The topic of discrimination – especially the assertion of the freedom to discriminate – is of course wildly controversial, legally and culturally. Just broaching it sets up a writer to be called out, decried, disparaged, and denounced. Defending the idea that anyone should be entitled to refuse service on invidious grounds, as defined by law, is widely considered to be beyond the bounds of acceptable opinion.
It shouldn’t be this way.
The freedom to choose assocations is essential to social harmony. The ability of both buyer and seller to do so on any grounds is good for everyone, especially marginalized groups and causes. It is not violence to decline to buy or decline to sell. It is an extension of human rights that we should all enjoy equally, for our own sake and for the sake of social peace. A society that grants the right to discriminate is one that consistently rejects the involuntary servitude rightly decried in the 13th amendment.
Both buyer and seller need the freedom to say no. That’s what equal freedom in a commercial marketplace means. Only in this way can we gain information about how best to use our resources and time. People who are free to discriminate broadcast information about their own preferences that allow others to make more rational decisions. This also incentivizes people to broaden their horizons beyond their immediate biases.
The Suspicious Homeowner
Let me provide an example of what I mean.
A few years ago, I was bringing a guest to town from China but he had a Ukrainian name. The first Airbnb host I tapped found this combination of two kinds of foreign to be strange. He pressed for details and I further revealed that the guest is Jewish. He asked if he practices his religion, perhaps worried about what rituals were associated with Jewish/Ukrainian/Chinese observances. The questions were getting ridiculous.
It’s his house, so I get it. But I found the whole thing annoying. I moved on. Just down the street I found a more willing host and made a deal. It gave me personal satisfaction to deny the discriminator several hundred bucks. And I was grateful that the man was under no compulsion to accept my guest. I don’t want to contribute to the profitability of what struck me as an overly narrow scrupulosity.
The new host was delighted and everything worked out as it should have, precisely because the people involved in the negotiations had the freedom of choice. I noticed later that the pestering host had removed his space from the platform, perhaps realizing that he wasn’t prepared for the uncertainty that comes with random customers.
I think about this case when I read of the many lawsuits now extant in the land concerning same-sex weddings. The initial concern following Obergefell v. Hodges concerned the rights of private wedding chapels whose owners would not perform same-sex weddings based on religious concerns. Many closed. Then they came for the bakers. Then the impositions came to venues that hosted weddings. They were sued. Now this legal sweep is affecting even businesses that make invitations and name tags – essentially the entire industry is getting swallowed in litigation. The enterprise is no longer free.
Rights of Conscience
For reasons that strike me as highly misguided, activists have targeted these service providers, challenging especially Christian-oriented services that might have a religious problem with same-sex marriage, forcing them to serve in violation of the dictates of their conscience. It will be years before all this is sorted out. A movement that began with the desire for more freedom has ended in taking freedoms away from people who disagree.
Let’s imagine a future in which they get their way. Everyone is forced to comply. No one has a choice. To answer yes is mandatory. No one can reveal preferences. Someone may feel intense religious objections but cannot act on them. They must accept all comers. You could be violating someone’s conscience and not know it. No longer are you, as a consumer, able to discern motivations.
My contention: buyers should not desire to violate another’s right to choose according to his or her own lights. I don’t want to be at a dinner party where I’m not welcome. If I have a choice, I don’t want to press anyone into service who secretly desires that I would go away. I don’t want to give my money to someone who does not perceive a mutual benefit in the exchange.
The Right to Know
The flipside is that I do want to be at dinner parties where I’m welcome. I do want to employ people who want to work with me. I do want to trade with people who genuinely welcome my business. But how am I to know who these people are if people are not allowed to be sincere in their expression of desire? If people are being compelled, I can’t know. I’m robbed of very important information concerning another person’s volition.
This is what anti-discrimination law does. It interrupts important information flows that enable buyers to make rational decisions, supporting values of which they approve and denying funds to people with values of which they disapprove. These laws thereby interrupt the feedback mechanism that makes market democracy work. It also takes away the incentive for people to adapt their own value system in ways that are most consistent with a pluralistic society. How? If you are losing money by consistently declining customers – even if your motivations are not invidious – you have every reason to check and perhaps rethink your outlook.
As regards the attempt to consistently act with malice, it should go without saying but it is undeniable: irrational discrimination is self-penalizing in a competitive market. Markets impose a price for persisting in bias. If resources are being undervalued, the market process has a way of inspiring people to find them, just as I was easily able to find a homeowner willing to host my friend.
And you know what happens when people are forced against their will? They resent it. They feel embattled. They hatch conspiracy theories about how the world is against them. They seek out people to save them from attack. You might have noticed that this is precisely what has happened among the demographic that is, for whatever reason, unwilling to come to terms with same-sex marriage. Once they came to believe that they were being bullied for holding a certain moral view, they have begun to lash out politically.
There are real dangers here. Opinion around the world is deeply divided on the topic. To force people against their will to adopt trade practices that violate people’s beliefs is a short-sighted political tactic. Politics cuts in many different directions. Unleash force on one group and that group could end up unleashing the same on you. (Actually that’s not a bad summary of politics for the last one hundred years.)
Now, whenever I write about this, the objection to this thesis is always the same: what about race? That’s supposed to end the discussion. The topic is not an abstraction. There are particular historical reasons why the ban on racial discrimination is a settled part of law, and it is impossible to separate this consensus from the previous legal impositions that involved not only slavery but also eugenics, legal exclusion, and forced segregation. It’s a grim and ghastly history. The gradual improvement of the moral outlook in the postwar period led to an overdue revulsion that resulted in a particular legal regime that focussed on reparations for past wrongs.
What this push to reverse course did was deploy additional forms of force that obfuscated the influence of cultural and market forces to solve social problems. There is no point in arguing about what would have been an ideal course but we can learn from history. Markets work to break down barriers and inspire and reward people for venturing outside the tribe. Trade is a path to mutual understanding and new forms of human encounter. This is why segregation laws existed in the first place: they had to impose discrimination by law, or else integration due to market forces gradually becomes the new normal. And this is why people who truly favor tribal forms of social organization must always resort to state control to get their way.
Don’t Think about Elephants
Our politics are being consumed by vicious identity obsessions that pit people against each other. No one seems to know how to get past this cycle of abuse. Consider how anti-discrimination laws have made its contribution to creating the problem in the first place.
Discrimination laws rest on typecasting, highlighting our differences, pigeon-holing, putting people in buckets, defining and then erecting barriers between people, pushing some mythical story that diversity always portends conflict, drafting people into associations based not only choice and the content of character but on immutable biological traits.
Surely there is no more wicked path. With these laws weighing on us, we can no longer acknowledge someone’s raw humanity as the desiderata for social life. These laws require the very thing we are trying to avoid, which is thinking about people in terms of groups instead of as individuals.
As for past wrongs, all of them are part of the history books, but we don’t live in this dark history; we live in the present information age of light, accountability, and transparency, which, from a humanitarian point of view, allows for the living out of the ideal principle: people should be free to choose. Individual choice – let no person use the state as the judge to discern and dictate the contents of another person’s heart – is the best foundation for social peace, universal human rights, and a gradual evolution toward values that are inclusive and pluralistic.