Should the state support anti-gay discrimination?

The debate about the Arizona bill that endorses anti-gay discrimination on religious freedom grounds has been mostly trash so far. Here, I want to raise a few points that I have not seen presented elsewhere.

1. Nobody is forced to do an occupation.
Friedersdorf describes a class of people called “Christian Bakers.” The National Review describes bakers being conscripted into performing services. But people are not essentially bakers, nor are they forced to be bakers. They choose to be bakers when they could be something else.

Voluntarism is a tricky concept. I for one find all economic rules involuntary curtailments of liberty, private property especially. Outside of what Roderick Long calls the “grab-what-you-can world,” every economic system is coercive and so the debate is about how best to allocate coercion.

If we move away from this rigorous definition of voluntarism (which all economic systems violate), we can gin up other more relaxed concepts of voluntarism that people seem more comfortable with. For instance, something can be said to be voluntary if you have some other option that allows you to avoid doing it. It is in this sense that I am told working for a given employer is voluntary because I could work for somebody else.

Under this sense of voluntarism, nobody is forced to bake a cake or take pictures because nobody is forced to go into those particular industries. Courts regularly dispose of this issue in precisely this manner: we establish rules for what it means to operate a particular business (pay taxes, pay at least the minimum wage, pay overtime, do not refuse to hire blacks, and so on) and you are given a choice to accept those rules or do something else altogether.

If you don’t want to rent out housing to unmarried couples (this used to be a thing), then don’t be a landlord. Nobody requires you to be involved in renting out housing to such couples (or gay couples for that matter) because nobody requires you to be a landlord. If you don’t want to fill prescriptions for birth control, don’t be a pharmacist. If you don’t want to pay minimum wage, then don’t hire employees. If you don’t want to bake cakes for someone’s Bar Mitzvah because you think Jews are going to hell, then don’t become a baker. Do something else.

2. Private discrimination is not private.
I wrote about this at Salon earlier, but there is more to say on it.

Business rely upon state services to run. So there is a serious question here about whether the state should use public resources to provide these positive services to discriminating businesses.

Here are some things the state does for businesses using public resources:

  1. It will enforce contracts for the business.
  2. It will send police out to kick people off of the property of the business, even if the person is being kicked off purely because they are gay.
  3. It will give the business a corporation (a legal construct) that allows it to have all the benefits of incorporation (limited liability, asset partitioning).

Why should the state, with public resources mind you, provide these services and benefits to a business that is discriminating against classes of people that comprise the public?

Perhaps we can compromise here and say that the government will not get involved in businesses that want to discriminate at all. It won’t provide incorporation rights. It won’t send out police to kick people off of business property. It won’t enforce contracts. It won’t allocate public resources towards enabling discriminators.

This might seem like a far fetched point, but it isn’t. Bob Jones University used to discriminate against blacks and then interracial couples for purportedly religious reasons. The government then removed its tax exempt status, the logic being that we should not be directing tax exemption benefits to discriminatory universities. Removing contract and property enforcement as well as incorporation rights from discriminating businesses is no different in principle. Removing these public services would likely collapse many businesses, but that’s exactly my point: the public is keeping the businesses afloat using public resources.

3. None of this is novel.
People are approaching this debate as if there is something novel to it because it’s religion that’s motivating the discrimination. But it’s actually painfully rote at this point. As the Bob Jones University case shows, anti-black discrimination also had religious motivations behind it. Marital status discrimination was basically all religious in nature, but is unlawful now in all sorts of realms. Religious discrimination is also unlawful, which curiously creates its own set of religious objections because sometimes religious people want to discriminate against people of other religions.

This is just the same old stuff applied to a new topic. Most of the works worth reading on this subject were written 80 years ago.