Discrimination At The Micro Level



Posted by Bob Lord

Yesterday, I put up what I thought was a fluff post, ribbing one of our conservative commenters regarding his opposition to lifting the ban on gay boy scouts. 

But the substance of his comment to yesterday's post was incredibly telling:

Our previous discussion generally concerned coercion by outside groups and the use of the full force of law to compel the Scouts to change their policies. At no time did I argue that they would not change of their own volition nor did I ever advocate against that course of action on their part.

I think that summary of our previous discussion is a bit selective, but put that aside and assume it's accurate. Does his characterization remind you of anything? From three years ago:

Maddow:… How about desegregating lunch counters?

Paul: Well what it gets into then is if you decide that restaurants are publicly owned and not privately owned, then do you say that you should have the right to bring your gun into a restaurant even though the owner of the restaurant says 'well no, we don't want to have guns in here' the bar says 'we don't want to have guns in here because people might drink and start fighting and shoot each-other.' Does the owner of the restaurant own his restaurant? Or does the government own his restaurant? These are important philosophical debates but not a very practical discussion…

Paul, if you remember, was skewered for those remarks. As well he should have been, as he was arguing against one of the core principles of the Civil Rights Act, which prohibits privately owned establishments that are open to the public from engaging in discriminatory practicing.

Actually, my conservative friend's argument goes one step further, as the Scouts are not privately owned, but quasi-public. They are subsidized indirectly by taxpayer dollars through their 501(c)(3) status. And the implication of his latest comment is clear: It's wrong to pressure or compel through force of law a quasi-public organization not to engage in discriminatory policies.

You only need to take his logic one step further, from quasi-public to public, and you're back to "states rights" and "separate but equal." And, if you go back to his original comments, he indeed argued for separate but equal:

"But putting aside constitutional doctrine, the problem with what you're saying is that if kids want to engage in scouting activities, the only practical choice is the Boy Scouts. If a gay (or atheist) kid is not allowed to join the Boy Scouts, he effectively is precluded from engaging in those activiities." [quoting me]

What precludes them from forming their own group to engage in those activities?

A generation ago, applying the same logic, my conservative friend's argument would have been "why can't Blacks build their own drug stores with their own lunch counters?" 

All of this is to make one small point: At the micro-level, those who promote discrimination don't understand they're doing so. 


  1. Sorry, the Wikipedia definition doesn’t cut it this time. Although segregation laws were an essential part of Jim Crow, it also refers to the social order that put a man on the wrong end of a noose for speaking to a white woman. Or kept sharecroppers tied to a landowner who cheat them out of their income at the end of a growing season. And forced those families to secretly to flee to northern cities, lest they suffer physical harm from the local landowners. Jim Crow was a reign of terror at the hands of private individuals, as well as the government.

  2. http://en.wikipedia.org/wiki/Jim_Crow_laws

    “The Jim Crow laws were state and local laws in the United States enacted between 1876 and 1965. They mandated de jure racial segregation in all public facilities in Southern states of the former Confederacy, with, starting in 1890, a “separate but equal” status for African Americans.”

    I oppose any government laws that either mandate or prohibit racial segregation (excepting government institutions and enterprises). Mandated racial segregation by government decree is a bad idea. Mandated racial integration by government decree is just as bad an idea. I oppose government butting into the realm of private association.


  3. The government certainly has the power to force private businesses to do business with people and to do so on terms that the government mandates (e.g. forced non-discrimination). I am merely asserting that it is a bad idea to do so.

  4. “I don’t think government should be allowed to discriminate. I think that any person should be allowed to discriminate so long as he is doing so on his own property.”

    That’s all well & good – as long as you are not a business open to the public – then you can’t decide to pick & choose who can.

  5. If I can’t determine who owns the property then I can’t determine whose rules apply. That in and of itself is not a desirable state. That is one reason why 50-50 public private partnerships should be discouraged if not prohibited.

    Life is nuanced but property should not be. If I can’t define a piece of real estate as private then I cannot prohibit government from encroaching upon it.

    In general this is why government should own as little property as possible. Government rules are political and political rules are expensive to apply and often arbitrary in their enforcement. Lawful behavior (selling adult beverages) should not be licensed in the first place. Then there is never a question as to fairness. Part of why government should be small is to minimize the number of situations where people have to ask the question “is it fair that the citizens against whom I’m discriminating pay taxes to have police and fire on the ready for my restaurant?”

    In New York City and other political jurisdictions where government enforced taxi cartels exist your question about discrimination is yet another example of why government shouldn’t be offering special benefits to special groups. Get rid of special favored groups such as licensed taxi companies, licensed right to sell liquor restaurant and you eliminate the number of situations where you even have to ask the question of should discrimination be permitted.

    I don’t think government should be allowed to discriminate. I think that any person should be allowed to discriminate so long as he is doing so on his own property.

    Redefining businesses that serve the public as public property is how fans of government attempt to rationalize unlimited government in all venues for any reason or no reason. Unlimited government and unlimited regulation is undesirable. Allowing people to cooperate when they want to and to go their separate ways when they don’t want to cooperate (or associate) should always be the desired end goal. Government mandates and government prohibition should be avoided whenever possible save for those situations where 99.9% of the population agree (e.g. murder and theft should be discouraged).

  6. Facts of one kind are attributed to another kind or attributing to one category that which can only be properly attributed to another. Your argument fits the classic definition of a Category Mistake in logic.

  7. Life is so easy as a Libertarian. In this case, there’s private property and public property, nothing in between. No need to worry about nuance. Nuance is inconvenient. It gets in the way of formulaic rules.

    But life is nuanced. If I own a restaurant, it may be my property, but it’s likely on a major street that requires more public services — more sanitation services, more police services, more fire services. And what if there only are enough people in town to support one restaurant? Am I then allowed to discriminate, thereby depriving some citizens of a restaurant facility? If there are a limited number of liquor licenses available, is it fair that I own one? is it fair that the citizens against whom I’m discriminating pay taxes to have police and fire on the ready for my restaurant? What if I’m an innkeeper and there only is room for one place of public lodging in town? What If I own a taxi in New York City, where there are a limited number of medallions? Can I systematically not stop for Blacks, even though the medallion was intended to ensure taxi service to all citizens?

    Sorry, but if we allow people with businesses that serve the general public to discriminate simply because we’ve decided to exalt private property rights, it’s unworkable.

  8. Allowing people to use their private property and to have their own preferences of association (including discrimination) is in my opinion more important than permitting government regulation the prohibits discrimination. Setting a higher importance to forced anti-discrimination than to the rights of property and freedom of association is to start down the road of allowing government to mandate lawful behavior instead of keeping government to what should be it’s primary duties which are to protect life and property.