About two years ago, the baker who refused to sell a wedding cake to a gay couple for their wedding was in the news. He’s baaack! Are individual proprietors free to refuse their services to others on any basis they choose, even if it’s discriminatory? Is it OK to refuse to serve Jews? Or Mormons? Or blacks? Will the free market correct itself? In other words, should we simply boycott businesses we believe are discriminatory?
Since this debate continues to make the rounds, let’s break it down.
This is mostly a debate about free markets vs. the role of governments to protect all citizens. Accordingly, the opinions often coincide with party lines. Particularly those who are libertarian believe in the power of free markets to correct themselves. People will boycott companies they find objectionable, so the market will correct itself if it doesn’t align with public sentiment. Unless there is a really great Groupon deal anyway.
Myth: The free market is self-correcting in time. Intervention in free markets creates new problems.
Reality: History has shown that free markets do not eliminate or usually address discrimination to a sufficient extent to stop systematic disadvantage. The free market is full of individuals who do not act rationally, and prejudice is certainly irrational. Jim Crow flourished under free markets.
Rights of Individuals
Some believe that the rights of business owners to discriminate are equal to the rights of individuals to have access to goods and services. In both cases, the rights of individuals are considered paramount. However, individuals who own businesses are not individuals in the same sense consumers are. They are providers of goods to the public; corporations aren’t people, my friend. Once they advertise their services, they cannot then refuse to provide those services to protected class individuals.
Myth: Businesses can refuse services to people for any reason. No shoes, no shirt, no service.
Reality: Consumers who belong to protected classes (based on religion, sex, race, and in many states sexual orientation) have demonstrated that they have suffered unfair and disproportionate discrimination from businesses and employers giving them protected class status. To remedy this, businesses cannot refuse services to a protected class on the basis of that class.
Business Owners are People, Too
The smaller the business, the more likely the business owner conflates him or herself with the business itself. In these scenarios, business owners want to claim rights afforded to individuals for their businesses, rights such as free speech, etc. This may work for a person selling Avon products out of their home. Once a business begins to advertise to the public, though, the line is crossed. A public good has been offered.
Myth: Small business owners aren’t really corporations and don’t have the same rules. They should have the same rights as individuals.
Reality: Advertising a public good makes you subject to the laws (hiring and providing services) surrounding protected classes.
Cakes Are a Luxury
People have rights to life, liberty and the pursuit of happiness. Denying someone a wedding cake isn’t the same as denying basic rights. Cakes are a luxury, not a right.
Myth: Those who provide non-essential goods or services shouldn’t be obligated to sell them to people they don’t like. It’s not like a hospital or a school. Cakes are optional.
Reality: When you advertise to the public, you can’t discriminate against groups that have protected status, regardless of the good or service you are selling. However, you may not be required to hold inventory of specialty items like gay couple cake toppers. But you can’t withhold your normal products from a buyer on the basis of sexual orientation where sexual orientation is a protected class.
Separation of Church & State
Some feel that this issue is an infringement on religious belief, that those who want to refuse services are moral objectors, and that we need to respect their right to make a moral stand. We shouldn’t force people to act against their religious beliefs, whether it’s an employee or a business owner.
Myth: Just as religions are exempt from doing things that violate their teachings (e.g. not forced to hire male clergy, not forced to hire a priest from another religion), every religious adherent should be protected from violating their religious principles.
Reality: Churches have legal exemption from anti-discrimination laws, but businesses do not. Individuals who work at a business can claim that the business is asking them to do something against their conscience, but then they may not be eligible to do that job; if reasonable accommodation can be made (e.g. assigning to other duties), then this provides a win-win solution. But when it comes to offering goods to the public, a business owner can’t simply refuse to accommodate if the reason falls under a protected class.
The “Protected Class” Shopping Cart
Then, isn’t every form of discrimination just a protected class? Where does the protection end? What if I dislike saxophonists or Aussies?
This particular argument reminds me of an experience several years ago. The company I was working for was very committed to diversity, and there were several diversity networks to create awareness around the interests of women, racial minorities, Christians, and older employees. A group of employees in our Salt Lake City office felt overlooked and wanted to begin a White Males group. As parents who are asked on Mother’s Day why children don’t get their own special day, the answer to this question is basically “Every day is Children’s Day.” The point is that privileged groups, groups that cannot demonstrate they are targets of discrimination, are not a protected class because they don’t require special protection. The only valid question in the case of the gay wedding cake is whether homosexuals are a protected class or not, not whether we should open the floodgates to discrimination or cut off all discrimination.
Myth: All discrimination is bad, so it should either all be allowed or all eliminated. It’s religious discrimination to make the baker violate his principles.
Reality: Only demonstrated systematic disadvantage against a legally protected class is against the law. It’s legal to discriminate against Australian saxophonists, whether it’s right or moral or not. Discrimination is legal until a class demonstrates (through civil rights movements, etc.) that it needs to be afforded protected class status. So the only real question is whether sexual orientation is a protected class or not.
There Goes the Neighborhood!
Why would someone want to patronize an establishment that doesn’t want them? Why not just go to another baker? For that matter, why not move to another town or another state? Why not just go where there are more people like you?
Myth: Gay people should go where they are wanted, not continue to push for acceptance from people unlikely to give it.
Reality: Gay people are born everywhere. They have families everywhere. They aren’t necessarily independently wealthy any more than anyone is with the resources to just move wherever they find acceptance. It’s not fair to ask them to live as second class citizens in their own communities. They are fully integrated into society, not living on a leper colony.
Expect Bad Service
If you push someone to service you when they don’t want to or feel it is their right not to, they will probably provide you with bad service.
Myth: It’s better to be turned away than to have your waiter spit in your soup. Forcing business owners to act against their beliefs hardens their feelings toward those minorities.
Reality: Being denied service entirely is worse than reluctant service and paves the way for more exposure to minorities that creates more empathy that in time results in less discrimination and better service for all. You can’t force people not to feel prejudice, but you can force them to act without prejudice. People who feel prejudice will not stop acting with prejudice without being forced.
Tit for Tat
Isn’t this just discriminating against “Christian” business owners who feel that they are being forced to contribute to the downfall of society?
Myth: Making it illegal to discriminate unfairly punishes those who believe homosexual behavior is wrong.
Reality: There are natural consequences for behaving in a prejudiced or bigoted manner, and there are legal consequences. Consequences resulting from mistreating other people does not constitute discrimination.
Why do gay people get all the choices, but Christians are the ones who can’t choose to whom they provide service?
Myth: Being gay is a choice. Being gay in a heteronormative world is a choice.
Reality: Being gay isn’t a choice just like race isn’t a choice. We can all choose to obey or break the laws. We can certainly lobby to change the laws. But we can’t break the law and escape consequences for it. One of the tenets of our faith is that we believe in following the laws of the land, even if they aren’t the ones we would enact.
For a trip down memory lane, here’s a pre-civil rights quote from David O. McKay:
“I said that I did not like to see a law passed which will make the Hotel men violators of the law if they refuse to provide accommodations for a negro when their hotels are filled with white people, or restaurant men made violators when they decline to serve colored people. I said that businessmen ought to be free to run their own businesses, and not become law breakers if they choose to employ certain people; that if we have such a law as that, then it is unfair to the majority of the citizens of this country.” (June 19, 1963)
But it’s no longer 1963. It’s no longer legal to discriminate against those individuals in protected classes who have demonstrated that they have been systematically disadvantaged.
Let’s see what you think.