Kathy Gill looked at discrimination in 1964 and today, leading me to think about the ramifications of government action in this area. There are certainly parallels, and maybe differences, between discrimination against blacks then and gays today. She looked at some current legal cases:
This week, Tennessee State Sen. Brian Kelsey filed legislation (SB 2566) that would “allow people and businesses to refuse to provide goods and services to homosexuals.” There’s an iPetition in opposition.
And in Oklahoma on Tuesday, a similar bill overwhelmingly passed the House of Representatives: 72-42.
[House Bill 2453] would allow hotels, restaurants and stores in the state to refuse to serve gay couples if “it would be contrary to their sincerely held religious beliefs.” The bill would also allow government clerks to refuse to sign same-sex marriage licenses without threat of a lawsuit.
Up in South Dakota, State Senator Ernie Otten has introduced two bills to protect discrimination on the wedding day; the bills would “protect clergy, church officials and businesspeople who refuse to take part in gay marriages or receptions.”
Don Frankenfeld, of Rapid City, a member of Equality South Dakota, said he believes the bill dealing with clergy is irrelevant because the constitutional separation of church and state protects clergy members from being forced to perform any ceremony that runs counter to their beliefs.
Frankenfeld said the measure dealing with businesses seems to be an assault on the federal Civil Rights Act of 1964, which was passed mostly to prevent businesses from refusing service to black people.
The ACLU is filing a lawsuit in Missouri today, according to news reports. In Colorado, a baker refused to sell a wedding cake to a gay couple; he was found guilty of discrimination and has appealed the decision.
If we were only looking at isolated cases of a business practicing discrimination, I would have mixed feelings on cases such as this in terms of the role of government. I certainly object to the actions of businesses which refuse discriminate against blacks or gays, and I consider both comparable forms of discrimination.
However the libertarian part of me wonders to what degree someone has the right to decide who they will associate with and do business with, regardless of whether I (and hopefully most others) find their decisions objectionable. I will sometimes refuse to see a patient who repeatedly behaves inappropriately in the office, is non-compliant with treatment recommendations, or is violating policies related to use of controlled substances. That is far different than refusing to see someone based upon race or sexual preference, which I would find totally unjustified. However where do we draw the line for the decisions of others? Plus it is less meaningful to refuse to sell a wedding case than to refuse to allow someone in a medical practice.
In the case of civil rights legislation in the south, the need for government action was clear. Widespread policies turned a group of people into second class citizens and the government had a necessary role in remedying the situation, countering the libertarian position of keeping government out of the decisions of business owners. However, if an isolated restaurant, baker, or photographer discriminates against a group (either blacks or gays) the best thing might simply be for decent people to take their business elsewhere.
It is a different matter when the state goes the other direction to protect the right of people to discriminate. I might have mixed feelings regarding cases such as an individual baker (assuming there are other bakers available). The role of government goes beyond coercive laws. While it is too often not the case, in a society based upon self-government we should be able to look towards our legislative bodies to promote our better selves, not to promote discrimination. There is no question that state laws to “protect” this form of discrimination send the wrong message and will lead to such discrimination becoming more widespread, and this must be avoided.
On a related note, a federal judge has struck down a Kentucky ban on recognition of gay marriages from other states, saying it violates the U.S. Constitution’s guarantee of equal protection under the law.
Cross posted from Liberal Values