After Indiana, Some Notes Regarding Anti-Discrimination Laws

In light of the events in Indiana, the pundits have been producing many takes on the deep nature of anti-discrimination laws and religious freedom. In digesting those takes, here are some things to keep in mind.

1. Courts have disallowed religious exemptions from economic anti-discrimination laws before.

Much of the punditry so far on this point has focused on cases pertaining to tax exemptions for religious educational institutions that claimed their religion required them to discriminate against Blacks (see Bob Jones University v. US). This is an alright comparison as far as things go, but the more sophisticated parts of the right-wing have already united around a line saying that racism was a very unique thing in US history whose eradication required extraordinary measures.

There are other cases involving economic anti-discrimination that are much more on point than the race stuff. For instance, the Supreme Court of Alaska, in 1994, rejected a claim by a landlord that a state law forbidding him from discriminating against unmarried couples violated his right to freely exercise his religion. The California Supreme Court, in 1996, even in the face of the federal Religious Freedom Restoration Act, reached the same conclusion.

In those cases, the landlords claim that renting out a unit to an unmarried couple violates their religious  freedom because it forces them to facilitate the sin of living together as an unmaried couple. Switch out "unmarried couple" for "gay married couple" and you have exactly the kinds of cases pundits are talking about in Indiana. The gay marriage stuff is fresh and new as a hot topic matter, but there is nothing new about enforcing economic anti-discrimination laws over the marriage-based religious beliefs of business owners.

2. No one is "forced" to provide any services to people they don't want to.

The most pervasive myth about economic anti-discrimination laws is that they force people to serve people they don't want to serve. This simply isn't true. As with any other economic regulation, anti-discrimination laws establish rules for people who want to engage in certain kinds of economic activity. People who don't like those rules or any other rules always have the ability to avoid following them by not engaging in the economic activity.

For example, in all or nearly all states in this country, people who want to engage in the activity of renting out rooms for tenants must follow rules that require the rooms to be habitable. If you are someone who doesn't want to follow habitability rules, then you are free not to become a landlord. The same is true of anti-discrimination rules regarding who to rent to: if you do not want to follow them, you are free to not become a landlord.

The California Supreme Court noted this:

[O]ne who earns a living through the return on capital invested in rental properties can, if she does not wish to comply with an antidiscrimination law that conflicts with her religious beliefs, avoid the conflict, without threatening her livelihood, by selling her units and redeploying the capital in other investments.

The Alaska Supreme Court noted something similar:

[T]he economic burden, or "Hobson's choice," of which he complains, is caused by his choice to enter into a commercial activity that is regulated by anti-discrimination laws. Swanner is voluntarily engaging in property management.

You certainly can believe that the best way to go here is to allow people to enter into these economic activities while being able to deny service to Blacks, women, gays, or whomever. But to say that the alternative "forces" people to provide services to them is simply not correct. They can do something else.

3. The private/public distinction gets you nowhere.

As usual, the slower libertarian crew has assembled to say they have this neat solution to all of this: just get the government out of the matter of private discrimination altogether. The problem with this is the same problem libertarians always run into in their curiously limited understanding of state operation. Where the government creates and enforces economic institutions, so-called "private" discrimination is not really private at all. State action (or the threat of state action) is what effectuates much of the discriminating intents of private economic actors.

Suppose a landlord does not want to rent to a gay couple. The gay couple is perturbed by this and so they move in anyways and start paying rent. What happens? The landlord calls the state on the phone, then public police bring their guns to physically remove the gay couple, put them in a public police car, take them to a public jail, haul them before a public court, and then provide some kind of publicly-enforced sanction. In this case, the state and public resources are clearly being mobilized to carry out anti-gay discrimination.

In Shelley v. Kraemer, the most correct Supreme Court case ever decided, the court lucidly works through this basic realization. In that case, landowners placed restrictive covenants in their deeds that forbade selling the land covered by the deed to Blacks for the remainer of human history. A few decades down the line someone sold the land to a Black family and nearby residents sued to have them evicted pursuant to the covenant. The Supreme Court, at the peak of its judgment competence, determined that although the making of the covenant is private action, the enforcement of it is clearly public action, and would involve mobilizing the state to evict people solely because they are Black.

There are ways to avoid the inherent entanglement of the state in nearly all private economic discrimination: get the state out of the business of making and enforcing economic institutions altogether. Eliminate property law, contract law, corporate law, securities law, and so on. Let civil society come up with way to manage the use of resources without creating legally-enforceable economic rules. In that world, the state never has to enforce any kind of economic claim, discriminatory or otherwise. And so it truly can get out of the matter.

I have offered this before to libertarians, but I've yet to get any takers. It seems that they distrust voluntary arrangements and civil society to handle the deployment of resources, preferring instead to have a state centrally promulgate economic rules that it forces people to follow whether they want to or not.

Once you've taken to saying the state should create economic rules (e.g. property, contract, etc.), then you've made it impossible for them to stay neutral on the question of economic discrimination. Either they will create a property and contract and business regime that permits discrimination or they will create one that doesn't. Either way, state action (or the threat of it) will be mobilized to realize whatever decisional outcomes result from the economic institutions the state puts in place. The state simply can't get out of the matter of economic discrimination because it makes and enforces the economic system.