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Posts Tagged ‘volokh’

Eugene Volokh writes about a hypothetical scenario involving a mixed-race couple in the photography incident:

The desire to prevent race discrimination should no more dissolve your right to be free from being compelled to speak (here, to create an artistic work) than it should dissolve the right to express bigoted views, to choose members of a racist political organization, or to select ministers (or church members) based on any criteria a church pleases. And if that means that writers and photographers can’t be legally barred from choosing their subjects based on race, that’s just an implication of the basic First Amendment principle of the speaker’s right to choose what to say.

There should be nothing particularly daring about this position.

Needless to say, I agree. And my position will remain the same if I am discriminated against by someone in the US because I am an Indian.

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In America, you have freedom of expression and freedom of association, except when you don’t. Since the passage of the Civil Rights Act, one does not really have the right to decide who one hires, or rents out one’s apartment to, allows inside one’s restaurant, or does business with. If you refuse to deal with someone commercially because of their race, sex, age, sexual orientation or other protected characteristic, the government will punish you.

Yet the Civil Rights Act, in its original form, did allow significant exceptions for activities of a private or expressive nature. Much of that is no longer true. Courts are interpreting the provisions of anti-discrimination laws in ever broader terms. One no longer, for instance, has the right to decide who one lives with.  And now, it appears that one cannot even choose what one photographs. 

Elane Huguenin refused to photograph a client’s same-sex commitment ceremonies, and the New Mexico Human Rights Commission decided that this violated state antidiscrimination law. Elane has to pay over $6000 in attorney costs.

Eugene Volokh has a series of excellent posts regarding this particular incident, which I highly recommend. He argues that since photography is an art, this judgement violates the first amendment. I agree. However, even if that were not the case, I think there is no rationale for an anti-discrimination law that forces someone to offer their service to others — especially when the act of discrimination does not significant restrict the client’s ability to obtain that service (I am sure there were many other photographers who would have been willing to do the job for this particular client).

Ultimately, all these laws boil down to an intent to strip individuals of their right to make ‘immoral’ choices and use the power of the state to force this; and that, in my view is the ultimate immorality.

(Hat tip to The Volokh Conspiracy, where I saw this story)

Previous posts in this blog on anti-discrimination law:

Anti-discrimination laws and freedom

The need to defend the rights of bigots

 

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Libertarianism has an obvious moral appeal to those who value freedom (and I believe most of us do). However libertarian policies also often have huge political, economic and social advantages which while not obvious at first glance are nevertheless apparent to those who are have studied the matter in some depth. Thus, I have often wondered why so many academics tend to be left-wing (and not libertarian).

Ilya Somin, in a fine post on Volokh, argues that most academics, while usually very knowledgable and intelligent in their field of expertise, do not possess a corresponding degree of high political knowledge. Indeed, as Somin has discussed in a series of earlier posts, academia is for various reasons a highly unrepresentative sample of well-informed voters.

Moreover this lack of knowledge is not the only negative effect of rational political ignorance. There is also what Bryan Caplan calls rational irrationality, whereby “citizens tend to discount information that goes against their preexisting views”. Somin believes that this phenomenon may afflict academics to a greater extent than the general population; for academics – even those who are not that well-informed on political and socio-economic matters – are usually more emotionally committed to their views than the common man.

Somin also notes the work of political scientist Scott Althaus, who demonstrated that, controlling for other demographic variables, increased knowledge does tend to make people more libertarian.

Click here for the entire post.

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Eugene Volokh has a great post about the Hindley affair. Yet another example of political correctness taken too far in America.

Someone once said that the greatest American ideal isn’t democracy or mobility or justice or equality, but freedom. Apropos of nothing, I remember the song –

“Don’t it always seem to go
That you don’t know what you’ve got
Till it’s gone.”

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Rights and “Rights”

John and Terry Hoffius own an apartment building in Jackson, Michigan. In the summer of 1993, they had a vacancy and advertised it. They were contacted by a couple, Kristal McCready and Keith Kerr, who expressed interest in renting it. When asked if they were married, McCready and Kerr replied in the negative. Mr. Hoffius informed them that according to his religious beliefs it was sinful to cohabit out of wedlock and that he would not countenance it by renting to them. McCready and Kerr soon found another apartment in the area but would not just let the matter drop. They filed a suit against the Hoffiuses, alleging housing discrimination. The case went all the way up to the Michigan Supreme Court. In a 4-2 decision, the Supreme Court held that the Hoffiuses had violated the plaintiffs’ “rights” by not renting the apartment to them. [1]

In a 2002 decision, the California Fair Employment & Housing Commission fined Melissa DeSantis $500 for inflicting “emotional distress” on a would-be roommate by allegedly telling him that “I don’t really like black guys. I try to be fair and all, but they scare me.” The decision also required her to pay the would-be roommate $240 in expenses and take “four hours of training on housing discrimination.” [2]

Ann Hacklander-Ready rented a four-bedroom house in Madison, Wisconsin, and sublet three of the bedrooms to female housemates. After two housemates moved out, Hacklander-Ready and her remaining housemate, Maureen Rowe, looked for replacements. They initially accepted a rent deposit from Caryl Sprague, knowing that she was a lesbian. Hacklander-Ready and Rowe later decided they were not comfortable living with a lesbian, and returned Sprague’s deposit. Sprague then filed a discrimination complaint with Madison’s civil rights commission against both Hacklander-Ready and Rowe. The judge ruled against the duo, and ordered them to pay damages. Rowe settled but Hacklander-Ready appealed. She lost and was ordered to pay $23000 to Sprague in attorney fees, in addition to thousands of dollars worth of damages. [3]

In each of the above examples, someone’s rights were violated. It was the person who the court/commision found guilty.

The right to associate, fundamental to any free society, includes the right to not associate. The right to free speech incorporates the right to express opinions that may offend others. The ever-expanding scope of anti-discrimination laws strikes at the heart of these freedoms by telling us what we cannot do with our own property and what opinions we may not express. The greatest threat to liberty in the United States today comes not from the Al-Qaeda but from within — from the recent explosion of various laws that seek to erode civil liberties in the name of “compelling state interest”. Anti-discrimination laws are a prime example of those.

The original laws

“A society that puts equality – in the sense of equality of outcome – ahead of freedom will end up with neither equality nor freedom. The use of force to achieve equality will destroy freedom, and the force, introduced for good purposes, will end up in the hands of people who use it to promote their own interests. On the other hand, a society that puts freedom first will, as a happy by-product, end up with both greater freedom and greater equality”. -Milton Friedman

The two primary American federal laws that govern discrimination in businesses and property are the Civil Rights Act of 1964 [4] (henceforth abbreviated to CRA) and the subsequent Fair Housing Act of 1968 [5]. These laws prohibit discrimination on the basis of race, national origin, religion and sometimes sex. For instance, Title II of the CRA mandates that a person cannot be refused entry into a public place (such as a restaurant, hotel or theatre) on the basis of these characteristics. Title VII forbids employers from discriminating against a member of the above “protected classes” in any aspect of employment including hiring, firing and compensation. The Fair Housing Act makes it illegal to refuse to sell or rent a dwelling to any person because of his race, color, religion or national origin and it also outlaws discriminatory housing adverts.

Now, equality before the law is one of the fundamental tenets of a democratic society. Thus, there is no place for any kind of discrimination in legislation, government agencies or state-funded institutions. Indeed much of the CRA is concerned with outlawing this kind of state-mandated discrimination and I have absolutely no quarrel with those parts of the Act. Titles II and VII of the CRA and much of the Fair Housing Act, however, go much further than that; they impose restrictions on privately owned businesses. They lay out a particular moral standard and require that this standard supercede the individual’s choices even in matters that ought to be strictly his business. That to me is unjustified and immoral.

Some might argue that certain restrictions on freedom are necessary for ensuring social justice; that a complete absence of anti-discrimination laws will inevitably result in terrible consequences. My answer to them is this: the restrictions on individual liberty that anti-discrimination laws impose are huge and therefore they cannot be justified unless the likely consequences (of not having these laws) are sufficiently catastrophic. Let us therefore pause to consider what will happen, in this day and age, if all anti-discrimination laws which curtail property rights are repealed. Will it lead to overt discrimination in private businesses? Yes, some. However there is no doubt in my mind that the loss of profit, and more importantly the social stigma this will invite will be a very strong discouraging force and will ensure that instances of discrimination remain extremely rare. The current mainstream attitudes, as the reader will undoubtedly agree, are overwhelmingly against discrimination and no business that gives even the slightest importance to its brand image will dare indulge in overtly discriminatory conduct. The beauty of a free society is that there is always plenty of choice and a person who is the victim of one irrational bias will nevertheless find ten other places that will serve him without reserve.

What about the destructive wholesale discrimination against blacks in the early part of the last century, some may ask. One answer, of course, is that times have changed and the example is irrelevant to our present topic. The discrimination against blacks that occurred then will have never occured today even if there was no CRA. Indeed, the massive change in the attitude towards blacks among ordinary people and the rejection of the slavery-era mentality occured in the years before the passage of the Act (the very fact that the Act passed with popular support is testament to that) and thus many of the provisions of the CRA were unnecesary from inception! In some ways, however, this answer is unsatisfactory for it seems to leave open the question of whether a CRA-like act would have been justified, say, a hundred years ago (disregarding the fact that it would have never passed then!). A better answer is obtained by taking a closer look at the precise nature of that wholesale anti-black discrimination. As Ruwart points out [6], that wholesale dicrimination was a direct result of legislation. Laws were passed by the government which made it costlier to hire blacks, made it illegal for blacks and whites to mingle together and mandated discrimination in several other ways. In a truly libertarian society such laws would not exist, nor would anti-discrimination laws like Title II and VII, for all these laws share a defining characteristic — they restrict freedom and choice.

However, the greatest irony is that coercive laws like these seldom have the desired effect. They may achieve some (forced) racial integration but that does not naturally translate to less racial tension. They take away basic property rights and replace them with governmental tyranny and meaningless political correctness. In the words of Congressman and presidential candidate Ron Paul [7],

“The Civil Rights Act of 1964 not only violated the Constitution and reduced individual liberty; it also failed to achieve its stated goals of promoting racial harmony and a color-blind society. Federal bureaucrats and judges cannot read minds to see if actions are motivated by racism. Therefore, the only way the federal government could ensure an employer was not violating the Civil Rights Act of 1964 was to ensure that the racial composition of a business’s workforce matched the racial composition of a bureaucrat or judge’s defined body of potential employees. Thus, bureaucrats began forcing employers to hire by racial quota. Racial quotas have not contributed to racial harmony or advanced the goal of a color-blind society. Instead, these quotas encouraged racial balkanization, and fostered racial strife.

Of course, America has made great strides in race relations over the past forty years. However, this progress is due to changes in public attitudes and private efforts. Relations between the races have improved despite, not because of, the 1964 Civil Rights Act.”

The draconian morphosis

The original laws were however only the beginning; the top of the classic slippery slope. They opened the doors to more recent anti-discrimination laws that are much more draconian. For instance, Title VII of the CRA applies only to businesses with 15 or more employees. This was done in mild deference to the relatively private nature of small businesses as well as to save them from the often formidable costs of fighting a discrimination lawsuit. Many states however have since enacted laws that are essentially versions of Title VII without the 15 employee exemption. Thus, in California, anti-discrimination laws apply to employers with more than 5 employees; in New Jersey, the law applies to even 1 employee companies.

Many other examples are provided by David Bernstein in an excellent article [8] .

“While the civil rights laws of the 1960s were generally sensitive to civil libertarian concerns, contemporary antidiscrimination laws often are not. For example, in deference to freedom of association and privacy considerations, the 1964 Act prohibited discrimination only in public facilities such as restaurants, hotels, and theaters. Newer laws, however, often prohibit discrimination in the membership policies of private organizations ranging from large national organizations like the Boy Scouts of America to small local cat fanciers’ clubs.”

Of the many inroads that anti-discrimination laws have made into the private realm, one that I find particularly disconcerting concerns roommate selection. The original form of the Fair Housing Act only covered landlords, not roommates (except on the issue of discriminatory adverts). They also contained an exemption clause for landlords who rented less than four units and lived on the premises. Recently however, as the examples in the beginning of this article show, the law has been interpreted to cover roommates, even those who do not own the apartment. Deciding who to share a house with is an intimate matter and when laws and courtrooms interfere with that, something is very wrong. Eugene Volokh’s post on this subject [9] mirrors my sentiments.

Frankly, I am surprised at the relative lack of outrage on this issue. If the government attempts to clamp down on free speech there will be protests, and rightfully so, but many of these protesters will remain silent on issues of freedom that touch on politically sensitive themes like these. Of course, most of us are not racist, sexist, or anti-gay. However, a necessary characteristic of freedom of expression and association is that there be no caveats; the real test of liberty is when people offend.

There is no doubt that discrimination can be extremely offensive and pernicious; thus the idea of allowing people to discriminate may strike some as going too far. In the end however, as David Bernstein puts it, “it is a small price to pay for preserving the pluralism, autonomy and check on government power provided by civil liberties.”

References:

1. Housing Discrimination Laws and the Continuing Erosion of Property Rights-www.fff.org

2. FEHC Dec. No. 02-12, 2002 WL 1313078

3. http://volokh.com/2002_07_14_volokh_archive.html#85248159

4. Civil Rights Act of 1964 – Wikipedia

5. Fair Housing Act – Wikipedia

6. http://www.theadvocates.org/ruwart/questions_maint.php?Category=6&id=156

7. The trouble with forced integration – Ron Paul archives

8. http://www.cato.org/pub_display.php?pub_id=2719

9. http://volokh.com/posts/1179259134.shtml

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