Libertarian legal scholar Richard Epstein discusses the conflict over religious exemptions to antidiscrimination laws at Hoover “Defining Ideas” and in a related podcast at Acton Institute. He suggests that it might be helpful to refocus the concept of “public accommodations” on businesses held to common carrier principles, typically because of elements of monopoly:
Historically, Title II [of the Civil Rights Act of 1964, with public accommodation provisions] had two potent justifications. The first is that it was a necessary corrective against massive abuses of state power under Jim Crow. Thankfully, that risk is gone today. The other justification was that the traditional common law view — still good today — that any common carrier or public utility, by virtue of holding a monopoly position, was duty-bound to take all customers on reasonable and nondiscriminatory terms. When ordinary people have nowhere else to go for power, water, or transportation, they are entitled to get these services at reasonable rates. The rule covered all cases of racial discrimination, but it was not limited to it.
The implicit drawback of this position was that there was no duty to serve anyone in a competitive industry, precisely because disappointed customers had a full range of alternatives to which they could turn. The common law rightly held that refusals to deal in competitive industries counted as basic liberties.
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Beyond the economic, however, it can dismantle longstanding structures of dominance and subordination that prevent the state from guaranteeing even those rights that Richard Epstein so admirably wants to protect.
Trouble is, Jim Crow wasn’t just state power; it was part of the culture. For all the people who have asked how on Earth it’s possible for millions of independent small businesses to independently, without a massive conspiracy, decide to not serve a class of customers – despite the great advantage any one of them would get from breaking the norm – well, this is it. Culture is the answer to that question.
So what do you do? Not being the target of a combination in restraint of trade is a civil right.
Let’s say, for example, that the rule is that someone must serve the customer, and if no one will, the government can treat the whole group as a common carrier. So, fine, someone complies. African-Americans are then sold bottom-of-the-barrel items at high prices, extended no credit, and not given access to special orders, commercial discounts, or under-the-table items. Asked why, the owner smirks and denies that he’s doing anything, says there are no special orders, no commercial discounts, and no under-the-table items and that you can’t prove those apples were bruised any more than anyone else’s (and, for good measure, has a few white customers bruise up their apples before showing them to this inspector), and since the people receiving these undisclosed perks are his friends and aren’t saying anything, you can’t prove it. Naturally, the owner sees that he “got away with it” and tells everybody he knows in the business that you can get away with it. (Note also that people who literally don’t have any of these things are tarred with the same brush; it’s impossible for them to prove they aren’t part of a conspiracy, too. The result is a society at large with absolutely no trust or goodwill in it.)
You can’t measure passive-aggressiveness and it’s next to impossible to prove gaslighting; frequently, you look crazy if you try. That’s the core problem here. You can’t prove in court how people feel. No, it can’t be dismissed as unimportant; how people feel dictates how most people act.
Why aren’t African-Americans voting Libertarian? Gee, maybe it has something to do with being told that the logical inconsistency between the principle of freedom of association and antitrust/antidiscrimination law is more important than their rights. They need (not want) basic economic rights, and – having grown up in a system where any attempt to do anything is met by “convenient” excuses that “just happened” and “I didn’t do it, the rules did it” – the general view in the community is that “freedom of association” is just another dog-whistle “excuse.” The next time you use it, in another context and for another reason, you will be viewed as a racist.
IOW, no, “that risk” is not “gone today.” It’s entirely possible that gay marriage could be legal in Alabama, but because of the culture, no one would ever provide their professional support services to it – or so few would that prices would be higher and quality would be lower. So many people could independently decide that they will not offer their services for religious reasons that the market would be distorted. Telling people that they have “equal” access to an effectively separate, distorted market, which is not distorted for everyone else, is likely to be accurately viewed as a flimsy excuse.
Libertarians might come up with a better answer if the question becomes: “what is the government permitted to do when private institutions ‘play state?'” For example, if a standards-setting group becomes (what a shock!) a system designed to raise costs for everyone else, effectively taking over economic regulation without this power being delegated to them by any actual government? What if a college Title IX “tribunal” calls itself a court, looks like a court, says things like “we find the defendant guilty” (which sure sounds like a verdict to the man on the street), and obviously isn’t a court, but you’re not allowed to say that? What about arbitration with no appeals process, put in place by a “contract” that both parties “agreed to” “voluntarily,” when it was drafted by one side, which just happens to provide a service that the other side needs, and just happens to have a “policy” that they won’t negotiate any part of the “contract?” (This, by the way, looks to the person on the receiving end as though the other party is writing the law. That’s the practical effect on them. Oh sure, they could do without a particular cell phone plan, for example – but that puts them at a disadvantage against people who do have access to it.) What about insurance companies pretending to be regulatory agencies? What about vigilante lawyers suing people they disagree with?
There’s a difference between simple removal of all rules, allowing the powerful of the private sector to act against the less-powerful, versus actively promoting individual economic rights – even if that means preventing other private entities from infringing on them. That’s the difference, as I understand it, between anarchism and libertarianism. That means not letting private entities “play state.” That, in turn, means paying attention to whether one party in a “contract” feels pressured to “agree” “voluntarily” – and understanding that this pressure is wrong. And that means paying attention to people’s feelings.
IOW, folks, yes, discrimination is in fact a market failure, yes, it is important, and yes, it still exists. The state power parts have been largely removed; the cultural parts largely haven’t, and the result on the other end is a topsy-turvy world where the system looks objective and yet, somehow, the same people coincidentally manage to lose. That’s not equal access.
[…] (H/T: Overlawyered) […]