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Societal, Legal Roadblocks Obstruct Tolerance as a Two-Way Street

Societal, Legal Roadblocks Obstruct Tolerance as a Two-Way Street

By Tuesday, 12 June 2018 12:45 PM Current | Bio | Archive

After recent school shootings, Dick's Sporting Goods has stopped selling guns to people younger than the age of 21.

Now, a 20 year old is suing them — alleging illegal discrimination.

His lawsuit raises an interesting question. Should there be no middle ground between making an action (like buying a rifle) illegal, on the one hand, or preventing others, like business owners, from refusing to participate in the action? Are customers to be the only people with rights, or can business people also have some rights? Should there be no room for social pressure — refusals to associate, boycotts, and the like?

Liberals tend to be enthusiastic about anti-discrimination legislation but often applaud social pressure aimed at people they do not approve of — as when organizations yank conventions or sports activities from places enacting legislation they consider hostile to LGBTQ people. They obviously don't oppose social pressure as a general matter. But many liberals cheered when Oregon fined a small family bakery $135,000 for refusing to bake a cake for a same-sex wedding.

Of course refusals to associate have a terrible odor since they were used to try to keep the former slaves down. Many businesses — including restaurants, hotels, and filling stations — refused to cater to black people. Congress therefore enacted the Title II of the Civil Rights Act of 1964 to put an end to racial discrimination in public accommodations.

This legislation was needed because of the extreme inconvenience caused by such massive social pressure. Innkeepers may enjoy a local monopoly. Even when there is no monopoly, travelers may lack information needed to find innkeepers willing to serve them and not have time to make local inquiries before they starve or must sleep in the streets.

The urgency facing strangers in a strange land justified open accommodations legislation, but the urgency rationale doesn't apply to most other businesses. The young person seeking a rifle could easily have found other firms happy to sell him one. Companies refusing to sell were, in effect, implicitly fined by the amount of profit they were forgoing.

Other stores would be motivated by that same profit to make the sale. Dick's Sporting Goods' disapproval of selling rifles to minors inconvenienced the would-be buyer, but only modestly.

Likewise, unlike travelers seeking meals, gasoline, or shelter, the Oregon couple was only slightly inconvenienced by the bakery's social pressure, and had plenty of time to find bakeries delighted to get the business. Again, the bakery that refused was implicitly fined by the profit it would have made by producing the cake.

This "fine," though much less than the $135,000 penalty levied against the bakery, was big enough and certain enough to guarantee that most bakers would not have refused to produce the cake.

A reasonable society does not push principles beyond the point at which they begin to produce results that are ridiculous or incommensurate with the administrative costs of producing them. A society priding itself for protecting liberty should therefore hesitate to eliminate social pressure — an expression of the freedom to refuse enter into a voluntary association — as a legal form of behavior.

The anti-discrimination principle for innkeepers, while necessary in struggling with "America's original sin," should not be applied to all transactions in all situations.

The young man in Portland remains free to buy a rifle from a willing supplier. The couple seeking a wedding cake remained free to order one from a willing supplier. It is not only customers who have rights, and freedom to register disapproval of something or someone by refusing to do business with them should also exist for sellers as long as they are neither innkeepers nor public utilities with a local monopoly.

Toleration needs to be two-directional. As Peggy Noonan, notes, " 'Bake my cake' is, among other things, a stunning example of lack of tact. You're supposed to win graciously, not rub the loser's face in it." Although the Colorado baker won in the U.S. Supreme Court, we cannot depend on the Court to fix the problems produced by overreaching anti-discrimination legislation.

As The Wall Street Journal correctly noted, the 7-2 "Masterpiece Cakeshop won't go down in history as a legal masterpiece."

Courts have to apply legislation as it is written. They are poorly positioned to fine tune today's poorly crafted anti-discrimination legislation to focus it properly on combating America's original sin awhile avoiding the outlandish results of pushing it to extremes.

Fixing this problem will require legislation by Congress and state legislatures.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published 1981 and his most recent book is "The Case of the Racist Choir Conductor: Struggling With America's Original Sin." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.

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Toleration needs to be two-directional. Courts are poorly positioned to fine tune today's poorly crafted anti-discrimination legislation. This problem will require legislation by Congress and state legislatures.
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Tuesday, 12 June 2018 12:45 PM
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