The right to discriminate freely is perhaps the most vital of all freedoms to a truly free society. It stands right there next to freedom of speech, freedom of information, freedom of association, and freedom of conscience. I would like to talk for a minute about the freedom to discriminate, and show how, when that freedom is taken away, liberty is sucked out of every corner of public life.
While there are strong moral reasons to discriminate in favor of your own race, and while I will make my argument for a moral duty to do so in another post, that is not what this post is about. While there are sound strategic reasons to discriminate on race and other categories as well, this post is not about that either. This post is about democracy, liberty, and free government.
Anyone who thinks of themselves as a Libertarian or who loves liberty or even just supports the US Constitution cannot be intellectually honest if they do not oppose anti-discrimination laws.
Recent cases regarding homosexuality have publicized the conflict between anti-discrimination laws and freedom of conscience, but that is not the only freedom that is destroyed by such laws. Here is just one list of freedoms anti-discrimination laws have taken away from you:
Contract: In a 1948 decision (surprisingly early for such an outrageously unconstitutional holding on race) the US supreme court effectively invalided any private contract which created a duty to discriminate, by holding that the state could not enforce such a contract’s terms. The decision has the effect of destroying freedom of contract, as a contract that is not enforceable in a court of law is not a valid contract at all, and loses its value when it cannot be enforced.
Freedom of contract is dead.
Key case: Shelley v. Kraemer, 334 US 1 (1948).
Association: This is one of the most basic of the rights guaranteed by the Constitution.
When we were discussing a discrimination related topic in my Constitutional law class, one of the students suggested as an answer to a potential discrimination issue that the person claiming discrimination could complain about a right of association. My self-professed communist professor promptly had to remind him that the right of association is a reciprocal right: you don’t have a right to associate with me if I don’t want to associate with you.
What he did not point out, was that because of the reciprocal nature of the right of association, anti-discrimination laws which force association where at least one of the parties is unwilling, violates this right.
Anti-discrimination laws have destroyed this right. Everyone must work, but you can’t exercise freedom of association there by discriminative hiring. Everyone has to get schooling, and for the vast majority that means going to school, but you can’t discriminate in association at school, even if it is a private school (Runyon v. McCrary). Everyone needs a home, but you don’t have freedom of association in housing, to choose who you or others live next to on your own private property (Jones v. Alfred H. Mayer Co.).
But it gets worse. While still claiming to respect some freedom of association, the courts have utterly destroyed it with their holdings on private clubs. Otherwise private clubs have to jump through incredible hurdles—a long list of additional requirements—to prove they are “truly” private, and to be allowed to discriminate in membership. How it really works is that a club is required to be selective in other ways besides race or sex to be considered “private” for purposes of anti-discrimination laws. Thus, what is actually going on here is that the government is simply saying: private clubs can’t discriminate on the basis of race or sex.
Freedom of association is indeed gone.
Selected cases: Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431 (1973); Board of Directors, Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987); Nesmith v. YMCA, 397 F.2d 96, 100 (4th Cir. 1968); Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972); Daniel v. Paul, 395 U.S. 298, 308 (1969); Runyon v. McCrary, 427 U.S. 160 (1976); Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
Private property rights have always been a major concern of the US Constitution, and central to any concept of property rights is the right of exclusion. The right of exclusion is considered by scholars of property law to be a fundamental aspect of property: it is the right to keep others, chosen entirely as you see fit, from using or benefitting from your property. Anti-discrimination laws which force people against their will to allow others to use, handle, or benefit from their property take away from the property owner this central right: the right to exclude. This includes laws which force accommodation (use of property), hiring/firing (handling of property), and equal wage mandates (possession and benefit of property). All such laws violate rights of exclusion.
Selected cases: Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964); Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
Charity and Philanthropy: This one is not really taken away per se, but it is worth noting that under Bob Jones University v. United States, 461 U.S. 574 (1983) charitable non-profit organizations can lose their tax exempt status if they are deemed in violation of anti-discrimination laws, even if the discrimination at issue is a matter of faith for the organization. Although it is not quite the same thing as outlawing it (the non-profits are still allowed to discriminate if they wish) it is a clear case of the government punishing citizens for discrimination. Much like criminal or civil sanctions, the administrative sanction of losing the tax exemption is a form of government punishment that amounts to the government persecuting citizens for exercising their constitutional freedoms to discriminate.
Additionally, using the same enforcement premise as Shelley v. Kraemer and Moose Lodge No. 107 v. Irvis, anti-discrimination laws have been applied to private charitable trusts which have government officials as trustees at first, and more recently to all charitable trusts, even to those which have private trustees. The government is now in the business of deciding who you must be charitable to. Freedom? I think not.
Business: While there is no right to conduct business freely per se, the rights of private property and contract come together to effect the practice of business, and since economic pursuits are such a central part of most people’s lives, I think it is worth mentioning just how much of your freedom to conduct business as you see fit or as you think will be profitable has been destroyed by anti-discrimination laws.
In corporate law there is something called the business judgment rule. This rule states that courts should try to yield to the judgment of businessmen on what is economically rational behavior from a business standpoint, whenever possible. While this rule does not, and was never intended to, extend to disputes between a business and the state over alleged illegal behavior not infringing on shareholder’s rights, there is a good reason why it should: assuming the business conduct is not objectively harmful (e.g. hiring hit men to off business competition for example) the business judgment rule would serve freedom well if it could be invoked in other business disputes, such as discrimination disputes. Under anti-discrimination law, it does not matter that you had a rational belief that discrimination would help your business, the court gets to overrule your interest in your business and force you to do something economically irrational.
The bona fide occupational qualification test is something like the private club test for association: the government gets to tell you when your occupational qualification is “bona fide”—and that is the opposite of freedom. More importantly the BFOQ exception does not apply to race.
Business judgment is regularly overruled by anti-discrimination laws which mandate who must be accommodated or served, who must be hired, when you cannot fire someone, and how much you must pay employees. In addition, the infringement on the freedom of contract and the right of exclusion for private property that we already discussed effect your freedom to conduct business.
The bottom line is that anti-discrimination laws curtail your economic business related freedom.
Service: Unfree service is slavery. Compulsory service is specifically prohibited by the 13th Amendment. Yet, you are not allowed to choose whom you serve. Anti-discrimination laws destroy the right to refuse service, and violate the 13th amendment which prohibits “involuntary servitude”. If a law forces you to serve someone against your will—as anti-discrimination laws do—than what it is really doing is creating “involuntary servitude.”
Child Custody, Fostering, and Adoption: Child welfare law has long considered central two things: parental rights, and the best interests of the child. In modern child welfare law, the best interest of the child standard is considered paramount. Yet in Palmore v. Sidoti, 466 U.S. 429 (1984), the US supreme court held that damage to a child came secondary to concerns of racial discrimination. The ultimate holding was that custody of a child could not be denied to someone on the basis of race, even if the racial element of the relationship stood to cause distress to the child.
Moreover, under the Inter-Ethnic Adoption Provisions (IEP), passed in 1996, not only can race not be considered when looking for prospective foster/adoptive parents, but even if a biological parent requests that the child be placed in a same-race home, their request cannot be honored.
Thus anti-discrimination laws can run roughshod over your child’s best interest, and your freedom to choose a same race placement for your child is taken away from you.
Estate Distribution and Testamentary Freedom: You still probably have this freedom for now, but you had better be looking over your shoulder as liberal ideologues are busy trying to find arguments to take away your freedom to dispose of your own private property by will or in trust in a discriminatory manner. While, as discussed under the charity heading, charitable trusts are already being subjected to anti-discrimination laws, in both the US and in Canada arguments are being made that anti-discrimination laws should apply to all private wills and trusts.
Watch your back, this freedom might be next.
Patient’s Rights and Refusal of Care: The freedom to refuse medical treatment by someone is well established in law, as it should be. It is almost unimaginable that any law could force someone to accept medical treatment for any reason. In the US it does seem that this is still largely true, although at least one court held that nursing home patients could not refuse nurses on account of race (Chaney v. Plainfield Healthcare Center). However, there are arguments being made that anti-discrimination laws should be applied to medical patients. Meanwhile, in the UK, you can be jailed for refusing treatment by a doctor because of the doctor’s race.
This is a freedom that could be lost in more countries if it is not defended.
Case: Chaney v. Plainfield Healthcare Center, No. 09-3661 (7th Cir. July 20, 2010).
Abortion: No matter what you think of abortion (I am personally against it), it is supposed to be about choice. Oops, you made the wrong choice! The left proves again and again that they only like choice when you make a choice they like.
Furthermore, the so-called “right” –which is really just the older left wing—is also at it, as we all know: multiple state laws have been passed which extend anti-discrimination laws into abortion law, making it illegal to get an abortion for reasons of the race or sex of the fetus. Similar laws have unsuccessfully been promoted in the congress on multiple occasions.
While I don’t agree with abortion, if you are going to have a legal right to abort when you want to, you’d better have the right to discriminate with it.
This anti-freedom laws are reaching their tentacles into every aspect of your life. It’s time we got our freedom back.