Is The Cato Institute A, You Know, Libertarian Think-Tank?

by John Holbo on August 4, 2016

It seems Gary Johnson/Bill Weld have been disappointing to conservatives and right-leaning libertarians (fusionists), looking for an alternative to Trump. For example, Ilya Shapiro, in “Is Johnson-Weld a Libertarian Ticket?”

Plenty of libertarians were wary of seeing former Massachusetts governor Bill Weld as the Libertarian Party’s nominee for vice president. Even those of us who haven’t had anything to do with the LP would like to see the party represented by, you know, libertarians. Weld, who seems like a nice man and was apparently a decent governor, is the living expositor of the difference between a libertarian and someone who’s “socially liberal and fiscally conservative.”

Is it supposed to be some sort of analytic truth that principled libertarianism doesn’t tend to make you socially liberal and fiscally conservative, to a first approximation?

My distinct impression is that the shoe is on the other foot. Any libertarian who isn’t, broadly, fiscally conservative and socially liberal owes a pretty good story about how she got there without mixing in non-libertarian principles/values.

Small government, ergo fiscally conservative (although it buries the lede to emphasize saving money, rather than minimizing coercion/maximizing individual liberty); and socially liberal, since you are going to be fine with what consenting adults get up to in private, so long as they don’t harm others. Yeah, you can be a fusionist and maintain that conservative cultural/religious values are needed to underpin ‘ordered’ libertarian liberty. But if you are a fusionist, you are, you know, fusing. Ergo, you don’t get to lecture others about philosophical purity.

Case in point: this week’s ReasonTV interview, where Weld praises Justice Stephen Breyer and Judge Merrick Garland, who are the jurists most deferential to the government on everything, whether environmental regulation or civil liberties.

I get it: Federalist Society types don’t like Breyer. Because they are conservatives, mostly. But conservatism’s not libertarianism. There is no simple, straight-line argument from libertarian first principles to ‘thus, you should dislike Breyer’s legal philosophy.’ Whether it is good to have activist judges or deferential judges, about which things, in what ways, is far afield from libertarian first principles. A more ‘Republican’ Constitution, a more ‘Democratic’ one? There are libertarian considerations in favor of both strategies, I think. Also, one cannot transcendentally deduce what the US Constitution says from libertarian first principles. You just can’t.

Former New Mexico governor Gary Johnson, in an interview with (my friend) Tim Carney of the Washington Examiner, calls religious freedom “a black hole” and endorses a federal role in preventing “discrimination” in all its guises. More specifically, he’s okay with fining a wedding photographer for not working a gay wedding – a case from New Mexico where Cato and every libertarian I know supported the photgrapher – and forcing the Little Sisters of the Poor to pay for contraceptives (where again Cato and libertarians supported religious liberty).

I can’t say that Johnson’s ‘black hole’ metaphor was entirely clear, but it ought to be clear what he is worried about. If I can refuse to serve a gay person, on religious grounds, why not a Jew, a Catholic, an African-American? To adapt Keynes Sinclair: it’s hard to get a man NOT to believe something sincerely, on religious grounds, if believing it, sincerely, on religious grounds, will permit him to push around his neighbor, whom he dislikes, with legal impunity he would not otherwise enjoy. (Does anyone doubt that the Bob Jones folks sincerely believed the Bible supported them?)

It is consistent with libertarian principles to hold that the right of free, private association/discrimination must be allowed to generate social systems in which, effectively, many – most? all? – are less free than they could be under an alternative system that restricted such rights. But it is not consistent with libertarian values to regard this result as unproblematic, rather than as potentially undermining of libertarianism as a credible political philosophy.

The thought-experiment is easy and obvious: suppose a crushing form of Jim Crow were maintained, not by the government, but by a powerful, coordinated coalition of private actors who, for good measure, sincerely believe their religion demands no less of them? Would that be acceptable? Would this be ‘freedom’, technically, not just for those maintaining the system but also for those kept down by it? If so, is it obvious we should care about maximizing ‘freedom’ – rather than something more, you know, free.

Johnson’s point is, obviously, that ‘religious liberty’ is problematic if understood in ways that may be freedom-undermining. This isn’t that hard, political philosophy-wise. What to do about it is tough, for a thoughtful libertarian. But seeing that there is a tough issue ought to be easy.

Shapiro says all the libertarians he knows support the photographer and the Little Sisters. That’s fine. But if all the libertarians he knows fail to see what Gary Johnson is worried about, he needs to start hanging with a more thoughtful class of libertarians.

In other words, Johnson doesn’t just come off as anti-religion, but completely misses the distinction between public (meaning government) and private action that is at the heart of (classical) liberal or libertarian legal theory.

Libertarianism – classical liberalism – comes in many shapes and sizes. But it really is not remotely adequate to gloss it – any intellectually respectable form of it – as Shapiro does here, as some vague yet mysteriously reliable engine for generating reasons why the Reaganish sentiment that ‘government is the problem’ is warranted. There is no libertarian/classical liberal first principle that government = bad; private action = good. Libertarianism and classical liberalism are not based on a government/private distinction, per se. The conceptual keynote is, rather, liberty (against coercion.) Since government is coercion, there is a natural tendency of libertarian philosophy to be anti-government. But since some coercion may be individual liberty-enhancing, some government may be ok. (I hope Shapiro is writing this stuff down!) The same is true of private action. Presumptively, permitting individuals to act as they like is good. But if they wish to act in ways that harm or restrict the freedom of others, this presumption may be defeated. This is what Johnson sees but Shapiro, evidently, has not adequately considered.

I have a soft spot for Gary Johnson. Of course I don’t agree with him about a lot. But he looks to me like a guy who takes his libertarian philosophy seriously. If that means libertarians can’t stand him – well, so be it.

That said, you’d be nuts to vote for Johnson in any state in which there’s any chance that Trump might win. So don’t do that.

What does the CT commentariat think of Johnson/Weld?

{ 251 comments }

1

Painedumonde 08.04.16 at 1:06 am

Possibly the “black hole” idea comes from the powerful gravitation exerted from the astronomical bodies; once religion starts, it always moves towards fundamentalism and from Socrates to those…those… alright I’ll use language that isn’t vulgar, those butchers in desserts of Syria and Iraq. Once there political discourse cannot escape religion. Religion becomes politics.

2

derrida derider 08.04.16 at 1:38 am

When thinking of libertarians I always think of Lenin’s aphorism about anarchists – “fine people, but an ideology for children”.

Because the hook libertarianism always get stuck on is that we are social animals where every action we take affects someone else. So the JS Mill stuff that “you are free to do what you like so long as you don’t hurt anyone else” in practice comes down to a choice of “you are free to do lots of stuff which will really hurt other people” or “you are free to anything I judge will not hurt me”.

The first is so obviously untenable that actually existing “libertarians” adopt the second – that is, they are in fact conservatives engaged in JK Galbraith’s conservative project throughout the ages – to find a higher justification for selfishness. So it’s no surprise to find that they are usually in the same political bed as conservatives.

3

bruce wilder 08.04.16 at 1:39 am

Ilya Shapiro seems like a much more observant narrator of actually existing libertarian conservatism than John Holbo. Of course, libertarianism is a rhetorical engine for rationalizing reactionary sentiments into principles that confirm in all cases gov’t = bad, private = good, (especially where “private” is white male and profitable). Duh.

In defense of Shapiro’s axiomatics, I doubt he would agree with The same is true of private action. In contrast to the state, private actors are deprived of coercion. So “the same” is never true in libertarian paradise, because the state is coercively preventing or punishing to extinction, private coercion. So, a private actor can not coerce a fotog to record her lesbian knot-tying (a completely voluntary form of metaphoric bondage). If paying doesn’t cut it, oh well.

Is this philosophically satisfying? Rigorous? Maybe not. But this is politics, not philosophy. The demand for principles is instrumental; to persuade voters that a representative will choose as they would choose and coerce selectively not themselves but others. And, they are innocent of any ill intent in this.

As a logical matter, an axiomatic system of principles of decision will be a priori indeterminate in regard to the outcome of the decision. This is the problem of pure economic theory: until you start filling in specific parameter values, it is an endless round of, “on the one hand . . . on the other hand, . . . .” You cannot even rely on the law of demand: you simply do not know whether a change in demand will increase or decrease price. But, once you know the outcome, you can explain what happened. Just like on teevee, the blonde lady always knows why the market went up or down. The gods are unpredictable but their message is invariably clear. A vague but reliable engine. Libertarianism is the same. A libertarian never has to say, “because I am an immature, selfish bastard who does not care about other people” Instead, the libertarian can always explain the freedom-enhancing principle behind why he should be able to do as I please.

4

Ebenezer Scrooge 08.04.16 at 1:55 am

Libertarianism has always had problems with other-regarding preferences. It goes beyond discrimination, or the coercive power of shunning. What about the family? Why should a libertarian state act if somebody decides to abandon their young child or old parent? Or even their dog? There is no coercion involved here.

5

The Temporary Name 08.04.16 at 1:58 am

What does the CT commentariat think of Johnson/Weld?

The most comfortable politicians running, and nowhere near as dopey as previous Libertarians. They can pull votes, ideally from Trump. I hate them.

6

Moz of Yarramulla 08.04.16 at 2:10 am

Libertarianism comes in many shapes and sizes. But it really is not remotely adequate to gloss it … reliable engine for generating reasons why the Reaganish sentiment that ‘government is the problem’ is warranted.

I would have thought especially not from a classical perspective, where it came out of anarchism but with a strong state to enforce laws. Practically, I expect US libertarians to retreat ever further into reliance on use of violence by a strong state specifically to enforce their property rights against the majority.

The focus on allowing every citizen to act on their personal biases without constraint has always struck me as foolish in the extreme. Sure, when the tiny minority who dislike rich old white men are mostly young, angry, black men, it makes some sense to just use the police and military to shut them down. But at some point during the demographic transition it won’t matter how effective the anti-democratic forces are, the non-white, non-male, non-rich majority will be able to outvote them, and at some point also out-fight them.

I think there are really good cases of democratic or libertarian principles being used against traditional libertarians that bear more thinking about. From the “you can’t just steal public land, vandalise common property, threaten law-abiding citizens and expect to get away with it” in the Bundy cases where if the Nation of Islam was involved… well, the survivors would be in prison very quickly, with the support of “libertarian” philosophers. The boycotts of businesses and states that people disagree with are exactly libertarian actions. If they were being done by old, straight, white, conservative, men, the libertarians would be supporting them. But when it’s the {derogatory terms} for the majority… not so much.

7

Consumatopia 08.04.16 at 2:14 am

Johnson made two claims–that the government has a role in banning discrimination, and that religious believers shouldn’t get special exceptions to the law.

I can see why the first one would piss off anti-state libertarian purists. Not so much the latter, though–I can’t see how libertarian purism justifies special exceptions to law based on personal beliefs.

8

Moz of Yarramulla 08.04.16 at 2:21 am

In contrast to the state, private actors are deprived of coercion. So “the same” is never true in libertarian paradise, because the state is coercively preventing or punishing to extinction, private coercion.

But as you later say, in practice that’s not how it works. I think libertarians rely on using coercion while being protected from the coercion of others, and this comes dramatically into focus when others use libertarian tactics in ways that libertarians don’t like. The difference between “Black Lives Matter” and “Open Carry” is skin colour, not a philosophical disagreement over whether the government should defend citizens’ rights. When Cliven Bundy protests that government agents shouldn’t be killing members of his group he gets considerable support from libertarians, but those same people are publicly appalled when Black Lives Matter make exactly the same demands.

9

Alan White 08.04.16 at 2:27 am

“That said, you’d be nuts to vote for Johnson in any state in which there’s any chance that Trump might win. So don’t do that.”

Beyond “any chance” there are a substantial number of states where this is a very good chance. In light of that fact, I’d ask anyone tempted to relativize the opportunity to vote outside the admittedly vexed binary of Clinton/Trump to some questionable matter of highfalutin principle to gauge the wisdom behind your comment.

10

bruce wilder 08.04.16 at 2:34 am

I am not coercing you so I should be free to be a dick, just as you are free to be a loser.

11

Dr. Hilarius 08.04.16 at 2:48 am

“… but it’s not very encouraging for libertarians who want to “vote [their] conscience.”

I don’t think conscience is the right word in this context.

12

Patrick 08.04.16 at 3:37 am

While I am not interested in defending this guy on grounds further than this, it is trivially easy to see how libertarians might consistently side with the wedding photographer guy without committing themselves to the laundry list of discriminatory harms you listed. All they have to do is 1) believe that “wedding photographer” is a job with a speech element such that the wedding photographer himself enjoys First Amendment protections in his work, and 2) believe that wedding photographs can have an inherently political message. The first is not an unreasonable belief, and the latter is, I think, nearly universally accepted. With these two premises one can conclude that the wedding photographer has a First Amendment right not to be compelled to speak on behalf of political causes with which he or she does not agree. And this doesn’t lead to the undermining of all anti discrimination law because it would only apply to work which is sufficiently artistic such that First Amendment rights vest in it.

13

John Holbo 08.04.16 at 3:42 am

“While I am not interested in defending this guy on grounds further than this, it is trivially easy to see how libertarians might consistently side with the wedding photographer guy without committing themselves to the laundry list of discriminatory harms you listed.”

Oh, I’m not saying – or implying, I hope – that it isn’t possible to side with the wedding photo guy. I’m not pointing out that it’s also perfectly possible to be against the wedding photo guy, while being consistently libertarian. Johnson is doing the right thing in not focusing on the wedding photo guy but looking past the one case to the general class of problem cases. He’s asking: what is the principle that we should follow in cases like this? Shapiro? Not so much.

14

JimV 08.04.16 at 4:04 am

Thoreau’s “That government is best which governs the least” has the wrong perspective, I think. It should be something like, “Those people are best who need governing the least.” Even if we had a large majority of such people, which I think evolution will not naturally create, a small minority of typical people would make it necessary to have laws, regulations, administration and enforcement. Libertarianism seems to be based on a very unempirical assessment of human nature. Total lack of coercion does not work well in families or any other social group I can think of. (It certainly is not standard corporate or military practice.) Yes, in a lot of cases it goes too far and/or is applied unfairly. Not to minimize that, but to counter it as an argument for elimination, calculus and statistics are often applied badly also. (Not analogous examples but ones that resonate with me, anyway.)

To answer the OP’s question, the day I have to vote the Libertarian Ticket will be my worst Election Day ever, and I’ve had some poor ones. It won’t be the coming one (knock on wood).

I think the Green Party has a much better philosophical basis, but unfortunately it does not seem to have attracted plausible national candidates. I would like to see it establish a significant faction of Congressional Representatives and Senators but doubt I will live long enough.

15

fastEddie 08.04.16 at 4:27 am

Libertarians are generally racist shitheels who would otherwise be Republicans, but find the social norms constricting. In other words, they want to smoke pot but not pay taxes, because those taxes may be spent on someone who is brown. They are very stupid children.

16

Alex K--- 08.04.16 at 4:47 am

Libertarianism and classical liberalism are not based on a government/private distinction, per se. The conceptual keynote is, rather, liberty (against coercion.) Since government is coercion, there is a natural tendency of libertarian philosophy to be anti-government. But since some coercion may be individual liberty-enhancing, some government may be ok.

A nice summary of the contradiction at the centre of libertarianism. It is probably a special case of the general problem: sometimes the finest, fairest and most sensible (so they seem to us) rules not only generate perverse outcomes but are useless at straightening them out, because that may require breaking these rules.

However, I don’t think American libertarianism defines freedom as broadly as you suggest it does. US libertarians mostly seem to care about negative liberty, that is, about limiting government intervention in private and public affairs. One of the movement’s inspirational texts is “Our Enemy, the State” by Albert Jay Nock.

17

Joshua Holmes 08.04.16 at 5:12 am

The thought-experiment is easy and obvious: suppose a crushing form of Jim Crow were maintained, not by the government, but by a powerful, coordinated coalition of private actors who, for good measure, sincerely believe their religion demands no less of them? Would that be acceptable?

If by “acceptable” you mean “the state has no right to intervene to stop it”, then yes, most libertarians would find it acceptable. If by “acceptable” you mean “laudable”, “praiseworthy”, or even just “morally neutral”, most libertarians would not find it acceptable.

The conceptual keynote is, rather, liberty (against coercion.)

“Coercion” has a specific philosophical meaning somewhat different from its ordinary meaning. In libertarian philosophy, it means “crossing a rights boundary”. Hence, shooting a rapist dead would be coercive in the ordinary sense of the word, but not in the libertarian philosophical sense. The rapist is the coercer; the shooter is responding to the coercion within his/her rights.

From here, it’s easy to see why libertarians back the photographer. The photographer offers a service. Customers can choose to purchase the service, and the photographer can refuse to serve customers s/he doesn’t like. Both sides have liberty to choose to enter or not enter the transaction, and neither side loses their rights simply by being rejected by the other. Forcing one side or the other to enter the transaction crosses the right to liberty boundary (i.e., is coercive under libertarian theory) and isn’t permissible.

(NB: There are consequentialist and utilitarian libertarians, to which this rights-based analysis doesn’t apply.)

18

Sebastian H 08.04.16 at 7:09 am

“Shapiro says all the libertarians he knows support the photographer and the Little Sisters. That’s fine. But if all the libertarians he knows fail to see what Gary Johnson is worried about, he needs to start hanging with a more thoughtful class of libertarians.”

The wedding photographer case is a great test for liberals as well. If you can’t see why forcing all classes of services to be completely ‘non-discriminatory’ can be problematic you need to start hanging out with a more thoughtful class of liberals. (Hint try it out for writers…)

19

casmilus 08.04.16 at 7:35 am

@3

“In contrast to the state, private actors are deprived of coercion. “

Apart from Tony Soprano.

I hope we all know and love that episode where the Nozick-reading liberal is pleased with himself to give evidence… until he realises whom he’s giving it against. Then he can’t stop panicking until he’s withdrawn his statement.

20

casmilus 08.04.16 at 7:38 am

@14

I think it’s defunct now, but while it was active the British National Party had a big problem that companies would simply not work with it when they knew who the customer was. To be a functioning campaigning political party you need to be able to hire transport, venues, etc.

21

casmilus 08.04.16 at 7:42 am

Myself, I’m inclined to think that it’s ok for a wedding photographer or caterer to refuse some work even when she has the spare time to do it, but not for a hotel to turn away customers when it has room for them. I’ve not yet got round to working these intuitions up into a set of principles, and I was rather hoping one of you guys (or someone you’ve read) had done the work already.

22

Gareth Wilson 08.04.16 at 8:30 am

I’m surprised there isn’t a Burn In Hell Faggots wedding photography business. You may be able to force them to serve all customers, but it’s their absolute right to use whatever name they want, and print it on all equipment and correspondence.

23

SusanC 08.04.16 at 9:19 am

I am even more puzzled by the parts of UKIP that style themselves as libertarian. From watching US politics, I’ve picked up an impression of what a “libertarian” position tends to look like, and UKIP don’t really seem to resemble it. A social conservative describing themselves as a libertarian seems to me a misdescription, before we even get on to whether I agree with it or not.

On the other hand, a problematic distinction between public and private action is part of my mental image of what “libertarian” means in practise, so if a self-style “libertarian” adopts that position I won’t raise an eyebrow at the label but instead move on to the inherent contradiction in the position itself.

24

Frederick Guy 08.04.16 at 9:27 am

Casmilus: yes, there’s a long tradition of laws specifically regarding public accommodation, or the rights & responsibilities of innkeepers. Such venues (i) are places of social interaction, so refusing to serve is not just denying the service, but excluding from the community, and (ii) having fixed location and no proximate perfect substitutes, entail monopoly power within a certain space. Easy to think of circumstances in which neither of these applies to hiring a wedding photographer.

25

TM 08.04.16 at 10:04 am

“Any libertarian who isn’t, broadly, fiscally conservative and socially liberal owes a pretty good story about how she got there without mixing in non-libertarian principles/values.”

You should at least mention that this is a totally US-centric view based on the relatively recent appropriation of the (benevolent-sounding) label ‘libertarianism’ for a certain brand of US-specific reactionary ideology. Outside the US, libertarianism has a very different meaning.

26

J-D 08.04.16 at 10:20 am

casmilus 08.04.16 at 7:38 am
@14

I think it’s defunct now, but while it was active the British National Party had a big problem that companies would simply not work with it when they knew who the customer was. To be a functioning campaigning political party you need to be able to hire transport, venues, etc.

Although it was briefly deregistered early this year (for non-payment of registration fee), the British National Party is not entirely defunct (the fee was paid and the party re-registered); indeed, it still has one local councillor, Brian Parker of Pendle Borough Council.

27

Lee A. Arnold 08.04.16 at 10:55 am

1. The idea that private actors can act in a public sphere (e.g. the “market”) without implicating gov’t is specious. Once you accept a customer onto “your property” it isn’t entirely “your property” any more.

2. Gov’t in certain arenas (e.g. healthcare) can increase individual freedom by creating more free time, less risks of various kinds in private transactions, etc.

3. If everyone were allowed to discriminate against a certain type (race, sexual preference, or whatever), then those types would be compelled to move to a new place, a new country, to survive. They are NOT free: they are compelled. Libertarianism depends upon not everyone acting prejudiced, so that the logical outcome of the libertarian farce is obscured.

28

Faustusnotes 08.04.16 at 11:01 am

Is this wedding cake issue a thing in other anglosphere countries? Or is it the case that the need to force people to provide these services only arose in the us because small businesses in the us are uniquely willing to discriminate? I know that bars in the uk and Australia do (I have been refused admission to uk bars because I was with a Japanese man, and they aren’t welcome), but do any other businesses?

Also I would like to point out that when I arrived in Japan in 2006 it was still legal to deny accommodation on the basis of race. Apartment adverts would have a sign saying “no pets or foreigners”, and nobody considered it unusual. I don’t see those signs anymore but the real estate agent and the landlord have the conversation right in front of me, and a small percentage of the time the apartment is “taken”. So the idea that in the USA a general right to discriminate would not become a society wide form of tacit Jim Crow strikes me as a bit naive. Especially in the south, and in a country whose presidential candidate is famous for housing discrimination.

It seems trivial to me to force a cake company to bake a cake, but being denied housing is not trivial and somewhere in between is a grey line. Libertarians of course want to focus on the wedding cake, because they can then pretend these laws are petty inconveniences and avoid the very scary reality of what would happen if we didn’t have any.

29

marcel proust 08.04.16 at 12:15 pm

To adapt Keynes: it’s hard to get a man NOT to believe something sincerely, on religious grounds, if believing it, sincerely, on religious grounds, will permit him to push around his neighbor, whom he dislikes, with legal impunity he would not otherwise enjoy.

Do you mean Upton Sinclair (search on the word understand)?

30

John Holbo 08.04.16 at 12:21 pm

Oh yes, it was Upton Sinclair! My bad!

31

Snarki, child of Loki 08.04.16 at 12:50 pm

“What does the CT commentariat think of Johnson/Weld?”

Wait, the VP candidate is BILL Weld, not TUESDAY Weld?

Now I’m disappointed, and will have to hold my nose and vote for Hillary.

32

rea 08.04.16 at 1:40 pm

Snarki, I don’t know if you noticed, but it is also Gary rather than Boris or Lyndon, which may impact your decision

33

someguy88 08.04.16 at 2:15 pm

This is pretty easy. John himself concluded that absent ‘ a crushing form of Jim Crow’ he supports free association. He doesn’t see the need to make people bake wedding cakes. This might be a difficult test case for John but not for libertarians. As he notes,
‘Shapiro says all the libertarians he knows support the photographer and the Little Sisters.’ Throw in the first amendment, that Justice Stephen Breyer and Judge Merrick Garland are the jurists most deferential to the government on every type of freedom reducing economic regulation, and you can see how libertarians would be pretty concerned. They should be concerned when they hear the libertarian candidate praising any non libertarian set of Justices let alone the two least operationally libertarian Supreme Court Justices.

Again this is pretty easy stuff. Praise the most anti liberty justices and libertarians get upset. Duh!

34

Frank Wilhoit 08.04.16 at 2:18 pm

“Liberty” == unaccountability. Always, everywhere, neither less nor more.

35

The Temporary Name 08.04.16 at 2:21 pm

Praise the most anti liberty justices and libertarians get upset. Duh!

The “duh” part is the equation of regulation with restriction on liberty.

36

bianca steele 08.04.16 at 2:34 pm

John,

I’ll take your word for it that there are libertarians who are socially liberal and fiscally conservative, but who are they? I can think of two or three, and they’re academics. This doesn’t describe either Reason Magazine or Cato. Most libertarians seem to be anti-authoritarian (with rare exceptions) which doesn’t describe Cato, at least, either, but that’s another subject.

37

whateverfor 08.04.16 at 2:39 pm

First, nobody from the Libertarian Party gets to whine about their candidate not being perfect in the Clinton/Trump election. The LP picking some qualified candidates who are libertarian compared to the voting public is so obviously the correct decision if you care about winning votes that it really isn’t worth questioning. The difference between a libertarian and someone who’s socially liberal and fiscally conservative: it’s an all X are Y but not all Y are X thing. From Shapiro’s perspective, someone who supports his policies on consequentialist grounds but doesn’t derive their beliefs from libertarian axioms isn’t a real libertarian.

On the cake: I think it is different from something like hotels/renting/employment, even if it isn’t easy to draw a legal line between the two. Whenever service is denied, there’s two harms: a “real” harm from not getting service, and an emotional harm from the insult. As the real harm gets lower and lower, more and more the weight rests on the insult. But the insult is an expressive action!

Government regulation that effectively says “Society now supports X, so while you’re representing Society you will not insult X” can seem ludicrously heavy handed. Not saying that anti-discrimination laws are bad on net, but from a libertarian perspective regulating the insult is a necessary cost given that it’s entwined with the real harm, but from a anti-racist perspective stopping the insult is a good end in itself. So you’d expect real differences in opinion when the insult outweighs the real harm.

38

jake the antisoshul soshulist 08.04.16 at 2:53 pm

Admittedly, I find most libertarian reasoning specious. Always apply Keynes.
Libertarians can only be supported if every transaction is considered in isolation.
The libertarian denies that there are classes of people, only individuals. And support the liberty of the baker to refuse service to anyone he doesn’t wish to serve over the liberty of the couple to be served by whomever they wish.
At least they deny there are classes of people when it serves their purposes.

39

Alex K--- 08.04.16 at 3:24 pm

@27: (1) Libertarian or not, few people hold an absolutist view of property: “it’s all mine so I do as I please here.” And does every type of commercial relationship require a government to oversee it?

(2) For a libertarian, it would hurt negative liberty (bad) while possibly increasing positive liberty (neutral: positive liberty does not enter his calculations). He would also argue that the government cannot possibly do better than the private sector in fixing market inefficiencies.

(3) That would not qualify as coercion in the libertarian book, since neither the government nor any private actors are using force. Rather, an unlikely unfortunate outcome.

40

Anarcho 08.04.16 at 3:29 pm

“Libertarianism – classical liberalism – comes in many shapes and sizes.”

Actually, libertarian was first coined by a French communist-anarchist living in America in the 1850s:

http://anarchism.pageabode.com/afaq/150-years-of-libertarian

It was used by anarchists, by the left, until the 1950s when the “classical liberals” decided to steal it. To quote Murray Rothbard, it was quite explicit and knowing:

“One gratifying aspect of our rise to some prominence [in 1950s America] is that, for the first time in my memory, we, ‘our side,’ had captured a crucial word from the enemy… ‘Libertarians’… had long been simply a polite word for left-wing [sic!] anarchists, that is for anti-private property anarchists, either of the communist or syndicalist variety. But now we had taken it over…” [“The Betrayal of the American” Right (Auburn, Alabama: Ludwig von Mises Institute, 207), 83]

So much for “absolute” property rights….

Anarchism itself was part of the democratic and socialist revolt AGAINST “classical liberalism” started by Rousseau and the French revolution and continued by the labour movement and socialism. I discuss this here:

http://anarchism.pageabode.com/anarcho/anarchist-organisation-practice-theory-actualised

The “classical liberalism” of, say, Locke (as I also discuss in the above article) was authoritarian to its core — it seeks to justify the power associated with property, seeks to justify the exploitation of labour by property owners and seeks to justify private hierachies (defended by a public power organised by and for the wealthy).

So please do not call “classical liberalism” libertarian — it is not.

Genuine libertarians have always rejected it as being authoritarian and hierarchical.

41

NeonTrotsky 08.04.16 at 4:19 pm

You’re giving the Cato Institute a shred of intellectual honesty it doesn’t have. The kind of libertarianism they’re interested in is simply whatever lets monied interests railroad over the rest of society, and any philosophizing they do is simply to meet that ends. To be fair, not all libertarians are like this, but these ones certainly are.

42

bianca steele 08.04.16 at 4:23 pm

People who seem intellectually honest, though, have written for Cato. How did they get so misguided (other than the possibility that they were blinded by Cato’s apparent high level of respectability)? And how did Cato get to be the voice of libertarianism, if they’re not really libertarians?

43

Manta 08.04.16 at 4:31 pm

https://popehat.com/2016/06/02/libertarianism-as-ten-questions-rather-than-ten-answers/

“libertarianism as a series of questions rather than a series of answers or policy positions. Even if I don’t agree with people’s answers to these questions, getting them to ask the questions and confront the issues reflected in the questions would promote the values that I care about.
These are all questions that I think ought to be asked whenever we, as a society, decide whether to task and empower the government to do a thing.”

44

SusanC 08.04.16 at 4:32 pm

re, the “black hole” metaphor, I guess it’s picking up on the ability of black holes to universally devour matter of all kinds. If the government isn’t constitutionally allowed to say whose religion is valid and whose isn’t, then any belief at all can be claimed as being religious (with no obvious means of proving that it isn’t), and used to request a “religious” exemption from any legal requirement to do (or not do) anything at all. The image is one of your entire legislative/regulatory framework being sucked into the event horizon of religious exemptions.

45

merian 08.04.16 at 4:36 pm

I heard Shapiro on a law podcast the other day and he mentioned that the second anniversary of his naturalization was coming up, so my guess is that his preference in metaphors might betray a somewhat old-world cultural references. The “black hole” image would be used by many Germans or French people where an American would use the term slippery slope. Gravity being the common factor.

There is no simple, straight-line argument from libertarian first principles to ‘thus, you should dislike Breyer’s legal philosophy.’ Whether it is good to have activist judges or deferential judges, about which things, in what ways, is far afield from libertarian first principles.

For the real-life Libertarians I tend to encounter, living in semi-rural Alaska, there would indeed be a straight line from their political philosophy to the rejection of ever being deferential to any level of government or legal precedent.

As for your thought experiment about a privately maintained Jim Crow situation, I don’t know how they would resolve it. Maybe they would make an argument from morality: I think that their Libertarianism is, to them, an ethically motivated stance. At least outwardly (it can be self-serving too). Libertarian = good, therefore no real evil situation can arise.

To be honest, they aren’t even able to present a coherent Libertarian argument for how road maintenance would work in their preferred system. And the road maintenance example is by no means purely theoretical: I can think of instances where controversies have erupted, because we do indeed have roads for which local property owners have opted out, or not opted into, government-provided structures that are available to organise road maintenance. Or situations where originally privately maintained residential access roads evolved into multi-use thoroughfares (FSVO) with no one to provide adequate maintenance.

Judging from one recent situation, which became widely discussed in the community because the road in question serves the local school, it seems to me that my real-life sample of libertarians applaud solutions in which another private citizen puts their foot down and single-handedly gets the situation remedied, collecting funds (through GoFundMe maybe?) along the way. Which, of course, doesn’t solve the underlying problem. As an out lesbian, I am glad they’re socially liberal, but there are things I wouldn’t trust them with.

46

merian 08.04.16 at 4:39 pm

Uh, scrap the first paragraph. It was Johnson not Shapiro who used the term “black hole” so my speculation is a bit specious. Still, I think it means a slippery slope where stuff gets crunched at the bottom.

47

alfredlordbleep 08.04.16 at 6:55 pm

This should be added to reading lists:

Illiberal libertarians: Why libertarianism is not a liberal view
Authors
Samuel Freeman in Philosophy and Public Affairs
http://sites.sas.upenn.edu/sfreeman/files/illiberal_libertarians_ppa_2001.pdf

[final paragragh]
. . . Among nations, the United States is distinctive in that it celebrates
as part of its national consciousness the Lockean model (some would
say “myth”) of creation of political society by original agreement
among free (and freeholding) persons, all equally endowed with certain
natural rights. Modify this national story slightly (mainly by substituting
a web of bilateral contracts for the social contract, and eliminating
the duties it entails) and we have the essential makings of
libertarianism. Perhaps this explains why libertarianism is such a popular
and peculiarly American view. However slight these modifications
may seem, their effects are far reaching, for what we have in libertarianism
is no longer liberalism, but its undoing.

48

fledermaus 08.04.16 at 6:57 pm

“The idea that private actors can act in a public sphere (e.g. the “market”) without implicating gov’t is specious. Once you accept a customer onto “your property” it isn’t entirely “your property” any more.”

This. If a shop keeper is allowed to turn to the state to protect his property, why would a customer not be able to turn to the state when denied access to the public market? Is that not an abridgement of his/her economic freedom? Hell even Adam Smith knew that in markets controlled by a few players they will naturally collude to exclude competitors and sop up rent.

49

Robespierre 08.04.16 at 6:57 pm

But then again, why should religious belief be better than any other sincerely held belief?

In the past, what people used to have scruples about (and ready to murder for, which I think is the real reason) used to be religion-linked. In some way, it still is, at leastasfar as murder is concerned. But there are all kinds of opinions that people can be sincere, passionate and even fanatical about.

Apart from the thinly veiled murder threat of religious fanaticism, whivh we shouldn’t capitulate to, what makes it different?

50

bruce wilder 08.04.16 at 7:07 pm

Or insincere, hypocritical and even coldly calculating about

51

efcdons 08.04.16 at 7:10 pm

@46 Exactly. Matt Bruenig had a whole series of posts on libertarianism that really explored how much libertarianism is “we want government to do things, but only things we like”. Unfortunately I think he took everything down after “the incident”.

52

Rich Puchalsky 08.04.16 at 7:11 pm

“If a shop keeper is allowed to turn to the state to protect his property, why would a customer not be able to turn to the state when denied access to the public market?”

David Friedman, _The Machinery of Freedom_, an anarcho-capitalist text about how no one has to turn to the state to defend property, but how this can instead be done by privately hired law enforcement. It’s *consistent* “libertarianism”. While I’m a left anarchist rather than a right anarchist (some people would say not an anarchist at all, but I prefer not to do the terminological battle), I do think that texts like this address one of the basic problems of “libertarianism” which is that they want a state that does all the stuff that protects the rich against the poor and none of the stuff that protects the poor against the rich. Anarchy-capitalism does this too, but more visibly which I consider to be a good thing when applied to imaginary political systems.

53

efcdons 08.04.16 at 7:19 pm

@50
‘…how no one has to turn to the state to defend property, but how this can instead be done by privately hired law enforcement.’

I guess. But wouldn’t I be able to hire a private anti-homophobia or anti-racism vigilante squad and force the shopkeeper to do what I want? The whole thing is just stupid.

54

bruce wilder 08.04.16 at 7:24 pm

And how did Cato get to be the voice of libertarianism, if they’re not really libertarians?

I strongly recommend visiting their building when in DC. You don’t have to go inside. Just stand across the street and admire the display of wealth.

55

fledermaus 08.04.16 at 7:28 pm

“no one has to turn to the state to defend property, but how this can instead be done by privately hired law enforcement.”

But that is utterly indistinguishable from Feudalism. Does the book even address that problem?

56

alfredlordbleep 08.04.16 at 7:32 pm

For example on private law enforcement (see ref @45):

One peculiar feature of strict libertarianism is the absence of legislative
authority, a public institution with authority to introduce and
amend rules and revise social conventions. The need for new or revised
rules is to be satisfied through private transactions and the invisible
hand, by the eventual convergence of many private choices. Libertarians
generally accept that adjudicative and executive powers are
necessary to maintain personal and property rights. But these functions
are performed by private protection agencies and arbitration services
(in Nozick’s account, a “dominant protective agency,” which is
the minimal state). No public body, commonly recognized and accepted
as possessing legitimate authority, is required to fairly and effectively
fulfill these functions. Political power is privately exercised.

57

alfredlordbleep 08.04.16 at 7:35 pm

Continuation: (p 147)

. . . What is striking about libertarians’ conception of political power is
its resemblance to feudalism. By “feudalism” I mean a particular conception
of political power, not the manorial system or the economic
system that relies on the institution of serfdom (as in European medieval
feudalism).

58

alfredlordbleep 08.04.16 at 7:51 pm

The common good—what’s that?—libertarians ask

(p149):

Liberalism evolved in great part by rejecting the idea of privately
exercised political power, whether it stemmed from a network of private
contracts under feudalism or whether it was conceived as owned
and exercised by divine right under royal absolutism. Libertarianism
resembles feudalism in that it establishes political power in a web of
bilateral individual contracts. Consequently, it has no conception of
legitimate public political authority nor any place for political society,
a “body politic” that political authority represents in a fiduciary capacity.
Having no conception of public political authority, libertarians
have no place for the impartial administration of justice. People’s
rights are selectively protected only to the extent they can afford protection
and depending on which services they pay for. Having no
conception of a political society, libertarians have no conception of the
common good, those basic interests of each individual that according
to liberals are to be maintained for the sake of justice by the impartial
exercise of public political power.

59

NomadUK 08.04.16 at 8:43 pm

I don’t know about anyone else, but that capitalized ‘A’ in the title is driving me nuts.

60

Rich Puchalsky 08.04.16 at 9:05 pm

“But wouldn’t I be able to hire a private anti-homophobia or anti-racism vigilante squad and force the shopkeeper to do what I want?”

Well, sure. You could even get together with a whole group of people and jointly hire one. Shopkeepers could also jointly hire etc. The bits of the book that I read have reasons why the private protection agencies wouldn’t want to settle all of this with gunfire (I think that it basically comes down to “no one wants to get shot for the whims of Mr. Moneybags”, a contention not well supported by history), but I never quite understood how money power wouldn’t shake itself out in the usual way.

I’m probably not doing justice to the book, which I’m sure has many ingenious schemes. I’m not at all sympathetic to the project of anarcho-capitalism, but I am somewhat sympathetic to any loony project since we all should have solidarity as loons together, so you could probably read the book at least partially online if you wanted to.

61

efcdons 08.04.16 at 9:09 pm

@58

Thanks. His world sounds like a fun place to live!

62

dn 08.04.16 at 10:38 pm

JimV @14 – That “government is best which governs least” line is actually Jefferson, who Thoreau merely quoted approvingly, and took the idea further so as to make your point for you: “That government is best which governs not at all; and when men are prepared for it, that will be the kind of government which they will have.”

I admire his faith – “the sun is but a morning star” and all that jazz – but I’m not sure I share it, although I wish I could. In any case, I certainly have little admiration for the Libertarian Party – in terms of political competence it’s less of a joke than the Greens, which isn’t saying much, but in terms of substance all that has to be said is that their current platform does not even contain the words “climate change”.

63

Faustusnotes 08.04.16 at 10:50 pm

Someone up above mentioned their libertarian friends living in semitism rural Alaska. Which would have to be one of the most govt subsidized communities in the USA. Cute.

64

Faustusnotes 08.04.16 at 10:51 pm

Semitism=semi, obviously. Jesus apple …

65

John Holbo 08.04.16 at 10:54 pm

Semitism rural Alaska. I thought it was some Michael Chabon “Yiddish Policeman’s Union” thing.

66

John Holbo 08.04.16 at 10:55 pm

“I don’t know about anyone else, but that capitalized ‘A’ in the title is driving me nuts.”

I know!

67

Anarcissie 08.04.16 at 11:01 pm

Do any of you know any actual libertarians? (I mean in the current American sense.) I have met very few myself, except in arguments across the Net. I did at one time work with a crusty fellow who as pretty much of that faith; he was fired from a large brokerage house for hiring too many Black people for his department (some kind of computer operations thing that was deemed too visible for the exercise of his prejudices). Cato, now, strikes me as a phony outfit; they used to advocate ‘Right-To-Work’ laws, which as any consistent libertarian knows is unwarranted government intrusion into employer-employee relations, specifically the rights of association, expression, and contract.

68

MPAVictoria 08.04.16 at 11:52 pm

I always love an opportunity to post a the famous “Libertarianism vs A Giant Planet Killing Asteroid” Blog post.

http://volokh.com/2011/02/15/asteroid-defense-and-libertarianism/

For those too busy to read, libertarians are SO DUMB they would rather we all die than have the gov’t tax people.

/As for the American Libertarian Party, a bunch of cranks, wackos, racists and potheads.

69

MPAVictoria 08.04.16 at 11:56 pm

“What about the family? Why should a libertarian state act if somebody decides to abandon their young child or old parent?”

Rothbard in fact argued their was nothing wrong with a parent starving their children to death from a libertarian point of view.

/the asshole

70

JimV 08.05.16 at 1:06 am

dn @ 60 [JimV @14 – That “government is best which governs least” line is actually Jefferson]

Thanks for the reply, but I did check before submitting, and Politifact says:

To quote Anna Berkes, the research librarian at the Thomas Jefferson Foundation at Monticello in Virginia, “That sounds like something that he might have said or written, but in fact, he did not.”

Somebody is wrong on the Internet about somebody being wrong on the Internet!

(Or maybe Politifact is wrong and somebody is wrong on the Internet about somebody is wrong on the Internet about somebody being wrong on the Internet.)

Anyway, we are mostly in agreement, and next time I use the quote, if ever, I won’t give a source so as not to start the spiral.

71

Lee A. Arnold 08.05.16 at 2:01 am

@27: Exactly, libertarians depend upon a convenient definition of coercion and inflate the positive/negative liberty distinction into a convenient principle. If a discriminated class of people were excluded from every sort of commercial transaction, then they couldn’t even get food to eat. They would try to go into a store because they are hungry, and be coerced by the shopkeeper or the local constabulary into leaving the store. This is not merely an “unfortunate outcome”. It is the threat of force. Libertarianism rather conveniently relies on everyone not being a bigot, so that the hungry people can go somewhere else and buy the food — thus this totally coercive situation does not arise publicly (except in wide areas of bigotry), so that the fundamental illogic of libertarianism is usually hidden from view.

Similarly cost-reduction by gov’t institution is said to hurt “negative liberty” — but only because the market system is not defined as a form of coercion. There are several ways to show that the market system is coercive. For example, Jacob Viner pointed out over 50 years ago that if individual A acts in the market in a way that is seriously detrimental to the interests of individual B, but A remains unaware or indifferent to B’s suffering, this does not qualify as coercion to a Hayekian libertarian!

The jump from the faulty “coercion” argument to the faulty “gov’t is inefficient” argument is usually engaged at around this point.

The reasons why gov’t can be more efficient than the market depend upon the specific good or service, and the conditions of supply and demand for that good or service. Those conditions may even change. There is no general rule about this.

72

dn 08.05.16 at 3:02 am

@70 – I stand corrected! Prob’ly shoulda checked it myself before getting all pedantic.

73

Dr. Hilarius 08.05.16 at 6:15 am

merian at 45 is on the right track when she points out that libertarian principles don’t allow for things like road repair. My own challenge to libertarians is how they would handle sewage. Do you force people to hook up to sewer lines? How do you get easements across private property for sewer lines? Or do we forego coercion and let people dump shit on their own property? Libertarians tell me that if it pollutes the neighbor’s well, the neighbor can sue. The libertarian dream, Every Man a Tort Lawyer. Any political philosophy that can’t mange basic sanitation really isn’t worth debating.

74

merian 08.05.16 at 7:50 am

Faustusnotes, John Holbo: Well, yes, me, and we can offer semitism if required, too. (Hey, Fairbanks has America’s northernmost synagogue! Not the world’s, as they thought for a while, but close.)

The dependence on federal money is, of course, known. Though some rationalize it away, the attitudes, as usual, vary. Staunch Democrats exists, as do classical liberals. Polling averages don’t tell you everything — in real life, people are complicated.

75

merian 08.05.16 at 7:52 am

What I simply can’t see is how the Shapiro brand of libertarianism, which is very much what regular people (as opposed to public intellectuals) adhere as well, can, ultimately, be compatible with democratic safeguard of liberties. (Let alone public goods.)

76

faustusnotes 08.05.16 at 8:08 am

wtf where is the world’s northernmost synagogue!?

77

PaulB 08.05.16 at 10:50 am

I just read some comments on another site where would-be libertarians were tying themselves in knots trying to explain why the (muslim-run) épicerie in this story http://metro.co.uk/2016/08/05/halal-supermarket-in-france-told-to-sell-pork-and-alcohol-or-face-closure-6049397/ should be obliged to sell pork and wine, whereas bakers should not be obliged to bake cakes for same-sex weddings.

78

Alex K--- 08.05.16 at 11:20 am

@71: Nature is coercive: humans have to grow old and die. Even with perfect equality, we would have to work in order to eat. That’s the primeval, inescapable coercion. (Advances in science might do away with it eventually.) Markets redistribute this coercion, as it were; governments, as libertarian thought goes, multiply it.

There are several ways to show that the market system is coercive. For example, Jacob Viner pointed out over 50 years ago that if individual A acts in the market in a way that is seriously detrimental to the interests of individual B, but A remains unaware or indifferent to B’s suffering, this does not qualify as coercion to a Hayekian libertarian!

Viner pointed out something like that in his 1961 review of The Constitution of Liberty, but his remark does not “show that the market system is coercive.” It merely states that it is not coercive in Hayek’s taxonomy – and why should it be? Suppose you’ve done away with the accursed market; you can now safely remove the irritating word from your sentence: ” if individual A acts in a way that is seriously detrimental to the interests of individual B, but A remains unaware or indifferent to B’s suffering…” That is, if my wife cheats on me – that’s seriously detrimental to my interests, I suppose – but remains indifferent to my suffering, “this does not qualify as coercion to a Hayekian libertarian!” Since it apparently qualifies as coercion to you, is there anything left that’s not coercion in this world?

Libertarianism rather conveniently relies on everyone not being a bigot, so that the hungry people can go somewhere else and buy the food…

Or on someone being smart enough to put profit ahead of sentiment. Or, on the disadvantaged group being large enough to feed itself, the bigots be damned.

Sure enough, if one thinks of the victims as a small – and therefore powerless – band of untouchables, the starvation scenario is not so outlandish. A non-libertarian solution “conveniently relies” on the interference of a benevolent government. Now, if the action is set in an insulated country mostly populated by incorrigible bigots, it is unlikely that such succor will ever come forth. Relief will have to come from outside, but as long as there is an “outside,” exit also becomes feasible. Therefore, both the libertarian and non-libertarian solution rely on the same assumption.

79

Lee A. Arnold 08.05.16 at 12:27 pm

@ Alex K #78: You are STARTING from positing — as a fact — the unproven assumption that, “markets merely redistribute the natural coercion of nature, whereas gov’t multiplies the coercion”. The rest of your argument is based upon this assumption as if it were true.

But first you would have to prove it, without relying upon other convenient definitions.

It may be better if you avoid the whole “natural coercion” argument. Unfortunately nature has evolved ever more complex creatures which impose greater extension over the composition and control of matter and energy, thus nature INCREASES coercion. Therefore taking the “nature” trail will land you in a bit of an explanatory pickle, here.

So this destroys you even before you get around to the “proof” that gov’t only multiplies the naturally increasing coercion, so then you’d be into the second derivative of non-quantifiable “coercion”, a numerical nightmare to be avoided at all costs!

On the other question of libertarianism’s convenient reliance upon circumstance, you appear to be positing that there is indeed always a real outside to which “exit” is feasible. But contingencies are ruled out in the establishment of philosophical certitudes.

One bright spot is that you appear to be analogizing and correlating the non-libertarian’s use of gov’t as just another “outside” in a figurative or metaphorical sense. That’s perfectly valid, I guess, but it hardly supports your argument that only one side is less coercive!

I doubt the contention that putting profit ahead of sentiment is “smart”. But enough said. This should be pondered by the “sober inquiry of competent psychologists”, in Mencken’s immortal phrase.

80

Faustusnotes 08.05.16 at 12:38 pm

Yes Alex k, the large Cherokee settlements in Catalan are prof positive that exit is easy for the dispossessed, and there’s no reason to worry about a world where private power rules …

81

TM 08.05.16 at 2:08 pm

merian: “The “black hole” image would be used by many Germans or French people where an American would use the term slippery slope.”

I’m curious, do you ave any references for this?

Re the private law enforcement thing, there’s an account of how this could “work” in The Star Fraction by ken McLeod, which was object of a CT book seminar some time ago. I thought it was rather silly, like most of the politics in the book. But as I recall, this wasn’t really discussed in the many, and often admiring, CT contributions, to my surprise given how much Holbo and some other CTers enjoy discussing “Libertarianism”.

(I just can’t get myself to use the term without scare quotes, see 25 and 40).

82

GG 08.05.16 at 3:27 pm

I’m a libertarian primarily for epistemic reasons; my views most closely match the initial bits of Gaus’ The Order of Public Reason. Where I diverge from Gaus is with respect to the later bits, as he has a far more rosey view of humanity than I do.

It would be lovely to be sensitive to consequences; the Jim Crow scenarios raised above are awful. But the question I raise to myself, and to y’all in turn, is “How do you get there, from here?”. The assholes have probably internalized the belief that raced-based discrimination is OK, so in establishing a Jim Crow regime they are acting consonantly with their beliefs which, per Gaus, is about the only thing we can actually ask people to do. There is no duty to treat with others, and there isn’t any physical violation of the person, so it’s really hard to come up with a justification for preventing them from continuing. If I had to sum it up in one line it would be “Assholes are assholes, but they still get their autonomy”.

On the bakery thing, you don’t have to be a libertarian to appreciate how wrongheaded the policy is. Consider Mary and Sue, who run Seething Sisters Bakery and Cafe. They have a long history of serving all comers, gay and straight, and will joyfully make you a tray of rainbow cupcakes for your Big Gay Birthday Party. What they won’t do, however, is bake a wedding cake for a gay marriage.

They are absolutely discriminating on the basis of sexual orientation, but are not motivated by anti-gay animus. Rather, they’re anti-assimilationists, and have a whole mess of negative things to say about monogamy and the institution of marriage in general. This is a radical, but very much pro-gay, position which is still being debated in the community to this day. And a gay-friendly bakery is exactly the kind of social forum that the community will use to hash out the issue. By mandating that Mary and Sue must bake the wedding cake the government is badly interfering with the internal dialogue of an underprivileged minority.

83

merian 08.05.16 at 4:00 pm

TM: I was answering from my own judgement as a speaker of German and French. But admittedly, I may have been overstating it a bit, because metaphors don’t work so cleanly, and for “black hole” and its translations the “… and you can’t escape it and it’ll be destructive” connotation is usually there when it’s not as dramatic at the bottom of a slippery slope. I searched through some newspapers for a few minutes, though, and found for example a German text that argued that the cause of the violence of mass shooters is a personality disorder and not simply adverse experiences (of bullying or rejection). The latter, the argument went, are shared by many, but non-disordered personalities are able to work through them whereas they push the disordered personality gradually towards seeking the violent act. (I also found surprisingly few metaphorical uses of “schwarzes Loch” in German papers — possibly because their style editors discourage the use of the cliche. In French, of course, persistent structural budget deficits are often called “trou noir”, which is different.

84

Keith 08.06.16 at 12:02 am

Due to humanity’s evolution in small hunter-gatherer groups, irrational collectivism is the fundamental mental illness that plagues human kind. Liberty is thus the highest public good, as it saves us from ourselves. In addition, liberty is the only means to find the right balance and right combinations of tribalism and individualism for different people’s needs and development.

Gary Johnson’s thoughts and Mr. Holbo’s approval are neither thoughtful nor libertarian. Let’s review the facts behind the wedding cake controversy:

The State of Oregon stole $150,000 from a Christian couple for exercising their freedom of conscience in refusing to bake a cake for a gay wedding. This couple was even happy to accommodate gays, and had done so in the past, but simply did not want to participate in a particular ceremony. The gay couple who begged the state to steal from the Christian couple had suffered no loss in freedom from the Christian couple’s refusal to bake a cake; the lesbian couple could simply call another bakery. This was extremely punitive action by a government against people who wanted to live according to their conscience.

Only a person deeply in the thrall of the mental illness of reflexive collectivism could be okay with this. Opposing this isn’t a matter of being a libertarian; it’s a matter of basic decency.

So when presented with this case, Gary Johnson suffers a sudden bout of paranoia about religious freedom, and where it could all end.

Sorry, if you can countenance this totalitarian violation of people’s conscience by the State of Oregon, you’re not thoughtful, you’re not libertarian, and you don’t even have the minimal decency to respect the rights of the unpopular.

I will use the following analogy here:

If you show up at Emmett Till’s funeral and start to worry about what might go wrong if society lets black men say what they want to white women, and wonder if it could end with some extreme scenarios that scare you, then you ain’t no Civil Rights leader. And if some guy calls you a “thoughtful” civil rights leader when you do that, then that guy’s just a racist. And if that guy makes up some extreme scenarios about what all the black guys might get together and do if they’re allowed freedom around white women, then that guy’s a virulent racist.

So, Gary Johnson is just a dancing Uncle Tom monkeyboy for brain-dead virulently anti-liberty collectivists like Mr. Holbo.

And OBTW, Merrick Garland’s worse on civil liberties than SCALIA, so you’ve got that little problem, too.

And the funny part of this is, I myself believe in thoughtful deviations from “pure” libertarianism, to the point where many of my policy preferences are progressive. For example, I think the government should actively build a search engine with open-source code, and should actively build encryption and many other applications using open-source coding. This is because an open-source codebase is a new and vital public good for securing our liberty and security in cyberspace.

See how I did that, errybody? I used the rational and systemic definition of a public good to define an optimal deviation from “purist” liberty.

But I didn’t try to make up some paranoid excuse for picking on the unpopular kids, like Gary Johnson and Mr. Holbo. I have at least partially overcome the mental disease of irrational collectivism, while Mr. Holbo and Mr. Johnson wish to still indulge this malady and worship at the altar of fundamental human evil.

Screw that.

85

John Holbo 08.06.16 at 12:09 am

“Screw that.”

I guess some people just hate freedom. Oh well.

86

Lee A. Arnold 08.06.16 at 12:39 am

“suffered no loss in freedom from the Christian couple’s refusal to bake a cake; the lesbian couple could simply call another bakery.”

And there it is again: Libertarianism conveniently relies on everyone not being a bigot, so that the fundamental illogic of libertarianism is usually hidden from view.

87

Keith 08.06.16 at 1:30 am

Lee, you just confused everyone with “not everybody.” You’re bad at this.

88

John Holbo 08.06.16 at 1:36 am

“You’re bad at this.”

Ah, if ever there were a double-edged sword, whose wielder must beware, beware …

89

Keith 08.06.16 at 1:39 am

And by the way, all, if you’re super-concerned with people coordinating as a massive group to do horrible things, then I’m kinda surprised I have to point out to such learned folks as yourselves that coordinating massive groups of people is exactly what government does. Holbo’s scenario is virtually impossible without government acting as a coordinating body. That practical reality augurs heavily for libertarianism in the social sphere.

90

Lee A. Arnold 08.06.16 at 1:42 am

Thank you for the correction Keith, now address the point.

91

Keith 08.06.16 at 1:43 am

JH, FTFY

Ah, if ever there were a double-edged sword, whose wielder must beware, beware …but yeah Keith was totally right about that logical point….but he’s rubber and I’m glue….no, wait…

92

John Holbo 08.06.16 at 1:48 am

“no, wait”

Ah, more good advice which, had it been taken in time, might have saved many an intemperate blog commenter from his or her fate.

93

Keith 08.06.16 at 1:48 am

Lee,

Sure, in the case of the lesbian couple, they found another bakery. All that was required was at least one bakery willing to serve a gay wedding, and there were many others. The liberty-based order requires only a small minority of rational people in order to work (in most cases). Government-based systems require a rational majority, and we know that such a thing does not exist.

Again, you guys keep looking for this excuse to use government to pick on people who offend you, just as Gary Johnson did. In the meantime, you ignore the actual rational and systemic reasoning for government intervention where it is appropriate….this goes to the heart of my issue with most anti-libertarians…it’s still just irrational collectivism driving their opposition.

94

John Holbo 08.06.16 at 1:51 am

“Again, you guys keep looking for this excuse to use government to pick on people who offend you, just as Gary Johnson did.”

Why couldn’t it be that Johnson was concerned about liberty? (Out of curiosity.) I’m not saying it isn’t entertaining to watch you kick the furniture, Keith. It sort of is and sort of isn’t.

95

Lee A. Arnold 08.06.16 at 1:57 am

But your “liberty-based order” cannot guarantee that a small minority of non-bigots exists, to save the order from stupidity. It is based upon a convenient contingency, not a thorough rule. The question here is not collectivism, it is a law to make sure that no one can discriminate against some kinds in a commercial transaction that is open to others.

What is your definition of “rational”? You seem to be using the word in different ways.

96

Keith 08.06.16 at 2:04 am

John,

We had a case where the Christian couple’s liberty was violently violated, when they imposed no loss of liberty or even freedom on the lesbian couple.

So I, to put it mildly, place a low probability that Johnson was “genuinely” concerned about liberty. (He may have been “genuine” in the sense that people “genuinely” feel a compulsion to find some justification to use government to harm the out-group.)

Given this context, Johnson was using distant hypotheticals to avoid standing up for the liberty of those whose liberty had actually been abrogated.

This is repugnant, particularly from someone who terms themselves a libertarian. Libertarianism’s primary virtue is that it offers a social contract that prevents people from using the State to harm the out-group. Johnson failed on this primary virtue.

This is the reason for my Emmett Till analogy, to really drive this point home.

97

LFC 08.06.16 at 2:09 am

from the OP
Federalist Society types don’t like Breyer.

Reminded in reading ‘Age of Fracture’ that Breyer was a key player behind airline deregulation in the ’70s (pushed by among others Ted Kennedy, for whom Breyer was working). So the libertarians and conservatives both shd like him for that.

[The merits of airline dereg. are another issue, but we won’t go there.]

98

John Holbo 08.06.16 at 2:12 am

“Holbo’s scenario is virtually impossible without government acting as a coordinating body.”

Why? Have you no game theory? There are lots of scenarios in which comparatively weak preferences about the neighbors, widely shared, produce dramatic aggregate results and patterns that are, plausibly, rather oppressive (that is to say, non-liberty-optimizing) for their inhabitants. That’s before we even add layers of social norms. And we still haven’t called in the government. I think you are too statist in your thinking, Keith. There are lots of ways of organizing social life, informally, without calling in the Man to settle everything, by law.

99

Keith 08.06.16 at 2:15 am

“But your “liberty-based order” cannot guarantee that a small minority of non-bigots exists, to save the order from stupidity.”

If no-non bigots exist, then the government will not be helpful, either. In general, government enforces society’s preferred bigotry in that time and place.

“it is a law to make sure that no one can discriminate against some kinds in a commercial transaction that is open to others.”

And such a law will either be enforced selectively against outgroups, or enforced consistently, and do grevious harm to civil society.

But for fun, I’ll give you a hypothetical. There are some businesses where women sell sex toys and other some such in parties (kinda like Tupperware parties). Many of those businesses only allow women to be “contractors.”

Should that be illegal, in your view, should they be required to allow men to sell?

Why or why not?

100

Keith 08.06.16 at 2:20 am

“There are lots of scenarios in which comparatively weak preferences about the neighbors, widely shared, produce dramatic aggregate results and patterns that are, plausibly, rather oppressive (that is to say, non-liberty-optimizing) for their inhabitants.”

See what happens to Shapely’s equilibrium when you add just a smattering of people who have a positive preference for diversity. C’mon, it’ll be fun. (Protip: Shapely’s equilibrium relies on everybody having absolutely no preferences for neighbors unlike them.)

And it never hurts to compare game theoretic scenarios to the realities of history….

“There are lots of ways of organizing social life, informally, without calling in the Man to settle everything, by law.”

Tell that to Gary Johnson.

101

John Holbo 08.06.16 at 2:29 am

Sorry, our comments passed.

“We had a case where the Christian couple’s liberty was violently violated, when they imposed no loss of liberty or even freedom on the lesbian couple.”

Well, that’s kind of the issue in question, isn’t it? I agree that if I grant your conclusion, as a premise, your conclusion follows. P -> P. What I don’t grant is: your conclusion.

It is certainly the case that the liberty of the Christian couple was infringed. But what about the lesbian couple. Let’s take it in stages. No hurry!

Suppose – just suppose! – that everyone in town hates fags and won’t do business with ’em. There is a social norm to this effect. For good measure, no one will do business with anyone who does business with fags. That’s a norm to ensure that the former norm is robustly and effectively enforced. (Very sensible, I’m sure you agree, given the social order everyone wants to bring about.) The state is not involved. Everyone in town is a good libertarian and wouldn’t dream of it. Now: would you say that it limits the freedom of the lesbian couple to be unable to secure housing/goods and services/employment etc? Kindly do not cavil about the empirics of the set up because 1) it’s my counter-earth and I’ll construct it how I like; 2) I’m not telling this little story to PROVE this is sociologically plausible; 3) but, all kidding aside, there’s nothing that far-fetched about the existence of social norms that target out-groups. The point of the set-up is to clarify a conceptual question about liberty. Would this set-up infringe the liberty of the lesbians or not? In what sense(s) yes? In what sense(s) no? What say you?

102

Lee A. Arnold 08.06.16 at 2:36 am

Keith #99: “If no-non bigots exist, then the government will not be helpful, either.”

This is more convenient contingency, masquerading as principle. If the people who are discriminated against could not be served anywhere in the world, this would impair their liberty. So gov’t makes a law that the discriminated people must be allowed to purchase goods and services offered to others. Then “society’s preferred bigotry” is NOT enforced, in that case. What “grievous harm” is done to “civil society”?

In the case of hiring employees of only one gender, there must be the ability to prove that the employees’ gender is crucial to their job performance. This is one of many cases defended under the rubric “bona fide occupational qualification”.

What is your definition of “rational”? You seem to be using the word in different ways.

103

John Holbo 08.06.16 at 2:44 am

“There are some businesses where women sell sex toys and other some such in parties (kinda like Tupperware parties). Many of those businesses only allow women to be “contractors.”

Should that be illegal, in your view, should they be required to allow men to sell?”

For the record, I think it should be legal. For good measure, I think that probably you should let bakers not sell cakes for gay weddings, if they don’t want to sell. Ideally, that would be the way to do it. Let people be their bad selves about the cakes they bake and don’t. Same for photographers at weddings. But we are in a gray area here, as in many cases in which letting people be their bad selves may be harmful to others. There just isn’t a good, principled answer to the question ‘how wide should we cast the net of ‘common carrier’ obligations’? The principled libertarian answer could be: you shouldn’t impose such obligations. But that would, plausibly, be liberty destroying. Libertarianism that destroys liberty is dumb. But, in for a penny, in for … I dunno, a wedding cake? Where is a good place to stop?

I would like to let bakers refuse service to gay couples on the grounds that everyone should be allowed to be a bit of an asshole, but not too big of an asshole. We are kind of betwixt and between here.

Thus, Johnson is quite right that we need to be careful about turning ‘religious liberty’ into a thing that destroys liberty generally.I think anyone who doesn’t see that isn’t worried about optimizing the supply of liberty for all.

104

Layman 08.06.16 at 2:50 am

“3) but, all kidding aside, there’s nothing that far-fetched about the existence of social norms that target out-groups. “

Folks, I present the nomination for Outstanding Achievement in Understatement.

105

John Holbo 08.06.16 at 2:54 am

Thenk you thenk you.

106

Dr. Hilarius 08.06.16 at 4:33 am

As for the existence of social norms that target out-groups, de facto Jim Crow was alive and well in my youth. My family moved to Smyrna, Tennessee in 1965 (my father was Air Force, there was a base there). The stove in our rental house was broken. When my father called repairmen he was refused service by several and given phony-sounding excuses. One repair shop finally asked, “are you white?” Turns out that there were families in town sharing our last name who were black. No service for them.

Libertarians might claim that a repair service willing to do repairs for black families would profit by serving this population and thus the free market would prevent injustice. Any libertarian thinking this has never lived in a small southern town.

107

ItsRileyAgain 08.06.16 at 7:38 am

@17 responding to:

The thought-experiment is easy and obvious: suppose a crushing form of Jim Crow were maintained, not by the government, but by a powerful, coordinated coalition of private actors who, for good measure, sincerely believe their religion demands no less of them? Would that be acceptable?

“If by “acceptable” you mean “the state has no right to intervene to stop it”, then yes, most libertarians would find it acceptable…”

This threshold of acceptability I find very questionable. If one who is – not/never been/likely could never imagine being – in an out group is prepared to see an abasement of some significant character visited upon others of such out groups, what does that say about their moral qualification to even enter upon such a discussion.

The requisite empathy is simply lacking.

iow, I’m with the ‘libertarianism is a philosophy of spoilt chidren’ school.

108

Michael 08.06.16 at 8:05 am

Social liberalism entails much more than anti-discriminatory practices based on race, sex, sexual preference, religion, and national origin. It also deals with inequities in poverty, education, health, and opportunity.

Take health care for instance. The socially liberal approach can range anywhere from the US system to single payer. This is antithetical to libertarianism since it requires taxation. Outside of user taxes (and even then), libertarians view taxation as theft and an act of violence.

Their solution to address inequities in healthcare is voluntary contribution., but his falls woefully short. Remember Kent Snyder? The Ron Paul aid who died uninsured after raking up $400,000 in hospital bills? Libertarians tried to put their principles to the test but only raised around $30,000 through voluntary contributions. Essentially, most of those costs were passed onto others.

Getting rid of programs like Medicare, Medicaid, CHIP and relying on voluntary acts of contributions would not lead to socially liberal outcomes, but even greater inequities than we currently experience.

The same thing can be said for anti-poverty programs and education. While libertarians often resort to vouchers as a panacea to our educational problem, in reality it is a compromise on their principles. The libertarian solution is privatization and abolishing compulsory education. This would force many children out of education and hardly lead to a socially liberal outcome, but greater inequities.

109

zeno2vonnegut 08.06.16 at 8:06 am

“Fiscally conservative and socially liberal” and whatever purer form Shapiro defines as libertarian do not conform to the real world libertarianism of Cato and the Koch brothers. The duel of non-libertarian “let them eat cake” and libertarian “don’t make us sell them cake” strips the veneer from the underlying lassez faire capitalism of many (most) who call themselves libertarians.

110

LFC 08.06.16 at 10:45 am

Dr. H.@106: most interesting thing about this story is the year — 1965. Evidence of how such ‘norms’ persisted through the legislative and judicial changes of the civil rights era. By 1975 I assume or guess this would not have happened, but that’s already a decade after the Voting Rights Act, etc.

111

SamChevre 08.06.16 at 11:28 am

John Holbo @ 101
I would argue (because I’m mostly libertarian) that the lesbian couples’ liberty would be limited, but in a completely acceptable way. No one has the right to associate with others when those others object.

Similarly, the liberty of outspoken racists is limited by the fact that many people disapprove of their actions, won’t hire them, and so forth. The liberty of some men is limited by the fact that no women want to date them. And so on.

I think there’s a conceptually easy place to draw the line for common carrier obligations: if the government regulates the enterprise to guarantee its profitability and universality, then it’s a common carrier.

Dr Hilarius @ 106

I was a bit startled this spring when a colleague mentioned “when I was in high school, we moved from neighborhood a to neighborhood b; we couldn’t move to town X (where she now lives) because Jews couldn’t live there.”

112

TM 08.06.16 at 12:38 pm

merian 83: I was just curious. I don’t think Schwarzes Loch in the cosmological sense is a frequent metaphor in German. In the article that I think you referenced, Schwarzes Loch seems to have the sense “something that we can’t explain, something not accessible to reason”. “Er schreibt, es bleibe bei jeder der noch so detailliert rekonstruierbaren Taten ein großes schwarzes Loch: die psychische Störung, der Wahn.”

113

John Holbo 08.06.16 at 12:54 pm

“I would argue (because I’m mostly libertarian) that the lesbian couples’ liberty would be limited, but in a completely acceptable way.”

I guess this seems to me like it ought to be a puzzle for libertarians. Libertarian rights exist to establish and preserve liberty. But suppose they don’t. If, as a libertarian, if you had to pick between 1) a world in which effective liberty is optimized for all and 2) a world in which libertarian rights are enforced but, for a variety of reasons, some or most or even all people are non-optimally unfree, i.e. lacking in opportunities to exercise their freedom, which would you pick? I’d pick 1). Suppose you are a freedom-loving person and you have to pick either 1 or 2. Why pick 2?

114

stevenjohnson 08.06.16 at 1:09 pm

Of course the baker and the wedding photographer should serve members of the public. They are the ones who set up as a public business. The baker and wedding photographer who want to suddenly walk that back because, can go ahead and pay their fine or tort. Inasmuch as wedding cakes and photo albums are not, in the grand scheme of things, essential for life, I doubt the fines or torts will be prohibitively expensive. (Nor should they be.)

What you can’t get out of this is any justification for taking libertarians seriously.

115

Lee A. Arnold 08.06.16 at 1:28 pm

“No one has the right to associate with others when those others object.”

I agree with this, but only in the private sphere. Once you enter into commercial transactions, you are not in the private sphere, you are in the public sphere. And that is determined by “majority rules”, including logical inferences argued from your founding laws (e.g. a constitution). If you don’t like classical political liberalism, that’s your tough luck.

Under “bona fide occupational qualification”, you can avoid the hiring of an outspoken racist because it will prima facie destroy his job performance, by destroying your brand appeal to (nonracist) customers. Case closed in a court of law. If an outspoken racist comes through the door as a customer, you may have a more difficult time ejecting him, unless it is inciteful hate speech or he infringes some other statute.

116

Art Deco 08.06.16 at 4:56 pm

Once you enter into commercial transactions, you are not in the private sphere, you are in the public sphere.

Only in your addled head.

117

Art Deco 08.06.16 at 4:58 pm

Libertarians might claim that a repair service willing to do repairs for black families would profit by serving this population and thus the free market would prevent injustice. Any libertarian thinking this has never lived in a small southern town.

Is it your contention that (1) blacks in small Southern towns do not have stoves, or that (2) their stoves never require repair or (3) they do all their own repair work? Or is it perhaps that your father just did not call the right repairman?

118

Rich Puchalsky 08.06.16 at 5:08 pm

“Or is it perhaps that your father just did not call the right repairman?”

I wonder whether the “right” repairmen mysteriously didn’t have as good equipment, had less training, were more expensive, you were more likely not to be able to find one for a while, etc.

All that this thread is showing is what I just wrote about on another thread — in America, anti-racism and anti-anti-racism came into existence at the same time.

119

Lee A. Arnold 08.06.16 at 5:12 pm

Art Deco #113, Since you don’t know who from the public will walk through your shop door, and you are not required to treat them as anything other than a stranger as customer, commerce is pretty much the definition of public sphere, not private sphere.

But no one who has slogged through the years of your silly drive-by sniping in Tyler Cowen’s comment threads (and blessedly rarely at Crooked Timber) will have any expectation that you will suddenly start to make sense.

120

John Holbo 08.06.16 at 10:30 pm

“Once you enter into commercial transactions, you are not in the private sphere, you are in the public sphere. And that is determined by “majority rules”, including logical inferences argued from your founding laws (e.g. a constitution).”

I infer from #117 that Art Deco is not thinking straight, to put it mildly. Nevertheless, I must dissent from Lee’s simple public/private distinction. Plausibly, for a lot of jobs, you should be allowed to pick your gigs. Suppose I am offering my services as a illustrator of books. It should be legal for me to refuse to work on a book that I think is crappy/uninteresting/unsuited to my style. Or racist. I’ve got a career to think about. This gets into the whole ‘how creative is baking a cake?’/’how creative is being a wedding photographer’ biz? Also, it gets at the whole ‘how much is my identity sincerely tied up with this project?’ Ideally, a holocaust survivor should not be legally forced to cater a Nazi wedding. That’s just a really, really unfortunate result, if we arrive at it. Then again, if the holocaust survivor is running a hotel – well, public carrier and all that. Don’t open a hotel if your identity is tied up with not serving a class of customers. Then again, why are we blaming the victim, making it hard for them to open hotels?

There are no easy answers in the gray area. If Keith’s overheated characterization of the terrain were accurate – i.e. if Christians were a powerless, despised minority, wishing only to be left to themselves, but beset by hordes of malicious enemies – under such circumstances it would perhaps make sense to see about re-forging ‘religious liberty’ as a shield, on their behalf. Make it a bit bigger and thicker. (Not that this has anything to do with libertarianism, be it noted.) But Keith’s is not an accurate description of the scene before us – not overall, in general. So what can we say – overall, in general?

There is a deep puzzle about the status of groups and group rights – about the healthy ecology of groups – which produces a paradoxical race to the bottom. Everyone wants their group to be small and persecuted, the other side to be the dominant one. This is not just morally satisfying, because you swaddle yourself in borrowed robes of martyrdom; also, being the beset one might entitle one to some extra protections. And that would be nice. Religious liberty as affirmative action.

It’s sociological nonsense that white male cis-gendered Christians are some persecuted class in the US of Gay. That’s a wish-fulfillment fantasy of victimhood. That said, to adopt Gibson and Faulker: the past is still here, it just isn’t evenly distributed. There are places where the tables have turned, maybe. And places where they haven’t. But it makes no sense to focus on whatever local jurisdiction makes you feel maximally victimized, and pretend it’s the rule. Much less, that THAT rule can just be turned into some liberty principle, and that’s libertarianism.

By the way, if Keith returns he is still under an obligation NOT to start kvetching about what I just discussed, i.e. the alleged plight of US Christians. I answered his hypothetical, see 103, so he needs to answer mine, per 101. (Fair is fair.) Then he can knvetch about religious persecution, if he simply must. First eat your dinner of principled philosophy (what is liberty?), then you can have your sweet sweet (lesbian wedding) cake of grievance and victimology.

I am concerned about intellectual nutrition here and want to encourage everyone to eat a balanced diet. It’s for your own good, really.

121

Lee A. Arnold 08.07.16 at 12:04 am

John Holbo #120: “simple public/private distinction”

I don’t think it’s that simple, but I see a fairly easy rule. I think that the public area depends on what the majority rules or feels about it, and the majority’s tendency is toward inclusion of inclusionary people, and exclusion of exclusionary people. Gay relationships are ruled in because they include more individuals. Racism, sexism, nazism, pedophilia etc. are ruled out because these exclude and/or harm individuals.

It makes a certain sort of sense that the public sphere of commerce should be developing toward inclusion of the inclusionary people, and toward excluding the exclusionary people. It might have gone the other way, but it didn’t.

It doesn’t matter if you are a provider of a good or service on the supply side, or a customer of a good or service on the demand side. If you are an inclusionary person, we like you. If you are an exclusionary person, we don’t want to illustrate your book, and we don’t want you making decisions about who can have a wedding cake.

The free exercise of religion clause in the US First Amendment has been interpreted both ways on this. The best advice is don’t get into the baking business if you don’t want to serve everybody. Similarly, if a holocaust survivor moves to a country where the majority believes that nazism is wholly acceptable, and the holocaust survivor decides to get into the catering business, then catering a nazi wedding is in the future.

122

John Foelster 08.07.16 at 12:09 am

I take a Wittgensteinian approach to the question of what the real meaning of Libertarianism is or should be: “Why are we asking such a fundamentally silly question?”

There is no “real” meaning of the word apart from what the people who use it to describe themselves or others agree that it means. And when you are trying to apply the Idealism that we know is useless to the “forms” of the natural world to political ideologies, what ends up happening is we end up arguing about trademark rights to a marketing term. (Try slogging through the actual Biology underpinning and undermining the “Natural” or “Organic” food industries to see this in action.)

Napoleon III self identified as a Socialist. Marx considered himself a Socialist, and there are few people he despised more than Napoleon III as being against everything that he stood for. Stalin explicitly claimed to be “building Socialism”. Hitler put “Socialism” right into his party’s brand name. China’s current leadership claims to practice “Socialism, with Chinese characteristics”. Bernie Sanders claims to be a Socialist, as do countless mainstream politicians in Europe (who might better be called Social Democrats). So too does the moron who took over from Hugo Chavez in Venezuela.

Can you find a single set of common ideological attributes amongst that set of individuals that might reasonably be considered the core tenets of “real” Socialism? Because I can’t. Do you want to maintain that there is a “real” Socialism that one or more of these people has misappropriated the term from? If so, which ones and on what grounds? I rather doubt that any person claiming to will be able to craft such a definition of the ideology in a way that includes those they want associated with themselves and excludes the others. And anyone on the right who claims that ALL such ideologies aimed at the improvement social welfare against pure Laizzez Faire are equally bad ought to be treated with the contempt such woolly thinking merits.

I’m all for pointing out the intellectual and moral bankruptcy of the Federalist Society and Ben Shapiro, but let’s not pretend that Gary Johnson or the US Libertarian Party have any right to claim priority as the “real” libertarians any more than the two US parties can claim to be “real” advocates of republics or democracies.

It’s very obvious that for the first set of people “libertarianism” and “liberty”mean “my right to impose my will on others, regardless of any rights those others may have”. To the extent that Johnson understands that this not how most people think of liberty, more power to him.

(PS. I would say that not voting for Johnson should only apply to swing states rather than the set of all states Trump has some chance of winning. In places like Utah or Wyoming, people protest voting Johnson in preference to voting for Clinton may be sufficiently numerous to force Trump under the plurality vote, thus making Clinton the victor there.))

123

Lee A. Arnold 08.07.16 at 12:11 am

Love is the way. Love bears all things, believes all things, hopes all things, endures all things.

124

Ian Maitland 08.07.16 at 5:52 pm

Apologies if thus has already been pointed out. But if Bill Weld supports letting government coerce you into “associating” with others against your will, he is no libertarian. Period. Don’t let’s waste another breath debating the issue.

It also makes no difference whether the coerced association is commercial or “public.” To call it public is to gain your point by definition. I have heard no principled explanation for why a person forfeits all (or even some of) their liberties because he or she is engaged in business. Who abolished economic freedom? Of course, as Milton Friedman says in Capitalism & Freedom, if a person associates with others in a conspiracy in restraint of trade in order to deprive someone else of a good or in order to extort a higher price, that is another matter. It is coercion and it is illegitimate.

Similarly, it seems inconceivable that any libertarian (or liberal, for that matter) might support a policy of deference to unelected government bureaucrats. That opens the door to arbitrary and unaccountable government. Government is necessary, but it should operate within strict democratic restraints.

125

Lee A. Arnold 08.07.16 at 6:13 pm

Ian Maitland #124: “if a person associates with others in a conspiracy in restraint of trade in order to deprive”

Once again, the defense of libertarianism conveniently relies on not everyone being a bigot, so that the discriminated-against can buy food and clothing and survive somewhere else, and the fundamental illogic of perfect libertarianism is hidden from view.

126

stevenjohnson 08.07.16 at 7:06 pm

No one coerced the baker and the photographer into setting up a public business. Declaring that there is no such thing as “public,” while surreptitiously redefining “coercion” is a standard ploy for libertarians. It is nonetheless entirely dishonest. Religious bigotry can and does serve as conspiracy in restraint of trade with its targets.

To speak well of libertarians is a sign of poor judgment and low moral character.

127

Ian Maitland 08.07.16 at 7:18 pm

Lee A. Arnold # 125.

I have sufficient confidence in the profit motive to make people swallow their bigotry, even assuming they are all bigots (a fact not in evidence). That is why there had to be Jim Crow LAWS. It is why segregation in the South had to be imposed by boycotts, threats, thuggery, strikes, and other forms of collective reprisal and intimidation.

I expressly excepted conspiracies in restraint of trade. That is what Jim Crow was: “We can better understand the nature of Jim Crow discrimination if we think of it as cartel conduct. A cartel story focuses on the material benefits to collective action that monopolize benefits for one group at the expense of another.” Daria Roithmayer, Labor pains: The racist policies that set workplace equality back decades, Salon, Feb. 2, 2014.

128

Ian Maitland 08.07.16 at 7:32 pm

stevenjohnson # 126.

I didn’t say that there is no such thing as public. I questioned whether private businesses are public. If a shopkeeper does not want to do business with homophobes, Klan members, neo-Nazis, Trump supporters, members of NAMBLA — or only with such people — that is their business, and not yours. I may disapprove of their conduct as much as you do (?), and I may even think it is bigotry, but freedom of association or non-association does not depend on other persons’ values meeting with your approval — or mine.

129

Cranky Observer 08.07.16 at 7:38 pm

= = = Ian Maitland 08.07.16 at 7:18 pm

I have sufficient confidence in the profit motive to make people swallow their bigotry, even assuming they are all bigots (a fact not in evidence). = = =

Suggest you do a bit of research on “sundown laws” and “sundown towns”. Just in my family I have two relative who will not travel by car through the Midwest due to the threats of death hurled at their grandparents and the fear of the consequences of a mechanical breakdown inculcated in their families. It wasn’t just towns, it was entire counties. Including many along the length of Route 66, thus cutting African-Americans off from the entire Chicago-LA road culture of the period.

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/20/AR2005102001715.html

130

Cranky Observer 08.07.16 at 7:41 pm

= = = Ian Maitland 08.07.16 at 5:52 pm
[…]
I have heard no principled explanation for why a person forfeits all (or even some of) their liberties because he or she is engaged in business.= = =

I thought Thomas Hobbes went over that pretty thoroughly in _Leviathan_.

131

Ian Maitland 08.07.16 at 8:27 pm

Cranky Observer #s 129 & 130

Entire town. The whole point of libertarianism is to reserve to the individual his or her right to live his life according to his lights, even if we hate the choices he makes. What you describe is cartel conduct enforced by social and sometimes physical pressure that intentionally interferes with individuals’ rights to enter contracts.

As for Hobbes, I haven’t actually or hypothetically granted any government absolute authority so that it can protect my security. Have you?

132

Lee A. Arnold 08.07.16 at 8:56 pm

Ian Maitland #127, Except that the profit motive does NOT cause all businesspeople to swallow their bigotry.

Also, your case still depends on the convenient contingency that there are non-bigots who will serve the unproblematic customers who are being discriminated against. (I don’t consider nazis or homophobes etc. to be unproblematic. If you are a hater, then you should go start your own country on a deserted island.)

133

Collin Street 08.07.16 at 9:20 pm

Ian Maitland #127, Except that the profit motive does NOT cause all businesspeople to swallow their bigotry.

By definition bigots are, essentially, crazy. Arguments rooted in people doing rationalist assessments of their own best interests aren’t really very convincing when you know that the people whose analysis and conclusions you’re concerned by are irrational.

[again, the distinctive cognitive failure-pattern of all right-wing thought is to neglect the collective effect of actions that are nominally uncoordinated but responsive to the same [social] incentives and structures, both for good and for ill]

134

John Holbo 08.07.16 at 9:29 pm

“Entire town. The whole point of libertarianism is to reserve to the individual his or her right to live his life according to his lights, even if we hate the choices he makes. What you describe is cartel conduct enforced by social and sometimes physical pressure that intentionally interferes with individuals’ rights to enter contracts.”

But suppose these things come apart, Ian. Libertarianism is supposed to reserve to the individual his or her right to live life according to his lights. But end-state communism is supposed to be pretty nice, too. That doesn’t mean we have to believe in it. Suppose libertarianism turns out to be an engine of cartel conduct. Just suppose! Would you say: well, I guess that’s what freedom looks like. Or would you say: oh, I guess libertarianism sometimes doesn’t conduce to freedom? Irony is not unknown in human history, after all. Which way would you jump?

135

Collin Street 08.07.16 at 9:40 pm

What you describe is cartel conduct enforced by social and sometimes physical pressure that intentionally interferes with individuals’ rights to enter contracts.

This?

Question-begging. Learn to recognise it.

136

Chip Daniels 08.07.16 at 10:17 pm

= = = Ian Maitland 08.07.16 at 5:52 pm
[…]
I have heard no principled explanation for why a person forfeits all (or even some of) their liberties because he or she is engaged in business.= = =

And I have heard no principled explanation for why property rights are so strong that the liberties of the property owner become paramount to the liberties of the customer or even society in general.

More to the point, there does seem to be an assumption that property rights are fixed, not subject to mediation or negotiation, and near-absolute.

Property owners ask me to recognize their claims, then ask me to defend them from harm, then ask me to adjudicate and enforce their contract.

So when do I get to assert my conditions and terms to all this?

137

Ian Maitland 08.07.16 at 11:04 pm

John Holbo # 134

Even the devil can quote the scriptures, and if someone used some diabolical or infernal trick to use rules designed to protect liberty against it, then clearly I’d jump in thee direction of freedom.

But for reasons I have given, as an empirical matter, I believe that freedom and domestic tranquility will generally fare best if government does not interfere with people’s choices about whom to do business with and on what terms. So, if the owners of Hobby Lobby warn prospective employees that they believe that some forms of birth control are tantamount to murder and that Hobby Lobby won’t pay for them, and if the employees accept positions at the company knowing this, then it is not our business to interfere with the parties’ choices.

It seems so simple to me. If a cake shop is not a monopoly, it is a minor inconvenience for a gay (or neo-Nazi) couple to go to another cake shop for a gay or (Nazi)-themed cake.

138

Ian Maitland 08.07.16 at 11:27 pm

Chip Daniels # 136

I don’t like the term “property” rights. They are just a subset or aspect of human rights. Why should human rights be expelled from some arenas of life (commerce) but celebrated in others (nude dancing?). Only in America (well, the US Supreme Court), would economic liberties be systematically devalued and “expressive” rights made into sacraments. The Constitution sure doesn’t rank order rights that way. But who reads the Constitution these days?

I am not sure that I follow your point about the liberties of the customer. I don’t subordinate them to property rights. I think the customer has every bit as much a right to withhold his or her business from a store which he disapproves of (maybe it sells guns, or the owner is gay, or whatever) as the store owner has to limit his business with customers he or she disapproves of. It is a two-way street.

NB. Property owners also pay taxes to defend you from harm and for courts to adjudicate and enforce your contracts. So why are you so peeved?

139

Rich Puchalsky 08.07.16 at 11:57 pm

Ian Maitland: ” That is what Jim Crow was: “We can better understand the nature of Jim Crow discrimination if we think of it as cartel conduct. A cartel story focuses on the material benefits to collective action that monopolize benefits for one group at the expense of another.” “

Well, no. A cartel is formed to enrich its members. Jim Crow did not actually enrich the shopkeepers that participated in it: it presumably denied them business. They did it anyways because of non-economic reasons.

Everyone’s going to be all over this stuff because it’s so easy to argue against. But, as I mentioned before, it’s a classic anti-anti-racism argument. It vaguely seems to make sense at some level, but not really as soon as you look at it. The function of this kind of thing isn’t “to be racist”, it’s to take the side against anti-racism because cultural tribalism demands it. That’s why U.S. libertarianism is pretty much a U.S. phenomenon.

140

Ian Maitland 08.08.16 at 12:53 am

Rich Puchalsky:

A cartel is formed to enrich its members? Well, not always. As J.R. Hicks said, “The best of all monopoly profits is a quiet life.” A cartel is a means — its ends are sometimes buried in the breasts of the participants. The Jim Crow cartels were a means by which local white elites still nursing grievances over the outcome of the Civil War consolidated their gangland-style power and fought the war all over again. Like any conspiracy the cartels punished scabs or stoolies who wanted to move on.

Your discussion of “cultural tribalism” is way over my head. I don’t have a dog in this fight — I don’t identify with any of the tribes mentioned (or even who went unmentioned). I just believe in live and let live. Many commenters are so sure that they can discern right and wrong. They are full of zeal to punish what they call haters and (in one case) to send them into exile.

Let me take a recent example. Two or so years ago, the CEO of Mozilla was fired after a hue and cry following the disclosure that he (a practicing Catholic) had contributed to California’s Prop. 8 taking away the rights of gays to marry. The gay (and libertarian) blogger Andrew Sullivan wrote “When people’s lives and careers are subject to litmus tests, and fired if they do not publicly renounce what may well be their sincere conviction, we have crossed a line. This is McCarthyism applied by civil actors. This is the definition of intolerance. If a socially conservative private entity fired someone because they discovered he had donated against Prop 8, how would you feel? It’s staggering to me that a minority long persecuted for holding unpopular views can now turn around and persecute others for the exact same reason. If we cannot live and work alongside people with whom we deeply disagree, we are finished as a liberal society.” Amen.

It’s a simple question of humility; we should all consider that we might be wrong. History is littered with the carcasses of true believers whom history proved wrong.

141

Keith 08.08.16 at 1:47 am

Re: 120 “If Keith’s accurate summation were accurate.”

“It’s sociological nonsense that white male cis-gendered Christians are some persecuted class in the US of Gay.”

The Christian couple was fined $150,000 for refusing to serve a cake to a gay wedding. You can’t get around that. Oppression and persecution occur in different contexts, and different types of oppression can occur simultaneously…blacks can be persecuted in some places, gays in others, and white Christians in others….I’m enlightened enough to acknowledge all of these possibilities, and observe when they occur. I think Mr. Holbo can catch up, with some effort.

In this context, Johnson was using an extreme hypothetical in the opposite direction to avoid facing real injustice against the Christian couple by the State of Oregon. This was a repugnant betrayal of the best that libertarianism has to offer…the ability to stand up against State injustice, even against those who are not popular in a given social context. That’s still disgusting.

In this sense, your ability to recognize persecution against those that your friends see as the out-group is a moral test….Mr. Holbo has yet to pass.

All liberty is affirmative action, for those who would be persecuted by the majority. Heck, in my case, I was “woke” decades before it was cool….I opposed the Drug War back when Hillary and Bernie Sanders were voting for mass incarceration in the 1994 crime bill.

As for Mr. Holbo’s hypothetical, I’ll see and raise him, I agree that the 1964 Civil Rights Act, the section banning private discrimination, had good effects….many Department stores in Southern cities, for example, integrated in response to the act, and that was good, and it even helped achieve a better coordinating equilibrium. I think most of the social benefits on the 1964 Civil Rights Act (the section banning discrimination by businesses) occurred in a short amount of time, and much of the social usefulness of that part of the Act was realized within 10 years. The legacy of slavery and the support of Southern state and local governments for anti-black terrorism imposed unique obligations. That was an emergency that uniquely met the standards for deviating from liberty. And yes, that’s pretty much the only case that meets the standards for this kind of government intervention.

142

Keith 08.08.16 at 1:53 am

The entire public accommodations paradigm, however, has greatly undermined civil society in the US, and has plunged us into a low-level political civil war.

This has been a shame for the country, and, in fact, has damaged our ability to obtain optimal progressive policies.

143

John Holbo 08.08.16 at 8:36 am

“If someone used some diabolical or infernal trick to use rules designed to protect liberty against it, then clearly I’d jump in thee direction of freedom.”

Good for you! I think that is clearly the right answer.

Keith, it is very generous of you to offer to perform some sort of moral test on me but, to be honest, I’d like to do more of a self-paced, self-study kind of thing – and I encourage you to do the same. If I understand correctly, your answer to my question, in 101, was ‘yes’. Is that right?

144

ZM 08.08.16 at 9:13 am

John Holbo,

“I would like to let bakers refuse service to gay couples on the grounds that everyone should be allowed to be a bit of an asshole, but not too big of an asshole. We are kind of betwixt and between here.”

This is discrimination. Businesses can’t discriminate like this. If a private citizen with a reputation for making good cakes is approached by a gay couple to make them a wedding cake and the private citizen is against gay marriage they can refuse to make the cake.

If it is a business it is held to higher standards and more regulation applies to it than to a someone who has a hobby of making cakes.

Businesses operate in the public sphere and can’t discriminate on these grounds against people. There are categories that are protected from discrimination including race, gender, and sexuality. Imagine having businesses that commonly refused to serve gay people or black people or women, it would create a horrible discriminatory public sphere.

Unless you are actually in favour of a public sphere which is discriminatory on gender, race, and sexuality, etc you shouldn’t have this opinion.

Businesses don’t operate like this. They are professional operations. You wouldn’t have a good opinion on a philosophy professor that refused to enrol gay students in his classes surely? And I hope you would’t argue that university professors should be able to refuse to enrol students who are gay or black or women or disabled etc. Being an arsehole is one thing, being discriminatory is another thing. Businesses are no different from universities in this regard.

145

ZM 08.08.16 at 9:14 am

Even things where I think they should be illegal like drug taking, sex work, porn etc I would not argue that people should be refused service at businesses if they engaged in these things, and they aren’t even protected categories.

146

J-D 08.08.16 at 10:04 am

Ian Maitland 08.07.16 at 11:04 pm
John Holbo # 134
It seems so simple to me. If a cake shop is not a monopoly, it is a minor inconvenience for a gay (or neo-Nazi) couple to go to another cake shop for a gay or (Nazi)-themed cake.

I don’t know whether you’ve ever had the experience of going into a shop to buy something and being told that they don’t serve people like you. Maybe you think that would be only a minor inconvenience. Maybe it has happened to you and it was only a minor inconvenience. Maybe it would only be a minor inconvenience for you if you had to ask, every time you wanted to go into a shop, whether the shop served people like you. But it’s possible for an experience to be only a minor inconvenience for you and to be much more than a minor inconvenience for other people.

147

Keith 08.08.16 at 10:57 am

J-D #146:

In this case, the Christian bakers did in fact serve gays; they had served this couple before and would do so again. They just didn’t want to bake a cake for this particular circumstance.

148

John Holbo 08.08.16 at 11:01 am

“This is discrimination. Businesses can’t discriminate like this.”

There is a descriptive and a normative question here. Is this the law? Should it be the law? I take it your claim is both. I think you can probably agree that, as a generalization about existing law, this is dubious. So let’s move on to normative. I don’t agree that it is never right to let businesses pick and choose their clients, in effect. Picking your business associates/partners/collaborators is an important freedom.

Let’s take a simple case: suppose a restaurant has a ‘no shirt no shoes no service’ rule. That’s discrimination. Ought it to be legal to do that?

149

J-D 08.08.16 at 11:05 am

Keith 08.08.16 at 10:57 am
J-D #146:

In this case, the Christian bakers did in fact serve gays; they had served this couple before and would do so again. They just didn’t want to bake a cake for this particular circumstance.

That’s an interesting detail, but I don’t see how it affects the substance of the point I was making. I think that the point I was making is in substance the same if the experience under discussion is not the experience of being refused all service by a shop that extends it to other people but rather the experience of being refused only one particular service that the shop extends to other people. It’s still a case of: maybe only a minor inconvenience to some; maybe much more than a minor inconvenience to others.

150

ZM 08.08.16 at 11:24 am

John Holbo,

““This is discrimination. Businesses can’t discriminate like this.”
There is a descriptive and a normative question here. Is this the law? Should it be the law? I take it your claim is both. I think you can probably agree that, as a generalization about existing law, this is dubious. “

It’s not dubious at all — I am talking about the existing law.

We have a whole lot of anti-discrimination and equal opportunity laws in Australia, and in my State of Victoria, and businesses have to abide by them since they cover access to goods and services.

These are the existing laws:

Australian Human Rights Commission Act 1986 covers discrimination in occupation or employment.

Australian Age Discrimination Act 2004 covers discrimination in employment, education, access to premises, provision of goods, services and facilities, accommodation, disposal of land, administration of Commonwealth laws and programs, and requests for information.

Australian Disability Discrimination Act 1992 covers discrimination in employment, education, access to premises, provision of goods, services and facilities, accommodation, disposal of land, activities of clubs, sport, and administration of Commonwealth laws and programs.

Australian Racial Discrimination Act 1975 covers discrimination in all areas of public life including employment, provision of goods and services, right to join trade unions, access to places and facilities, land, housing and other accommodation, and advertisements.

Australian Sex Discrimination Act 1984 (includes sexual orientation as well) covers discrimination in employment, including discrimination against commission agents and contract workers, partnerships, qualifying bodies, registered organisations, employment agencies, education, provision of goods, services and facilities, accommodation, disposal of land, clubs, administration of Commonwealth laws and programs, and superannuation.

Australian Fair Work Act 2009 covers discrimination, via adverse action, in employment including dismissing an employee, not giving an employee legal entitlements such as pay
or leave, changing an employee’s job to their disadvantage, treating
an employee differently than others, not hiring someone, or offering a potential employee different (and unfair) terms and conditions for the job compared to other employees.

Victorian Equal Opportunity Act 2010 (VIC) Discrimination on the basis of age, breastfeeding, disability, employment activity, gender identity, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, physical features, political belief or activity, pregnancy, race (including colour, nationality, ethnicity and ethnic origin), religious belief or activity, sex, sexual orientation, and personal association with someone who has, or is assumed to have, any of these personal characteristics.
Sexual harassment is also prohibited under this Act. Covers discrimination in employment, partnerships, rms, qualifying bodies, industrial organisations, education, provision of goods and services, disposal of land, accommodation (including alteration of accommodation), clubs, sport, and local government.

Victorian Racial and Religious Tolerance Act 2001 (VIC) Vilification on the basis of race or religion is prohibited under this Act. Covers discrimination in employment, partnerships, rms, qualifying bodies, industrial organisations, education, provision of goods and services, disposal of land, accommodation (including alteration of accommodation), clubs, sport, and local government.

https://www.humanrights.gov.au/sites/default/files/GPGB_quick_guide_to_discrimination_laws_0.pdf

151

Lee A. Arnold 08.08.16 at 11:30 am

The libertarian characterisation of the US’s Civil Rights Act of 1964 as a “deviation from liberty” shows that libertarianism relies upon convenient definitions. Proves that libertarianism is NOT classical political liberalism. Indicates that libertarianism should be discarded into the dustbin of history — to quote another rather different scripture!

Twisting one’s intellectual inferences to comport with one’s emotional train of thought is the sine qua non of “motivated reasoning” or “social cognitive bias”. We all do this, to one extent or another. Even here in Crooked Timber comments, (where these things are supposed to be sorted out), writers and readers mostly forget it. Here, emotions reign over intellect.

But it seems that libertarians show an especial disregard for the intellectual holes in their fabric. Above, we read phrases that are akin to, “My own rules must apply to everything, but yours are not allowed.” “The producer and consumer sides of a business relationship are in the same sphere (i.e. the private sphere).” “Civil society is at risk.” –Various bunches of malarkey.

So therefore, since morality is about how we treat each other, and how we treat each other is about emotions far more than intellect, (and since most readers cannot tell one from the other anyway), here is my own emotional train of thought:

If a child wanders into your store and you refuse to serve him/her because of skin color or gender preference, then you will create fear and self-loathing in that child. At that very moment, you should be THROWN IN JAIL. Preferably tarred and feathered, first.

The intellectual entrainment, by this emotion of mine:

1. What you do or say in your own house and with your own friends is your own affair: your private sphere. (also, I shall be RSVPing negatively to your barbecue invitation.)

2. A business firm certainly has the RIGHT to TRY to push its own hiring practices, i.e. to try to treat its “in-house” policies, as if these were part of the “PRIVATE” sphere. Its successes in this regard are adjudicated as follows: a.) In the case of firing a CEO who contributes campaign money to haters, the firm may be found to be legally in its rights, if it proves that he hurts the firm’s business. b.) In the opposite case, the case of refusing to employ non-haters, because of their skin color or sexual preference, how far the firm can go has been up to the law, the majority of voters, and the courts to decide.

But that all ENDS at the customer interface, where your business Venn-diagrams into the public sphere entirely. If you discriminate against any potential customer who is not a hater, you should be thrown right the hell into jail.

You protest and ask, “Well, if we are compelled to serve a gay black marxist muslim illegal mexican who doesn’t hate anybody, don’t we also have to serve a nazi?”

For what it’s worth, my own reply, my own intellectual entrainment to my feelings, is that the constitution can be construed that way, but the clear tendency of the majority of voters is toward finding another way to construe it.

So at this time your protesting question isn’t settled. My observation is that libertarianism is the least likely philosophy to settle it. We already allow nazis the freedom of speech, freedom of public assembly, and freedom of guns. The majority of voters is unlikely to want to enable the haters any further. Due to “civil society” and all that stuff.

152

John Holbo 08.08.16 at 11:30 am

“We have a whole lot of anti-discrimination and equal opportunity laws in Australia, and in my State of Victoria, and businesses have to abide by them since they cover access to goods and services.

These are the existing laws”

Yes, but not everywhere in the world is governed by Australian law.

153

ZM 08.08.16 at 11:33 am

John Holbo,

“So let’s move on to normative. I don’t agree that it is never right to let businesses pick and choose their clients, in effect. Picking your business associates/partners/collaborators is an important freedom.

Let’s take a simple case: suppose a restaurant has a ‘no shirt no shoes no service’ rule. That’s discrimination. Ought it to be legal to do that?”

If businesses are in demand then they can’t take on all the clients necessarily when the client wants to use the business. You might have enough architecture contracts for the next 12 months and the person wants their house designs by 6 months so you can’t take them on. Your restaurant might be fully booked so you can’t take on another booking that night. Or the client might want a house that isn’t your architecture style so you explain that it isn’t what you do.

Taking on business associates and partners is based on choosing the right applicant for the position, but it is illegal to discriminate against protected categories which I gave you all the laws for above.

Shoes and shirt wearing are not protected categories and it doesn’t count as discrimination in the illegal sense. It is just saying people have to wear shirts and shoes. This is very easy for just about everyone to comply with if they want to go to your business. The only reason they might turn up without shoes and a shirt is if they didn’t plan to go out to dinner and it was a very hot day and then decided at the last minute to go out to dinner. Then they might be cross that they got turned away, but its not discrimination in the legal sense.

154

ZM 08.08.16 at 11:34 am

“Yes, but not everywhere in the world is governed by Australian law.”

This is true, but I am not an international human rights lawyer and I have no idea about all the discrimination laws in countries I don’t live in.

155

John Holbo 08.08.16 at 11:40 am

“This is true, but I am not an international human rights lawyer and I have no idea about all the discrimination laws in countries I don’t live in.”

That is an excellent reason to refrain from making descriptive claims about them at present. Hence the shift to the normative. Speaking of which:

“Shoes and shirt wearing are not protected categories and it doesn’t count as discrimination in the illegal sense. It is just saying people have to wear shirts and shoes.”

No, but it is discrimination in the actual – as opposed to legal – sense. (Now we are starting to reap the benefits of the shift from the descriptive legal question to the normative question!) Saying people have to wear shirts and shoes is discrimination. Against the non-shirt, non-shoe wearing.

“This is very easy for just about everyone to comply with if they want to go to your business.”

As it is easy – or may be – for a lesbian couple to take their cake business elsewhere.

My point is simple: you are fine with some discrimination, plainly. So we move on to the next question: when is it ok?

156

Lee A. Arnold 08.08.16 at 11:53 am

John Holbo #148: “suppose a restaurant has a ‘no shirt no shoes no service’ rule. That’s discrimination. Ought it to be legal to do that?”

I vote Yes: 1. Decorum. 2. Applies to all; no one is hated. 3. Avoids possible safety issues with food spills, etc.

I wrote about a business’s private concerns about choosing and maintaining fellow employees just above: the sorts of questions that have arisen, and also how this is in a very different sphere (a mixed private employer/public employee sphere, if you like) from how it treats its customers.

But you entered a question further up, about how independent artists as individual proprietors pick and choose projects.

I don’t hear many people worrying about this one. Maybe it is because most people give an allowance for “artistic temperament” and how it effects the beauty and value of the resulting production. The artist’s time is limited to what one can do. It also verges upon the realm of individual commission.

I suppose there is a gray area if a baker is also a fine artist cake decorator. Perhaps this hasn’t become a big question because most people walking into the shop would assume that there is a chance of being turned down anyway, so this hasn’t become a big legal question for the case of race/gender discrimination of customers.

157

John Holbo 08.08.16 at 12:02 pm

“1. Decorum.”

I don’t really disapprove of where you are going with this but you have to admit that this is weak. Suppose someone thinks it isn’t ‘decorous’ to get gay married? Your point about hate – animus – is a likelier candidate, but it’s tricky to decide that, too.

“I don’t hear many people worrying about this one. Maybe it is because most people give an allowance for “artistic temperament” and how it effects the beauty and value of the resulting production. “

Eh, again, I think you can probably see for yourself how weak this is as a legal standard. Especially should someone choose to challenge it, for whatever reason.

158

ZM 08.08.16 at 12:05 pm

John Holbo,

“That is an excellent reason to refrain from making descriptive claims about them at present.”

I was talking about the descriptive laws in Australia which I where I live so I am familiar with them as a matter of course. I don’t have the time to learn about all the different laws against discrimination in the world. So I was making true descriptive claims about the law, but not globally applicable claims.

“No, but it is discrimination in the actual – as opposed to legal – sense. (Now we are starting to reap the benefits of the shift from the descriptive legal question to the normative question!) “

No, this is wrong, because you are confusing the different meanings the word “discrimination” has.

One earlier derived meaning of discrimination is that someone exercises discrimination in choosing a good wine, or in making some sort of choice between things, possibly with regard to one thing being better than another thing. You can even apply this to people rather than wine, say you hear about someone and conclude they are a gross evil creep for instance. This is exercising discrimination in the old sense of the word, about how you make judgements or choices about things.

The more recent and now commonest meaning of discrimination is based on society arriving at a conclusion that previous categories that relate to people and classed them as inferior — such as women, non-white races, gay people, disabled people, etc. — were wrong and prejudiced and unjust discrimination. So this meaning of the word discrimination applies to categories of discrimination equated with prejudice against types of people.

As you can see these are two distinct albeit related meanings, with the recent meaning of course following on from the earlier meaning. But most commonly now when we say discrimination we are using the recent meaning, not the earlier one. Apart from if you are talking about someone being a discriminating judge of wine or Italian yarn or something.

“Saying people have to wear shirts and shoes is discrimination. Against the non-shirt, non-shoe wearing.”

It is discrimination in the earlier sense, in that the business is saying that it is necessary to wear shoes and shirts since the restaurant atmosphere is improved by everyone being shirted and shoed.

But it is not discrimination in the recent sense, which applies only to prejudiced discrimination against certain categories.

Now you could move on from this to argue that precluding people based on them not wearing shoes and shirts is discriminatory in the recent sense, as you might say it is class based discrimination, and you might be against discrimination based on class as much as race and sex etc. However this problem is basically solved because everyone has shirts and shoes so if they come to the restaurant without them it is either since they just decided to go out to dinner on the spur of the moment, or else it is their free choice that they don’t want to wear them which overrides their wanting to go to your restaurant.

“As it is easy – or may be – for a lesbian couple to take their cake business elsewhere.”

No, you have it around the wrong way. The shoeless and shirtless person could also go to another restaurant that takes people without shoes and shirts — but they also have the choice to just put on shoes and shirts (we don’t live in Dickens time everyone basically has these and if they don’t they can find some easily and probably get free ones somewhere if they were homeless and how can they afford to go to your restaurant if they can’t even get free shoes and shirts? If someone takes them from the street they probably should get them shoes and a shirt too).

But the lesbian couple really don’t have the opportunity not to be lesbians when they order their cake. They can’t just put on homosexuality for the business transaction. Okay they could but either it would be a great imposition on their lives or else they would just be lying to get a cake.

“My point is simple: you are fine with some discrimination, plainly. So we move on to the next question: when is it ok?”

No, I am not fine with discrimination which is of the type of the recent commonest meaning of discrimination, which is racism, or sexism, or homophobia etc.

If we are going to go archaic I am happy to say of someone that they exercise the greatest discrimination in wearing a black frock coat and violets, and choosing some fine champagne or something. Whatever goes with violets.

159

stevenjohnson 08.08.16 at 12:14 pm

Directing customers to behave as if they were in a public place, requiring shoes and shirts (and forbidding profane language or sexual displays) is very much on a par with requiring the business to behave appropriately in public by serving all the customers.

In general (following Mario Bunge, by the way,) all meaningful rights are also implicitly duties. The “right” of association is also the duty to comport yourself in such fashion that strangers can get along with each other. Socialist political philosophy holds that there is no objective justification for some to have more rights than others. (Democratic political philosophy holds that legal rights for persons should be equal.) Libertarian political philosophy holds that human rights are property rights. In practice that works in reverse, because a cardinal tenet is that people have the rights of self-ownership* which reduces human rights (and humanity) to property rights.

Again the real lesson here is that it is folly to pretend libertarians argue in good faith. They are a grossly ideological movement, conceived by theorists perusing economics textbooks in musty libraries.

*Yes, other libertarians hinge their alleged philosophies on the non-aggression principle. But inasmuch as the aggression condemned is violation of property rights, this achieves the same goal, justifying the liberties and privileges of property against the rest of us.

160

John Holbo 08.08.16 at 12:26 pm

ZM, you are, in effect, saying there is good and bad discrimination. (The archaic/recent distinction is a red herring.) The question is: how can we tell which is which? It is fine to discriminate between wines and against shoeless, shirtless customers but not against gay people who want cakes. But why? It is no good saying the law informs us which is which. The question is: how should the law be, so that it rules out the bad stuff? After all, until recently, the law said something very different. What makes bad discrimination bad and good discrimination good?

161

John Holbo 08.08.16 at 12:28 pm

“Directing customers to behave as if they were in a public place, requiring shoes and shirts (and forbidding profane language or sexual displays) is very much on a par with requiring the business to behave appropriately in public by serving all the customers.”

But suppose someone sincerely thinks flaunting one’s homosexuality in public – by revealing it – is indecent? Does that make discrimination against gays ok due to the decorum dodge? Surely not.

162

Lee A. Arnold 08.08.16 at 1:00 pm

John Holbo #157: “tricky to decide that”

Granted, but you seem to be going back and forth between philosophical and legal standards.

Philosophically I think it is fairly simple to inspect a belief system to determine whether it is exclusionary, hateful or harmful to others based personal or group identity. Allow them complete rights in their private sphere, but in our public sphere only freedom of speech and assembly.

Legally we don’t make that distinction now. There is applicable law (including constitutional principles) for one situation or another, and these applications are in tandem with voting majorities who make continuous adjustments, and the whole sloppy thing works like an wavering osmotic membrane around the entire social body, which is growing and changing into the future. So if we are looking for a principle which slides easily over into law, I’m not sure we have one yet. I think the inspection of a creed for hateful exclusionary bias or harm of others based on personal identity could be a possible candidate, since it seems already to be the general direction of majority sentiment.

For “decorum” I should have meant a dress code. I see nothing wrong with even a strict dress code to enter upon a business establishment, if it applies to everyone. In the case of restaurants, this seems to meet with near universal approval. You also don’t grab your own table unless the front counter says that you should, and so on.

I think that gay marriage is not frowned upon because it is “indecorous”. There are two reasons, 1. because some people feel gay or bi, but have been taught that it is wrong, and so they feel self-loathing buried in revulsion.

And the reason they are taught this is wrong is because 2. ancient religious scripture proscribes ALL sexual desire as part of the ascetic practice for the expansion of awareness, not only homosexuality, but indeed usually advises that people leave their families to follow God. This put a real kink in the means of species perpetuation, so hetero marriage got a second pass. (In Christianity for example, by the third century monastics were making a clear distinction between the lesser and fuller paths — e.g., the remarkable Christian systematizer Evagrius Ponticus, who with Plotinus may have been a student of Ammonius Saccas).

Now, this explanation is not a basis to make a democratic law either! But we surely don’t move in the direction of psychological health by perpetuating a person’s buried trauma, under the reasoning that it is religious belief.

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stevenjohnson 08.08.16 at 1:09 pm

John Holbo @161 If you are going to pretend that anybody’s self-definition of “flaunting” should be taken seriously, then these problem are insoluble. An unveiled face can be deemed “flaunting.” Skepticism about the possibility of any solution in practice always justifies the status quo, inasmuch as it equates personal opinion to arguments to consequences, or rights and duties.

Besides, the really difficult issues with the “decorum dodge” are transgender.

Also, by your standard, one could sincerely “think” that revealing one’s atheism or agnosticism is flaunting…and there would be a serious question of injustice in penalizing the “thinker” for acting on their “thoughts.” Those are not scare quotes, by the way…in your version, it is likely you actually mean “feel,” something not quite under conscious control. Or possibly you mean “believe,” in a sense where believing is more or less an act of will that doesn’t need justification.

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ZM 08.08.16 at 1:20 pm

No, John Holbo, I am not saying there is good and bad discrimination. I am saying the word carries multiple meanings, and the “good discrimination” you are talking about is an archaic meaning now, since you only use it if you are being archaic for fun. I have never heard anyone use discrimination without being deliberately archaic in my life. You even change your voice to sound a bit plummy and archaic when you say it. Apart from in discussions about whether discrimination is okay and what it means, then you use a normal voice.

It isn’t my fault that people took the word discrimination which is an older word about exercising judgement or making choices, and applied it to cases of where some people were wrongly classified as being inferior based on race, sex, sexuality, disability etc.

You might disagree with me, but you can’t say I am saying something which I’m not saying.

Yes, it is fine to decide that your restaurant is going to have a policy that people must wear shoes and shirts, and it is fine to choose wines based on what characteristics make wine A superior to wine B in terms of flavour, aroma, body, notes, complexity, your preferences etc.

No, it is not fine to refuse to serve customers based on them being homosexual.

“But why? It is no good saying the law informs us which is which. …. After all, until recently, the law said something very different. What makes bad discrimination bad and good discrimination good?”

People used to treat people with homosexual orientation very badly, it was thought to be wrong, and it was illegal.

If you are asking me why is homosexuality not wrong and you shouldn’t treat homosexuals badly — it is because there is nothing wrong with it. Some people are attracted to people of the same sex. They are adults and they love each other so there is nothing wrong with them having sex and getting married, their homosexuality does not make them bad people, and it is not a category relevant to deciding they are bad people.

The same is true of sex — being a woman does not make you a worse or inferior person, and race — being of a non-white race does not make you a worse or inferior person either.

However it was not that long ago that people were treated worse for all these things, they are categories of people who were treated with prejudice and treated negatively or excluded from things, and this is why the government implemented anti-discrimination legislation to protect these categories.

“The question is: how should the law be, so that it rules out the bad stuff? “

You are really asking a rather large question here which people have written vast books about. I am really afraid that a comment can’t quite do this question justice.

I take it you are drawing attention to 1. the fact that the law is about right and wrong, and good and bad ; and 2. the fact that the law has changed over time, and is different in different places as well (like the Australian anti-discrimination laws are not globally applicable as you pointed out, and you also pointed out that laws on homosexuality were different not long ago).

We inherit laws, so there is an element of conservatism inherent in law generally, but we also make laws or at least people in Parliament do, so there is an element of change as well.

Your question is too broad really, so taking it back to the issue of discrimination it was really about the classification of people into superior and inferior types, and then the recognition that this typology was wrong and unfair.

In pre-modern times while homosexual acts were illegal in say England maybe and probably prosecuted without any regularity, it was not seen as a category of inferior human. It took modernity to make it a category of people and also a category which denoted an inferior type of person as well as the acts being prohibited in law.

Then you had homosexual people advocating for themselves and other people advocating on their behalf, and it came to be seen that in fact homosexual people were not inferior to other people, and the laws changed to make homosexual acts legal as well.

This actually all took a long time. I don’t know if homosexual acts were illegal in the Dark Ages due to the state of jurisprudence then, in pre-Modern times homosexual acts were seen as wrongful acts and against the law, then it was seen as some people were same-sex attracted and this became a category of people and it was seen to denote inferiority, then people did a lot of advocacy and now it is not seen as wrongful and against the law and being homosexual as a category is not seen as inferior.

To your question of how — there was a great deal of thought on the matter I suppose.

Prohibitions on homosexual acts seem to come from Judaism and the Sodom and Gomorrah story, although it sounds like the whole place is full of rapists if you read it. It basically equates homosexuality with rape, which I think probably it was used as an act of violence against people in wars and things at the time. You still read about this happening in the Navy and at war. Which is different from homosexuality as we understand it to be now. No one draws equivalences between male rape and homosexuality they are seen as separate categories, but it took a long time to develop the categories. I don’t know if it could have been developed faster especially when there was so little literacy for centuries.

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Manta 08.08.16 at 2:03 pm

Stevenjohnson@162, “If you are going to pretend that anybody’s self-definition of “flaunting” should be taken seriously…”
What about this definition?
https://en.wikipedia.org/wiki/Don%27t_ask,_don%27t_tell
“The policy prohibited people who “demonstrate a propensity or intent to engage in homosexual acts” from serving in the armed forces of the United States, because their presence “would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability”.”

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Ian Maitland 08.08.16 at 2:35 pm

ZM # 150

I am familiar with the litany. But don’t you ever pause for a moment and ask yourself whether these reams of statutes and regulations don’t represent a gross overreach by government? I know the intentions are honorable, but do you seriously believe this sort of microscopic regulation of people’s interactions makes the world a better place?

Consider too that for many of these matters (the ones that matter) remedies are already available at tort and contract law. To call these laws duplicative is an understatement by a factor of ten.

I said the intentions are honorable, but that has not always been the case. Much of this lawmaking and regulation is symbolic and/or special interest politics. Take the (US) Civil Rights Act of 1964 that has gotten a few mentions here. It originally stood for the principle of “non-discrimination,” but it has been transformed by runaway courts and fraudulent jurisprudence into an engine of race and gender (and now sexual orientation?) preferences.

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Chip Daniels 08.08.16 at 3:03 pm

” I know the intentions are honorable, but do you seriously believe this sort of microscopic regulation of people’s interactions makes the world a better place?”

The reverse case- that a libertarian approach to ordering our affairs would be preferable- is one that very few have attempted to make, and never persuasively.

Whenever the topic comes up, people immediately dive into the weeds of economic theory and abstract legal reasoning in an attempt to use the bulldozer of logic to crush the opposition but no one ever seems to want, or be able to, paint a vision of a libertarian world that is appealing.

I mean, “people are free to shop at another store”- Really? Thats supposed to excite us, and make us yearn for such a world?
Or any of the other standards- You can buy unpasteurized milk, cars without seatbelts, get your spleen removed by a surgeon working out of his garage…Its just hard to hear any of this and take it seriously.

Probably the most convincing is the plaint of “I want to be left alone” which carries some sympathetic appeal, except thats where I note that even in Libertopia, rights are the product of collective consensus and agreement, and defended with collective contributions which are mandatory.

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Ian Maitland 08.08.16 at 3:17 pm

ZM # 144

I am not picking on you, because other commenters have said the same thing, but I am genuinely curious as to what you mean by “the public sphere” (as in “Businesses operate in the public sphere…”).

The public sphere sounds very much like what economists call the “private sector.” I can’t find any principled definition of “public” in any of the comments. It seems simply to be the name one opportunistically gives to an activity that one would like to see regulated by government. It is purely incantatory.

Another telling thing about this definition of public is that once an activity is deemed to be public a whole slew of human rights fall silent. Thus, as I described in # 140 (replying to Rich Puchalsky), the born-again Green family (owners of Hobby Lobby) enjoy a Constitutional right to the free exercise of their religion. That seems to mean that if they believe that some forms of abortion are murder, they don’t have to use that form of contraception or pay for anyone else to do so. But once they start a business they cross some invisible line into the “public sphere,” and they are required to follow government mandates to pay for their employees to commit murder. But it doesn’t seem to bother anyone here that the result is that the Greens are effectively prevented from running a business (at least one that has any employees). That is an inferior “economic” liberty that apparently has little moral weight.

In any case, this whole dilemma is easily solved. Just leave it to the parties involved — in the private (i.e., non-governmental) sphere. Hobby Lobby advises job applicants that the business will be run on Christian principles, including not paying for abortifacient contraception. The job applicant then decides to take the job or leave it. At a single stroke, all the government paraphernalia of laws and regulations is made unnecessary.

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merian 08.08.16 at 4:23 pm

But just like the reference to Australian law, which isn’t applicable outside Australia, referring to a “protected category” is also not universal, as only a handful of legal systems frame discrimination in these terms.

I like John Holbo’s zones-of-grey approach because I, too, find it complicated to draw universally acceptable and enforceable lines. For sure, I think the baker and the photographer shouldn’t be within their rights to refuse service to a same-sex couple. If they offer (secular) wedding-related services then they shouldn’t be allowed to reject customers by who they are. (I’m perfectly fine with them rejecting customers for rude behaviour, or scheduling on religious holidays which they rest on, or even to specialize in a particular religious service — only Catholic church weddings, for example.) But I also think that coming down like a ton of bricks on every violations can be counter-productive. For a photographer, I’d actually rather know which ones the homophobic, racist or anti-Semitic ones are, as working with a photographer requires a modicum of collaboration and, I hope, benevolence. For the baker, if it’s an exception within the community and the lesbian couple would indeed find 200 bakers on the same street who would only have been too happy to serve, fine them $low-hundreds and have them pay a day’s average wages, doubled or tripled because of the inflicted indignity, to the would-be customer, and otherwise let ridicule and negative press do its work. OTOH, if we deal with historic, genocide-like discriminations that are being re-enacted, or groups that find it impossible to find anyone to serve them, fines should rise.

It *is* a good example of how libertarian principles, Shapiro-style, if implemented strictly, invariably lead to reduced liberty for all but the ones who manage to win out. Anyone who offers goods or services to the public will have to deal with the fact that these goods and services will be used by some customers to ends that the provider may find immoral. Just imagine a Catholic baker – soooo many sinful weddings! But not a sin that the baker is responsible for. If, however, your religion really prescribes that you’re not even allowed to knowingly provide a good to someone who will commit what you consider a sin with it, well, that will limit the scope of jobs and business models that are acceptable to you.

I believe that a proper limit to religious liberty is to be set at imposing religious norms on others who don’t share the religion.

But John’s right that most of us would discriminate in some fashion. And I’ve been giving it thought because I know I would discriminate against Nazis. Swastika cakes with Sieg Heil on them would not be sold in my (hypothetical) bakery. Not to a Nazi anyhow — I’d make them for a historical exhibit or a movie project.

So the way I resolve this is that I find it ok to discriminate by opinion, insofar the service is used to foster an opinion. I think it’s ok if a Republican who keeps an inn doesn’t host the Democratic club’s monthly meeting. And I have to be ok that if a baker doesn’t want to make a cake for an ecological or pro-peace cause, that must be fine, too.

The alternative way to resolve this would be to write the law so that I, too, would have to make the Nazi-cake, and take a fine in case a Nazi sues me. Which puts me on the same level as the homophobic baker (eek — not a place I want to be), and then we can leave it to the court of public opinion to decide which of us is a hero for a cause and which of us a ‘phobe.

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bruce wilder 08.08.16 at 4:34 pm

In the U.S., a general principle of public accommodation holds that businesses open to and engaged in serving the general public must do so without discriminating with regard to race, religion and so on, and with reasonable provision to make them accessible to the handicapped. (The principle of public accommodation is rooted in ancient common law principles that protected travellers and other transient users of common carrier transportation services and places of lodging and refreshment and other services.)

The Hobby Lobby is a retail arts and crafts chain — nothing in its operation has a religious function. The Green family enjoy a right to the free exercise of their religion, but I do not think that should extend to imposing their religious views on their customers or employees. You might as well say that they can require their employees to attend Sunday services at the Green’s church.

Yes, the Greens are constrained in running their business by a number of government regulations. Among other things, they are required to pay their employees at least a minimum wage and provide employee benefits that meet minimum standards. They pay wages in money and they do not get to dictate to their employees how that money is spent. They don’t get to say, “oh, our religion prohibits alcohol and cigarettes — you cannot spend your wages on those things.”

The general form of an employment contract is that the employer will pay a more or less fixed amount or rate and the employee will follow the employer’s instructions. It shouldn’t be surprising that the employed might need government to intervene collectively limit the scope of such instructions. Indeed, one could argue that absent government interventions, the employer may not be able to credibly commit to limiting the scope of her instructions, once the employee is dependent on a regular wage and has made commitments of his own in expectation of continued employment — debts and family being examples of such commitments that would make it hard to leave an employment relation when novel or exacting demands are made. That’s why we have labor laws, work safety and overtime regulations and prohibitions on sexual harassment at work. “Take it of leave it” job offers do not make such regulations unnecessary; on the contrary, open-ended employment contracts make it necessary to have clear public standards regarding the details of conduct and the limits on the employer’s power and discretion.

None of this is hard to figure out. Your argument that property has rights and persons should defer to them is an argument for the power of wealth over people and should not be dignified by specious claims of furthering personal liberty.

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Manta 08.08.16 at 4:34 pm

What about discrimination based on class? A “no poor people allowed here” policy?

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stevenjohnson 08.08.16 at 4:39 pm

Manta @164 The military is a state institution, not a space or activity open to the public at large. Even more to the point, it is not an institution operated on principles of equality or rights. If we want to get libertarian about the military, we should I think consider the moral right, or lack thereof, various and sundry privileges and duties of officers. The military exercises the right of capital punishment eve over its own members. As I recall some libertarians make an issue of denying the state the right to conscript. But such questions as whether lower ranks have the right to collective bargaining, or how the military contract to provide liberty and security is to be enforced are mostly nonexistent. This is especially true of anarcho-capitalists, who handwave a multitude of issue about the private use of violence. I think that’s because a death squad funded by the rich is real world libertarianism in action.

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bruce wilder 08.08.16 at 4:40 pm

Charging a money price for products and services leaves a strict communism behind.

That said, our neoliberal brave new world allows for a lot of unnecessary amplification of inequality. We could have usury laws, for example, instead of payday lenders. But, we don’t. And, the most important thing is to elect Hillary. RNB told me so.

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merian 08.08.16 at 4:43 pm

Ian,

Another telling thing about this definition of public is that once an activity is deemed to be public a whole slew of human rights fall silent. [..]
That seems to mean that if they believe that some forms of abortion are murder, they don’t have to use that form of contraception or pay for anyone else to do so.

You will find very few declarations of human rights that include the right to discriminate against those of a different religion. I’m surely not alone to think that the free exercise of religion does not include the freedom to impose the norms of one’s religion onto others. Where exercise of religion comes with certain nuisances directed at the general public (neighbours mostly – the canonical example would be church bells, or parking during services) a reasonable standard would be other public nuisances of similar impact (trafic noise, noise from a school, parking during municipal or private events…) to weigh whether they can be deemed to be acceptable. (See how the notion of public, in the simple sense of directed at no one in particular but anyone potentially, is useful here.)

The Greens aren’t forced to pay for something out of their own pocket, they are forced to use part of the fruit of the labour of these employees to certain destinations for the statutory benefit of these employees, or again the pubic: payroll taxes, licensing, health and safety inspections, insurance, etc. etc., and health coverage. All of these are set by laws or regulation to qualify. Just like you can’t just get a health and safety inspection from your best buddy, there are minimum requirements for health insurance. Any of those, if their religion prescribes that such things are an abomination, that’s too bad, but not the state’s (government’s) fault.

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Manta 08.08.16 at 4:59 pm

176

merian 08.08.16 at 5:03 pm

(Also, there’s no such thing as “abortifact contraception”.)

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ZM 08.08.16 at 5:04 pm

Ian Maitland,

“I am familiar with the litany. But don’t you ever pause for a moment and ask yourself whether these reams of statutes and regulations don’t represent a gross overreach by government? I know the intentions are honorable, but do you seriously believe this sort of microscopic regulation of people’s interactions makes the world a better place?
Consider too that for many of these matters (the ones that matter) remedies are already available at tort and contract law. To call these laws duplicative is an understatement by a factor of ten.”

I think they are a very positive development. I don’t think it is microscopic regulation at all, no one in Australia ever reads the statutes hardly at all, everyone just picks up how you’re not meant to act quite easy, and people don’t feel like they are under microscopic regulations at all since they don’t even read the regulations mostly to even know the details, just like most laws, which you follow by custom without having to read them all which would take everyone a lot of time to do like studying law.

The difference is you have to hire a lawyer to use contract or torts law. Not everyone can afford to hire a lawyer, and if you can’t afford a lawyer access to justice is restricted.

“The public sphere sounds very much like what economists call the “private sector.” I can’t find any principled definition of “public” in any of the comments. It seems simply to be the name one opportunistically gives to an activity that one would like to see regulated by government. It is purely incantatory.”

Oh, you use “public realm” all the time in history. I didn’t know it was different in economics.

Public sphere is opposed to the private sphere or domestic sphere which is basically the same thing. So the public sphere is shops, schools, roads, town halls, parks, churches etc. But not people’s houses and gardens.

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SamChevre 08.08.16 at 5:10 pm

They don’t get to say, “oh, our religion prohibits alcohol and cigarettes — you cannot spend your wages on those things.”

Maybe not if they claim it’s religious–but there are a fair number of employers who will not hire smokers, and that’s perfectly legal. It’s more common than not to pay smokers less than their peers (via higher charges for health insurance).

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merian 08.08.16 at 5:14 pm

Manta,

My comment was already long, otherwise I’d have mentioned the French case that’s currently in the news. My initial reaction was “yet another example of stupid French islamophobia”. Though a closer look shows that the story isn’t just quite as simple as that. The store is rented out by a local housing authority (so this isn’t purely “private market”) and its intention is to serve a large estate. It used to be the “mini” size of a large general supermarket chain and the lease was recently switched to a private ( I think ) business. The complaint was that the meat is now mostly halal, no pork is being sold, and no alcoholic drinks. The argument of the housing authority is that the use designation is “general alimentation” not “specialised”, so that would amount to a conflict over what you’d call zoning elsewhere. It’s clear that the new store is going to serve certain locals better, others less well, and make not much of a difference for many.

From my partial knowledge I the authorities are silly to go into this conflict. And yes, the stupidities that French authorities have been doing re: Islam (a reason, effectively, why I first changed careers and therefore ultimately left France… ) and head scarves play a role in my opinion. If they wanted to ensure a certain offer of products is available, they’d have had to figure this out beforehand with the lease taker. (Also, I’m not sure the authorities can force any general business to sell alcohol …)

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merian 08.08.16 at 5:16 pm

Ian

I am familiar with the litany. But don’t you ever pause for a moment and ask yourself whether these reams of statutes and regulations don’t represent a gross overreach by government? I know the intentions are honorable, but do you seriously believe this sort of microscopic regulation of people’s interactions makes the world a better place?

Abso-fucking-lutely.

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merian 08.08.16 at 5:17 pm

(Above, read “independent business” instead of “private business”. I meant, not a chain store.)

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Ian Maitland 08.08.16 at 5:31 pm

Chip Daniels # 166

I take it you don’t care much for libertarians or their ism, and I am sorry that I’m not in the excitement business.

But I am having trouble discerning an argument here. Are you making a positive or a normative claim (there are no rights except those that are produced by “collective consensus and agreement”)?

I might agree with your positive claim. But not with your normative claim. You’re saying that there are no rights unless the collectivity agrees to them? But if only the collectivity creates rights, then who gave the collectivity the right to create rights in the first place (i.e., before or independently of the collectivity)? It seems to me that your normative claim (if that is what it is) is self-contradictory.

In any case, I am hard pressed to believe that you think that if the collectivity decrees that all persons have the right to execute any person who has engaged in a homosexual act (an “honor killing”) that makes such killings right.

So I must conclude that your claim is merely positive (viz., realpolitik). But in that case the observation that the collectivity makes rights and/or that it supports the rights with mandatory contributions has no interesting normative implications. It just is.

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Ian Maitland 08.08.16 at 5:57 pm

ZM # 176

I wouldn’t belabor the point, but I think it is important. My first shot at finding an online definition of “public realm” (not common usage in the US for obvious reasons) came up with this: “Public realm is defined as any publicly owned streets, pathways, right of ways, parks, publicly accessible open spaces and any public and civic building and facilities.” Your definition seems far more/too expansive.

The reason it matters is that you (and your ilk) have apparently decreed that if something is in the public sphere or realm, then government is free to minutely dictate what we may or may not do and with whom we may do it. Not only that, but the whole point of classifying certain exchanges as being “public” is to advance your project to extend government control over more and more facets of our lives. It is not just that this is oppressive and bullying. It also has huge social costs in terms of loss of diversity. And, by diversity, I mean real differences, not just skin color, national or regional cuisines or costumes or the balancing of vaginas and penises. All US universities now have to adopt the same policies, rules, governance systems, etc., on pain of being denied federal funding.

Unlike the majority of of the commenters here, I don’t believe that “public” is a magic word that instantly waives one’s human rights (including those in the Constitution). When a citizen starts a business, they don’t leave their human rights at home. Someone should explain that to the liberal justices who want to make so-called economic rights second-class ones.

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Ian Maitland 08.08.16 at 5:57 pm

ZM # 176

I wouldn’t belabor the point, but I think it is important. My first shot at finding an online definition of “public realm” (not common usage in the US for obvious reasons) came up with this: “Public realm is defined as any publicly owned streets, pathways, right of ways, parks, publicly accessible open spaces and any public and civic building and facilities.” Your definition seems far more/too expansive.

The reason it matters is that you (and your ilk) have apparently decreed that if something is in the public sphere or realm, then government is free to minutely dictate what we may or may not do and with whom we may do it. Not only that, but the whole point of classifying certain exchanges as being “public” is to advance your project to extend government control over more and more facets of our lives. It is not just that this is oppressive and bullying. It also has huge social costs in terms of loss of diversity. And, by diversity, I mean real differences, not just skin color, national or regional cuisines or costumes or the balancing of vaginas and penises. All US universities now have to adopt the same policies, rules, governance systems, etc., on pain of being denied federal funding.

Unlike the majority of of the commenters here, I don’t believe that “public” is a magic word that instantly waives one’s human rights (including those in the Constitution). When a citizen starts a business, they don’t leave their human rights at home. Someone should explain that to the liberal justices who want to make so-called economic rights second-class ones.

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Manta 08.08.16 at 6:18 pm

It seems we agreed that a restaurant can impose a dress code.
For instance, no religious symbols? No kippah, no veil, no cross?
Surely if it’s a trivial thing to get a shirt, it’s even more trivial to take off a veil.

https://en.wikipedia.org/wiki/French_law_on_secularity_and_conspicuous_religious_symbols_in_schools

Or maybe something more targeted: only no headscarves.

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Ian Maitland 08.08.16 at 6:39 pm

merian # 173

Declarations of Human Rights apply to governments, not to private citizens. Private citizens still (until the commenters on this page take power) enjoy the right to discriminate. Indeed, that right is likely protected by Declarations of Human Rights and the US Constitution! I refer to the right to discriminate on the basis of race, religion, and so on with respect to whom to have as friends or associate with, whom to marry, where to shop or holiday and much else….

You don’t have to lecture a (small l) libertarian on the limits to free exercise of one’s religion. But your casual dismissal of the rights of the Greens is truly morally obtuse. The Greens published to all and sundry — customers, employees, and others — that they would conduct their business according to Christian principles. The Obama Administration tried to commandeer their business to provide services for their employees to commit murder. (No one disputes that that’s how the Greens sincerely saw it). It is beside the point whether the money to pay for the murders ultimately came from the employees or the company or the government; the government mandated that the Greens’ company become part of the machinery of killing. Following the Court’s ruling, the government will have to find another mechanism for paying for that service in such cases. A small price to pay for protecting the Greens’ right to avoid becoming complicit in what they see as murder.

Even if I personally completely disagree with the Greens, I will defend to the death their right to practice their religion (subject to the conditions you mention in your comment). But, as importantly, we can bypass all of these hassles if we just respect the agreements or contracts reached by the parties instead of having an all-powerful, pervasive government micromanage and second-guess their choices.

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Chip Daniels 08.08.16 at 6:56 pm

The idea that justice is merely a collective decision, is disturbing, sort of like how the idea that reality or madness is nothing more than our collective decision is disturbing.

On the other hand, the idea that justice is somehow an independent entity that exists regardless of our acknowledging it is a form of fundamentalism to which we can all appeal, and its difficult to find boundaries to it.

Which is why I think framing everything in terms of “rights” or “liberty” makes discussion more difficult; It strips away other desirable goals such as community solidarity, dignity, and the flourishing of the human spirit, which help guide our decision-making. It turns every decision into a simple binary of either more or less liberty, as if nothing else mattered.

In the examples above, asserting that a business owner has a right to refuse service, doesn’t tell us anything about whether that would be a delightful state of affairs, or whether it would be miserable; The argument merely tells us that it should happen because of an abstracted preference for liberty.

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Manta 08.08.16 at 7:20 pm

Chip Daniels, different people have different ideas on what is desiderable or just.
Framing things in terms of right helps to find a common ground.
For instance, I don’t care much for community solidarity (only insofar it’s a mean to the end of making life easier).

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merian 08.08.16 at 7:21 pm

Declarations of human rights list rights enjoyed by every human being. It is the responsibility of governments (FSVO) to implement them so that human beings actually enjoy them. This may happen either via requirements imposed on governments to organise certain services (justice system, educational system where this is public, etc.) or limit government’s actions (freedom from unreasonable arrest and detention etc.) or require government to impose limits on the action of private citizens or entities (sex discrimination, protection of the family, protection of children etc.).

I’m unclear what you mean by morally obtuse, but can only observe that your notion of “exercising one’s religion” seems extremely large. Indeed, you haven’t indicated any potential bounds on it. So are the following also within allowable bounds of exercising one’s religion, and if not, what principle would be used to limit them:

Human sacrifice, where the sacrificial individual is a volunteer from within the congregation
Human sacrifice, where the sacrificial individual is a purpose-reared infant
Carrying a flaming torch wherever one goes, and thus defying orders of wildfire prevention experts and health and safety rules; any difference if the torch-bearer is the owner of the company or the owner of the property, which we imagine to be covered in dry coniferous forest, where open fire carries a risk of a large wildfire
Refusal to interact with females; for a company owner, will not hire women
Refusal to pay taxes

All these explicitly for religious reasons.

You speak of Christian principles as if they were one single well-defined thing. They aren’t.

190

Layman 08.08.16 at 8:40 pm

Ian Maitland: “It is beside the point whether the money to pay for the murders ultimately came from the employees or the company or the government; the government mandated that the Greens’ company become part of the machinery of killing.”

Yet it is impossible to take the Greens’ argument as one made in good faith.

They’re in the business of buying labor and paying for it through several forms of compensation – some in cash and some in the form of benefits which provide access to services in lieu of money. Money is, however, fungible, and money the Greens’ employees don’t spend on medical services – because the Greens provide access to cheaper medical services, in the form of insurance – is money the Greens’ employees can spend on sin. Thus no matter what services are included in the insurance, the Greens are potentially funding what they see as un-Christian behavior, including (for example) abortions.

Of course, even without the insurance, the Greens are funding the sin of their employees simply by paying them. They can have no hope of remaining free of the taint of promoting sin, except if course by getting out of the business of buying labor.

191

Collin Street 08.08.16 at 8:58 pm

I might agree with your positive claim. But not with your normative claim. You’re saying that there are no rights unless the collectivity agrees to them? But if only the collectivity creates rights, then who gave the collectivity the right to create rights in the first place (i.e., before or independently of the collectivity)? It seems to me that your normative claim (if that is what it is) is self-contradictory.

Sure.

There’s a proof by contradiction that rights aren’t created by the claimant, either. It’s actually a pretty good test / exercise, so I recommend you try running it up yourself.

Now. If as you claim the collective can’t create rights, and the individual can’t create rights neither…

192

Manta 08.08.16 at 9:04 pm

Layman, religious customs are full of absurdities: see for instance https://en.wikipedia.org/wiki/Shabbos_goy

The fact that the Green’s argument doesn’t seem coherent to you doesn’t necessarily mean it’s not made in good faith.

193

John Holbo 08.08.16 at 9:24 pm

“I am saying the word carries multiple meanings, and the “good discrimination” you are talking about is an archaic meaning now, since you only use it if you are being archaic for fun. I have never heard anyone use discrimination without being deliberately archaic in my life. You even change your voice to sound a bit plummy and archaic when you say it. Apart from in discussions about whether discrimination is okay and what it means, then you use a normal voice. “

Would it be ok to discriminate against gay people, so long as you did so while sounding a bit plummy about it? Then it would become ‘archaic’ hence acceptable? Sounds a bit dubious to me.

Look, you are just saying some kinds of discrimination are ok and some not. So which is which?

“John Holbo @161 If you are going to pretend that anybody’s self-definition of “flaunting” should be taken seriously, then these problem are insoluble. “

Well, obviously it’s not MY idea of a good line to draw between acceptable and unacceptable discrimination. I quite agree that if we fall back on vague notions of decorum these problems are insoluble.

194

Layman 08.08.16 at 9:26 pm

@Manta, I suppose it’s possible the Greens don’t grasp what’s wrong with their argument, but I think it’s more charitable to assume they do; and it seems certain that many who defend their argument do so in bad faith.

195

Collin Street 08.08.16 at 9:31 pm

They can have no hope of remaining free of the taint of promoting sin, except if course by getting out of the business of buying labor.

Or by dictating the minutiae of their workers’ lives, which is of course the path they wish to follow.

Boundary issues, which — I assert — stem from a failure to understand their workers’ existence as independent moral actors.

[Like I keep saying, the common thread that links all right-wing thought is “it would make sense if you had an empathy disturbance”: same origin as “if you don’t like it, chose something else”, ignoring the constraints that people are under and the necessity to pick-and-chose.]

196

Collin Street 08.08.16 at 9:39 pm

Layman, religious customs are full of absurdities: see for instance https://en.wikipedia.org/wiki/Shabbos_goy

It’s not exactly absurd: it arises pretty straightforwardly out of the non-universal applicability of jewish praxis, which is something that’s pretty close to the heart of judaism. Different religions are different.

[I had to check this out, because there was something I wanted to do [on a saturday, because it was when I was free] that would mostly have benefitted jewish people and was hideously non-kosher-for-sabbath. But I’m not jewish, so it was OK.]

It’s not self-contradictory or self-refuting or reality-denying like the Hobby Lobby perspective on contraception.

197

Ian Maitland 08.08.16 at 9:46 pm

Collin Street # 190

That’s a nice point that I left myself exposed to because I did not spell out my conclusion. My conclusion is the reverse of the corollary you offer. It is that if collectivities can pluck the right to create rights (by consensus and agreement) out of thin air, then so can individuals. Therefore I think it is a mistake for Chip Daniels to claim some special moral authoritativeness for rights agreed to by collectivities (which I think is his point).

As a normative matter, I don’t think that the source of the rights (collectivities v. individuals) can be dispositive. Rather our rights are what our powers of reason very imperfectly establish. Rights thus grounded in reason are legitimate rights even if every member of the collectivity opposes them.

198

Ian Maitland 08.08.16 at 10:03 pm

Layman # 189

“Yet it is impossible to take the Greens’ argument as one made in good faith.”

I think it is a dangerous road we start down when we simply dismiss other people’s arguments as not being made in good faith. One day it will be your turn. What will you answer then?

I suppose that being part of the world we may some time inadvertently perform some acts that very indirectly and remotely and inadvertently help enable some crime. But that is a far cry from serving as the government’s paymaster in facilitating murder. There is an immense literature on causation in the law that addresses this point.

Let me turn the tables on you. I don’t believe that your attempt to elide these 2 very different cases is a good faith argument. Where does that get us?

199

Layman 08.08.16 at 10:41 pm

Ian Maitland: “I suppose that being part of the world we may some time inadvertently perform some acts that very indirectly and remotely and inadvertently help enable some crime. But that is a far cry from serving as the government’s paymaster in facilitating murder. There is an immense literature on causation in the law that addresses this point.”

I find it hard to accept that you’re offering this bit in good faith. You see, we can accept that the Greens believe contraception is murder without granting that their belief is correct, legally or otherwise. In fact, under the law, it isn’t murder; so legal precedents on causation are entirely irrelevant.

In fact, the Greens are making a moral claim: That providing access to contraception through one form of compensation is an affront to their religious views, while providing access to contraception through another form of compensation is not an affront to their religious views. Why should we take this claim seriously?

Also, too, if the Greens were in fact Christian Scientists, could they claim a religious objection to providing any health insurance at all? Would you support that claim? Why or why not?

200

bruce wilder 08.08.16 at 11:05 pm

The Greens are making the claim that, as employers, they should be able inhibit their employees’ access to medical care by limiting the scope of legally mandated insurance. The Greens reference religion as the reason they should have privilege of trumping the mandates of law regarding health insurance offered as an employee benefit.

The provisions of a health insurance package are some considerable distance from either the ritual behaviors or ethical mandates we commonly associate with religion. The Greens are not asking their own behavior be protected. They want to constrain the behavior of employees, who may well be non-believers, at least as far as the Green’s particular religion is concerned. If we would not in the circumstances countenance employment discrimination on account of religion, I do not see how the Green’s claims are anything other than a gross overreach against the similar claims of their employees.

Ian says, well, the employees are given a take it or leave it offer, and can decline employment, so freedom! But, of course, that’s precisely the problem: prospective employees are rarely able to individually negotiate details of their deal. That is a major reason we have standards. Ian likes to imagine “all the government paraphernalia of laws and regulations is made unnecessary” by the simple expedient of not having it to begin with. Like that has worked out so well in the past.

201

John Holbo 08.08.16 at 11:34 pm

The main problem with sincere religious belief, as a bar to clear, is that it is very low, if not indeed trivial, for the reason given in the post: it’s hard to get a man NOT to believe something sincerely, on religious grounds, if believing it, sincerely, on religious grounds, will permit him to push around his neighbor, whom he dislikes, with legal impunity he would not otherwise enjoy.

202

stevenjohnson 08.08.16 at 11:37 pm

Absent special pleading, it is generally understood well enough that no shirt, no shoes is not so indecorous. That’s why it is so often deemed appropriate to make a public notice. And those restaurants that require ties on men commonly have one available. (The last time I looked anyhow.) But nobody ever feels the need to post a sign saying no pants, no service. The baker, the wedding photography, the Green family and that county clerk play word games. Playing their game with a straight face is a way of legitimizing them when they don’t deserve to be taken seriously.

203

John Holbo 08.08.16 at 11:44 pm

“play word games.”

Another way to put it would be: they play legal games. Which makes your next statement doubtful, when adjusted accordingly.

“Playing their game with a straight face is a way of legitimizing them when they don’t deserve to be taken seriously.”

The law is not the only game in town, but it would be a mistake to cede this field to the other side.

204

Ian Maitland 08.09.16 at 1:58 am

Layman # 199

Clearly I was using the law as an analogy. I think the law tracks common sense. For your action to morally wrong someone else it is not sufficient that it be part of the chain of events that lead to his harm. The harm has to be intended or reasonably foreseeable. But you know that, so why are you forcing me to spell it out for you?

Is it so hard to grasp that the Greens’ beliefs bar them from enabling what they consider to be the murder of unborn babies? They can do something about that, which is why the matter went to court. They can’t do anything (except by voting) to prevent government support for their employees’ abortifacient contraception.

Suppose it is WWII. You are a Polish peasant and, in your view, German soldiers are murdering the town’s Jews. A German soldier hands you his rifle and tells you to shoot a Jewish neighbor. If you don’t do as he orders, your home will be burned to the ground. The Jewish neighbor is going to be killed anyway, so does that excuse you from shooting him?

I don’t have a religious bone in my body, but I am afraid that, having vanquished religious bigotry, the victors are simply replacing it with their own version. Earlier I quoted Andrew Sullivan’s take on the case of Brendan Eich who was hounded out of his job as CEO of Mozilla because he had personally contributed money to the California supporters of Prop 8 that prohibited same sex marriage. He had never discriminated against any gay employee or colleague, and he had faithfully carried out the Company’s policies protecting gays. Sullivan said: “It’s staggering to me that a minority long persecuted for holding unpopular views can now turn around and persecute others for the exact same reason. If we cannot live and work alongside people with whom we deeply disagree, we are finished as a liberal society.”

205

Ian Maitland 08.09.16 at 1:59 am

Ian Maitland # 204

I meant “does that excuse you FOR shooting him.”

206

Keith 08.09.16 at 2:10 am

“Also, too, if the Greens were in fact Christian Scientists, could they claim a religious objection to providing any health insurance at all? Would you support that claim? Why or why not?”

Yes, I would, in my case.

People have a right to live with integrity, as they see it. That’s one of the supreme social values that liberty provides..the unique ability to live a life completely suffused with meaning, if one so chooses.

207

ZM 08.09.16 at 2:10 am

Ian Maitland,

“I wouldn’t belabor the point, but I think it is important. My first shot at finding an online definition of “public realm” (not common usage in the US for obvious reasons) came up with this: “Public realm is defined as any publicly owned streets, pathways, right of ways, parks, publicly accessible open spaces and any public and civic building and facilities.” Your definition seems far more/too expansive.”

Well one of my undergraduate majors was History and “public realm” is common usage. It is contrasted against the private or domestic sphere.

Actually probably in pre-modern times there was not as much distinction between these , there was still some since you have the King’s two bodies one of which is his private body which uses latrines and the like, and the other was his public body as the King which was held to be a corporate body accountable to everyone in the realm.

But by the Victorian era there is a huge distinction between the public and private realms, and this is particularly played out with gender norms since largely women were relegated to life in the private sphere, while the public sphere was dominated by men and their business and civic activities. Of course women did a lot of shopping and church going etc and working class women worked in the public realm, mostly middle class women who didn’t work stayed in the domestic sphere and it was considered uncouth for women to be in the public sphere, so there was some blurring of public and private.

By the mid 20th C there was more blurring again and less distinction, women took up more roles in the public sphere so there was not a gender distinction between the spheres as much anymore, you see this blurring particularly in slogans like “the personal is the political” etc.

The definition you have found is sort of right for Urban Planning which I am studying now.

In Urban Planning and Design the public realm is parts of the built and natural space open to the public, or else viewed by the public like the outside facades of buildings etc.

Businesses are a bit like building facades in that there is some mix of public accessibility and private ownership. So there is less government control than over parks and roads and railways, but more government control than over what goes on in people’s houses.

“Not only that, but the whole point of classifying certain exchanges as being “public” is to advance your project to extend government control over more and more facets of our lives.”

No its not. In history it refers to the non domestic sphere, like businesses, schools, civics, churches etc. This is descriptive since these are all public activities and spaces and institutions, not domestic ones.

“When a citizen starts a business, they don’t leave their human rights at home. Someone should explain that to the liberal justices who want to make so-called economic rights second-class ones.”

Everyone gets their human rights all the time. If they are denied their human rights at any time they can take whoever denied them to court about it.

If the businesses want other rights that aren’t human rights like the right to discriminate against protected categories of people, then that is not a human right at all, and actually it would contravene other people’s human rights.

Economic rights are the rights of property ownership, and property ownership in America is constitutionally only legal if it meets the Public Use test. If it doesn’t the government can confiscate the property. So it is lucky for businesses in America that the government makes them so many useful regulations to follow so they meet the Public Use test, rather than the government not telling them how to meet the Public Use test and then just confiscating property when unregulated businesses don’t meet the Public Use test.

208

Keith 08.09.16 at 2:22 am

@207 “Economic rights are the rights of property ownership, and property ownership in America is constitutionally only legal if it meets the Public Use test.”

I call BS. Give me a cite.

209

Ian Maitland 08.09.16 at 2:33 am

bruce wilder # 200

“The Greens are making the claim that, as employers, they should be able inhibit their employees’ access to medical care by limiting the scope of legally mandated insurance.”

With respect, Bruce, that is inaccurate and unfair. The Greens’ actions were completely consistent with the way they have run their company for almost (?) 40 years. Hobby Lobby stores are closed on the Sabbath. The company is widely recognized for its social responsibility. Last time I looked, I think Hobby Lobby paid its in-store salespeople $15 an hour — the minimum wage endorsed by Bernie.

I don’t know how to say it plainer than I already have. The Greens didn’t want to be part of the process of enabling their employees’ to commit what they consider to be murder. The issue in the case was not WHETHER employees would have access to abortifacient contraception but HOW they would have access to it. The Court suggested a workaround that would leave the Greens out of the process.

Hobby Lobby is not the only employer in (any) town. It is in a very competitive market (retail). The company’s values were well-known to employees. True, no one could have foreseen that Obamacare would conscript corporations to deliver health care. But the Greens’ objection relates only to a minuscule fraction of the medical package that the insurance will provide. It should be possible to devise a workaround. And liberals still want to force the Greens to violate their deeply held beliefs or sell or shutter their business?

And none dare call that bigotry?

210

ZM 08.09.16 at 2:36 am

John Holbo,

“Would it be ok to discriminate against gay people, so long as you did so while sounding a bit plummy about it? Then it would become ‘archaic’ hence acceptable? Sounds a bit dubious to me.”

Only gay people can do this in an ironic plummy camp voice. Other people who aren’t gay can’t do this, apart from maybe fag hags. If anyone tried doing this otherwise it would be a massive faux pas at the least and may be discrimination in the contemporary sense of prejudice.

“Look, you are just saying some kinds of discrimination are ok and some not. So which is which?”

No I am not. I am saying the old word discrimination took on another meaning in the 20th Century to mean prejudicial beliefs and treatment of certain categories of people who were seen as inferior types of people in the modernist social classifying project. These are categories of people are women, non-white races, gay people, people with disabilities, etc.

Anti-discrimination laws are particularly a response to the modernist project and its categorisation of people and its deeming of certain categories of people inferior.

So the meaning of discrimination in this sense, not the archaic sense,* is tied to modernist categorisation and the recognition that various categorisations of people as inferior was wrong and prejudiced.

Whether you could have skipped the classifying of these types of people as inferior and just gone straight to anti-discrimination laws in the early 17th C is a question I can’t really answer with any definitiveness.

You have to think about the modernist project in this sense of discrimination, because that is what separates it from the archaic sense, which you now use with plummy tones to talk about wine or fashion or art collections etc. with humour usually like an Absolutely Fabulous character. Maybe some older people use the archaic sense without humour and a plummy voice since discrimination had the archaic meaning when they were young, but people my age always had the recent meaning as the main meaning.

211

Ian Maitland 08.09.16 at 2:45 am

ZM # 207.

See Keith # 208. In all my years in law school and business school I never heard of the Public Use test. How would your square it with the takings clause of the Constitution, not to mention the contracts clause? If it exists, it is limited to very specific applications like private use of public property (not private property).

Indeed, if I recall right, an early draft of the Declaration of Independence’s phrase “Life, Liberty and the pursuit of Happiness” was “Life, Liberty and the pursuit of Property.”

212

John Holbo 08.09.16 at 2:47 am

“I am saying the old word discrimination took on another meaning in the 20th Century to mean prejudicial beliefs and treatment of certain categories of people who were seen as inferior types of people in the modernist social classifying project. “

Sigh. This is completely circular, ZM, but I will try try again. Google ‘discrimination’ definition and one does indeed get two definitions.

1. the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex.

2. recognition and understanding of the difference between one thing and another.

But how can one tell which is which, in any given case? Your only suggestion – the plummy voice – does not help. Suppose someone says that discrimination against gays is just “recognition and understanding of the difference between one thing and another”, plus rating their relative quality. Straight better than gay. What’s wrong with that?

In short, how do we know which kinds of discrimination are ‘unjust’? This is a matter of dispute, not a thing that is universally agreed, nor a thing that can be settled by simply consulting settled law.

213

bruce wilder 08.09.16 at 2:48 am

Ian Maitland:

I do not see how the Greens are being forced to violate their religious convictions. They are not required to seek any particular medical treatment for themselves.

Obamacare is convoluted enough, imo. But, Hobby Lobby also does not have to self-insure. If having an insurance company for this tiny slice of the package salves their tender consciences, it is ok by me.

214

ZM 08.09.16 at 2:49 am

Keith,

I read about this in something John Quiggin wrote about the Kelo v City of New London case.

The court found the government could confiscate property to give to another private owner to meet the City’s development plans.

The law that gives the government the right to do this is the Fifth Amendment Takings Clause which holds that government can confiscate property if doing so meets the Public Use test (Use is another word meaning Trust in law, the Medieval Use was the precursor to the law of Trusts in England) and if the government compensates the property owner.

The logic of this is that business need to meet the Public Use or risk being confiscated.

In Australia property is all ultimately owned by the Crown, and people own property through the Crown. In America people own the property, but they risk it being confiscated to meet the Public Use if they don’t put it to good use. Of course most businesses are run in such a way that meets this and regulations help them, and you can make new regulations rather than confiscating property to move the businesses to meeting the Public Use.

215

John Holbo 08.09.16 at 2:50 am

“People have a right to live with integrity, as they see it.”

So if integrity demands that people not be able to stiff them, cake-wise, in an insulting and discriminatory fashion, you are ok with the state stepping in to force the baker to bake the cake? (I am, needless to say, still curious about your answer to my question at 101.)

216

Alex K--- 08.09.16 at 4:33 am

@79: I don’t know who you’re arguing with. Yourself, probably. I was saying that Nature is coercive and that most libertarians, at least if I understand them correctly, claim that markets, as a rule, do not exacerbate that coercion while governments do. That’s it.

@80: It’s not that the Cherokees’ biggest problem was denial of service by private providers.

217

ZM 08.09.16 at 4:52 am

John Holbo,

In reverse order:

“In short, how do we know which kinds of discrimination are ‘unjust’? This is a matter of dispute, not a thing that is universally agreed, nor a thing that can be settled by simply consulting settled law.”

Nope, in Australia it is pretty much universally agreed. Only a small and shrinking minority don’t agree. Especially in my State Victoria, John Quiggin’s State Queensland has more people who disagree. And I already showed you all the laws we have which are as settled as any legislation is.

Research found that the modernist classification of these categories of people was wrong and unfair and based on pseudo-scientific claims like measuring skulls, or saying women can’t do anything since they get hysterical due to having reproductive organs, or [insert pseudo-scientific claim].

In our personal experience we encounter people of other races, women, disabled people, gay people etc and find in our encounters they are just like any other people pretty much, and the differences are not differences that make them inferior types of people.

We also have secondary experience such as reading books or watching films about or by these types of people.

We also develop some scepticism about the practice of categorisation itself, and what utility categorisation has, and what relevance it has and when it is useful and has relevance and when it does not.

This education started in childhood education in Australia if you are my age and born in the late 1970s. I am not sure for people who are older than me. People who are younger than me are educated about it from childhood education too.

The minority of people who don’t agree are probably mostly older, which was something that was brought up in posts about Brexit in the UK and how racism or anti-immigration sentiment was part of that. These people didn’t have an education about this issue starting from childhood education like my generation, so even people without university level education are educated about the history of discrimination and why discrimination is wrong and unfair and dangerous.

“But how can one tell which is which, in any given case? Your only suggestion – the plummy voice – does not help.”

You use the plummy voice to show people you are being humorously archaic, you are right it is not explanatory. But customs are important as well as explanations in forming and performing social norms. I suppose if people don’t know the explanations then they might think the custom isn’t based on anything.

We are educated about this since childhood education in Australia. We don’t have rote learning about it, we learn about it in a variety of ways and are meant to think for ourselves about it, and most people end up agreeing. There are ongoing social and political conversations about it. John Quiggin might know more about why people disagree since he lives in Queensland where more people disagree than where I live.

“Suppose someone says that discrimination against gays is just “recognition and understanding of the difference between one thing and another”, plus rating their relative quality. Straight better than gay. What’s wrong with that?””

I already know this since I have learned about it by now. If the person hasn’t learned about it by now, then you might ignore them and change the subject, you might disagree with them, or you might try to educate them about it and change their minds. If you try to educate them and change their minds it might take a long time, unless you can get them to have a Eureka! moment and quickly educate them somehow. There are probably people who specialise in doing education about this in workplaces and schools etc.

It is wrong because there is nothing inferior about people who are homosexual. The science was all pseudo-science and Sodom and Gomorrah is all about male rape even if you want to be strictly religious in your arguments you can only argue male rape is wrong. The Jewsish people passed through the Cities of the Plains and got raped and got out and decided they hated homosexual acts after getting raped and outlawed them. They did not pass through a lovely pleasant city full of loving married gay couples who were very nice and invited them for dinner and hospitably gave them places to stay. And I too think male rape is wrong in the Navy and wherever else. It isnt the same as being homosexual.

You could have a long discussion about it with the person, why they came to their conclusion and why you think they are wrong and see if you can educate them and change their minds.

218

ZM 08.09.16 at 4:57 am

And to add in the first section as well as research and personal experiences etc, people in the discriminated against categories have advocated for themselves and for people like them.

219

F. Foundling 08.09.16 at 5:19 am

@ZM 08.09.16 at 2:36 am

Sounds as if you’re suggesting that discrimination against ‘women, non-white races, gay people, people with disabilities, etc.’ and their categorising as inferior was somehow an invention of ‘the modernist project’ beginning in the 17th century. Apparently, in the good old Middle Ages, women, gay people, people with disabilities and various oppressed traditional identities were just fine. This is toxic reactionary mythmaking. I’ll grant that white-vs-non-white racism developed late, in parallel with colonialism, but that’s simply because that was when the white-vs-non-white distinction became more relevant than others, not because it was the fault of the evil ‘modernist project’.

220

John Holbo 08.09.16 at 5:32 am

“Nope, in Australia it is pretty much universally agreed. Only a small and shrinking minority don’t agree.”

Since we are concerned about right and wrong everywhere, this argument depends on a somewhat exaggerated sense of the co-extension of Australia with all of space-time. And it underestimates the moral importance of respecting the opinions and rights of minorities. Just because you are not in the majority doesn’t mean you can be ignored!

221

ZM 08.09.16 at 6:09 am

You make everything too broad John Holbo. I live in Australia in the 21st century, I’m not doing a survey project on discrimination through space and time. This would take me years and several volumes.

If you want to argue that I’m wrong in some particular thing you can, but you can’t ask me to argue with everyone who ever existed through out space and time and all their various opinions. It’s too broad.

Minorities are also murderers and burglars and yes we do ignore their views about murdering and burglary and send them to gaol.

222

John Holbo 08.09.16 at 6:36 am

“Minorities are also murderers and burglars”

Too Donald Trump for me, ZM!

“”If you want to argue that I’m wrong in some particular thing you can”

I am arguing that you are wrong to say ‘all discrimination is wrong’. Because either this is just wrong, if we are counting in the plummy voice sense. Or it is circular, if we are ruling it out, leaving only the sense of ‘unjust prejudicial treatment’. Because we already know that injustice is wrong. We only disagree, potentially, about what is unjust, ergo wrong. And it’s no good just playing the Australia card. If someone were persecuting gay people, I don’t think you would accept ‘but I don’t live in Australia’ as an adequate moral justification for that sort of behavior. Right?

223

ZM 08.09.16 at 6:57 am

F Foundling,

I had a professor who thought maybe women had a better lot in the dark ages due to the general lack of regulations. It’s hard to say from the recorded history since there wasn’t much literacy and recording of things.

In pre modern and early modern England women were not treated equally, but it wasn’t to do with modernist classifications. I think homosexuality became a category in the modernist era like race, I think there were just homosexual acts before that, not a category of person. Disability is the same, for instance mental illness was just episodes of madness or melancholy or raving, not a category.

The sorts of discrimination we are talking about is about modernist classifications of types of people as inferior. It’s not to do with how things were understood in the Middle Ages which were a long time ago

I don’t think you would have current anti-discrimination views and policy and laws before this modernist classification of people as inferior, since you can’t put the cart before the horse.

But arguably you could have skipped the modernist classification of people as inferior, you can see strains of this in Shakespeare and Montaigne and other writers, but it didn’t prevail. The Tempest seems to be directed at James I and VI for not addressing this politically, as Prospero reads too many books and gets usurped where he goes to an Island representing America and alters the life of Caliban then has to take him back to Europe with him since he is not fully indigenous and hybrid. It’s quite interesting since its against hybridity like The Winter’s Tale, but also anti-colonial. Sort of like a 1600s Brittish version of third world nationalism.

224

merian 08.09.16 at 7:05 am

225

ZM 08.09.16 at 7:23 am

“Minorities are also murderers and burglars”

Too Donald Trump for me, ZM!”

I don’t know what you mean by this.

I certainly don’t mean that people in minority groups are murderers and burglars — I mean that a minority of people commit murders and burglaries.

Do we have to have lengthy arguments with all the murderers through out space and time about murdering being wrong because a minority of people commit murders?

No we don’t. We don’t have to spend lots of time explaining to them how murder is wrong, they should know it anyhow unless they got raised by wolves. If they don’t know it and kills someone then they go to gaol and get rehabilitated hopefully or just stay bad and keep insisting murder is good and the prison authorities have to decide whether to keep them in gaol forever or release them on parol.

But we don’t have to argue all the time about how murder is wrong just because a small minority of people insist on murdering people.

Dostoevsky wrote a book about it, people can write books about it, but we don’t have to be drawn into always having to argue that murder is wrong due to this small minority of murderers, we just prosecute people who commit murders.

Apart from Black Lives Matter which has to spend a great deal of time explaining how murdering black people is also wrong, and you can’t murder people just because they are black, it’s discrimination and still murder.

So a minority of people insisting on something wrong, does not mean we are under any obligation to countenance their arguments, we can try to educate them or explain things to them, but we don’t have to countenance the possibility they are right or else you would be forever countenancing murder not being wrong which we don’t do.

So why should I countenance a minority of people saying discrimination is not wrong?

Discrimination has led to murder, torture, rape, imprisonment, child stealing, theft of property, etc so its not some benign choice like preferring a bowling hat to a beret.

Just because a minority of people insist on something wrong not being wrong, I don’t have to countenance it unless you are going to argue I have to countenance murder is good because some minority of people commit murders.

A minority of people insisting on doing something wrong, does not mean I am obligated to forever be countenancing their arguments. I might engage with them to change their minds or since I like arguments, but I am not obliged to consider they are right, since I am not obliged to consider murder is right.

If you will have me obliged to consider murder being right, you will have to explain to me why I am thus obligated.

And if you will have me obliged to consider discrimination is right, you will have to explain to me why I am thus obligated in that case as well.

Because I don’t feel under any such obligation.

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John Holbo 08.09.16 at 7:39 am

“Apart from Black Lives Matter which has to spend a great deal of time explaining how murdering black people is also wrong, and you can’t murder people just because they are black, it’s discrimination and still murder.”

But Black Lives Matter isn’t really a movement that has a significant presence in Australia, right? Your argument against discrimination against blacks only applies in Australia, right? (You could start a BLMIA movement, I suppose, remaining agnostic about BLM.)

More generally, I am not arguing that minorities are necessarily right, I am objecting to your implication that they are necessarily wrong, i.e. you can safely ignore what they think. Surely that is not generally the case. So how can we be sure it is the case in this case, i.e. regarding what counts as wrongful discrimination and not?

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ZM 08.09.16 at 7:41 am

“I am arguing that you are wrong to say ‘all discrimination is wrong’. Because either this is just wrong, if we are counting in the plummy voice sense. Or it is circular, if we are ruling it out, leaving only the sense of ‘unjust prejudicial treatment’. Because we already know that injustice is wrong. We only disagree, potentially, about what is unjust, ergo wrong. “

I am not counting in the plummy voice sense, but we don’t use discrimination any more to mean that apart from affecting archaism. Or unless you are old enough to have lived when that was the main meaning of discrimination and you buy a lot of nice wine or art or something. “How very discriminating darling!” no one says that apart from if they are old or being humorously archaic or trying to impress art dealers maybe (?).

It isn’t my fault that injustice is wrong, so discrimination is wrong. I can’t help it if unjust things are wrong and discrimination is unjust and wrong.

I already explained why it is unjust and wrong, because of modernist categorisation of people into types and the categorisation of some types into being inferior based on prejudice and pseud0-science and also because of concurrent lack of thinking all humans are possessed of inherent dignity and rights based on their humanity and nothing else.

I don’t even think that you actually think discrimination against women or non-white races or homosexuals or people with disabilities is just or right.

If you want to argue that you can, but it seems to me all you are telling me is I have to countenance the views of someone who isn’t even commenting but who existed at some point in space or time and holds that discrimination is right.

I can’t argue with air.

228

John Holbo 08.09.16 at 7:53 am

“It isn’t my fault that injustice is wrong, so discrimination is wrong.”

I thought your argument was that it was wrong because everyone in Australia thinks it’s wrong, except minorities. Now you are shifting to justice. That is a significant change.

“I don’t even think that you actually think discrimination against women or non-white races or homosexuals or people with disabilities is just or right.”

Of course not, that’s why I have been pushing back. But if you are happy to go for the justice line, rather than the plummy voice or Australia line, I am happy to agree to agree.

229

ZM 08.09.16 at 7:55 am

“But Black Lives Matter isn’t really a movement that has a significant presence in Australia, right? Your argument against discrimination against blacks only applies in Australia, right? (You could start a BLMIA movement, I suppose, remaining agnostic about BLM.)”

No it doesn’t. I just happen to live in Australia. I am perfectly happy to tell people in other countries that discrimination against black people and murdering them is wrong too.

“More generally, I am not arguing that minorities are necessarily right, I am objecting to your implication that they are necessarily wrong, i.e. you can safely ignore what they think. Surely that is not generally the case. So how can we be sure it is the case in this case, i.e. regarding what counts as wrongful discrimination and not?”

I of course do not think that minorities are necessarily wrong. I never said that at all. I just said that I don’t necessarily have to countenance the rightness of every single minority view point.

How can I be sure that the minority who say discrimination is right are wrong in this claim?

1. The scientific evidence for their claims is pseudo-science and full of faults and prejudice

2. Discrimination is not a morally neutral thing — whole classes of people have been enslaved, colonised, tortured, murdered, raped, displaced, etc due to discrimination

3. Humans are not inferior period. Some people commit crimes and should go to gaol. Maybe some people who are psychopaths can’t change I don’t know. I personally find such people creepy but it is based on their behaviour. But humans are not inferior in the way that discrimination posits according to sex, race, sexual orientation, (dis)ability. Maybe some people are better at mathematics, or building houses, or cooking, or whatever. But people are not inferior as humans based on these pseudo-scientific categorisations. They are completely flawed and dangerous.

230

ZM 08.09.16 at 7:59 am

“I thought your argument was that it was wrong because everyone in Australia thinks it’s wrong, except minorities. Now you are shifting to justice. That is a significant change.”

John Holbo I never said that. I just pointed out that there are a number of laws against discrimination in Australia, since you said that the state of the actually existing law was not against discrimination which I said it was beforehand, and it is in Australia where I live.

“Of course not, that’s why I have been pushing back. But if you are happy to go for the justice line, rather than the plummy voice or Australia line, I am happy to agree to agree.”

This isn’t right either. I was explaining how the older usage of discrimination is only used in a humorous plummy voiced way nowadays and the current meaning is the one meaning discrimination against people for sex, race, sexual orientation etc.

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John Holbo 08.09.16 at 8:14 am

“I am perfectly happy to tell people in other countries that discrimination against black people and murdering them is wrong too.”

I was never in doubt as to your perfect happiness in such contexts, only to your justification.

But, so long we can agree to agree that it isn’t discrimination that is bad, but unjust discrimination – i.e. injustice – and so long as we agree that it isn’t just in Australia but everywhere that the claims of justice have strength, then all we have left to do is figure out: what justice is.

We all agree murder is unjust and wrong, of course, but some people (see above) do not agree that it is wrong for private business owners to refuse to bake cakes for gay weddings. (I appreciate that Australian law has something to say on the subject, but thankfully we agree that is irrelevant, since we are not planning to stop our claims at the Australian shoreline – or 3 mile international waters limit line.) So why is it unjust to refuse to bake cakes for gay weddings but not unjust to refuse service to the shoeless and shirtless?

Shoeless and shirtless people are not worse people, after all.

Let me tell you what I think: I think it has to do with harm hereby done to gay people.

Does that seem like a good starting point? Nothing about the inherent wrongness of discrimination, because that is just false; and nothing about the inherent wrongness of thinking some people are inferior. After all, people are allowed to think what they like. Harm. Reasonable?

232

Manta 08.09.16 at 8:45 am

But John, not having a cake at your wedding only harms your feelings: it’s a completely subjective harm.
The same kind of harm claimed by other people when they see gay people kissing in public.
Or by seeing nude pictures on the newspapers.
Or by the Greens when they were subsidizing abortion.
And so on and so forth.

233

John Holbo 08.09.16 at 9:16 am

“But John, not having a cake at your wedding only harms your feelings: it’s a completely subjective harm.”

A-ha! Now we are getting somewhere!

Feelings are not nothing, but they are, admittedly, not a lot on their own. The dignity of equal citizenship is a feeling, but it is also a serious civic concern. That said, if we weren’t worried about more serious, systematic harms than cake cases, I think we would be unjustified in worrying about cake cases. The law operates according to general rules. Sometimes rules produce non-optimal results. Clearly the wedding cake case, with the Christians getting a whacking great fine, is a non-optimal result in a certain sense. If all you hear is ‘so-and-so got a $150,000 fine for refusing to bake a cake on religious grounds,’ you don’t think: ‘ah, all is well with the world, and under Heaven!’ (At least I hope you don’t.) That said, just because the result is screwy and unfortunate-sounding does not mean the rule laid down in advance, which produced it, was unwisely or unjustly laid down.

Initially two parties were facing off, each threatened with what was really a minor inconvenience and not plausibly a vast threat either to dignity or religious conscience: either having to go elsewhere to get a cake or bake a cake you don’t feel like baking. Those were the low stakes. It is wrong to emphasize the $150,000 because the less costly, and not really very conscience-burdening option would have been: bake the damn cake already. (It doesn’t say in the Bible you can’t!)

What we need to think about are the general class of cases in which gay people are persecuted and, on the other hand, the general class of cases in which Christians are persecuted for their faith. It is reasonable to believe – because it is true, and it is reasonable to believe true things – that historically and culturally and socially and recently there has been, and still is, great animus to homosexuals, who have been unjustly persecuted in a whole variety of ways, legally and extra-legally. Christians, while they had a rough time in the early centuries of the first millenium, are going ok these days. Thus, it is not unreasonable to legislate protections for LGBTQ folks, not expressly with the intention of making sure they can buy cake, but to protect other, more serious areas of their lives – all of which also results in them being guaranteed cake, if they are willing to pay for it. This somewhat burdens the conscience of Christian folks, plausibly. But, then again, not all that plausibly. The burdens are minor and incidental and light – baking cakes, that sort of thing. Christians should understand – since it is true, and you should try hard to understand true things – that it is reasonable for the state to seek to protect gay people, since they have been victims of systematic animus and persecution. Christians may protest that they themselves are utterly free of animus. But if they are sincere about this, they should also understand that it sort of doesn’t matter. In wishing to refuse service they look awfully suspicious – they look like they are exhibiting animus – and they have to understand that the law may reasonably look askance at a class of actions that are secretly innocent but look guilty.

Is it utterly morally compelling that gays must be regarded as a protected class? Couldn’t we say they are so rich and powerful and culturally influential that we can let it go? Well, they aren’t ALL David Geffen. There are more persecuted queer teens than old Christian white men, would be my back of the envelope estimate. I would say that the argument is broadly utilitarian and complex utilitarian calculations are not really provable. They involve sociological guestimates and project likely effects and so forth. But the view that protection for LGBTQ citizens is an outrageous invasion of religious freedom is, by contrast, utterly morally non-compelling. Maybe it’s somewhat excessive to protect gay folks to the point of ensuring they can buy cake. But it’s a bad idea arrived at very reasonably, and one that will not heavily burden religious conscience. (If you don’t want to pay the fine, bake the cake!) Raging against reasonable, defensible ideas is not a compelling, attractive form of moral martyrdom, in my judgment.

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John Holbo 08.09.16 at 9:20 am

Even more complicated, the utilitarian arguments feed into arguments about equal rights, in Constitutional terms. What is ‘equal protection under the law’ if you are a member of a despised minority? It’s a matter of rights, but also it involves sociological estimates and predictions and so forth.

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Manta 08.09.16 at 9:33 am

You think that Nazis are not a despised minority in US? Should a baker be compelled to serve them?
(Some ma retort “but they are despised by their beliefs! they can simply stop being nazis”: but the same argument applies to Muslims.)

What in your argument would protect the right at a restaurant of, say, a Jew to wear a kippah and not of a Nazi to wear a swastika? (Or do you think that both right should be protected, or that neither should be?)

236

Manta 08.09.16 at 9:41 am

Added historical remark:
“National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977) (also known as Smith v. Collin; sometimes referred to as the Skokie Affair), was a United States Supreme Court case dealing with freedom of assembly. The outcome was that the Illinois Supreme Court ruled that the use of the swastika is a symbolic form of free speech entitled to First Amendment protections and determined that the swastika itself did not constitute “fighting words.” Its ruling allowed the National Socialist Party of America to march”
https://en.wikipedia.org/wiki/National_Socialist_Party_of_America_v._Village_of_Skokie

237

ZM 08.09.16 at 10:23 am

John Holbo,

“But, so long we can agree to agree that it isn’t discrimination that is bad, but unjust discrimination – i.e. injustice – and so long as we agree that it isn’t just in Australia but everywhere that the claims of justice have strength, then all we have left to do is figure out: what justice is.”

No, the actions and speech that constitute the recent meaning of discrimination (Discrimination Type B) not the archaic meaning of discrimination (Discrimination Type A) are wrong.

Discrimination Type A is maybe okay depending on what the discrimination is but archaic, and Discrimination Type B is wrong.

Justice is much broader than Discrimination Type B being wrong. This will turn into a very long thread if its going to turn into a discussion on “what Justice is”. I don’t mind, maybe it will get to over 1000 comments if it does.

“We all agree murder is unjust and wrong, of course, but some people (see above) do not agree that it is wrong for private business owners to refuse to bake cakes for gay weddings.”

No. Some people, namely murderers, also think murdering isn’t wrong. If they have a conscience then they repent and go to gaol and reform, some murderers are psychopaths and don’t appear to have consciences and don’t genuinely repent although sometimes they trick people and get out of gaol and murder someone else.

“I appreciate that Australian law has something to say on the subject, but thankfully we agree that is irrelevant, since we are not planning to stop our claims at the Australian shoreline – or 3 mile international waters limit line.”

It isn’t irrelevant. The other countries could look at Australian laws in determining their own Anti-Discrimination legislation if they don’t have enough laws already. Then Australian law could influence other jurisprudence outside of our jurisdiction. Australian law can be as relevant as anything else is.

“So why is it unjust to refuse to bake cakes for gay weddings but not unjust to refuse service to the shoeless and shirtless?”

Everyone can get shoes and shirts since we don’t live in Dicken’s England. If you don’t own any you can get them free from charities, and how can you afford dinner if you can’t get free shoes and shirts? If someone can’t afford food this is a worse injustice than being refused service for not wearing shoes and shirts. But the government provides income support and charities provide food too. If you go back to colonial Australia Indigenous people often didn’t wear shoes or shirts, and now I think of it they shouldn’t have been refused service for not wearing shoes and shirts due to their culture. But they wear shoes and shirts now where I live. If you go up North I am not sure what restaurants do about shoes and shirts since its so hot and humid and there are more Indigenous people. It would possibly be discrimination refusing to serve an Indigenous person who went in a traditional outfit without shoes and shirts since its their culture.

Some people have homosexual orientations. This is not the same as a choice to wear shoes and shirts apart from for people who don’t wear shoes and shirts for important cultural reasons, then they shouldn’t be discriminated against either.

It is very wrong to tell people to be heterosexual to get a cake. Its too much to ask of someone for a cake. The shop is a public business and should serve everyone apart from very drunk and disorderly people who try buying cakes or dangerous people with knives and a glint in their eye or something.

“Let me tell you what I think: I think it has to do with harm hereby done to gay people.
Does that seem like a good starting point? Nothing about the inherent wrongness of discrimination, because that is just false; and nothing about the inherent wrongness of thinking some people are inferior.”

No. It isn’t about harm, its about Discrimination Type B being wrong. It also causes harm to people, but say someone said they didn’t think they were harming anyone being Discriminatory Type B, it would still be wrong. Discrimination Type B is incorrect and wrong in and of itself.

Also there are just and reasonable harms, like sending criminals to gaol and publicly shaming criminals and bad people and so on.

You could publicly shame a gay person or a murderer, and it would harm either of them I guess, but it would only be wrong to publicly shame the gay person, not the murderer. The same goes with putting them in gaol, it would be wrong to put the gay person in gaol for being gay, and right to put the murderer in gaol for murdering someone.

So its Discrimination (Type B) that is wrong, not the harm, or else murderers would all complain about being harmed by being put in gaol and publicly shamed, and what could you do then? You’d end up lawless with a bunch of murderers running around causing havoc and no one knowing right from wrong anymore, and going back to scratch having to argue about why murder is wrong every ten seconds.

Actually maybe America has gone backwards in law abidingness the last few decades, now you have to argue about killing black people being wrong all the time like being in a country torn apart by warlords or something. Boston Legal is very different from L A Law. I don’t think this happened in Australia.

“After all, people are allowed to think what they like. Harm. Reasonable?”

No I don’t agree with this. People should try to think the right thing as much as they can and other people should help them. Thinking wrong things can end up in doing wrong things. It was thinking that happened before Nazi Germany, so the thinking led to the atrocities. If people corrected all their wrong thinking beforehand, think of all the lives that would have been saved and pain that would have been avoided. The quality of one’s thoughts is very important since it governs everything else.

(please delete earlier version of this in moderation for using the name of African country torn apart by warlords)

238

Keith 08.09.16 at 11:19 am

@John “If I understand correctly, your answer to my question, in 101, was ‘yes’. Is that right?”

John, if you can acknowledge that
a) the Christian couple was fined $150,000 for refusing to bake a cake
b) that defining this as oppression is reasonable
c) that your own extreme hypothetical in 101 is not applicable to facts of the Oregon case (the lesbian couple easily found another bakery)
d) that Johnson’s fevered hypotheticals about the opposite extremes when asked about the Oregon case are reasonably inferred to indicate a desire to avoid addressing actual oppression right in front of him
e) that it is reasonable to be outraged by this kind of dodge on Johnson’s part, regardless of one’s belief on you hypothetical in 101

Then I can confirm my answer to 101.

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Keith 08.09.16 at 11:24 am

ZM @237 “People should try to think the right thing as much as they can and other people should help them. Thinking wrong things can end up in doing wrong things. It was thinking that happened before Nazi Germany, so the thinking led to the atrocities. If people corrected all their wrong thinking beforehand, think of all the lives that would have been saved and pain that would have been avoided. The quality of one’s thoughts is very important since it governs everything else.”

ZM, believe it or not, I think you have a good point. Since cognitive psychology tells us that people have very strong irrational collectivist biases, then strong regard for personal liberty, including the liberty to act on beliefs others find repugnant, is the most useful way to correct our most fundamental wrong kinds of thinking. It is therefore your moral duty to be a libertarian.

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John Holbo 08.09.16 at 11:30 am

Nope. You first, Keith. It’s good discipline. Trust me.

ZM, I’ve said my piece. I think your position is a strange synthesis of lexical and ethical confusion. We will have to agree to disagree.

241

Alex K--- 08.09.16 at 11:37 am

John Holbo (233): Why don’t we go back to your opening post: it questioned whether the Cato guy was being a classical liberal in opposing state interference in the great cake controversy.

The conceptual keynote is, rather, liberty (against coercion.) But since some coercion may be individual liberty-enhancing, some government may be ok.

Can we keep to the liberal line of argument and stifle utilitarian Jeremiads for now? The state can prevent harm to the gay couple, no doubt. My question is, will that entail significant harm to the baker? If yes, a liberal should argue against such interference.

The answer probably depends on the details. If there was no explicit anti-discrimination statute before the conflict, and the state demands the baker bake the cake, and the baker is deeply traumatized by being forced to provide that service (let’s say “he was born that way” to keep religion out), it sounds like a case against state meddling. (I anticipate this in return: a natural-born killer is also “harmed” when not permitted to murder. Alas, bloody Jerry’s creeping back in, grinning: “You see how interpersonal utility comparisons are necessary sometimes.”)

Now if there’s an a priori, clear and explicit rule against such discrimination, I suppose it will simply drive conservative Abrahamists, as well as other bakers who don’t like catering to gay events, out of the wedding cake business and, if that niche is a major contibutor to the average baker’s bottom line, out of business altogether. It’s a different type of harm… I don’t know what classical liberals would make of it.

242

Manta 08.09.16 at 11:47 am

John, I don’t buy your argument ” It is wrong to emphasize the $150,000 because the less costly, and not really very conscience-burdening option would have been: bake the damn cake already. “

I don’t buy it because you (or, at least, your co-bloggers) didn’t follow it in Aaron Swartz case.

Usually, we recognize that punishment should be proportional to the harm done, etc.

243

Keith 08.09.16 at 11:47 am

@241 “let’s say “he was born that way” to keep religion out”

This is the major problem with so many liberals and progressives.

For so many people on this thread, being “born a certain way” is privileged over freedom of conscience. This is an error that privileges tribal and sexual identities other other kinds of identities. What makes (at least some) people who they are, is that they believe, and that freedom to follow your higher callings is relatively more valuable to society, anyway, in my view.

244

Collin Street 08.09.16 at 12:02 pm

Since cognitive psychology tells us that people have very strong irrational collectivist biases, then strong regard for personal liberty, including the liberty to act on beliefs others find repugnant, is the most useful way to correct our most fundamental wrong kinds of thinking.

If people have strong irrational collectivist biases, then their actions including the ways they exercise their liberty will be biased towards collectivist ends. “Letting people do what they want” means you reinforce — not break — their natural tendencies, and if their natural tendencies are towards “irrationally collectivist ends”, then libertarianism will only worsen this problem: if you want to act against people’s individual biases, you need to do it collectively. Even if the bias you’re trying to act against is towards collectivism.

I mean, I spent, what, thirty seconds thinking about this, five minutes writing it out? Big fucking hole and you missed it: this is why autodidacts get a bad name, because they don’t properly test their conclusions.

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Alex K--- 08.09.16 at 12:23 pm

@243: It’s only for the sake of argument that I assume opponents of gay marriage to have been “born this way.”

246

John Holbo 08.09.16 at 12:24 pm

I’m off until tomorrow. Place nice.

247

ZM 08.09.16 at 12:27 pm

Keith,

“ZM, believe it or not, I think you have a good point. Since cognitive psychology tells us that people have very strong irrational collectivist biases, then strong regard for personal liberty, including the liberty to act on beliefs others find repugnant, is the most useful way to correct our most fundamental wrong kinds of thinking. It is therefore your moral duty to be a libertarian.”

I don’t think I have to be a libertarian to agree that people should be speak out according to their consciences. I just have to say people are obliged to speak out according to their consciences.

Yes I agree that discussions are useful too, but I still don’t exactly see why I need to be a libertarian to think discussing things is useful either.

“For so many people on this thread, being “born a certain way” is privileged over freedom of conscience. This is an error that privileges tribal and sexual identities other other kinds of identities. What makes (at least some) people who they are, is that they believe, and that freedom to follow your higher callings is relatively more valuable to society, anyway, in my view.”

To be honest I have some sympathy with this in terms of protecting cultural and religious belief from infringements, but overall I think that discrimination is wrong and this outweighs my sympathy for maintaining cultural or religious differences in this case.

The Judeo-Christian prohibition against homosexual acts is pretty much against male rape judging by the Sodom and Gomorrah story, it doesn’t tell us anything about how to relate to loving homosexual couples because that is not what happened in Sodom and Gomorrah.

And also I think Australia is ahead in this discussion in comparison with America, and I think that you can’t really enforce laws without engaging in ongoing public discussion about the issues, particularly when there is significant change involved from discrimination being legal and practiced by the State, to being made illegal. Without education and public discussion this change is confusing for people. And you have to open up space for people to say some things which are discriminatory if they are there beliefs, in order to have the public discussions.

248

Layman 08.09.16 at 1:04 pm

Ian Maitland: “Is it so hard to grasp that the Greens’ beliefs bar them from enabling what they consider to be the murder of unborn babies?…The Greens’ actions were completely consistent with the way they have run their company for almost (?) 40 years…

Now that you ask, yes, it is a bit hard, in light of the fact that they provided insurance which included ‘what they consider to be murder’ for years, and only rejected the practice when it became required by law. This is hardly consistent with the notion that they’re cautious and diligent in the exercise of their faith. They apparently didn’t care about the matter until the ACA came along. It’s almost as if there was some other motivation for their lawsuit…

“Though the sincerity of the Greens’ religious convictions seems clear, it is curious that the health plan they’ve offered their workers up until now covers both Plan B and Ella.”

http://www.dailynews.com/opinion/20140328/hobby-lobby-case-could-cause-huge-legal-social-disruption-tim-rutten

Ian Maitland: “People have a right to live with integrity, as they see it.”

Where does this right to imagine one’s integral needs end? Can an emergency medical technician refuse to provide treatment to or transport a gay person, on the grounds that it violates his/her own deeply-held religious convictions? Can an emergency room surgeon refuse to operate on a wounded black man, on the same grounds? Why not? Don’t they have a right to live with integrity as they see it?

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reason 08.09.16 at 1:05 pm

Collins Street
Yes.
But note: “including the liberty to act on beliefs others find repugnant” – like in belief in their right to shit in the streets? Seriously? This seems also a big hole.

And “It is therefore your moral duty to be a libertarian.” – where does this come from logically? Collectivist biases are not the only biases and countering biases is not the only effect of libertarianism.

His argument is even weaker than you credit it with being.

250

Collin Street 08.09.16 at 1:59 pm

For so many people on this thread, being “born a certain way” is privileged over freedom of conscience.

My conscience demands that it be so.

— c, so sharp he cuts himself.

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Watson Ladd 08.10.16 at 1:02 am

Consider for a moment gays in the 1960’s. Homosexuality was a crime. Bars were routinely raided. And yet gay friendly businesses still existed in places like SF. Surely the principled libertarian position should be seen as defending gay rights against a hostile tyranny of the majority, one with far worse consequences then calling a different baker.

Jim Crow required the coercive power of the state to sustain segregation. Plessy v. Ferguson was a criminal case, the State of Louisiana enshrining discrimination into law.

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