business owners kick in? Is there a chart?

    We dictate our freedoms based on what social frameworks say is acceptable. Why would it not be acceptable to create rules for treatment of minorities in a business transaction when we have all these other arbitrarily enforced social restrictions on freedom?

  134. Chris K. says:

    lexxius • Jul 9, 2013 @2:32 pm

    Yes, obviously.

    But only to you.

    I'm not even going to try to argue with that logical fallacy.

  135. Chris K. says:

    Void,
    You cannot posses the right to stab someone in the back, that never was a freedom, that is a stupid place to argue from.

    As to your second point, I agree we should abolish "all these other arbitrarily enforced social restrictions on freedom".

  136. Shane says:

    @lexxius

    LOL you are against trusting parties whose sole intent is to make money from you (whereby you can negate it through non action), but you will trust someone who takes your money by force and you are unable to withdraw your support from … okay as I said before you are getting what you deserve.

    To be clear I never said that I trust companies, hence my suggestion that a competitor with competing objects keeps things safer because the two companies are at odds with each other vs. a government watcher whose agenda becomes aligned with the company that it is watching.

  137. Erroll-Flynn says:

    @Kevin, I'll stand by my word choice. You seem to have a very specific definition in mind related to psychology. It has a lay definition too, and is used in other disciplines besdies.
    http://www.thefreedictionary.com/normative
    http://www.merriam-webster.com/dictionary/normative

    But on the other point: You make your hypo too strong when you say "nothing bad will ever happen to you." I'll try to keep this short cause to avoid further derailment. I think its pretty uncontroversial that there are lots of internal and external pressures on a person that keep them generally law abiding, or not as the case may be. The coercive power of gov't is definitely on that list, but it is of course really far down for the vast majority of decisions. You may think that's because people are on autopilot (which we all are for nearly all such decisions, so if that's meant to be pejorative I'm not sure I see why), but people aren't breaking out their philosophy of government textbooks every time they choose to comply with some gov't directive. There are other "bad things" besides the gov'ts coercive power, and lots of "good things" that usually result from playing within the rule of law.

  138. Shane says:

    I agree Z! obligations come along with licensing. Lets eliminate licensing.

    Well said.

  139. lexxius says:

    @Chris K.
    Sir, your discussions skills are amazing. I am awed.
    You are fine example why libertarians unfortunately has no chance to gain any political power ever. Stupid ignorant public just doesn't appreciate you superhuman reasoning.

  140. z! says:

    With all this talk of freedom, whatever that means, I suggest reading Terry Pratchett's _Going_Postal_.

  141. Shane says:

    @Chris
    So you are fine with "selling sawdust & chalk cakes from a filthy storefront"?

    I am, because you know that "… one is born every minute".

  142. Chris K. says:

    Lexxius,
    I'm not a libertarian,* so achieving political power is of no interest to me. But thanks for looking out.

    *Rothbardian Anarcho-Capitalist.

  143. Kevin says:

    @lexxius

    So you are fine with "selling sawdust & chalk cakes from a filthy storefront"?

    As long as the storefront is clearly labelled "Ye Olde Filthy Sawdust & Chalk Cake Store", i.e. as long as it makes no misrepresentation about what it is they're selling, and its nutritional value (or lack thereof), then sure. If the store DOES misrepresent the contents or healthfulness of what they're selling, then that's fraud, and is therefore perfectly fine to punish or restrain.

  144. Grifter says:

    @z:

    With all this talk of freedom, whatever that means, I suggest reading Terry Pratchett's _Going_Postal_.

    I haven't read it, but I did see the movie version with the dumb guy from Coupling in it…it was awesome.

  145. Kevin says:

    @Richard: my response to you got caught in the spam filter due to too many links, so let me try it again with the wikipedia links excised:

    I do not get how the laws of physics say "A person is allowed to claim sole ownership of this piece of matter."

    Because it says that a given piece of physical matter can only be in a single place at a single time… i.e. excludability. If I have an iPhone in my hand, it can't also be in your hand at the same time. The only way to get it out of my hand and into yours is by application of force. If that force is applied by me, then the transaction is voluntary, and if the force it applied by you, then it's involuntary.

    So this principle of physics [Pauli exclusion principle] maps directly to this principle of economics [excludability].

    Incidentally, this is also why the concept of "intellectual property" is a fundamentally confused idea: ideas are not composed of fermions, and are therefore exempt from Pauli exclusion.

  146. John Kindley says:

    Chris K. wrote: "Ryan called himself a libertarian and then didn't understand government=force. That makes him either an idiot or a liar."

    Isabel Paterson wrote in The God of the Machine: "Government by force is a contradiction in terms and an impossibility in physics. Force is what is governed. Government originates in the moral faculty."

  147. Ryan says:

    Ryan called himself a libertarian and then didn't understand government=force. That makes him either an idiot or a liar.

    Bah, I can't resist. Ken did chastise you for your earlier approach as well, so I trust it won't be repeated.

    Actually, it makes me a university graduate who has studied liberalism, libertarianism, utilitarianism, and their origins. The government=force argument is a modern addendum courtesy of right-wing loons in the [predominantly] southern United States. Libertarianism is about the doctrine and exercise of free will. Read Locke for clarity if you don't believe me.

    Earlier, you mentioned that NAP (which I can only assume to mean the "non-aggression principle") does not equate to the harm principle. You are correct. However, mainstream libertarianism adopted the harm principle very early on. This is because early libertarianism was aligned in part with utilitarianism along the doctrine of free will and the exercise of liberty.

    I can only assume your "education" in libertarianism is in the modern practice of it in the United States – which is fine, just don't insult those of us who have actually studied the history of philosophy and politics.

    @Kevin – Thank you for being so polite. It was not that I did not understand perhaqr (and Chris' rudely phrased) point, I was just expressing incredulity that people actually make these arguments. Of course, I'm one of the "bad guys" because I have the unfortunate career choice of federal law enforcement (in my country, not the US) and get to experience the other end of the scale. Chris K's and perlhaqr's view of force seems to come from an extreme interpretation of libertarianism as is most notably found among the Freemen on the Land movement, etc.

    @Shane – This book (http://books.google.ca/books?id=yxNgXs3TkJYC&redir_esc=y) explains how the harm principle was coopted by libertarians. If you have not read On Liberty and yet call yourself libertarian, you should do so. Mill was, strictly speaking, a utilitarian, but many of his ideas have been adopted into libertarian thought.

    What a number of commenters here apparently fail to realize is that libertarianism is largely used as a pseudonym for classical liberalism in the United States. Hence, the teachings of Locke, Paine, Mill, and innumerable other philosophers apply directly, the harm principle and principles of free will. Much as I loathe to cite wikipedia, its articles on John Locke, John Stuart Mill, Thomas Paine, the harm principle, libertarianism, and classical liberalism are excellent primers on this subject material. A number of people seem to be arguing libertarian principles based on a narrow view of libertarianism as it is presented in the modern United States and the associated political movement, which isn't an accurate reading. The trouble is, libertarianism has also attracted a number of neo-conservatives to its ranks who are generally opposed to application of the harm principle as it was written. These individuals are closer to anarchists than actual libertarians.

    I mentioned earlier that I have a libertarian streak, which is true – politically, I fall into the category of classical liberal. As no doubt the majority of posters here are Americans, however, and the term 'liberal' is a red flag that has an entirely different meaning in the United States, the closest approximation of my beliefs lies with actual libertarianism – which, incidentally, does not hold that law is inherently rooted in the threat of death. Libertarianism and classical liberalism both hold that law is derived from the social contract which the people entrust government to manage in their stead, and the ultimate power of law derives not from force but from the will of the people (a principle which, I might add, is written into the founding documents on which the United States was built).

  148. Erroll-Flynn says:

    @Kevin, (comment caught caught by spam filter, just links to 2 sites definitions of normative)

    I'll stand by my word choice. You seem to have a very specific definition in mind related to psychology. It has a lay definition too, and is used in other disciplines besides.

    But on the other point: You make your hypo too strong when you say "nothing bad will ever happen to you." I'll try to keep this short cause to avoid further derailment. I think its pretty uncontroversial that there are lots of internal and external pressures on a person that keep them generally law abiding, or not as the case may be. The coercive power of gov't is definitely on that list, but it is of course really far down for the vast majority of decisions. You may think that's because people are on autopilot (which we all are for nearly all such decisions, so if that's meant to be pejorative I'm not sure I see why), but people aren't breaking out their philosophy of government textbooks every time they choose to comply with some gov't directive. There are other "bad things" besides the gov'ts coercive power, and lots of "good things" that usually result from playing within the rule of law.

  149. Chris K. says:

    You know Ryan, you aren't the only one here with a Political Science degree.

  150. Chris K. says:

    Just to be clear Ryan you calling me a "right wing loon" perfectly A-OK. me calling you an idiot beyond the pale. Gotcha.

  151. Ian says:

    It's really about the artistic freedom to bake whatever he wants. Would it also be an illegal form of discrimination if he had refused a racist couple a wedding cake? Also I believe we had an article about how editing one's site based on viewpoint was not censorship. Is this not similar in that it is one person refusing personally to convey a message they find disagreeable in cake rather than government coercion?

  152. Ken White says:

    Stop the personal attacks. There will not be another warning.

  153. Ryan says:

    @Chris – I'm not calling you a right-wing loon, I'm saying that appears to be where libertarianism received the government=force argument that you are repeating. The difference here is that I am not attacking you, I'm making comment about the origins of certain belief systems.

    My degree is not in political science, but I would not expect an argument like the one you presented earlier to be associated with someone who has actually studied philosophy and politics because it is factually incorrect. That is a very modern addition that originates from the American political "right," and ironically has its roots in the extreme left of European anarchists in the late 19th and early 20th century.

  154. Chris K. says:

    Erroll-Flynn • Jul 9, 2013 @2:54 pm

    but people aren't breaking out their philosophy of government textbooks every time they choose to comply with some gov't directive. There are other "bad things" besides the gov'ts coercive power, and lots of "good things" that usually result from playing within the rule of law.

    What other bad things? do you mean within the government sphere or in life in general?

    "Good things"? I'm not sure I understand that either.

  155. Chris K. says:

    Ryan
    Citation needed.

  156. Ryan says:

    @Ken – I apologize if it appears I was making a personal attack (if indeed it was me you were in part talking to). I'm trying to be clear that I have no issue with Chris, it's his beliefs and statements that I take issue with. I'll ensure that's clearer in the future. Apologies.

  157. Chris K. says:

    "Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master."

    George Washington

    Clearly a 19th or 20th century European Anarchist.

  158. Ryan says:

    @Chris – Thoreau and Benjamin Tucker are the philosophers you're looking for. John Hospers is among the libertarians that adopted the anarchist arguments of government=force (apologies for simplifying your earlier premise, but it's easier to write).

    It's difficult to trace more easily than that. Certainly, these government=force arguments have cropped up among libertarians more and more since its political split from American liberalism following FDR's Presidency, then throughout the Vietnam War.

  159. Shane says:

    @Ryan

    I smell what you are stepping in. The poly community has the same problem with it's identification of poly-amorous.

    I will therefore back from my identification as Libertarian. I think most people look to certain labels that mostly fit their beliefs to help others understand their point of view. Republican Democrat etc … Not all Republicans agree with all aspects of republican, but it is helpful in self identification.

  160. Ken White says:

    People use labels as shorthand for sets of values. However, in my experience, concern for labels leads to less consideration of values and merits and more disputes over the labels.

  161. Ryan says:

    @Chris – Taking Washington out of context does not bolster your argument. Washington was not speaking of the legitimacy and power of law when he made that quote.

    Locke, on the other hand in Chapter 2 of Two treatises on government as written in 1689, was.

    Regardless, we are now well off the original topic and I've no doubt Ken is crying inside that few people commenting here seem to be answering his question.

  162. strech says:

    While I find Volokh's comments on the dangers of applying anti-discrimination laws to expressive activity persuasive (I read them back when they first came up, with one of the rulings on the NM photographer case), I have wondered a bit about Ken's point here:

    But if someone makes a rights-based objection to application of an anti-discrimination law — whether based on free exercise of religion, or freedom of association — I think it's reasonable to ask whether the objection is consistent, or a case of special pleading.

    Because in the cases of two similar events in Oregon, the bakeries don't seem to have any qualms about baking cakes for other "immoral" events. The Colorado shop was only tested for dog weddings, but you do wonder if they're acting like gay marriage is a special case where they don't have to follow anti-discrimination laws, but have no qualms about following in the celebration of other things they don't like.

  163. Kevin says:

    @Ryan: Just as you pointed out that the word "liberal" has very different meanings in America vs Europe, it seems the same is true of "libertarian", and it's starting to seem like that's all that's really being argued about here: the regional definitions of words. All I'll say is that here in America at least, the word "libertarian" refers pretty much exclusively to the "government=force", NAP style libertarians…. and that that sentiment is not at all limited to the Freeman type movements, or the South. Here, philosophies like yours would more likely be called "left-libertarian", or "liberaltarian", or, more likely, not really called anything at all since they don't really exist here.

    the ultimate power of law derives not from force but from the will of the people

    I think you're confusing "is" and "ought" here. I think we would all love to live in a world where this was true, but that doesn't make it so. When we say that government=force, that's not a normative (heh) statement, just a statement of fact. Physics, not ethics. The fact is, if the government were to announce tomorrow morning "Effective immediately, the military and police are destroying all their weapons. We will continue to attempt to arrest those who break the law, but if they refuse to come to jail peacefully, we won't do anything to force them", what do you predict would be the result? Would people continue to abide by the social contract? Would other countries refrain from invading us, just because it would be dishonorable?

    What you seem to be interpreting as an extremest, Freeman-on-the-Land, radical anarchist style position is actually just a restatement of the ages-old definition of sovereignty as "a monopoly on force".

  164. Chris K. says:

    Ryan,
    You are conflating Anarcho-socialism (which is not libertarianism) with
    Anarcho-Capitalism (which is also not libertarianism but closer ).

    And suggesting that because the both acknowledge government=force then a third thing (libertarianism) got it from the socialists.

    Thats a huge leap.

  165. Ryan says:

    @Ken – Indeed. It's amazing how mentioning the harm principle and libertarianism in the same breathe immediately led to what were essentially shouts of "that's not libertarian!" Though I probably shouldn't have indulged the argument anyway.

    Back to your original blog post – it's pretty rare that you see consistent arguments against anti-discrimination laws, as many of those who happily argue in favour of the ability to discriminate against homosexuals would be outraged if they were discriminated against on the basis of their religion. Credit where credit's due, I have to give Clark props because he does legitimately seem to hold the same views in all cases – wrong though I think he is.

  166. Shane says:

    @Ken

    Agreed in our attempt to convey the most amount of information in the least amount of time we get into the map road conundrum.

    If isn't already clear and to be back on topic, I think that discrimination is a part of life, and that it should be freely applied. I also think that like speech more discrimination is the cure. People will not stop discriminating just because there is a fine or loss of property in doing so, they will simply find another palatable rationalization to put over the top.

    One of the reason that I left the northwest is because the issue of discrimination is so veiled in PC rationalizations that it was hard to determine whom or what to avoid. I don't like to guess. Texas on the other hand you know when someone doesn't like you. I am ok with that because it makes it so much easier to determine who or what to avoid.

  167. Chris K. says:

    I agree with Shane @338.
    I think shunning is how things change. If society wants gay marriage to be more acceptable, making people who hurt the cause hurt in the pocketbooks via lost business is INFINITELY more preferable than government interaction (via regulations and/or lawsuits).

  168. Chris K. says:

    Again Ryan,
    Its not the "Harm principle" that people disagree with. Its calling the defining voice of Utilitarianism (Mill) a Libertarian.

    He wasn't and his ideas are incompatible.

  169. Al I. says:

    Erroll-Flynn, good comments.

  170. Al I. says:

    There are a fare number of libertarians, some of whom may have even posted to this thread, who would either not exist, or would not have the freedom to espouse this point of view, without some prevention of discrimination at some point prior to today, either in their lifetime, or prior to it.

  171. ShelbyC says:

    Agree with Clark in general. But it doesn't sound like anybody's discriminating based on sexual orientation here. I doubt the cake maker would sell a cake celebration a gay wedding to a straight person either, he just doesn't want to make a cake celebrating a gay wedding. If a baker was OK making a yellow ribbon "Support Our Troops" cake, but refused to make a cake that said "Support the Iraqi Insurgents" would that be national orgin discrimination?

  172. Faramir says:

    Ken in NH said:

    The baker did not discriminate against a class of people but against a particular action he found religiously offensive. Here are three examples where someone of the baker's reported religious convictions might also choose refuse service:

    - A bigamist requests a wedding cake for his nth wedding where n > 1.

    - A heterosexual couple wishing to celebrate their divorce orders a cake with the words, "Thank God it's over."

    - A heterosexual couple that asked for the words, "May our illicit affair thrive forever and never be discovered."

    I believe this comment gets to the heart of the issue, and I'm surprised no one else has responded to it. I guess that mean's I'll have to start commenting now.

    There seems to me to be a tendency in society nowadays to equivocate between disapproving of a person's behavior and discriminating against that person. That if you come up to me and say, "I like to do X!" and I respond, "I believe X is morally reprehensible," that you have been wronged somehow. You may have every legal right to do X, and you certainly have every right to tell me about it. But I of course have the equally valid right to tell you what I think about it. I am under no compulsion to celebrate, approve, encourage, or assist you in doing X. However, this seems to me the understanding many people have with regard to gay marriage, and it strikes me as very worrisome. As another blogger puts it, "Tolerance is not enough. You must approve!"

  173. Xenocles says:

    "…non-normative tendencies…"

    You say that as if it were a bad thing.

  174. AngelSong says:

    I somehow doubt that the wedding cake was going to feature penises instead of flowers as decorations. I am also quite doubtful that a wedding cake baker puts any special care into the creation of the little figurines that go on top of the cake. Absent some very unique quirk in the design, I fail to see why the baker has to be especially involved in the event itself or providing any different service from that he would provide to any other bride or groom who was ordering a wedding cake. This is quite unlike painting a mural or even playing the piano at the reception.

  175. Let's put a different scenario out here.

    A small group declaring itself to be a Baptist church declares that "God hates fags" and travels around the country picketing at funerals, stating that the deceased individuals are in hell because of the sins of the nation. The group seeks to have picket signs and leaflets declaring these beliefs printed at a local print shop, and the proprietor refuses because he finds the church's beliefs to be offensive to his religious/moral beliefs. Can he refuse to print these items without running afoul of federal civil rights law, state human rights law, and city ordinances prohibiting discrimination based on religion? Ought the printer be forced to print the materials or face fines/damages/jail time after the fact?

  176. Orv says:

    @Shane: Your error is in assuming that competitors have conflicting interests. Often their interests are actually aligned.

    More libertarian eras, like the Victorian period, suggest that the competitors won't point it out because they'll be doing it too. That was routinely the case with adulterated food products. If one manufacturer started replacing some of the sugar in their sweets with plaster, or using toxic arsenic-containing dyes, the others would follow suit because it increased profits and customers had no way of knowing the difference. Frankly, they *had* to to stay competitive in the free market, because they were competing on price.

    In one famous incident, a confectionary accidentally bought arsenic instead of plaster, and several children died. Under the libertarian principles common at the time, the courts ruled that no crime was committed — the supply house didn't know the material was for human consumption, the confectionary didn't know it wasn't plaster, and caveat emptor applied to the children who ate the resulting lethal treats.

    As far as Texas goes…the problem with people feeling free to let you know they don't like you is sometimes they do it by dragging you behind a truck or something similarly lethal. I prefer to live somewhere where there's social pressure to treat people who are outside the norm like human beings. But as the saying goes, the great thing about states is there are 50 of them. You can stay in Texas and I'll stay here in Washington.

  177. ULTRAGOTHA says:

    I am also quite doubtful that a wedding cake baker puts any special care into the creation of the little figurines that go on top of the cake.

    Indeed. In many cases the gay couple provides their own figurines for toppers.

  178. Shane says:

    @Orv

    The alternative is that the inspector of confectioneries is bought off in the quest to make a buck. Human greed will never and I repeat never be regulated, lawed or otherwise removed from the human condition. The best, and in my mind, the only hope to combat it is to pit it against itself. I disagree with you 100% about competitors have common interests. If I think that there will be moral outrage at you using paste (yes I said it) in your confectioneries, guess what. I am going to launch a truth campaign and hang you with it. Because I want your business and the money it brings. As to your story, it sounds as if an accident occurred. This happens. I am sad to say that nothing but nothing will stop a confluence of events that produces a disastrous outcome. Not even banning arsenic as the case may be.

    The thing about Washington and it's California thinking is this. It don't happen here. Actually it does. But when it happens in Texas then the backward state of Texas is mocked and ridiculed by all the high brow thinkers. One other interesting note to those that are unfamiliar with Texas (please watch Full Metal Jacket) is that after Haight-Ashbery and the Village, Texas contains number three in this sequence.

  179. barry says:

    I like popehat because I had not thought of wedding cakes as 'publications' before this.

  180. Orv says:

    @Shane: I think the fact that adulterated food products were once extremely common, and are now rare, argues against your point. Regulation isn't perfect, but it has had an effect. It's extremely rare today to find things like sausages with sawdust filler or medications that contain none of the active ingredient stated on the bottle; these things were once accepted as the normal way of doing business.

    The market can only act as a corrective when the people doing the buying can distinguish good products from bad. Not many people have the expertise to, say, assay a sample of every bottle of pills they buy to make sure they're as advertised. It turns out the winning strategy in an adulteration scenario is not to produce a pure product and rat out your competitors, but to make an impure one and *advertise* it as pure.

    I don't disagree with you that discrimination happens everywhere; I also don't disagree that it's often better to have it in the open. My problem with Texas is that discrimination there is not only open, it's considered socially acceptable, and even celebrated. I'm sure it's a great place to live if you're a straight, white, highly masculine guy. Me, I'm an androgynous, bisexual, skinny sort who's married to a transsexual atheist. There is no version of me that would be safe in Texas.

  181. James Pollock says:

    "As an anarcho-capitalist libertarian I support the right of any business to limit its customer base in whatever silly way they choose."

    Sure. Now what happens when the organized group shows up and says "we won't support your business if you don't limit your customer base in whatever silly way WE choose? Is that more like a boycott, or more like "nice place you got here. Shame if anything were to… happen to it."?

  182. David says:

    Like many here, I think there's a difference between refusing to serve cakes to gay people in general, and refusing to serve the actual wedding cake. Refusing to serve a class of person is not the same as refusing to serve a class of *events*. If the straight parents of the couple had been the ones to order the cake for the same event, this would not have resulted in a sale.

    If I run a grocery store and some protestors outside are burning flags, and they run out and want to buy more, then even assuming they have a burning permit and are not breaking any laws, I should not have to sell them my flags because I don't like what they will DO with them. Not because of who they are or what they believe, but because I object to what they will be doing with the particular product I am selling.

  183. James Pollock says:

    "Does he have the right to refuse if it would actually hurt his business?"
    This argument surfaced early in the civil rights movement. It went like this: "I personally have no problem with selling and serving food to black people. But my customers, they wouldn't want to sit next to a black person. They wouldn't want to sit on a seat that a black person had previously sat upon. So I can't open my lunch counter business to black people… if I did, soon I wouldn't have anything but black customers, and there aren't enough of them to support my business."

    The civil rights act took the choice away from the lunch counter operators. As they feared, some racists stopped coming to integrated lunch counters, preferring to avoid them rather than compromise their "principles". But… it turned out that a LOT of white people didn't care enough about having to sit near a black person to stop patronizing the lunch counters. Many, it turned out, were just as happy eating near black people as they were around racists, and some even preferred it. How many people would have supported the racists instead of the blacks if it integration of lunch counters was piecemeal instead of mandatory for all? That depends on how much their reason for not wanting to eat lunch in an integrated lunch counter was that eating lunch in a place that had black people in it was something different from what they were used to and they didn't want something new and different, versus the specific objection to eating lunch with black people.

  184. Xenocles says:

    James, you're smart enough to know that that would be exactly like a boycott. A better question would be whether a boycott is an acceptable means of protest. For my part, you have the right to not spend money, you have the right to a reason for your inactivity, and you have the right to make that reason known to anyone who will listen.

    Contrast that with what we have now: the state will use force to hurt your business in varying degrees if you don't comply with their demands. Not even remotely the same as a boycott.

  185. James Pollock says:

    "For my part, you have the right to not spend money, you have the right to a reason for your inactivity, and you have the right to make that reason known to anyone who will listen."

    But these rights are limited. The various anti-trust acts, for example, limit your ability to make or not make deals if they affect the entire market.

    And there are many, many kinds of boycott, including some kinds that are REMARKABLY similar to extortion (and some that are not, of course). For example, a strike is just a specified type of boycott, and, well, they're known for use of force and threats of use of force to get people who were NOT supporting the strike (boycott) to change positions and support the strike.

  186. Xenocles says:

    The law says a lot of things. That has nothing to do with what's right.

  187. Kevin says:

    @Orv

    I think the fact that adulterated food products were once extremely common, and are now rare, argues against your point. Regulation isn't perfect, but it has had an effect.

    I would argue that you have the causation backwards on the correlation between food safety regulations and actual food safety. Regulations tend to follow social mores, not lead them. The reason food adulteration is less common today (in first world countries) is because the residents of first world countries are less tolerant of it today than they were 100 years ago. As technology has improved, public expectations as to what constitutes an "acceptable level" of food adulteration have changed, and industry practices have changed to meet the public's expectations. Regulation then followed the changing social norms.

  188. Erroll-Flynn says:

    Chris K. • Jul 9, 2013 @3:08 pm

    So the main intrinsic or extrinsic "bad thing" I'm thinking of is shame. Just off the cuff (I don't have sources on me), there's a bit of research about how the risk of some public shame drives conformance to norms. Ones own level of possible internal shame at the taking of the risk, even where the risk of an actual public outing of some time, is pretty strong in most cases.

    So for a specific instance, most who do or do not download mp3s illegally are actually motivated by the risk of a civil suit (a private use of the gov'ts coercive power) for their violation of the relevant copyright laws. (I'm 100% about the research but I'll admit I'm being lazy and not grabbing sources now). This is true across all age demographics, but especially younger generations. The relevant motivations are, for younger generations, a lack of perceived shame in engaging in the act, and for older generations, (allowing for those capable of achieving the technological feat), they are motivated by the perceived shame that this is stealing.

    That's a really rough run down, but its the general idea. The actual threat of gov't coercion is low in peoples minds when making a decision to download or not.

    As a quick example of a "good thing": people I would imagine are more inclined to do business with those operating within the relevant regulations. If you're considering a bank, would you want the personal banker to say, "we can give good interest rates because we cut a lot of regulatory corners?" Would you choose a hospital that said it chose what relevant regulations to keep and which to not based on its own estimation of which were actually medically relevant? Banks and hospitals don't just do that to cover their own butts (thought of course they do) they also do it because its better for business because its bolsters reputation.

  189. James Pollock says:

    "So for a specific instance, most who do or do not download mp3s illegally are actually motivated by the risk of a civil suit (a private use of the gov'ts coercive power) for their violation of the relevant copyright laws."
    I do not for a moment believe that this is the case. Pretty close to nobody worries about the expense of a possible civil suit. The RIAA/MPAA attempts to create this fear were abject failures. Did you mean to say that most people are NOT motivated by fear of civil suits? Because I think that would fit in better with the rest of the argument you make.

    I like the argument about no-smoking areas. As some places became "no smoking" zones, many smokers freely ignored this. What convinced them finally was not government enforcement of no-smoking rules (except possibly in airliners) but increasing social pressure to go smoke outside.

  190. Shane says:

    @Orv

    I think my transgendered friend would disagree with you but since you are already in a relationship then I won't ask you for your number for her.

  191. Erroll-Flynn says:

    @James Pollock

    Yeah that was totally a typo, I meant the exact opposite of what I ended up saying in that sentence.

  192. whheydt says:

    Re: Orv

    On the scarcity of medications with none of the active ingredient in them…

    Are you familiar with homeopathic "remedies"?

  193. DRS says:

    Hey, Chris. K. There seems to be some dispute about your Washington quote:

    Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action.

    Attributed to "The First President of the United States" in "Liberty and Government" by W. M., in The Christian Science Journal, Vol. XX, No. 8 (November 1902) edited by Mary Baker Eddy, p. 465; no earlier or original source for this statement is cited; later quoted in The Cry for Justice : An Anthology of the Literature of Social Protest (1915) edited by Upton Sinclair, p. 305, from which it became far more widely quoted and in Frank J. Wilstach, A Dictionary of Similes, 2d ed., p. 526 (1924).

    In The Great Thoughts (1985), George Seldes says, p. 441, col. 2, footnote, this paragraph “although credited to the ‘Farewell’ [address] cannot be found in it. Lawson Hamblin, who owns a facsimile, and Horace Peck, America’s foremost authority on quotations, informed me this paragraph is apocryphal.”

    This can be found with minor variations in wording and in punctuation, and with “fearful” for “troublesome,” in George Seldes's book, p. 727 (1966).

  194. mcinsand says:

    Long ago, when I was in school, I did a paper on anarchism. I wanted to learn more, and a required research paper was a convenient vehicle. On reading, though, anarchists often recommended communal services for addressing issues such as crime, fire, and some other infrastructural issues. Whatever you call it, that is still a government.

    A problem with a lot of the posts concerning the original discrimination topic and the political offshoot is the view that these are black and white issues. Our government is (generally) made up of good, honest, decent people, as with any other organization. As with other organizations, some decisions are good, some are not, and resources are best allocated wisely. Too many people at the top will reward supporters with divisional branches full of these decent people… where we in the private sector could do more for our country if some of these were with us, contributing to the GDP.

    I would use Vitamin A as a good analogy for the US-style government. We need it, we would be in (more) chaos without it, but too much is toxic. (If I remember my biochem correctly, polar bear liver is dangerously poisonous because it stores such high quantities of Vitamin A, so eat everything but the liver if you have to survive in the Arctic!)

    As for conservative/liberal, I'm not sure that the words still hold any real meaning in US political discussions. Now, rather than embodying any consistent philosophy, they have merely become synonyms for political right versus political left.

  195. John Kindley says:

    As one who's called himself an anarchist for several years, I've recently come to the conclusion that anarchism qua anarchism can only coherently mean individualism. A good essay on the point is Sidney Parker's "My Anarchism," available online at the Anarchist Library. That is, the anarchist qua anarchist is not a peddler of schemes of social salvation. Anarchism qua anarchism is merely negative, and what it negates is authority over the individual. Note however that this negation of authority over the individual does not logically preclude an individual or confederation of individuals, even ones who subscribe to "anarchism," from "governing" themselves and others. (The legitimacy of such government depends not on authority but on its justice.) After all, there's no authority over the individual forbidding him from thus governing as best he can, by himself or in confederation with others. So while an anarchist qua anarchist is not a peddler of schemes of social salvation, an individual who is an anarchist may be. I myself am partial to Henry George's Single Tax, Thomas Jefferson's Ward System, and Lysander Spooner's Trial By Jury.

  196. Daniel Taylor says:

    @Shane: so I take it you are OK with people punching you in the gut because they don't like the way you walk? I mean it hurts, but to argue that they can't might impede their freedom.

  197. Clark says:

    @wolfefan:

    Hi Clark – Thanks for your comment. You write, "Freedom is about people being free to do all sorts of things, including anti-social things, self-destructive things, and more." What does this actually mean? I don't think anyone disagrees with this statement; rather, the differences are about where the lines are drawn

    You are entirely correct; the phrase "your freedom to swing your fist ends where my nose begins" is clever…and 100% vacuous. The devil lies in the details of defining "nose" and "fist".

    @ULTRAGOTHA:

    And if there is only one store in town? One fuel oil company? One LPG delivery company? One electrician?

    This is a serious argument and you are making it in good faith; I made it myself before I became a libertarian.

    We can absolutely create such scenarios in theory, but in reality, things are never so cut and dried. There's always another store one town over. There's always an electrician. Not to mention it is a very rare vendor who chooses to discriminate at the cost of revenue. It happens, yes, but recall that during the Jim Crow era it was the State that used the force of law to mandate that businesses discriminate. Gold is a powerful solvent and it etches away at prejudice.

    Things are much more floating point than boolean.

    @Matt:

    Shelley v. Kraemer was decided incorrectly? Large, affluent neighborhoods can exclude black people from living there?

    I suggest that your question isn't really about "large and affluent", which are tangential to the point, but is about "private individuals".

    Sure.

    How many golf courses would choose to bar blacks right now, even if they could?

    I note that universities fall all over themselves to recruit minority students, often bending or breaking laws to do so.

    @Void:

    Clark that is just silly, there is no such thing as uninhibited freedom.

    Three questions:

    Are you making a "is" or "should" argument here?

    Where did I use the word "uninhibited" ?

    Your argument by assertion that "that there is no such thing as uninhibited freedom" is an interesting one. May religious conservatives use it to defend laws against sodomy? Why / why not?

    @Xenocles:

    I agree with Clark. Put as simply as my time will allow, you aren't free unless you're free to be wrong.

    Pithily restated; thanks!

    @bill

    Clark's first response was awesome, even if I don't eat snickers

    Would you if they were deep fried?

    @Ryan:

    Libertarianism is not supposed to be akin to anarchy; there are important caveats that come with its principles, which Clark (and those agreeing with him) seem happy to ignore.

    1) asserted without evidence

    2) I identify primarily as a voluntaryist / anarcho-capitalist

    @kevin:

    Personally, I'm with Clark on this, although I recognize that there is a principled moral case to be made for other positions.

    Agreed; I don't accuse others of acting in bad faith – merely of being wrong.

    The problem is that there is no principled way to implement a legally-enforced anti-discrimination regime, since at some point it's going to have to involve a bureaucrat, or a committee of bureaucrats, deciding on what is "goodthink" and what is "badthink".

    EXACTLY.

  198. Daniel Taylor says:

    We can absolutely create such scenarios in theory, but in reality, things are never so cut and dried. There's always another store one town over. There's always an electrician. Not to mention it is a very rare vendor who chooses to discriminate at the cost of revenue. It happens, yes, but recall that during the Jim Crow era it was the State that used the force of law to mandate that businesses discriminate. Gold is a powerful solvent and it etches away at prejudice.

    All that you say is true here, except for the part where it isn't.

    All a business needs is enough customers to pay the bills, the employees, and the owner. If they get enough business from people they consider acceptable there is absolutely no reason for them not to discriminate.

    Additionally, if discrimination is acceptable, the odds that an unpopular minority will be discriminated against by *all* businesses in an area is very high. The existence of a fuel oil supplier the next county over is irrelevant if they also don't want or need your business.

    In fact, discrimination against unpopular minorities is one of the easiest things for an unfettered free market to support, since the majority will either be unaffected by or in favor of such discrimination.

  199. bw1 says:

    @Ken: my aim was not to start an argument about whether anti-discrimination laws can be reconciled with free association of freedom of religion, but to ask why they are criticized inconsistently.

    It would seem your answer is that among your readers, they criticized fairly consistently, hence the topic drift.

  200. bw1 says:

    @Daniel Taylor:If you wouldn't support someone's right to punch someone in the gut for a particular reason you shouldn't support their right to discriminate against them.

    That's ludicrous. One discriminates on various traits when choosing intimate partners, so either you are saying that you support a law compelling men to date ugly women, or that you support their right to beat up ugly women.

  201. bw1 says:

    @Erroll: People comply with court orders, and anti-discrimination regulations without your end game in mind.
    That's a little naive. The class of people typically subject to court orders, warrants, judgements etc. usually don't grasp rule of law, democratic process, etc., let alone respect it. Society pretty much breaks down into two groups – those who comply because what the law mandates pretty much aligns with what they've been raised to do, and those who comply so "five-O won't pop a cap in yo' ass."
    Perhaps you should spend some time reading Radley Balko's chronicles of how many people the government shoots every year because of what they choose to put in their own bodies, among other trivial reasons. While I agree with your implied assertion that the safety and authority of law enforcement should grow out of broad public consensus that the laws they enforce are reasonable, the militarization of civilian law enforcement and the growing eagerness to over-utilize that firepower indicate that does not reflect the current state of our society.
    Regarding your assertion that shame acts more than the threat of government force to elicit compliance, I can only suggest that you need to spend more time outside your cloistered upper-middle-class sphere. As for civil suits for downloading, I would suggest that those simply involve a few more mandates to refuse before one is confronted with government agents with guns on their hips. Also, confiscation of one's means to obtain food and shelter eventually devolves to a lethal act.
    As for your example of "good things" someone dying from a C-diff infection would tend to seek out a healthcare provider willing to skirt the FDA's onerous and time consuming approval regimen for the only treatment shown to be effective.

  202. bw1 says:

    @Orv, neither Shane nor anyone else here has advocated allowing impure products to be advertised as pure – that is fraud.

    Further, people can choose to turn to private entities for the service of verifying how their food is made, and it does work, even for small groups of people with relatively strange concerns about their food. If you'd to see this principle in action, go to the supermarket and look for a letter K or U in a small circle on the label of food products.

  203. bw1 says:

    @Ryan, your broad definition of harm is highly subjective and inevitably depends upon debatable moral propositions. Objective harm is material infringement of the rights of others. There is no right not to be embarrassed, offended, or otherwise made to feel bad. There is no right to have people be your friends. There is no right to have someone sell you a cake – if there was, then, in a town with no bakery, the government would be justified in compelling, say, a gas station to start making cakes for sale. The fact that you desire to purchase a given product or service does not compell anyone to offer it for sale, generally, or specifically to you. Furthermore you've asserted that the harm comes not from the action, but the motivation. Thoughtcrime, anyone?

    Also, since you admit Mill is a utilitarian SOME of whose ideas may have been embraced by early libertarians, I fail to see how you spouting Mill have a greater claim to the "no true Scotsman" line of argument than do those currently engaged in libertarian advocacy, especially since, as noted above, your definition of harm calls for sanctioning thought and speech that hurt feelings, which would encompass offensing Muslims by portraying Mohammed, as opposed to tangible actions that cause material harm. What could be further from ANY flavor of libertarianism than the imposition of official orthodoxies and sanctioning thought and speech?

  204. bw1 says:

    @xkaren08, just as with the photographer in New Mexico, this isn't a question of discriminating against customers based on their characteristics, but rather of refusing to offer specific types of goods and services which are predominantly sought by customers with those characteristics. Presumably, as silverpie commented, if the denied customers had wished to purchase a dozen cookies, they would have been served, and conversely, if one of their (presumably straight) parents had ordered a cake specifically for a same sex commitment celebration, they would have met with the same refusal. I doubt the bakery inquires as to the orientation of all customers.

    That said, Ken, I'm with Clark – freedom of association shouldn't be subject to someone's moral judgement. An interesting way of exploring this is to consider the freedom of customers to boycott a business because of the owner's characteristics. It would seem that a business owner's loss of livelihood is far more harmful than these guys having to ask their smartphones about the dozens of other bakeries in the area. So, Ken, given your implicit endorsement of government forcing one side of all business transactions to practice a pro-diversity worldview, why aren't you clamoring for true equality and having armed government goons frog march customers into minority businesses and forcing them to patronize them? I mean, really, isn't it about time the gander was made to goosestep, too?

    I would amend the Constitution thusly: The powers granted in Article I, section 8 of this Constitution shall extend solely to overriding actions taken by the states in suppression or restraint of interstate commerce. Neither the United States, nor any state or its subdivisions shall have power to prohibit, restrict, dictate the terms of, or compel any transaction or interaction between mutually consenting persons who have attained the age of majority, nor the power to tax failure to participate in any such transaction. Prosecution of fraud shall require clear evidence of factual misrepresentation.

  205. Orv says:

    @whheydt: That's actually a good example of my point. Congress specifically exempted homeopathic remedies from regulation, so they're an unregulated type of "medication." And yes, they explicitly contain no active ingredients.

    Another example of what happens in the absence of regulation is nutritional supplements. Congress revoked the FDA's power to regulate them, except in cases where they can be shown to be actually toxic. The inevitable result: Many do not contain what they claim to. Variations of 20-25% from the labeled dosage seem to be common, and one test of six St. John's wort capsule brands found a 17-fold difference in the amount of active ingredient. Some tested supplements actually contained none of the active ingredient at all. (http://quackwatch.org/01QuackeryRelatedTopics/herbs.html) This is what an unregulated market looks like; you just don't know what you're getting.

    @Clark: My main concern is what happens if this principle of allowing businesses to discriminate starts to affect critical services. All the hospitals in my area have been bought by the Catholic church. Should they be able to say, "we're going to exercise our religious freedom to deny medical treatment to homosexuals?" In other words, should their right to discriminate extend to allowing someone to die due to lack of treatment?

    @bw1: "…neither Shane nor anyone else here has advocated allowing impure products to be advertised as pure – that is fraud."

    How are truth-in-labeling laws different from any other form of government regulation? It seems like we're drawing some pretty fine lines here about what is and isn't okay for governments to force businesses to do.

  206. Erwin says:

    From a pragmatic viewpoint…the problem arises when social shunning is sufficient to impair an individual's ability to survive and thrive in a region.

    Eg, 60odd years back, from my parent's recollection, apartments would not rent to mixed marriages and house deeds often contained language prohibiting sale to mixed race couples. The house they later bought contained such language, which was held invalid.

    Reality is that the only 'rights' people possess are those granted by physics (gravity) and those to which the vast majority of the local population acquiesce.

    In practice, if denied the 'right' to seek employment and housing on a reasonably level playing field because of my race, my acquiescence to other 'rights', such as life, that other people hold dear will become quite tenuous. Basically, I become better off when those people die. If my particular group composes more than 10% of the local population, the resulting decline in economic activity resulting from constant bombings, machine gunning of local malls, et cetera, will more than compensate for any loss of economic efficiency owing to anti-discrimination laws. The basic argument being that individuals, including businesses, are prohibited from doing things that upset large groups of people enough that they're willing to burn down the country.

    In this viewpoint, racial and religious antidiscrimination laws are most likely quite cost-effective in this country. Sexual preference antidiscrimination laws, although laudable, are harder to make an argument for.

    –Erwin

  207. perlhaqr says:

    Ryan, Errol: That may not be how most people think about it when they follow the law (or advocate one) but in the end, it is still what's being advocated.

    You may not like admitting that, presumably because you'd think of yourself as a bad person for advocating it more directly, but you may not deny the reality of it.

    In the end, the "harm" you speak of is primarily to the ego of the people who were told that they were offensive to the baker. And by advocating in favor of the sanction of law against that harm, at the ultimate level you are advocating for the prevention of that insult through the threat of violence and death.

    Please feel free to try and explain how I am wrong, but arguments of the form "most people don't think that" do not address the question. Please note, the thesis you are trying to defend here is "If a person does not comply with a law they disagree with, and refuses to accept milder punishments for violating that law, under no circumstances will the threat of coercive violence be employed against them."

  208. Orv says:

    @perlhaqr: It's worth noting that that applies to both sides. If a store has a "no long-haired guys allowed" sign, and I enter that store and refuse to leave, sooner or later the police will be called and I'll be coerced to leave with the threat of violence.

    Actually, in some states the fact that I'm trespassing would make it legal for the store owner to coerce me with violence without involving the government at all.

  209. jth says:

    I really find myself in the middle of this.

    Obviously essential services (food, lodging, employment, medical) have a higher priority than non-essential services. Those need attention regardless of who you are. If, however, someone does not want to enter into a contract to do your wedding cake, so what? Plenty of people are happy to do it (and do you REALLY want a caterer, photographer, etc. to be hypocritically performing for your event just because the law has forced them?).

    Differences here include the urgency (not being able to buy food is critical whereas planning a wedding months ahead is not), as well as the direct involvement of the parties. The waiter in the restaurant has no involvement in your personal life at all, someone engaged in planning your wedding has a close involvement. Similarly if you rent to someone, other than enforcing the terms of the rental contract you have no social contact with the tenants, if it's a room mate situation it's much different, and I would argue that it is not unreasonable to be entitled to reject a room mate on ANY grounds.

    I have faced a version this. Some years ago, my now wife and I decided to do an 'elopement style' wedding (at our age, why not) and we looked into wedding mills where we wanted to go. Some of the operators simply did not want to do a strictly non-religious ceremony (we're both atheists). While probably technically illegal, really this did not offend us. We simply found someone who was willing to do what we wanted. I think it is really absurd to make a big deal over the fact that someone does not want to contract for your event.

  210. Erroll-Flynn says:

    @bw1 and @perlhaqr, and probably @Clark K. too, get in on this:
    So the original reason I even jumped into this thread (I normally just lurk Popehat a ton), was to back up Ryan responding to this:
    perlhaqr said: “Ryan: You're advocating threatening lethal force against people for their having hurt someone else's feelings. You really think that's appropriate?”
    Ryan was generally asserting that anti-discrimination regulations are an appropriate topic of legislation.
    I genuinely mean no offense because I am well aware of this blog’s readership’s generally libertarian views (to use unnecessarily large brushstrokes), but frankly I felt that your retort was a non-responsive, non sequitur, implausible reduction to the absurd. While it is of course true that in the face of total non-cooperation, the government and its agents have no resort for enforcement of its strictures but lethal force, I didn’t think that line of reasoning was at all enlightening as to the question of whether or not we should have anti-discrimination laws.
    perlhaqr, to address your formulation of my thesis directly: that’s not my thesis, and I’m not sure what question your version of my thesis answers that was raised above. I honestly wasn’t too clear before, but my thesis is: “Saying that a person will ultimately face the threat of lethal force for non-compliance with government directives is unhelpful for debating the appropriateness of specific policies, in part because it’s a second-order reason why people comply.”
    An example: 20mph school zone speed limits, are they an appropriate regulation? Using your line of reasoning I could easily craft a scenario where a violator of such an ordinance ultimately gets himself shot, probably several times, by police, while resisting arrests coming from a body attachment, or whatever. But I do not think it’s helpful from a policy perspective to have to ask: Should lethal force be used against those who speed in school zones? The answer is, of course, no. You’re really begging the question: Should lethal force be an allowable option in the apprehension of those who speed in school zones and then intransigently resist any and all attempts at reasonable enforcement of much lesser penalties, in a long series of attempts, up to and including evading police and less-than-passive-resistance-of-arrest? That answer, to me, is yeah, probably.
    There are two separate questions here that ya’ll run together. (1) policy: good or bad? (2) intransigence and non-compliance towards gov’t enforcement of (1): will it be ultimately met with the threat of lethal force? I’m saying that answering (2) with “YES” doesn't really help us debate the merits of any (1) policy because you will always have to end up back at (2) for “extreme” cases. I say “extreme” because, yeah law enforcement is over-militarized, resorts to excessive force in circumstances too often, etc., and that is “extreme” (I’ve read plenty of Balko thank-you-very-much, and it’s depressing… I like dogs), but we should be able to have policy debates about the merits of (1) on their own. Ya’ll are running off to the ultimate question like people are chasing you.
    And @bw1: I take offense to you saying I have a “cloistered upper-middle-class sphere.” I most definitely have an aloof 1%-er tesseract.

  211. Erroll-Flynn says:

    Sorry about the lack of visible paragraphing. I typed that in word so it would look like I was doing real work…

  212. KevinH says:

    @Clark I'd also like the Freedom to choose which meal to buy, which books to read, which movies to watch, where to travel, to have my voice heard by others. Allowing the people who control those services too many freedoms limits my freedom, and is why there is really no such thing as a 'consistent libertarian'. Most of our 'Freedoms' depend on other people. All the fun ones do.

  213. Dale says:

    @ James

    "This argument surfaced early in the civil rights movement. It went like this:………"

    I only see the difference being that we are dealing with a strongly held religious belief here (like the extreme Islamic groups only they are called Christian). My personal experience is that these types of groups tend to be less easily persuaded to abide by a live and let live mentalitly. So if your business caters predominately to these sort of groups then loosing business is still very real.

    Full disclosure; I'm agnostic (been called atheist, if the shoe fits!) but I certainly don't have any issues with folks believing what they want to believe or living how they want to live. So I'm neither agreeing or disagreeing with the bakers motive.

  214. Dale says:

    Just for clarity, I don't mean to imply I know the baker's reasons, I was referring to the example I mentioned in my earlier post.

  215. R says:

    The business owner should have the right to discriminate against anyone he wants. He also has the right to less customers than any competing business. He must therefore also have the right to go out of business. Being a dick to your customers is an excellent way to be naturally selected against and go extinct. This is a problem that will easily solve itself in time without legal intervention.

  216. perlhaqr says:

    Orv: Yes. That's true. There are certainly times when violence is called for.

    Errol: Ryan was generally asserting that anti-discrimination regulations are an appropriate topic of legislation.

    Yes, I understand that.

    While it is of course true that in the face of total non-cooperation, the government and its agents have no resort for enforcement of its strictures but lethal force, I didn’t think that line of reasoning was at all enlightening as to the question of whether or not we should have anti-discrimination laws.

    Of course it is. Whenever anyone says "There should be a law!", the proper response is "Is the thing you are attempting to prevent really worth killing over?"

    An example: 20mph school zone speed limits, are they an appropriate regulation? [...] Should lethal force be an allowable option in the apprehension of those who speed in school zones and then intransigently resist any and all attempts at reasonable enforcement of much lesser penalties, in a long series of attempts, up to and including evading police and less-than-passive-resistance-of-arrest? That answer, to me, is yeah, probably.

    And I might even agree with you on that. Speeding through a school zone carries a significantly increased risk of running over and possibly killing a child.

    My point isn't that "violence should never be an option", it's that you need to consider whether it's appropriate when you're advocating making a law about something. Because, in the end, whether you think about it or not, that is what you're backing the law up with.

    There are two separate questions here that ya’ll run together. (1) policy: good or bad? (2) intransigence and non-compliance towards gov’t enforcement of (1): will it be ultimately met with the threat of lethal force? I’m saying that answering (2) with “YES” doesn't really help us debate the merits of any (1) policy because you will always have to end up back at (2) for “extreme” cases. [...] [W]e should be able to have policy debates about the merits of (1) on their own. Ya’ll are running off to the ultimate question like people are chasing you.

    (This is genuine confusion here, not just rhetoric) How can you have a policy debate about the merit of something if you ignore the cost of it? I truly, completely, literally do not understand how you could possibly hope to accomplish anything with that.

    It would be meritorious to give everyone free food and a free place to live in the city they want to live in and lots of sex with people they find attractive and transportation anywhere else they might want to go. How could you possibly have a debate about the merit of that proposition if you steadfastly refused to pay any attention to the price of providing it?

    You say I'm conflating two separate questions. I say you're looking at the entire concept backwards. "If it's not worth killing someone over, it's not a good thing to pass a law about."

  217. Orv says:

    @perlhaqr: It seems to me the thrust of this discussion is essentially about elevating the rights of businesses over the rights of individuals.
    Summarizing your responses so far:
    - Violence in support of enforcing equal treatment of individuals is not acceptable.
    - Violence by business owners against individuals they do not want to serve is necessary and acceptable.

    @R: It depends. To use a historic example, if a majority of people where you live think that Irishmen don't deserve to be treated well, treating them like a dick is actually a good business decision, because the majority will then be more likely to patronize your business. You may lose the Irish clientele, but that probably doesn't hurt you as much as losing the people who don't like Irishmen.

    The free market is just another way of enforcing mob rule; it doesn't have any inherent equalizing or corrective effects.

  218. perlhaqr says:

    To actually answer Ken's question: No, I don't think there is a principled reason. I think most people don't argue out loud against anti-discrimination laws because they're afraid that people will think that if they are defending the right of other people to be assholes, that they themselves are assholes, too.

    I think your answer is correct. Anti-gay sentiment is far more acceptable in mainstream America today than is anti-Jew or anti-miscegenation sentiment. I think that won't be the case in 50 years, just like 50 years ago being an antisemite wasn't anywhere near the social death curse it is now.

  219. Orv says:

    This has been a pretty interesting discussion. I have to wonder how differently the battle lines would be drawn if it were an Islamic baker refusing to bake a cake with a cross on it for someone's wedding.

  220. perlhaqr says:

    Orv: You seem to have skipped over the fact that businesses are owned by individuals.

  221. Orv says:

    @perlhaqr: Yes, but a select set of individuals who apparently are supposed to be considered 'more equal' than everyone else, from what I see in this discussion.

  222. Clark says:

    @Orv:

    This has been a pretty interesting discussion. I have to wonder how differently the battle lines would be drawn if it were an Islamic baker refusing to bake a cake with a cross on it for someone's wedding.

    As a practicing Catholic, I would see that as an opportunity to turn the other cheek to the insult (if insult it is) and – perhaps – strike up a friendship with the baker.

    Maybe I missed the part of the New Testament where Jesus commanded the apostles to appeal to the Romans to smite the Samaritans on their behalf.

  223. perlhaqr says:

    How so "more equal"?

    It's not a question of who is justified in employing violence, it's a matter of what violence is justifiably employed for.

    Defending property rights — Justifiable.

    Preventing hurt feelings — Not justifiable.

  224. Orv says:

    @Clark: I think that's more of an organized church thing than a Jesus thing. The Catholics, for example, have been lobbying very hard for the government to smite abortion doctors for them.

  225. Xenocles says:

    Being a dick to your customers is generally self-correcting (though the Soup Nazi, who was a real person, might be a counter-example), but being a dick to people who are not your customers can be rewarding. Dr. Pepper 10 seems to think so, for example, as do certain BBQ restaurants who make fun of vegetarians in their copy.

  226. perlhaqr says:

    Those are, of course, my positions on the subject. You may have different positions. My point is that you can't ignore the fact that that is your position, if it truly is.

    A person may truly think that the use of coercive violence up to the point of death, to prevent hurt feelings, is justifiable. But at least have the dignity to admit that's what you're advocating for. (Generic "you" used there, not putting words in your mouth.)

  227. Orv says:

    @perlhaqr: Calling it "hurt feelings" is a bit dismissive. Yes, in the case under discussion, hurt feelings are really all that's being risked. But that's not all that discrimination laws are about. What if the owner of my local hospital doesn't approve of my sexual orientation? Should they be allowed to let me die instead of treating me, so as to preserve their property rights? Should I have to hope that I can be transported to a hospital in another town in time? What if the ambulance company doesn't like me either?

  228. perlhaqr says:

    Orv: It seems to me the thrust of this discussion is essentially about elevating the rights of businesses over the rights of individuals.

    I had actually gotten so caught up in the matter of your use of "individuals" in this sentence that I missed your use of the word "rights".

    So, you're claiming a right for individuals to not have their feelings hurt?

    In that sense, I absolutely am "elevating the rights of business owners over the rights of individuals", because there is a right to property, but there is no right to not be offended. And I find the claim that there should be one offensive.

  229. perlhaqr says:

    Orv: What if the owner of my local hospital doesn't approve of my sexual orientation? Should they be allowed to let me die instead of treating me, so as to preserve their property rights? Should I have to hope that I can be transported to a hospital in another town in time? What if the ambulance company doesn't like me either?

    Then you really picked the wrong town to live in.

    Look, there's no example you can pick that's too extreme here. You may wish to stop trying. I will say 'yes' to any example you can think up that involves a private property owner's right to do as he wishes with his property so long as it is not actively (as opposed to passively) harming someone. ("Passively harming" would probably be better phrased as "allowing harm to happen through inaction".) Yes, a private hospital owned by a single person should absolutely have the right to refuse to service anyone. Even if it means that person is going to die. And I will call that owner a complete fucking asshole for it, and hope to organize an ostracism party that leaves him utterly without friends, that probably won't work because clearly, in a town like that, most people probably agree with him. Why would you even want to live in a city that densely populated with assholes?

    And if the owner of the ambulance company feels the same way, I'd run the call anyway to transport the patient to the nearest facility that would take them. (You probably would have picked another example had you known that I'm an EMT, who owns an ambulance.)

    How is your example any different than that of a starving man, faced by someone eating a bag of chips? The man will die if he isn't fed. Does he have the right, then, to take the bag of chips?

  230. perlhaqr says:

    And perhaps I am being dismissive, due to the particulars of the "Cake or Death" on parade here. And so perhaps you do wish to say "If the owner of the local hospital, which actually really is different from a bakery in a clearly definable fashion, discriminates on who they allow to be treated, that really is worth killing him over."

    My point is that ignoring the consequences of "passing a law" by sticking one's head in the sand doesn't make them go away.

  231. John Kindley says:

    Hell yes he has the right to take the bag of chips.

  232. Erroll-Flynn says:

    @perlhaqr

    So I explicitly agree that a gov't directive comes with the implicit threat of force. But I disagree that reducing a policy discussion to that standard is necessary, helpful, or appropriate as a practical matter. There are orders of "cost" here that I consider separate and distinct.

    The first order costs are those associated with the specific policy at issue, and the fines, penalties, jail time associated with them. The second order costs are those associated with the overarching policy that a government must enforce first order costs.

    So our baker decides to discriminate, gets hit with a fine. That's the 1st order policy decision and 1st order cost. THEN the baker decides to not pay the fine (and goes down whatever rabbit-hole of non-compliance that may result in an actual arrest, such as contempt of court, whatever). A violent(?) arrest is a 2nd order cost for violation of the 2nd order policy of enforcing 1st order penalties.

    For me, it doesn't make sense to tackle the costs of 1st order penalties and 2nd order penalties at the same time. Philosophically, it does to you, that's fine, but I don't think it gets us anywhere with regards to debate about 1st order policies. That's really a debate about the 2nd order policy of governments inherent coercive power, which it resorts too (again, too readily), after 1st order penalties/costs have failed/been ignored.

    The baker decided to discriminate, and had certain costs imposed on himself. The baker then had to make a separate, I believe distinct, decision to not pay, which resulted in different costs being imposed. They are related costs, yes, in that the possibility of the 2nd order penalty backs up the 1st order penalty, but I think you have to assume compliance with 1st order penalties when setting/discussing policy. Generic defiance of gov't, which is basically what the 2nd order policy seeks to prevent, if a different species of action from generic violation of 1st order policies, and is what you really want to discuss, it seems.

    I'm guessing you will take issue with the distinctions I make in enforcement, but I obviously think the actions of the baker which trigger degrees of enforcement are separate enough to warrant different policy discussions for each. I hope that gets us somewhere in isolating the underlying disagreement here.

  233. Erroll-Flynn says:

    Oh, and I would say that taking my distinctions would not be sticking one's head in the sand. It's just a different question. What do we do with discriminators? is a different question from, What do we do with those who take it to the next level and don't comply with earlier attempted enforcement the penalty for discrimination?

    Sorry I know I'm getting wordy, but I really just see the non-compliance with lower levels of enforcement as a different "wrong" than what triggered the initial enforcement.

  234. John Kindley says:

    Too many self-styled "anarcho-capitalists" are fanatics about property rights, even unto absurdity. I'm with the arch-individualist Max Stirner: "I do not step shyly back from your property, but look upon it always as my property, in which I respect nothing. Pray do the like with what you call my property!"

  235. Orv says:

    @perlhaqr: If that's really the line you've chosen, I see no real reason to continue the discussion. The idea that property is inherently more valuable than human life is so far from my views that we really have no common ground to meet on. This illuminates very nicely why I don't believe in libertarianism; at its heart, it values money (and/or things) over people.

    (BTW, the question was not entirely theoretical. I live in a city with several hospitals nearby, but the Catholic Church has systematically bought up all of them. It would be difficult to impossible to request a hospital that did not have to operate under religious guidelines.)

  236. perlhaqr says:

    Orv: Your call. But your position looks an awful lot like "My human life is a lot more important than your human life" to me.

    If you can use the threat of violence to compel me to do things with my property, which I have spent a not-insignificant portion of my life acquiring, you are retroactively enslaving me, by taking the hours of my life for your benefit.

  237. perlhaqr says:

    Erroll: If the second order penalty never would have occurred if the first order penalty hadn't been ignored, then you can't simply handwave the second order penalty when talking about creating a law that would incur a first order penalty.

    I mean, this is basic chain of causality stuff here. The second order penalty of "we used the threat of death to arrest him for not paying his fine" doesn't just appear out of nowhere. (Well, maybe in "Brazil".) It is a direct result of "We assessed a fine against him for refusing to bake a cake for that couple."

    So, in short, I guess you're right. I just flat out disagree with you.

  238. Orv says:

    @perlhaqr: The difference being, of course, that you would still be free to continue to acquire property, while I would be dead and no longer have the freedom to do anything. You'll forgive me if I don't see those two as equivalent.

  239. ChicagoTom says:

    If the second order penalty never would have occurred if the first order penalty hadn't been ignored, then you can't simply handwave the second order penalty when talking about creating a law that would incur a first order penalty.

    Your position seems to be that it is wrong to throw people in jail whenever they don't like laws and choose not to follow them.

    What you seem to be advocating is a form of anarchy, where people get to disregard penalties for whatever the think is unjust.

    You're rationale can be applied to anything short of murder/violent crime..that the potential punishment of violence is out of proportion to the crime.

    By your rationale, even defending property rights won't justify any penalties, because if I choose to not acquiesce to your penalty then the use of violent force is excessive for post property rights infractions.

    Let's say i walk buy your house and pick a tomato from your garden. Or break your prized rose bush. You witness this and call the cops and they arrest me for theft and trespassing or vandalism. I get tried and I am convicted of a misdemeanor and sentenced to a fine and probation. But I say fuck it i wont pay because I don't believe in property rights. Now I am going to go to jail.

    By your rationale, that's excessive, no? So I get to flout the law and pay no penalty??

    Im sorry, but thats just not a serious position to take. The second level punishment has nothing to do with the 1st level offense. It has to do with enforcing respect for the law and the system and you. Violating rules has consequences. You don't get to just ignore the consequences. You may not like it, but it has to be that way in order for society to be livable.

  240. Erwin says:

    I guess the answer is that there's a substantial number of business choices which, absent anti-discrimination laws, I would be perfectly willing to kill the business owners over.

    Eg, refusals to treat injured children, consistent discrimination in land sales, consistent refusal to employ race XX.

    Given that, in practice, these are demonstrably widely held opinions – anti-discrimination laws for groups of significant size restrain the potential for violence.

    If I understand the libertarian argument, it is that private action, even that which passively results in the death of individuals is inherently ok while government action is inherently not ok. This argument fails, in practice, when passive private actions are sufficiently onerous to render adhering to the social contract (property rights, right to life) negative sum for appreciable parts of the population. (no nation can afford police forces to restrain even 10% of the population)

    I agree that anti-discrimination laws are problematic – but the probable gain in terms of social stability outweighs their costs. (which explains why most nations have some sort of anti-discrimination laws…) In practice, it appears that most consistent forms of discrimination are sufficiently costly and self-perpetuating that some form of legislation is necessary.

    –Erwin

  241. John Kindley says:

    "This illuminates very nicely why I don't believe in libertarianism …"

    "If I understand the libertarian argument …"

    It's unfortunate that the label "libertarian" has been so successfully associated with particular conceptions of property rights, like those of Ayn Rand and Murray Rothbard. Like the label "liberal" before it, it has come to mean something other and narrower than the word itself, rooted in "liberty," suggests. You'd almost suspect that the same propaganda which transformed anarchy into chaos (thereby making it publicly unthinkable) was at work here, were it not for the fact that for the most part it's self-described libertarians themselves who are degrading the word to suit their agenda.

  242. AlphaCentauri says:

    To some extent we're arguing over an imaginary difference. Some things get regulated; some don't. There won't be government regulations and they won't be aggressively enforced if there isn't a significant proportion of the electorate that thinks it's a good idea to do so. In the case of the civil rights movement, the people who supported racial equality lived in a different part of the country, but there still had to be a significant number of them or there would never have been any laws passed. Those same people could exert influence via market forces without having the government act as a middleman.

    Government regulations tend to occur when a small minority of douchebags are screwing up society for everyone else in a way that market forces won't control. What market force can I use to discourage my neighbor from opening an all-night bar and mosh pit in his back yard? What market force can I use to prevent a defense contractor in New York from dumping mercury in the Delaware River and poisoning the water supply for the city of Philadelphia? What market force prevents the auto body shop next to my business from using all the on-street parking in a 4 block radius for an auto scrapyard?

    If libertarians want to convince everyone else to eliminate government regulations, they need to come up for an answer to noxious asshattery first, expecially since people tend to suspect that an disproportionate number of libertarians are noxious asshats.

    Otherwise I'll just concentrate on trying to improve the system we have.

  243. perlhaqr says:

    ChicagoTom: Your position seems to be that it is wrong to throw people in jail whenever they don't like laws and choose not to follow them.

    No. My position is that all laws are backed up with the threat of violence, and you have to consider that when you are considering whether to advocate for the creation of a new law.

    What you seem to be advocating is a form of anarchy, where people get to disregard penalties for whatever the think is unjust.

    Irony: Yes, I actually am an anarchist, but what you're talking about is neither what I'm advocating, nor an actual definition for anarchy.

    The rest of your comment follows from flawed presumptions about my actual position, and therefore isn't really anything I can respond to, since it's not about me.

  244. Shane says:

    @Daniel Taylor

    I don't get how physical violence and discrimination are equal. I am not advocating physical violence I am advocating discrimination please do not put words into my mouth.

  245. John Kindley says:

    "Let's say i walk buy your house and pick a tomato from your garden. Or break your prized rose bush. You witness this and call the cops and they arrest me for theft and trespassing or vandalism. I get tried and I am convicted of a misdemeanor and sentenced to a fine and probation. But I say fuck it i wont pay because I don't believe in property rights. Now I am going to go to jail.

    By your rationale, that's excessive, no? So I get to flout the law and pay no penalty??"

    Ken's post made the point that the baker's defense attorney was manipulating the outrage by pronouncing that the baker faces a year in jail for following his conscience, but I went ahead in my first comments and stated that the baker was threatened with jail. My thinking was along these lines from Paterson's The God of the Machine:

    Government is a marginal requirement, necessary only in
    so far as the individual inhibitory faculty is not exercised
    according to agreement and natural right (equal liberty).
    Beyond that differential, government is an enthronement of
    paralysis and death. Hence the perversion of logic which
    affirms that the citizen exists only "for the state" and has no
    individual right to live. In fact, life can exist only in its own
    right; i.e., it is ridiculously futile for the state (or anyone)
    to order a man to live, if his faculties fail him; nor can a life
    be created by order. The creative processes do not function
    to order. But death can be ordered. Thus government is
    secondary, instituted by agreement; life, which pertains to
    the individual, is primary. Government is an agent, not an
    entity. . . .
    The confusion in respect of collective action arises from
    the initial power of man to do evil, and the consequent nature
    of law. In proposing any law, the proponent will not realize
    what he is undertaking unless he asks himself: "Is it my
    intention to impose restraint or inflict loss or pain on some
    person in the contingency specified?" Because that is what
    the law must do. The question follows: "Does the contingency
    arise from the initial action of that person inflicting
    injury or loss upon another by intent or negligence?" It is a
    fundamental error to suppose that a law may do some good
    and cannot hurt anyone. Whether it does any good or not, a
    law enforced must hurt someone. The right question is
    whether or not that person has set the machinery in motion
    by first injuring another. . . .
    Yet it must be borne in mind that the constituent element
    of government is not force; it is the moral faculty which
    decides and devises the check by which force must recoil on
    itself. And the moral faculty is in the individual.

  246. James Pollock says:

    Gee, I had so much fun staking out a controversial position last time.

    There is NO SUCH THING as a "right" if other people are not prepared to honor it. Your "property rights" exist not because of the nature of property, but because other people are willing to extend the "rights" of property ownership to you. (And when there are other people who do NOT honor your property "rights", other people are willing and able to protect your interests or allow you to protect your interests by use of force.

    Sometimes, the societal boundaries of "rights" changes. For example, we once respected the property rights of slaveowners; then one day we did not. Society endorses a loss of property "rights" in any number of different scenarios:
    1) eminent domain
    2) easement
    3) nuisance
    4) seizure
    5) impoundment
    6) levy to pay judgment
    7) necessity
    8) and yes, public accommodations law.

    Don't want to serve (insert any protected class here)? You can:
    1) resort to the political process to remove class protection.
    2) stop serving the public
    3) move to a jurisdiction with rules you prefer.

    or

    4) the ever popular "refuse to comply with the law and take the cosequences". But don't whine about it… you knew there were consequences when you made your stand. MLK wrote the letter from Birmingham jail in the Birmingham jail because he was willing to go to jail.

  247. Ibidem says:

    In response to Clark's remark:

    the phrase "your freedom to swing your fist ends where my nose begins" is clever…and 100% vacuous. The devil lies in the details of defining "nose" and "fist".

    "Nose" is anything I already have.
    "Fist" is anything you use to physically alter its state without my consent.

    Now, I have a question:
    Can anyone define "tolerance" in a way that clearly specifies its bounds, not by exception but by nature of the definition?

  248. bw1 says:

    @orv, read my proposed amendment. Regulation is restricting or dictating the terms of a voluntary transaction between consenting adults. Where there is factual misrepresentation (i.e. fraud) at least one party is not consenting to the actual transaction, but rather another transaction as which the real transaction is falsely represented. If you offer to sell me a bag of squirrels, when in fact you intend to hand me a bag of hammers, I have not consented to the transaction actually being made. Prosecuting such fraud is no different from prosecuting theft, because both involve a non-mutually-consentual transaction. Regulation is different – it says that I'm not allowed to buy a bag of hammers from you, even if I want to, or that I'm not allowed, for perhaps a lower price than either a bag of squirrels or hammers, purchase a bag of unknown items from you.

    And before you ask, yes, I do value the right to, say, purchase meat that might be a few days older than the federal mandarins say is perfectly safe, for a reduced price, knowing that I plan to cook it very well done. I value the right to purchase un-pasteurized cider that will ferment. I value the right to access new and innovative medical treatments that the FDA, at its glacial pace, hasn't yet approved.

    The USDA's track record for preventing food borne illness is a joke compared to that of the entirely private kosher certification industry. Motorcyclists across the nation know that the DOT helmet standard is worthless, and those who care about protecting themselves should seek a helmet cetified by the private sector Snell Foundation.

    Oh, and Catholic hospitals do not discriminate in who they treat. They limit the procedures they will perform. The Catholic church chose to open their schools to black students long before the city of Little Rock was forced to do so. In any event, to the question "what if all the vendors of X in my city choose to discriminate, consider if, in response to anti-discrimination statutes, they all decide to fold up their tents and quit. What do you do then? Conscript them? Therein lies the end game of the property rights question – when the resource in play is the unique skill of an individual, does government force that individual to perform a task at gunpoint? Ultimately property rights to oneself are in the thirteenth amendment. When you consider that, property rights suddenly don't seem so crass. Or would you rather have a system like the USSR, where individuals with the aptitude were told that they would learn a given skill and practice it, or go to the gulag or worse?

  249. bw1 says:

    @Erroll – very good point. However, the propriety of the policy (1) is colored by the end game sanction involved (2). The worst sanction that can be brought to bear is a factor in the reasonableness of the policy. For instance, a church may impose orthodoxies that a government may not, because, in the end, all the church can do to a heretic (at least in the 21st century first world) is deny them continued membership. So a policy that might be reasonable for a church or other private, at will organization is not reasonable for a government with recourse to lethal force.

    Since the biggest hammer in government's toolbox is a near monopoly on the socially acceptable use of lethal force, it's prudent to reserve government for enforcement of only the most urgent restrictions on behavior – those that materially infringe the fundamental rights of others. Not being offended is not a fundamental right, except maybe in the eyes of the Taliban, and only then when the offense is based on Muslim sensibilities. (Keep in mind that this whole sub-thread was initiated by Ryan's ridiculous definition of harm that included embarrassment and being offended.)

    Consider that the area where people in our society encounter the greatest degree of discrimination is in the search for a mate, and that this discrimination thwarts millions of nice, intelligent, productive, net contributors to civilization in fulfilling the very highest evolutionary/biological imperative, while simultaneously rewarding a lot of people who belong on Douglas Adams' B ship and are pretty much wastes of oxygen in the struggle to preserve civilization. Would you have government conscript the reproductive apparatus of attractive and highly fertile women to bear the offspring of ugly men it finds worthy? How else could this pernicious discrimination be fought?

    So, no, I don't find it reasonable for the government to ban discrimination in people's private interactions, nor do I find it necessary. Those who argue that the marketplace would either not suffice or would take too long ignore the fact that the government they would have act instead is democratically elected, and thus requires the same cr a greater critical mass of tolerant people to effect change. The problem in the South was that there were laws in place mandating discrimination, so the market couldn't work. If the Civil Rights Act had stopped at just forbidding those laws, I'd be OK with that. Instead, it mandated in the other direction, so we went from government force one way to government force the other way, and the market never had a chance to show us what it could do if the voters who drove government action voted with their dollars.

  250. bw1 says:

    @KevinH – you have the right to buy any meal, read any book, or watch any movie for which you can find a willing vendor with whom you can agree on a price. I'd really like to try haggis, and I'm free to do so within the bounds of what my resources can non-coercively obtain, but that doesn't compel anyone to offer to serve it. As the old saying goes, my liberty to swing my fist ends at your face.

  251. bw1 says:

    Ken, in answer to your original question, there is a very pragmatic reason that one might want government to prevent discrimination based on race, but not on sexual orientation. There is no sound basis for verifying sexual orientation, unless you want to send government officials into peoples' bedrooms. Anti-discrimination laws based on sexual orientation create a protected class in which anyone may claim or renounce membership at any time, which is problematic.

  252. bw1 says:

    @James Pollock, you have posited as an absurdly unlikely hypothetical something that has actually happened, portrayed as a dangerous hypothetical another thing that has already happened without any of the horrors you suggested, and misstated key points of the history of civil rights in the South. Perhaps you should become better informed.

  253. James Pollock says:

    Compare and contrast:
    Me: This is MY store. I own it, and what I do with it is MY business and not society's. If I want to use it in a discriminatory way, I get to do that because it's mine. If you want a store that doesn't discriminate, get your own.
    Society: No, you can't do that, because of public accommodation law. We're limiting your authority over your property, by force if necessary. Get over it.

    vs.

    Me: This is MY pistol. I own it, and what I do with it is MY business and not society's. If I want to use it by pointing it at people and demanding that they give me money in return for not pulling the trigger, I get to do that because it's mine. If you want a pistol that doesn't get pointed at people in conjuction with a demand for money, get your own.
    Society: No, you can't do that, because of criminal law. We're limiting your authority over your property, by force if necessary. Get over it.

  254. bw1 says:

    Alpha, if your neighbor can operate an all night bar and mosh pit in his back yard without any of the externalities materially impacting your enjoyment of your property, then why should he be discouraged? That is the problem with regulation – it is prescriptive and penalizes actions that do no harm. The proper alternative are existing noise, sanitation, etc. laws that can be enforced when the externalities of ANY of your neighbors activities infringe your rights, without prescriptive regard to the nature of the activities. Supporters of a recently ruled unconstitutional ban on short term rentals in our town (it's a tourist area) have so far been unable to explain to me why an owner-occupant or long term renter should get a free pass to create public nuisances.

  255. James Pollock says:

    "@James Pollock, you have posited as an absurdly unlikely hypothetical something that has actually happened, portrayed as a dangerous hypothetical another thing that has already happened without any of the horrors you suggested, and misstated key points of the history of civil rights in the South. Perhaps you should become better informed."

    Can we start with you informing me as to what your complaints are referring to?

  256. bw1 says:

    James Pollock, the logical fallacy in that is big enough to crush a city. Clearly, in the second scenario, you are using coercive threats to force people into a non-consentual transaction, whereas in the first, you are simply refusing to enter into a transaction to which you do not consent.

    Here's a counter question: in Nevada, prostitution is legal. Should prostitutes there be allowed to refuse service on a discriminatory basis, or would you actually have the government tell women with whom they must have sex?

  257. bw1 says:

    Can we start with you informing me as to what your complaints are referring to?

    -You put forth as an absurd hypothetical the idea of a preacher being prosecuted for preaching against homosexuality. It's already happened in Canada, which most progressives claim is every bit as free as the USA.

    -You implied that boycotts of businesses that fail to discriminate against gays would inevitably become violent. The two largest Prostestant denominations in the USA have been boycotting Disney for that reason for over a decade. Where are the firebombings?

    -You claimed that market forces failed to end lunch counter segregation in the South, when, in fact, the whole concept of "Jim Crow" refers to laws passed by state and local governments mandating such segregation, thus rendering any action by market forces moot.

  258. perlhaqr says:

    Should prostitutes there be allowed to refuse service on a discriminatory basis, or would you actually have the government tell women with whom they must have sex?

    *Popcorn!*

  259. James Pollock says:

    "James Pollock, the logical fallacy in that is big enough to crush a city. Clearly, in the second scenario, you are using coercive threats to force people into a non-consentual transaction, whereas in the first, you are simply refusing to enter into a transaction to which you do not consent."

    Yes, in one example I'm using coercive threats, and in the other, I'm not. Very good… I made the difference obvious enough to pick up. Now.
    What does that make a difference? In both cases, society as a whole has decided to limit, by force if necessary, my options. If the objection is "society has no business limiting my options", then both of these restrictions are invalid, no?

  260. James Pollock says:

    "You put forth as an absurd hypothetical the idea of a preacher being prosecuted for preaching against homosexuality. It's already happened in Canada, which most progressives claim is every bit as free as the USA."
    Actually, I put forth as an absurd hypothetical that a great many things are all part of an orchestrated plan conducted by a specific group.
    BESIDES the fact that I do not live in Canada, and that Canada, to the best of my knowledge, is not covered by the 1st amendment to the United States Constitution. It's little details like this that make all the difference.
    Uganda ALSO has different laws than we do, and according to the former President of Iran, there are no gay people at all in Iran, rendering the point moot there.

    "You implied that boycotts of businesses that fail to discriminate against gays would inevitably become violent."
    I what now?

    "You claimed that market forces failed to end lunch counter segregation in the South, when, in fact, the whole concept of "Jim Crow" refers to laws passed by state and local governments mandating such segregation, thus rendering any action by market forces moot."
    This would be true if legislation were not subject to market forces. In the real world, however…

  261. Xenocles says:

    "But don't whine about it… you knew there were consequences when you made your stand. MLK wrote the letter from Birmingham jail in the Birmingham jail because he was willing to go to jail."

    Going to jail was the strategy for winning the struggle; King was not seeking his own destruction. But it's a strategy that only works under certain conditions. Genghis Khan would have just cut Gandhi's head off and been done with it; the inmates at Auschwitz had nothing to gain from a hunger strike.

  262. James Pollock says:

    "Should prostitutes there be allowed to refuse service on a discriminatory basis, or would you actually have the government tell women with whom they must have sex?"

    How is this different from the government telling them with whom they must NOT have sex?

    The first question is whether or not government is to be allowed to regulate at all… before you get to the part where you ask what kind of regulation there should (or should not) be.

  263. ChicagoTom says:

    My position is that all laws are backed up with the threat of violence, and you have to consider that when you are considering whether to advocate for the creation of a new law

    I believe this is overly simplistic. I think it's more accurate to say: All laws have the threat of a sanction. Failure to honor those sanctions is backed up with the threat of violence, because there must be some kind of enforcement mechanism. As with rights, sanctions are only as good as the enforcement mechanism behind it. Penalties are useless if there wasn't a larger price to pay for ignoring those penalties.

    Having said that, your position seems to be a bit more than just what is quoted above. You stated the following:

    Whenever anyone says "There should be a law!", the proper response is "Is the thing you are attempting to prevent really worth killing over?"

    Go back to my hypothetical that you ignored earlier. Most people aren't willing to kill someone over petty larceny or minor vandalism. Does that mean, that since it's not worth killing over there shouldn't be a law against those violations of property rights? If the answer is no, then why should we consider if what we are trying to prevent is worth killing over?? If the answer is yes, then I would say most people would consider that a ridiculous position and rightfully be against it.

    At the end of the day the whole "threat of violence or deadly force" argument is hyperbole to try and make something you disagree with seem absurd. It's a nice sound bite, but under real analysis, the idea that any laws must be considered in the context of what is the worst case scenario if someone chooses to break the laws and the ignore sanctions and the many opportunities the system gives one to come to compliance with the law for various minor infractions, doesn't really stand up to scrutiny.

  264. Xenocles says:

    "Should prostitutes there be allowed to refuse service on a discriminatory basis, or would you actually have the government tell women with whom they must have sex?"

    Of course not. They must be prohibited entirely from allowing themselves to be exploited in that manner, for their own good. /s

  265. bw1 says:

    If the objection is "society has no business limiting my options", then both of these restrictions are invalid, no?

    James, are you really so dense as to not see the difference that lethal coercion makes? Further, if government is to be in the business of mandating transactions to which one of the parties does not consent, then I refer you to the prostitution question. There is no reasoned basis in your "logic" for a rational limit on government action, hence, you are advocating totalitarianism.

    Canada has an enumerated right to free expression. The exception involved in the mentioned instance is one that has been advocated in this country, including by those with the power to make judicial rulings and those who appoint them.

    I what now?

    How short your memory:Now what happens when the organized group shows up and says "we won't support your business if you don't limit your customer base in whatever silly way WE choose? Is that more like a boycott, or more like "nice place you got here. Shame if anything were to… happen to it."?

    legislation is not subject to market forces. Market forces involve voluntary opt in. With legislation, opt in is coerced and universal.

  266. bw1 says:

    Xenocles, given the theory of government James seems to be working around to, I think the apropos response to your position is the hypnopaedic proverb "everyone belongs to everyone else."

  267. James Pollock says:

    "Going to jail was the strategy for winning the struggle"
    Yes. Civil disobedience points out the injustice of a law by having individuals willing to be sent to jail rather than submit to the unjust law. The goal was to win popular support for reform; gaining the attention necessary to do that was achieved through having large numbers of people who were no longer willing to submit to injustice even in the face of jail and violence.

    "King was not seeking his own destruction."
    Well, he found it. Demanding justice rather than meekly waiting for it has been known to draw opposition, from time to time.

    There are people today who use the same tactics (civil disobedience to what they perceive as unjust laws), but are less successful because there aren't enough to of them to gain or keep attention on their cause. For example, civil disobedience was tried as a tactic against abortion clinics… protesters sat down blocking the doors and wouldn't move until they were removed by police.

  268. Xenocles says:

    "Well, he found it. Demanding justice rather than meekly waiting for it has been known to draw opposition, from time to time."

    It was a potentially beneficial event for the cause, but it was not an end in itself. Even if it were, it would not have been "death, just because." At any rate, King may have been willing to take the consequences but he did not do so quietly. He volunteered for imprisonment because it served an end; absent a similar end there is no point – and certainly no moral obligation – to giving yourself up for unjust imprisonment.

  269. bw1 says:

    How is this different from the government telling them with whom they must NOT have sex?

    That doesn't fit within your framework of businesses not being allowed to discriminate, or did you forget the topic of discussion?

    In any event, I'm perfectly consistent in believing that government has no business telling them either of those things.

  270. ChicagoTom says:

    Further, if government is to be in the business of mandating transactions to which one of the parties does not consent, then I refer you to the prostitution question. There is no reasoned basis in your "logic" for a rational limit on government action, hence, you are advocating totalitarianism.

    The government forcing you to buy liability insurance or paying a registration fee for your car is "totalitarianism" ?? Really?

    legislation is not subject to market forces. Market forces involve voluntary opt in. With legislation, opt in is coerced and universal.

    Then what are elections if not the market speaking? Unpopular legislation has never been overturned after enough people protest or speak out or passed because enough people support it ??? What?

  271. bw1 says:

    That is not market forces. Market forces involve both sides of a question freely existing side by side, and individuals having a choice to go either way, not being coerced to do what 51% (and often less) of the population wants. Market forces have allowed multiple auto manufacturers to compete for decades, whereas the legislative paradigm would mean that the moment GM gained 51% market share, all its competitors would be immediately forced to cease operations.

  272. James Pollock says:

    "James, are you really so dense as to not see the difference that lethal coercion makes?"
    Are you really so dense that you can't address the question?

    "Further, if government is to be in the business of mandating transactions to which one of the parties does not consent"
    *ahem* conscription. eminent domain. That ship not only left the dock, it circled the harbor a couple of times.

    "There is no reasoned basis in your "logic" for a rational limit on government action"
    consent of the governed. Government can do it because enough people agree that government can do it.

    "you are advocating totalitarianism"
    totalitarianism is a subset: government can do it because enough people with guns agree that government can do it.

    "The exception involved in the mentioned instance is one that has been advocated in this country"
    So is the one that people should be able to prevent Muslims from building a mosque on private property. That some nut thinks its a good idea is not at all the same thing as something becoming (enforceable) law.

    You got "boycotts of businesses that fail to discriminate against gays would inevitably become violent" from "Now what happens when the organized group shows up and says "we won't support your business if you don't limit your customer base in whatever silly way WE choose? Is that more like a boycott, or more like "nice place you got here. Shame if anything were to… happen to it."?
    Please note the difference between "imply" and "infer" before continuing this discussion.

    "legislation is not subject to market forces"
    Politicians can't be bought? I don't know where YOU are, but I know where I am. What gets into legislation is absolutely subject to market forces.

  273. bw1 says:

    James has equated laws forbidding robbery at gunpoint with laws forcing people into transactions they do not want. There's no rational basis for limiting government action in that. I can think of many different rational basis for limitations that would encompass financial responsibility laws.

  274. James Pollock says:

    "That doesn't fit within your framework of businesses not being allowed to discriminate, or did you forget the topic of discussion?"
    You seem to have assigned me a position I don't have.

  275. James Pollock says:

    "Market forces have allowed multiple auto manufacturers to compete for decades, whereas the legislative paradigm would mean that the moment GM gained 51% market share, all its competitors would be immediately forced to cease operations."
    The guy who gets 51% of the market share gets the job, and all the competitors don't (although they're not immediately forced to cease operations)
    Come to think of it, after legislation passes, opposition to it isn't exactly forced to cease operations. How many times has the House voted to repeal Obamacare?)
    Heck, market forces even operate after a U.S. Supreme Court holding on a Constitutional issue. If opponents to the holding can summon enough market power, they can amend the Constitution.
    So… your argument doesn't hold water, and your analogy is deeply flawed.

  276. bw1 says:

    I never stipulated that conscription or eminent domain were legitimate in a non-tyrannical country

    consent of the governed. Government can do it because enough people agree that government can do it.

    Fine, then I'm sure you'll help hang the nine people in black robes who have made such a habit of overturning majority voted decisions, along with every other judge who has ever blocked the results of a referendum.

    That some nut thinks its a good idea is not at all the same thing as something becoming (enforceable) law.

    Those "some nuts" include federal judges and those with roles in appointing them.

    Please note the difference between "imply" and "infer" before continuing this discussion.

    Don't be coy – own your words. The language you used is well known as the words of gangsters threatening violence to business owners for noncompliance. "something happening to it" typically involves high explosives or gunplay.

  277. bw1 says:

    You seem to have assigned me a position I don't have.

    So you do not support anti-discrimination laws? If that's the case then I apologize for missing that, and there's no more to say.

  278. bw1 says:

    Market forces allow minority players to continue indefinitely doing things "their way" as long as they can find sufficient customers to stay solvent. Market forces allow multiple "ways" to coexist side by side.

    Legislation does not allow alternative approaches to continue operating.

    Market forces might allow a small subset of the population to continue discriminating in an insular subculture, even 100 years from now, in a way that didn't deny anyone convenient access to the given class of service. Legislation is one size fits all, backed up, of course, by lethal force.

  279. James Pollock says:

    "James has equated laws forbidding robbery at gunpoint with laws forcing people into transactions they do not want."
    What a sad mischaracterization for what I said. Similarity and equality are not the same thing. Noting that charcoal and diamonds are similar in both being made of carbon is not a claim that charcoal=diamonds.

    "There's no rational basis for limiting government action in that."
    Again, there's consent of the governed. Robbery is illegal because enough of us want robbery to be illegal. Discrimination on the basis of race, gender, religion or national origin is illegal because enough of us want it to be illegal.
    Does this lead to implementation problems? Sometimes. There was a time when enough us wanted it to be illegal to be descended from Japanese ancestry. This is why our government uses a system of divided power (which is how we limit tyranny… if an executive agency tyrannizes you, you can seek refuge with the legislative or judicial branches.)
    The historical tide seems to be turning from "enough of us want sodomy to be illegal" to "enough of us want discrimination against gay people to be illegal". Will it ever turn back? Hard to say. If you really want to discriminate against gay people, does it suck that the rules are changing this way? I guess. The solutions to the problem are listed above… lobby to change the law, stop offering services to the public, move to a jurisdiction that favors your views, or disobey knowing that there are consequences.

  280. James Pollock says:

    consent of the governed. Government can do it because enough people agree that government can do it.

    "Fine, then I'm sure you'll help hang the nine people in black robes who have made such a habit of overturning majority voted decisions, along with every other judge who has ever blocked the results of a referendum."
    Do you not know how our country allocates government authority? The source of authority is the Constitution, which requires a supermajority to enact. Thus, when a judge finds that a popularly enacted law violates the Constitution, they are rejecting a majority decision for a supermajority one. It's how one limits the effects of the tyranny of the majority. Works pretty well, too… most of the time.

    "Don't be coy – own your words. The language you used is well known as the words of gangsters threatening violence to business owners for noncompliance. "something happening to it" typically involves high explosives or gunplay.

    OK. I'll own THESE words.
    "there are many, many kinds of boycott, including some kinds that are REMARKABLY similar to extortion (and some that are not, of course)."

    "http://www.popehat.com/2013/07/09/a-few-questions-about-the-socially-acceptable-range-of-discrimination/comment-page-6/#comment-1076893

    "So you do not support anti-discrimination laws?"
    You seem to have assigned to me a position I do not have, again.

  281. Xenocles says:

    James, I am routinely at odds with the prevailing judicial opinion, but "Thus, when a judge finds that a popularly enacted law violates the Constitution, they are rejecting a majority decision for a supermajority one" is an excellent defense of the (ideal) Court. I may borrow that.

  282. Erroll-Flynn says:

    @perlhaqr: I think we were always going to disagree in the end after finding the particular point of disagreement. I'm willing to leave it there.

    @bw1: I actually agree with most of your points about discrimination necessarily equaling harm, and the vagaries of enforcing most types of anti-discrimination regulations. Let the record reflect that I was more defending Ryan from what I thought was a spurious line of attack, rather than agreeing with his case in chief about discrimination.

    @ChicagoTom: You've been elucidating the position I was trying to take a lot better than I was. I like you.

  283. James Pollock says:

    "Market forces allow multiple "ways" to coexist side by side."
    I think you mean "…market forces MAY allow…" Market forces are quite capable of producing monopoly and monopsony.

    "Legislation does not allow alternative approaches to continue operating."
    Depends on the way it's written, now doesn't it?

    "Legislation is one size fits all, backed up, of course, by lethal force."
    And here we are back to "all government is force" as a trope. (The "lethal" part is quite debatable, of course, but that's neither here nor there.)
    Where we differ, I think, is in fundamental operation of the universe we live in (so, nothing big or important or anything.) Government is, in fact, controlled force. But the opposite of "government" isn't "a state of being in which no force or threat of force operates on the individual". It is actually "a state of being in which force or threat of force are randomly and uncontrollably applied to the individual."
    If limiting the government's ability to limit your actions were the path to freedom, then failed states would be the most free places to live. This is not the case. Absent a government able to maintain order, other mechanisms (arbitrary, capricious, and unfree to a high degree) will (often, at a substantially lower population level).

  284. Clark says:

    @Orv:

    @Clark: My main concern is what happens if this principle of allowing businesses to discriminate starts to affect critical services. All the hospitals in my area have been bought by the Catholic church. Should they be able to say, "we're going to exercise our religious freedom to deny medical treatment to homosexuals?" In other words, should their right to discriminate extend to allowing someone to die due to lack of treatment?

    Again, it's easy to create theoretical scenarios but hard to find them in reality.

    The Catholic Church, which has multiple encyclicals telling us to help our fellow man, no matter what his nationality, sexuality, etc. is runs…charitable hospitals.

    …and these hospitals accept everyone.

    But what if they didn't?

    Shrug. What if water wasn't wet?

    @Erroll-Flynn

    @bw1 and @perlhaqr, and probably @Clark..

    There are two separate questions here that ya’ll run together. (1) policy: good or bad? (2) intransigence and non-compliance towards gov’t enforcement of (1): will it be ultimately met with the threat of lethal force? I’m saying that answering (2) with “YES” doesn't really help us debate the merits of any (1) policy because you will always have to end up back at (2) for “extreme” cases.

    I think these questions are inseperable.

    If YOUR policy is to demand sex of pretty women, and blow raspberries at them if they don't comply, but a cop's policy is to demand sex of pretty women, and blow holes in them if they don't comply, then we have two really REALLY different cases.

    The former is social retardation, the latter is rape under threat of murder. The fact that step 1 is the same in both cases is a misleading commonality. We only even care about step 1 because of step 2.

    Orv:

    @Clark: I think that's more of an organized church thing than a Jesus thing. The Catholics, for example, have been lobbying very hard for the government to smite abortion doctors for them.

    Just as other Christians have also lobbied government hard to smite slave owners. This gets us back into the explanation that "nose and face" is too simple. If pro-life people are right that the 8 month fetus is a human being, then the act of abortion is a fist swung at the child's nose. If pro-choice people are right that it's a lump of cells in the mother's body, then the law against abortion is a fist swung at the mother's nose.

    Adding abortion – a topic where people of good will often can not agree on axioms – into a discussion rarely adds much light.

    Ibidem:

    In response to Clark's remark:

    the phrase "your freedom to swing your fist ends where my nose begins" is clever…and 100% vacuous. The devil lies in the details of defining "nose" and "fist".

    "Nose" is anything I already have.

    "Fist" is anything you use to physically alter its state without my consent.

    You've just pushed it back a bit. What does "already have" mean?

    Do you already have a neighborhood with a racial composition that you like?

    Do you already have a view across your neighbor's yard that would be blocked if your neighbor built the house?

    Do you already have a society that respects the proper kind of marriage and outlaws the wrong kind?

    Do you already have a town with the perfect population?

    Do you already have English speaking neighbors?

    @ShelbyC:

    Agree with Clark in general. But it doesn't sound like anybody's discriminating based on sexual orientation here. I doubt the cake maker would sell a cake celebration a gay wedding to a straight person either, he just doesn't want to make a cake celebrating a gay wedding. If a baker was OK making a yellow ribbon "Support Our Troops" cake, but refused to make a cake that said "Support the Iraqi Insurgents" would that be national orgin discrimination?

    Well said, and this makes me realize that in the baker's case, we're looking not just at compelled action, but compelled speech, which is extra-odious.

    @Faramir:

    There seems to me to be a tendency in society nowadays to equivocate between disapproving of a person's behavior and discriminating against that person.

    Well said.

    @Xenocles • Jul 9, 2013 @3:56 pm

    "…non-normative tendencies…"

    You say that as if it were a bad thing.

    LOL!

  285. Demosthenes says:

    Assuming that I agreed with Ryan's definitions of words, this is where his argument would have collapsed for me (as opposed to where it did, when he started in on Mill):

    "Had the baker merely said 'I can't make a cake for you' and left it at that, there is no discrimination."

    What a preposterous statement. What you mean, Ryan, is that there would be no visible discrimination. Right? Nothing you could point to. Nothing actionable. But the reason would still be in the act, wouldn't it? According to your logic, it's perfectly permissible for me to refuse to serve any black customer that walks in my door as long as I say "Sorry, I can't help you." But if I say "Sorry, I can't help you because I don't sell cakes to your kind," THAT qualifies as discrimination.

    Your position is untenable. Either refusing to sell a cake to this couple because of their sexual orientation does, or does not, constitute discrimination. (For the record, it does.) Further, such discrimination either should, or should not be, legally permissible. (Your opinion may vary, but I happen to believe that it should be — as it should be permissible for someone to refuse to sell to me, for whatever reason that they choose.) But one option that is NOT open is your distinction that it only counts as discrimination if you actually make your reasons public.

    On a related note, I would like to appeal to your citation of Mill to make a request of my own. Reading your incoherent arguments, and frankly your political opinions as well, has left me quite irritated. Since I think you would have to agree that irritating someone constitutes harming them, I therefore request that you voluntarily censor yourself on all further communications — in the name of consistency. Fortunately, I don't subscribe to your bizarre definition of harm…

  286. TomG says:

    Not sure if it's been mentioned yet, but perhaps instead of anti-discrimination laws, there ought to be "explicit discrimination" laws, i.e. your business is free to discriminate against anyone, but must have a sign that people can easily see, that states who your business has decided it will not perform services for.
    There's also the question of what happens when ALL local businesses agree on the same types of discrimination…what then?

  287. AlphaCentauri says:

    @bw1 — As far as restricting my neighbor's bar and mosh pit based on noise and sanitation ordinances:
    Perhaps you have never had any property in your neighborhood that was violating zoning ordinances. Trying to get them to stop violating the property rights of everyone else is difficult. It forces the neighbors to constantly monitor the violations. It requires months of videotaping all the people going in and out of their house to show that those people are the ones urinating on lawns and discarding beer cans in the street and putting their excess "sanitation" in front of other people's houses on trash day. It requires getting new parking regulations and making the other residents purchase permits so the residents of the house can't monopolize everyone else's parking. It requires taking a lot of days off work to go to court to present your evidence to a judge who might think people living within the city limits don't deserve the same quality of neighborhood as people in the suburb where the judge and lawyers live. It's a lot easier and requires less government regulation to try to get property owners to understand that a property is expected to be operated as a single-family residence before buying it in the first place.

  288. Daniel Taylor says:

    @Shane, et al: I equated discrimination to a non-lethal physical assault because discrimination is a form of assault. Economic assault might not be as obviously harmful, but there is harm there nonetheless, and it is not nearly equivalent to the establishment of a close, singular, exclusive relationship. Where do people come up with this nonsense?

    @Clark: I missed where you might have addressed my argument that unregulated markets can't stop discrimination against unpopular minorities and in fact preferentially support it.

    On the "Wedding cake" topic: there is a clear line of distinction there. If the couple was requesting a specific design that the baker found offensive he could simply say "I don't make that design, but if you want a design I do make I'll provide it for you". There might be lines where even that could be discriminatory, but it would be a much harder argument to make.

  289. AlphaCentauri says:

    Come to think of it, if there weren't zoning regulations in the first place, there wouldn't be intrusive government regulations like noise ordinances. If you buy property next to a property zoned for heavy industrial use, you don't get to expect them to be quiet at 3 am.

    Which municipalities in the US are operating according to strict libertarian ideals? How large are they? I keep seeing people argue that they should be burdened by regulations, but then when people say, "But what happens if someone does [x] to you?" the reply is to expect the agents of the government to come enforce some equally restrictive regulation. If no one has made libertarianism work on even a moderate size scale, there's no point trying to get the rest of us to buy it as a way to run large cities, let alone the entire country.

  290. James Pollock says:

    "If pro-life people are right that the 8 month fetus is a human being, then the act of abortion is a fist swung at the child's nose. If pro-choice people are right that it's a lump of cells in the mother's body, then the law against abortion is a fist swung at the mother's nose."

    That isn't an accurate division.
    The pro-life people are correct that the baby has rights, including a right to life. The pro-choice people are correct, that the mother has rights, including a right to decide what her body is doing with regard to reproductive activity.
    The challenge then becomes balancing these two rights against each other, most significantly in deciding when one achieves primacy over the other.

    The pro-life side wants to remove one of these rights from the table, squelching the mother's right in all cases, usually with the proviso "that's too bad, you should have thought of that when you had sex" (that's why it's so important to them that "legitimate rape doesn't cause pregnancy" be taken seriously.)

    The right to an abortion on demand disappears when the fetus becomes viable outside the womb. This isn't because the fetus' right to life suddenly appears at that point… it was there all along. It's just that before that point, the balancing between a fetus' right to life and the mother's right to self-determination are balanced in the mother's favor.

  291. Daniel Taylor says:

    @AlphaCentauri: the general consensus appears to be "laws for thee but none for me".

  292. John Kindley says:

    @AlphaCentauri But the argument for libertarianism becomes even stronger the larger the scale of government. In a confederacy of confederacies of individuals, the powers delegated to the higher by the lower confederacies should be fewer and more circumscribed the higher and more distant and abstract the level of government. An individual's say in government and power of exit and on the other hand the immediate impact of his neighbors on himself is more pronounced at the lower than the higher levels. See Thomas Jefferson's Ward System.

  293. James Pollock says:

    "Not sure if it's been mentioned yet, but perhaps instead of anti-discrimination laws, there ought to be "explicit discrimination" laws, i.e. your business is free to discriminate against anyone, but must have a sign that people can easily see, that states who your business has decided it will not perform services for."
    This sounds like a recipe for "gotcha" lawsuits, as someone comes in, and tries to find some category of person not listed on the sign that the owner still would object to serving. Or better yet, people pretending to be a type of person listed, being refused service, and then suing because they aren't actually any of the categories listed.

    There may be some value in making people stop, sit down, and think about who they'd like to serve and who they would not like to serve, all at once (so that the sign painter knows what to put on the sign), but I'd expect to see more trouble.

  294. James Pollock says:

    "But the argument for libertarianism becomes even stronger the larger the scale of government."
    There's an unstated assumption in this claim.

    IF the government is the primary infringer of your liberty, then restricting its power more the larger it gets follows.

    However, IF the government is the primary enforcer of your liberty, then its power should not be restricted as it gets larger.

    The truth is that government fills BOTH roles at various times, frequently both at the same time. When the police stop your neighbor the robber from stealing your property by force, it's protecting your liberty interests. When it makes you register your property with the government, it's reducing your liberty interests. When it makes you register your property as part of an enforcement system against theft…
    (The Founders thought that the states would have the role of enforcing individual liberty against the powerful central government. By 1868, it had been demonstrated that it was actually the central government that would need to enforce individual liberty against the states… so the Constitution was changed to say so.)

  295. John Kindley says:

    James Pollock: As a matter of historical fact it appears that the overriding intent of the State is criminal, and that any protecting of rights it might do is incidental to this design. I can do no better in support of this historical contention than to refer you to Albert Jay Nock's Our Enemy, the State.

    Every use of force, including government force, is presumptively an infringement of liberty and right. The use of force by slaveowners over slaves was presumptively and clearly an infringement of liberty and right. The use of force against slaveowners to stop slavery was also presumptively an infringement of liberty and right, but there the presumption was clearly overcome. The force used against slaveowners was reactive and recoiled upon the force used against slaves.

    As a historical matter I don't believe the Civil War was waged to stop slavery, which should make us hesitate to look upon the federal government as the benevolent guardian of our rights from afar. Nevertheless in my conception of Jefferson's Ward System the upward delegation of the protection of certain fundamental rights would be legitimate. And such protection could be legitimately enforced against dissenting wards if the will to do so among the other wards was sufficient.

  296. AlphaCentauri says:

    The people getting cheap power from high sulfur coal consider federal emissions controls to be an infringement in liberties. The people living east of them whose buildings and public art are being eroded by plants they have no ability to regulate through local laws don't. The people leasing their mineral rights for hydraulic fracking consider regulating that industry to be an infringement in liberties. The people whose water supply is downstream in those aquifers but in different legislative districts are concerned about the lack of documentation that fracking has no potential for polluting their water supply and making their well-fed properties worthless. Who gets to decide whether the federal government can intervene?

  297. John Kindley says:

    "Who gets to decide whether the federal government can intervene?"

    Whoever's got the deepest pockets, of course. Everybody knows that.

    The whole thing is corrupt and unjust, root and branch. Time to start over.

  298. James Pollock says:

    " I can do no better in support of this historical contention than to refer you to Albert Jay Nock's Our Enemy, the State."
    I'm going to respectfully decline your offer to assign me homework.

    "Every use of force, including government force, is presumptively an infringement of liberty and right."
    When the Sheriff levies upon the property of another to satisfy the judgment you have obtained because he routinely does not honor his contracts, whose liberty and right are being infringed?

    The use of force against slaveowners was, as I referred to above, a case where the government was simultaneously both protecting and destroying individual liberty at the same time. (At the same time it increased the individual liberty of the former slaves, it removed utterly the individual property interests in the fomer slaves.)

    Government is the controlled use of force. To achieve liberty, the controls must be balanced to keep opposing forces balanced. This is how the United States achieves it… sovereign power is divided between branches of the federal government, and between state and federal (and, to a much smaller extent, smaller jurisdictional bodies.)

    Every use of the state's police power both reduces liberty and increases it at the same time. By outlawing robbery, the state removes your liberty to rob, but increases your freedom from robbery. To pay attention to one side "state use of force is presumptively to diminish liberty" is to erroneously focus on only one part of what is happening, or, to put it bluntly, to miss the big picture.

  299. John Kindley says:

    "I'm going to respectfully decline your offer to assign me homework."

    As I declined to give you a full-blown history lesson to correct your erroneous and unwarranted assumption that the good done by the State balances the evil, which incidentally infects the balance of your comment.

    "Every use of the state's police power both reduces liberty and increases it at the same time."

    Just listen to yourself for a second.

  300. Rich Rostrom says:

    Your "analogous" examples all fail on one critical distinction. In all of them, the vendor is refusing, based on customer conduct or status,
    to provide services or goods completely unrelated to that conduct or status the vendor disapproves of.

    In the case of Masterpiece Bakeshop (and Elane Photography v. Willock) the vendor was asked to provide goods or services for the explicit and exclusive purpose of furthering and enabling conduct the vendor disapproved of.

    The right to X does not include the right to compel other people to help one X.

  301. James Pollock says:

    "In the case of Masterpiece Bakeshop (and Elane Photography v. Willock) the vendor was asked to provide goods or services for the explicit and exclusive purpose of furthering and enabling conduct the vendor disapproved of."
    Enabling? Unless I've been severely misinformed, gay people are able to be gay without regard to whether or not they are photographed or fed cake before, during, or after said gayness.

  302. John Kindley says:

    AlphaCentauri wrote: "Who gets to decide whether the federal government can intervene?"

    It occurred to me after I responded to your question that you weren't asking about the U.S. government but the federal government in my hypothetical confederate confederacies of individuals a/k/a Jefferson's Ward System. While this is all fantasy land stuff, it may be relevant as a framework for criticism. At every moment a "ward" is made up only of those individuals who've voluntarily joined and continue to support it. This does not mean these confederated individuals are morally prohibited from governing (morally) other individuals, such as those who declined to join or who seceded from the ward. A number of wards may form a confederacy, which likewise at every moment is made up only of those wards who've voluntarily joined and continue to support it. This does not mean these confederated wards are morally prohibited from governing (morally) other wards. In answer to your question then, the individuals who make up the wards get to decide whether the ward will intervene, and the wards that make up the confederacy get to decide whether the confederacy will intervene. If the individuals who make up a ward or the wards that make up the confederacy happen to decide they will abide by the decision of a majority or of 90% of their number, this would not change the fact that the ward or the confederacy at every moment is still made up only of those individuals or wards who continue to support it. A number of these confederacies may form a greater confederacy, and so on.

  303. Ibidem says:

    You've just pushed it back a bit. What does "already have" mean?
    Do you already have a neighborhood with a racial composition that you like?
    Do you already have a view across your neighbor's yard that would be blocked if your neighbor built the house?
    Do you already have a society that respects the proper kind of marriage and outlaws the wrong kind?
    Do you already have a town with the perfect population?
    Do you already have English speaking neighbors?

    Note the I in "something I already have".
    I take that in a very literal sense.
    It means my body, my life, my health, my tangible property…(and I for one would add "my conformance to the standard of righteousness which I believe is necessary for my own eternal life/salvation").

    I conclude from this:
    You have no right to hit me.
    I have no right to refuse anyone assistance when I am aware that it would cause them to die (noting that this does not apply to those justly receiving a capital punishment, and has limits in cases of self-defense, etc.)
    I am obligated to aid those who are becoming sick when my refusal of aid would worsen their sickness.
    I am obligated to pay you what I owe you, since it is your property.
    I have the right to dispose of my property as I wish (subject to my obligations of aid and payments), and you have no right to obtain it apart from any debts or obligations of aid.
    Likewise, you have the right to dispose of your property as you wish, including without limitation selling it to blacks, employing migrant workers, renting it to homosexuals, or planting a windbreak between my house and the mountains.
    I have no right to freely exercise religion in a way that disregards your rights to what you already have.
    But your, or anyone else's plans to procure something such as a wedding cake from me, or to have a wedding, do not place me under any obligation.
    If I were to deface your wedding cake, or otherwise damage your property/body "in an act of protest", that would be wrong. If I were to prevent you from obtaining a wedding cake from another person, that would be wrong–but it would be wrong because I interfered with that other person's freedom to dispose of their property.

    Of course everything is "subject to the limits of my abilities".
    The "you" above is not referring to anyone in particular, but any person other than myself.

  304. James Pollock says:

    Ibidem, to play devil's advocate, what about a situation where (otherperson) believes you owe a debt, but you dispute that debt? Is another person allowed to break the tie (either way)? How can they do this without infringing someone's rights?

  305. Ibidem says:

    @James Pollock: I don't see any contradictions in having a third party arbitrate or judge the dispute…provided the judge or arbitrator has binding authority over both (by consent or jurisdiction), and the claim constitutes an actual wrong.
    In fact, I consider it an obligation for the judge to hear it, provided that he can settle it justly (not biased, able to determine the facts, has jurisdiction).
    Why? Because if my fist commits a wrong against your nose, you are entitled to assistance in preventing or punishing that wrong.

    BUT, on the other hand, if what they call a wrong does not constitute one, or they make a baseless claim (one which the evidence lends no credence to), it's right to refuse to hear it.

    (If you're wondering where I'm coming from, it's somewhere amidst small-government conservative, Fundamentalist, Pentecostal, and Puritan/Separatist, with more regard to inspiration/infallibility than to any given group's party line.)

  306. James Pollock says:

    The problem being that our hypothetical arbiter does not have access to perfect knowledge. You claim one thing, they claim another thing, both believe they are in the right. The arbiter must thus use imperfect knowledge to render judgment, thus creating a possibility that they decide incorrectly. If that incorrect judgment is enforced by the Sheriff levying on property, how does that fit your system?
    In our current system, this is resolved because the courts are backed by the sovereign, who has an interest in maintaining order. How will this work if the sovereign has no authority to impose order other than by accordance with natural right?
    Disputes about contracts where both sides believe they are in the right are not exactly uncommon. There's a reason law students take a full year of Contracts during the 1L year, and most take at least another couple of semesters later on.

  307. Clark says:

    @Daniel Taylor:

    @Clark: I missed where you might have addressed my argument that unregulated markets can't stop discrimination against unpopular minorities and in fact preferentially support it.

    I do not assert that free markets prevent all discrimination, merely that they do a much much better
    job than government, even government that theoretically sets itself up to accomplish that very task.

    "Diversity is strength", right?

    I'd rather have a diverse thousand different people offering services, some with prejudices, than one monolithic code of what is and is not tolerable.

  308. Daniel Taylor says:

    @Clark:
    Discrimination is a funny thing that way, though. In the past it has been most common for people to discriminate in business not just against unpopular minorities, but against members of the majority who refuse to discriminate.

    I shouldn't need to write the words for you to know the phrase used on whites who refused to discriminate against blacks in the US South East while such discrimination was still legal. Acquiring such a reputation was not exactly a "business enhancing" experience.

  309. James Pollock says:

    "I'd rather have a diverse thousand different people offering services, some with prejudices, than one monolithic code of what is and is not tolerable."

    Well, we have both. You can't always have what you want.

  310. Richard says:

    Sorry for the delay in my response. Hectic couple of days.

    @Kevin

    If I have an iPhone in my hand, it can't also be in your hand at the same time. The only way to get it out of my hand and into yours is by application of force.

    Okay, I can get how, assuming competition for the same resource, how "possession" can be baked into the universe. However, I don't get how "ownership" is. Ownership, while related to possession, is not identical.

    For instance, I can "own" a field, but the universe does not distinguish between my standing on it, and some other person who comes later and stands on it. I can "own" a tree, but the universe does not distinguish between my plucking an apple off of it, and a trespasser doing the same. And the universe cannot distinguish between you handing a cake to me for free because you feel sorry for me, and me just grabbing the cake and walking out with it without paying.

    The universe has possession built into it, but I would argue that rightful possession, (i.e. "ownership") is a moral conception and is thus created entirely by humans.

    So, the initial question that started this tangent on the argument was: "Where does this idea that people have or should have a right to do business with anyone they choose on any terms they see fit, and not do business with anyone they choose, for whatever reason they see fit come from?"

    You say that it comes from the idea of "ownership" being baked into the universe.

    My point is that the natural state of the universe is anarchy: you can possess something, but the laws of physics have nothing to say if a person is right to use force to take it from you. It makes no sense to say that the government using force to take something "stolen" from you and return it (which is the difference between enforcing "ownership" and enforcing "possession") is baked into the universe, and the government using force to take anything else for any other reason violates the laws of nature.

    If you accept a government as an authorized user of force to apply abstract concepts (like "ownership") as being natural, I don't see how a government as an authorized user of force to apply abstract concepts (like "anti-discriminination") can also be unnatural.

    I'm not saying that you have to agree with both, I certainly don't condone governments enforcing certain abstract concepts ("blasphemy," for one), but I find your argument that "ownership" (as opposed to "possession") is baked into the laws of the universe, and therefore people have the absolute right to distribute things that they "own" as they see fit, to lack merit.

  311. Ibidem says:

    @James Pollock:
    I think I see where you're coming from. You're assuming I think that natural law should be the sole source of both law and government.

    Actually, I'm of the opinion that it should be a primary source of law (and not necessarily of government). Natural law takes priority over law that is not of like origin; government's authority does not derive solely from natural law, but its first duty is to defend it.

    Man cannot know all things, but man cannot therefore assume an inability to judge anything. If a judge cannot be guaranteed infallible, it's still better for there to be a judge who endeavors to dispense justice.

  312. James Pollock says:

    You can't build a society from natural law for the same reason you can't build physics on a foundation of luminiferous ether.

  313. Ibidem says:

    Sorry, "natural law" should be "natural rights".

  314. Jerry says:

    "My question is this: is there a principled reason that some people are outraged when anti-discrimination laws are applied to forbid discrimination against gays, but not to discrimination against Jews, or African-Americans, or any other group?"
    Outrage is an emotional response, so asking for principled reasons is asking for rationalization, not explanation.

    But the question of what kind of discrimination should be banned by the state is something else entirely. Telling a citizen who he must associate with and what services he must provide them with, despite his deep personal reservations – religious, moral, or otherwise – is an awesome power for the state to take on. Historically, as far as I know, no such power was exercised in the United States until the 1960's civil rights laws banned discrimination on the basis of "race or color" or whatever terms might have been used in those days. And … the passage of those laws was not accomplished without exactly this kind of debate: Who are you, Mr. Legislator, to arrogate to yourself the right to tell me, as a citizen, who I have to let sit at my lunch counter? The justification was simple: Extraordinary acts require extraordinary responses. The discrimination against black people in this country – "discrimination" is way too weak a word – went beyond "I don't like Negros". It was embedded in everyday life, in all aspects of law, in every interaction between blacks and the society in which they lived as, on paper, equal citizens. It could plausibly be argued that no weaker measures had any hope of reversing an intolerable, deeply immoral, situation. It was also made clear that the laws were not aimed at "discrimination" in general, but at discrimination against defined protected groups. You're perfectly ok refusing to someone who insulted you the last time they were in. This notion of "protected classes" has been fundamental to such laws. A number of years ago, an apartment house owner in New York refused to rent to lawyers – he'd found past lawyer tenants "too litigious". A lawyer who was turned away sued – and lost; lawyers are not a protected class, not even in the generally liberal courts of New York.

    Of course, if the law is going to revolve around membership in a protected class, others will want to be recognized as being in such a class. American Indian. Latino. Female. Over 55. With each new class formed, the arguments for the legitimacy of the next one become easier and easier. But along the way, the notion that we're talking about extraordinary measures justified by extraordinary circumstances has gotten lost.

    It's one thing to argue that a group of people who had been shut out of ordinary civil life – and, in many cases, out of life itself – for generations, and not just through deliberate blindness but through explicit government policy – for generations were legitimately granted special status in an attempt to bring them into society. But, really, are we at the point where we argue that there's a fundamental right to have a wedding cake made for you? Yes, gays have not been treated equally in various kinds of government benefits – and a (shrinking but still substantial) portion of the population don't like them. (Revelation: A shrinking but still substantial portion of the population doesn't like blacks or Jew or Catholics either.) Eliminating such inequities is legitimate – though deliberately changing the likes and dislikes of its individual citizens is an area in which a democracy really must not tread.

    If there were strong evidence that gays were being rejected as customers on an everyday basis to the point where it interfered with their ability to live their normal lives as citizens, we'd have a wrong that deserved righting. But I doubt there's such evidence to be found. (To the contrary, gays are viewed by most businesses as a highly desirable market segment, with, on average, higher disposable incomes and more interest in various kinds of expensive consumption than many of their peers.) But do we really need to bring the awesome powers of the state to bear on the question of wedding cakes?

  315. James Pollock says:

    "as far as I know, no such power was exercised in the United States until the 1960's civil rights laws banned discrimination on the basis of "race or color" or whatever terms might have been used in those days."
    You mean the 1860's, right? You're referring to the Civil Rights Act of 1866, the Civil Rights Act of 1871, and the Civil Rights Act of 1875?

  316. Anony Mouse says:

    I have to admit, every time I see "Market Forces", I think of 80s cartoon shows. He would be the opponent of Captain Socialism who would charge into battle driving the People's Car.

    Ahem. Sorry. Carry on.

  317. Clark says:

    I have to admit, every time I see "Market Forces", I think of 80s cartoon shows.

    I personally think of a Roger Waters song.

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