EAllusion wrote: I think people's right to freedom of association Trump's the social good derived from restricting people's desire to discriminate on their private property in certain ways. I do not view private businesses as public spaces in the way the rationale for these law contend. I think a restaurant should be allowed not to serve gays for the same reason I think you should be allowed to not allow gays in your house.
(My underline) Typically, people don't have a house for the express purpose of conducting arm's-length business transactions with random strangers. So the only way "for the same reason" would avoid being a non sequitur here--since people don't have private residences and businesses open to the public for the same reason--would be to assert that the 5th and 14th Amendments, and social and economic policy generally, should treat all property the same just because it's property, regardless of how it is used and without considering whether there is an inverse relationship between how much you open up your property to the public and how much of a reasonable expectation of privacy you have.
When you hold yourself out as open for business with the general public, you have made a freedom of association choice. You have chosen to associate with the general public, albeit not with any particular individual from the general public. What you're saying here means you want it both ways: you want the benefit of holding one's self out as servicing the public in general, without the trade-off of...servicing the public in general. If you (rhetorical "you," not you personally) want to preserve your freedom of association, then you have the option of holding yourself out as a private club or business that only serves select members of the public. That would restrict your potential customer base and hence potential revenue, but rhetorical you didn't want to service them anyway, remember?
And I mentioned economic policy above because
I do think consumer behavior is largely up to the task of creating a relatively non-discriminatory environment, and changes in the law tend to lag shifts in societal attitudes.
Of course, then we must ask whether societal attitudes prevent that consumer behavior from reaching critical mass in the first place. See, because if that really happened on its own in discernible reality, then not only would public accommodations laws never have come around to begin with (since there would be no discrimination to prevent), we wouldn't need equal employment laws, either. Women have have had the right to vote for a long time, and have had the same right to employment, professional licensing, etc. as men for many decades now, too. We even have female heads of state in other countries, a female Democratic presidential candidate, female members of Congress, female Supreme Court justices, female state governors, etc., etc. Yet nationwide, women continue to make a fraction of what men make for comparable work. Go figure, huh? It's almost like experience doesn't bear out the hope that the marketplace will self-correct against discrimination.
In instances where a person faces lack of access to a desired service, I view that as an unfortunate cost of the greater good of liberty. A woman who is 50 miles into racist territory without a hotel to stay at might as well be 50 miles where no hotel exists.
Well, the problem with framing the issue this way is that you're assuming this is a harm that only affects this individual. And the federal government empirically determined that's not the case when debating the Civil Rights Act. The lack of access to desired services means the affected class is not going to travel as much, or at least not to that area, is not going to spend money there, is not going to accept jobs there. And they probably won't be offered jobs there in the first place.
This harms the economy in two primary ways: it arbitrarily takes dollars out of the market because people are either not going to be able to spend money where they're not welcome or actively choose not to, and it arbitrarily takes talent out of the marketplace and the productivity that goes with it. While you might debate whether criminalizing marijuana or the Brady Bill were valid exercises of the Commerce Clause, in the case of public accommodations, discrimination really does negatively impact commerce. The Supreme Court talked about this measurable harm when it ruled that the Civil Rights Act was constitutional:
Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 252-53 (1964)While the Act, as adopted, carried no congressional findings, the record of its passage through each house is replete with evidence of the burdens that discrimination by race or color places upon interstate commerce. See Hearings before Senate Committee on Commerce on S. 1732, 88th Cong., 1st Sess.; S.Rep. No. 872, supra; Hearings before Senate Committee on the Judiciary on S. 1731, 88th Cong., 1st Sess.; Hearings before House Subcommittee No. 5 of the Committee on the Judiciary on miscellaneous proposals regarding Civil Rights, 88th Cong., 1st Sess., ser. 4; H.R.Rep. No. 914, supra. This testimony included the fact that our people have become increasingly mobile, with millions of people of all races traveling from State to State; that Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same; that often they have been unable to obtain accommodations, and have had to call upon friends to put them up overnight, S.Rep. No. 872, supra, at 14-22, and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook which was itself "dramatic testimony to the difficulties" Negroes encounter in travel. Senate Commerce Committee Hearings, supra, at 692-694. These exclusionary practices were found to be nationwide, the Under Secretary of Commerce testifying that there is "no question that this discrimination in the North still exists to a large degree" and in the West and Midwest as well. Id. at 735, 744. This testimony indicated a qualitative, as well as quantitative, effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler's pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community. Id. at 744. This was the conclusion not only of the Under Secretary of Commerce, but also of the Administrator of the Federal Aviation Agency, who wrote the Chairman of the Senate Commerce Committee that it was his "belief that air commerce is adversely affected by the denial to a substantial segment of the traveling public of adequate and desegregated public accommodations."I'm not quite sure why it's a truism of human nature that you can't maintain individual freedom, or even democracy itself, through pure democracy, and yet human nature fundamentally changes as needed so that you can maintain a free marketplace by faith that not only will leaving the market to its own devices keep the market actually free to all comers, it will adopt virtue and social justice in the process, hundreds of years of historical evidence to the contrary notwithstanding. Perhaps it's the rich tradition of empiricism and reliance on verifiable data advocated by Von Mises and others that would answer it.
