Should I Just Give Up Expecting Consistency in Public Discourse

I generally have refused to even participate in the debate over Indiana's RFRA because most of the discourse is so incredibly ill-informed that it is impossible to have a serious discussion.  But I would like to make one observation:

Here is Ruth Marcus with as good a proxy for the anti-RFRA position as I can find:

Hold whatever religious views you want: about whether women should drive, or the morality of having children out of wedlock, or whatever. Your church gets to choose (and enforce its rules). You can practice whatever your church may preach. But if you operate a business, you shouldn’t be allowed to discriminate against people based on who they are, or whom they love.

OK, that is clear enough -- if you have a business that serves the public, you must accommodate all the public equally.  You can't decide not to do business with some group of people.  But this leaves me with a question -- many of the opponents of Indiana's RFRA, from Apple Computer to the NY Times editorial page to the governor of Connecticut (which has its own RFRA, lol) called for businesses to boycott the citizens of Indiana.  Why isn't such a boycott, essentially a refusal to do business with anyone from the state of Indiana irrespective of his or her position on the RFRA, illegal/immoral under exactly Marcus's logic?  Most folks see boycotts as an important first amendment right, a way to express displeasure with a group using the power of markets, without government coersion.  But it seems to be proscribed by Marcus's definition.   Am I missing something here?

I suppose supporters of the boycott would argue that it is OK to refuse business based on political opinions but not on race or gender or sexual orientation.  But supporting the legality of gay marriage is a political opinion.  Now what?

Try as I might, I can only think of two internally consistent positions on this issue:  1.  Businesses have the freedom to accommodate whomever they want; or 2.  All businesses, perhaps as a part of the state business license requirements, must accommodate all comers no matter what.  Number one leads to some ugly, but probably rare, incidents.  Number two causes a lot of friction with other first amendment rights such as speech and religion.

Any other position must take the form of "it is legal to refuse accommodation based on some things but illegal to refuse accommodation based on other things."  There is no way to derive a dividing line between the two based on first principles, so the line becomes a political football, with no viewpoint neutrality.   Basically, accommodation law is whatever the politician of the moment says it is.  Unfortunately, this seems to be what most folks are advocating.

  • kidmugsy

    "if you have a business that serves the public, you must accommodate all the public equally": I'll bet that's honoured in the breach. A drunk wants to come into your cafe: must you really admit him and serve him? Why?

  • bigmaq1980

    Politics perpetuates it. It has become a wedge issue for left and right, and fits with the victimhood narrative being played.

    Would like to think that culturally we are well past the era of institutionalized discrimination of 50+ years ago, and business could (should) be free to associate as they wish.

  • Not Sure

    "OK, that is clear enough -- if you have a business that serves the public, you must accommodate all the public equally."

    If the public is free to choose which businesses to patronize based on, well- whatever, why aren't businesses free to choose who to accommodate for the same reason?

  • extremelyjaded

    Talk about internal consistency (and unbelievable hypocrisy) - why doesn't anyone take Apple to task for wanting to set up shop in Saudi Arabia where there is no religious freedom and being gay is punishable by death? Apple can take shots at Indiana, call for boycotts, etc., but it won't impact their bottom line. Taking a stand against the Saudis would be putting your money where your mouth is, not something progressives are known for.

  • Matthew Slyfield

    "Should I Just Give Up Expecting Consistency in Public Discourse"

    Yes.

  • BE17

    I think you are being a bit simplistic. If you are just selling flowers, then I would argue that you are correct,and that it is immoral to refuse to sell to someone because they are gay. But if you are being asked to "do the flowers for a wedding", then you are being asked to participate in the ceremony, and should be allowed to decline. (The florist at my daughter's wedding was responsible for the flowers and all of the other decorations, place settings, set ups for presents, the cake and so on, they were there the entire time). One should have the right to decline to participate in things one finds offensive (note that in Colorado today, we see that a bakery is allowed to decline to make anti-gay cakes).
    The degree of participation is the key here. Selling brownies to gays implies no commitment to them or their agenda. But participation in a wedding ceremony does.

  • Burt Taoist

    Starting from zero - what is the exchange of goods and services anyway? Until the invention of script it was all barter all the time between two parties for mutual benefit (putting aside the taxman). Moving to a cash economy does not change the mutual interest behind any transaction (though an authoritarian government will).

    (jumping ahead a bit here)

    I am not aware of any controversial scenarios that are simple cash and carry transactions, they all seem to be be situations where some poor 'oppressed' person(s) try to get an order filled and was declined for whatever/however bigoted reasons.

    In a normal world it would the customer who holds the power and can arbitrarily refuse to place an order with anybody they want or place the order with who they want. It would normally be those wishing to provide the goods/services looking for the work and bending to the will of their customer.

    It seems to me that there are few who believe it is just to force some to work for / contract with others.

  • Burt Taoist

    ...something about forcing one party into a contract with another too...

  • mx

    "2. All businesses, perhaps as a part of the state business license requirements, must accommodate all comers no matter what."

    But you're setting up a straw man here, because that's obviously impractical. A law office need not accommodate a visitor who insists on having his teeth cleaned there nor must one of your campgrounds accommodate a guest who starts to construct a mansion on his rented campsite.

    Rather, there is a third option: businesses have the freedom to accommodate whomever they want, except they may not refuse service on the basis of membership in a protected class.

  • Not Sure

    "Selling brownies to gays implies no commitment to them or their agenda."

    So what? Why doesn't the buyer just buy from a seller who's willing to sell to them?

  • Not Sure

    "Rather, there is a third option: businesses have the freedom to accommodate whomever they want, except they may not refuse service on the basis of membership in a protected class."
    Why the exception? The customer is under no such obligation, so why is the business?

  • Not Sure

    "Rather, there is a third option: businesses have the freedom to accommodate whomever they want, except they may not refuse service on the basis of membership in a protected class."

    So, by advocating for a law that would force such businesses to serve customers they'd choose not to otherwise, you are helping those businesses stay in business by keeping their "customer-unfriendly" attitudes hidden from the public. Seems to be an odd choice, if one is concerned about the unfairness of it all.

  • secular absolutist

    As a former retail store owner, I reserved the right to refuse service to anyone with no need to answer why. No means no. I see this as a first amendment issue.

    This expression is not made in a vacuum and may indeed carry consequences. Refuse service to the wrong crowd, business failure may follow. Because Streisand effect.

  • mlhouse

    I believe that there is a distinct difference between public accommodation and personal service.

    Lets use the baker as an example. If you have a bakery and you have chocolate cookies under the counter that you sell to the public, that is a public accommodation. If someone comes into your facility and wants to buy the cookies you must serve them and serve them equally.

    But, once the tray of cookies runs out it is no longer a public accommodation. No one can come into your bakery and demand that you supply more cookies. At the same time, the baker holds complete discretion for who they could potentially supply more. Maybe the baker would only supply additional cookies to friends and family. Of very good, long time customers they know. Or maybe just very attractive people. Or maybe just whites. Who knows. But there is nothing that any private citizen or the state can do to compel that baker to make more cookies. Nothing.

    And the same holds true for other personal service contract issues. A person supplying the service can refuse to provide that service for any reason they wish, even if it is "bigoted". They have the right in their own conduct to be "bigots".

    Listen, this is an entirely manufactured issue driven by the PC zealots in this country. It is idiotic to want to force someone to do these personal services against their will. Why have an Evangelical Christian who opposes gay marriage snapping pictures at your wedding? And why make a big stink about it. Lastly, these PC Zealots are only interested in attacking Christians on this issue. Go to a Muslim bakery in Dearborn, MI. Steve Crowder did a video series of being turned down from Muslims for requesting a cake for a gay wedding. I am sure that is just a ok though!

  • poitsplace .

    I had a similar conversation with some very liberal friends a while back when they were gleefully talking about people organizing a boycott of Rush Limbaugh's sponsors. Even after pointing it out, they never questioned the morality (or good sense) of a systematic attack on advertisers in order to silence a man they disagreed with on a show that they themselves never watched.

  • Seekingfactsforsanity

    Hold whatever sexual morals
    you want: about whether men should have as many wives as they want, or the
    morality of having children out of wedlock, or whether two men who love each
    other through anal sex should be given the honor and sanctity of a traditional
    marriage. You, your partners, and your
    friends can practice whatever your morality allows. But you should not be able to demand that all
    people who provide products and services ignore their sexual morals, or demand
    that they support or encourage your sexual morals just because of whom you are
    and whom you love.

  • wreckinball

    I agree that inconsistency seems OK with the politicians and most of the public. Apparently right now you have to accommodate folks based on being black, female or gay. Note that that I didn't write race, gender and orientation because the accommodating does not have to be in reverse. The black and female accommodating has been in vogue for awhile.Now add orientation (i.e. gay) as being in vogue.
    I tend to agree with your number 1, businesses have free will on who they associate with. Its always been the best policy and businesses generally want to accommodate because they wish to make money. Turning away black folks for example is never going to be very popular. The soup Nazi was a mythical character who could not survive in real life.

  • http://web.elastic.org/~fche/ Frank Ch. Eigler

    "I believe that there is a distinct difference between public accommodation and personal service."

    (Not much of a principled one. Even in your case, the "public accommodation" scenario goes into personal service, should the baker want to hold some of the products for her favourite customers.)

  • Craig Loehle

    I think BE17 nails it. It is when providing a service that the current politics wants to force people to participate in things abhorrent to them. Abortion being legal is one thing, forcing doctors to do them is not equivalent. Do you think we should force caterers, a minister, and a DJ to participate in a nudist wedding? How about a caterer asked to participate in a KKK rally? Oh, I see, those are not protected classes.

  • DerKase

    "if you have a business that serves the public, you must accommodate all the public equally"

    I would like to see this applied in the music industry. Every election, some Republican plays a popular song as his entrance music, then the artist gets all up in arms because he doesn't wish to be associated with the oppressive party and demands the candidate stop using his music.

    Musicians serve the public. Let the candidate buy playing rights to the music and play it all he wants at political events. The artist should not be able to refuse to sell.

  • mlhouse

    1. You are extending the example to a different issue, which is typical of the counter-arguments thrown out there.

    2. The "hold back" is a public accommodation. In such a case how it should be resolved is ambiguous. If the hold back is for a business reason, such as for your consistent and loyal customers then it is clearly proper conduct. If the hold back is because you don't want to serve white customers in the afternoons, then it is a really strange practice and probably discriminatory.

    3. But, in the original example unless you believe there is some way or power to compel a baker to make more cookies then it demonstrates the line between public accommodation and personal service.

    4. One of the main problems with these types of issues is the total inconsistency in its application. It is apparently offensive to do this when the victim is one group and the "perp" is another. But change the victims or perpetrator, who cares any more.

  • http://web.elastic.org/~fche/ Frank Ch. Eigler

    "1. You are extending the example to a different issue,"

    It's a counterexample to your proposed "distinct difference", which you admit is ambiguous in 2: guilt or innocence based upon one's internal emotional state for doing [no] business --- whither, freedom of thought?

  • Jon Murphy

    I used to use this same argument ("Why isn't such a boycott, essentially a refusal to do business with anyone from the state of Indiana irrespective of his or her position on the RFRA, illegal/immoral under exactly Marcus's logic"), but after reading a piece by Mike Munger (http://bleedingheartlibertarians.com/2015/04/indiana/), I'm not so sure I agree.

    If a business is open to the public, and they have published prices for their general goods/services, that is essentially an implied contract. The business is saying "I offer to sell you these goods at this price." The impetus is upon the buyer whether or not to accept the offer. If we look at it from this viewpoint, then a boycott is just refusing to accept the given offer, whereas the actions of the business are a refusal to honor an implied contract. Or, at least, to offer a restrictive contract ("I offer to sell these goods to people who meet certain criteria,").

    To be honest, I'm no longer sure where I stand on this issue.

  • morgan.c.frank

    your entire argument is assumptive.

    "Lets use the baker as an example. If you have a bakery and you have
    chocolate cookies under the counter that you sell to the public, that is
    a public accommodation. If someone comes into your facility and wants
    to buy the cookies you must serve them and serve them equally."

    you simply assume this. yet it is not true nor is it consistent with self determination or the freedom of association. it's also clearly contradicted by law.

    why must i serve them equally? somehow, having a business abrogates my right to free association?

    how about "no shirt, no service?"

    how about doormen at clubs choosing who to admit or a hostess at allowing some to jump the line?

    this is freedom of association. it's that simple.

    having a business ought not take away your rights. they are rights, not privileges granted by government fiat.

    the distinction you draw between "public accommodation" and "personal service" is arbitrary, capricious, and ultimately meaningless.

  • mlhouse

    Sorry, but the Civil Rights laws means your claims are incorrect. If you are a public accommodation such as a restaurant, retail store then the freedom of "association" is limited because of these civil rights laws.

    THere isn't a "right", including the right of association, that cannot be infringed. In this situation, the state demonstrated compelling reasons, segregation and discrimination, to infringe upon the rights in these specific situations: public accommofations. You cannot refuse to serve whites or blacks or hispanics. YOu cannot demand that whites sit in one area of your restaurant and blacks in another.

    THe line between what is a public accommodation and public service is being diminished every day, and idiotic rants like yours only pushes it away from where they should be.

  • Milton

    Your argument is not in line with actual contract law.

    "If a business is open to the public, and they have published prices for their general goods/services, that is essentially an implied contract. The business is saying "I offer to sell you these goods at this price.""

    That is not accurate. To illustrate: say I see a sign that says 12 pack of soda for 4 bucks. I walk into the store and say I accept your offer. The storeowner says sorry we're all out. Do I have a breach of contract claim? Can I compel specific performance and force the owner to buy more soda? Of course not. In contract law, an advertisement is merely an invitation to offer. When i give the cash to the storeowner for the soda, that is the offer. When he accepts the cash, that is the acceptance and we have a contract. Also, most of the RFRA arguments have been focused on catering situations, where each contract is probably negotiated on its own, and there are no published prices anyway.

  • Jon Murphy

    Hello Milton,
    I agree this doesn't work with catering as catering is a highly individualized service. Even if my comment is correct (and I am perfectly willing to concede it could not be), it wouldn't/couldn't be applied to catering and other services (like lawyering, consulting, etc).

  • Peter

    Wasn't it the government pushing banks to do business with customers the banks didn't want (because they couldn't afford to pay) that caused our latest financial fiasco. We have already said banks can't say no to those who can't pay and now you can't say no based on religious convictions how many steps are we from directive 10-289. Ayn Rand is proving to be a better predictor of the future than Nostradamus.
    By the way when does the reverse apply. When do gay caterers and photographers start complaining that they are not getting the business that they "should" and charge the religious for discriminating against their businesses?
    The proper solution for this is for the gay community and their supporters to boycott businesses that are discriminating against them.

  • donald

    I am not sure about a double standard or just a different standard for different things. I do believe that there is a difference between artistry / specialized service and a durable good or basic service. I think if a company services cars, $49.95 for a brake job, then they should have to fix the brakes for all people with the cash to pay during open hours. Gay straight white black whatever. If you're selling twinkies at 1 buck a pack, then everyone must be allowed to buy them at 1 buck a pack.
    But other services and things that may delve into artistry is different in my mind. If you do photography, can you be forced, not only to take lewd photos of bride, but to also have your company emblem on them like most photography people do? If you hire a singer for your wedding, can you force them to sing your special hate song, and then also post you tube videos of the band singing a lovely ballad about beating people? I think that there comes a time where a service or good in the form of a painting, cake, etc. also reflects the maker of that piece/product. And they should have control over their branding so to speak.
    Nobody should be able to move or shape my creative direction without my consent. if I don't want to paint a KKK rally that moves a person to feel wonderful about the KKK, then I shouldn't have to. If I don't want to paint Jesus in a good light, then I shouldn't have to. What I feel is, that the same liberals that normally would jump to the defense of an artist being (in this world of hypothetical arguments) forced commissioned to do good Jesus paintings, jumps all over a person asked to potentially photograph gay weddings or make a gay cake, whatever that is. Why protect one person from being forced to do one thing but not protect another?
    Where I am having trouble with is where does the standard begin and end for artistry versus selling bread or doing wheel alignments. When do I have control over my image and branding? not talking about my religious feelings. I may not want to be associated with the David Duke campaign. So I surely would not want to be forced into doing the graphic art for his campaign posters. But perhaps there is a huge market for KKK posters and I could be the go to guy. But in the end that should be my choice. Not forced into by law. Besides. to go way off the mark, can you force a vegan restaurant to cook you a steak? hypothetically of course.

  • joshv

    "But supporting the legality of gay marriage is a political opinion."

    There's were you are wrong, or at least where they'd tell you you are wrong. The legality of gay marriage is a right, and a moral imperative, no mere political opinion, or at least that's what my liberal friends would tell you.

  • Nehemiah

    Wow, even Coyote will compromise Libertarian principle to accommodate so called same sex marriage. It isn't like there aren't bakers, florists and photographers happy to take the contract for a gay wedding. Instead, hammer someone of faith to beat down the entire concept of the free practice of one's religion.

    If I were a baker I'd take the job and tell the "couple" that the proceeds they pay me are going to a ministry that provides consulting for young people who are confused about same sex attraction.

  • Burt Taoist

    'Course one could take the order with the explicit intent to broker the job and find someone else to fill it (i.e.: sell the contract to a third party) at a mere 25% premium above what it would cost to fill it in-house.

  • alex

    why can't there be more nuanced position? Why does it only have to be first principle? We're more evolved than that. Someone can have the consistent position that you can only associate with people that are accepting of others. Sure you can say that I'm not accepting of people that are not accepting. But that's the exception. You can still be consistent with this. Another example I'm sure you'd agree with: it's not okay to do harm to people unless they're doing harm to you. See? an exception. It's still a consistent position.

  • tfowler

    His claim of rights was apparently a claim about natural rights, as such the Civil Rights laws are largely irrelevant to whether or not he was correct. The law can accept, or even mandate that your rights get violated, that doesn't mean it isn't a violation.

  • mlhouse

    Sure. Everyone has natural rights. If just you lived in the world then that would be no problem. But since I ALSO HAVE NATURAL RIGHTS, many of which conflict with your natural rights we have to at times infringe upon one of these positions.

    All government is essentially an "infringement" upon someone's natural rights. It is just a matter of deciding how, when, where and why a government may do so. The great thing about the so called religious freedom acts is that it sets the highest standards for government infringing upon personal freedoms. By dictating that court must use strict scrutiny for any infringement these laws protect individuals from encroachment of the state. Under strict scrutiny the government must show a compelling reason for any infringement and must likewise demonstrate that any such infringement is done in the least intrusive way.

    In fact, in the "gay wedding" issues prevelent in the discussion of these rights, it is the latter that essentially protects the rights of business owners the most. IN other words, it is clear that rather than go the route of compelling an individual to perform a task, even within a business setting, that is against their conscience, another remedy exist: go to another baker/photographer/florist.

  • tfowler

    There isn't a conflict of natural rights involved here. You don't have a natural right to insist that someone else does business with you.

    As point there is always the remedy of going to another baker/photographer/florist etc.

  • mlhouse

    Sure the other party has a natural right here: "THe right to be treated the same as everyone else".

    I obviously side on the "relgiious freedom" and personal freedom side of the coin, but that is because I protect that no matter how bigoted it is.

  • MB

    > All businesses, perhaps as a part of the state business license requirements, must accommodate all comers no matter what. [Which,] ...causes a lot of friction with other first amendment rights such as speech and religion.

    Good thing corporations don't have first amendment rights...or, well, shouldn't.

    > Basically, accommodation law is whatever the politician of the moment says it is.

    I think you misspelled "the people".

  • tfowler

    There is no natural right to be treated the same as anyone else.

    Such a right would go well beyond not being discriminated against based on sex, race, religion, sexual preference etc.). In practice a legal right to such a thing would be highly intrusive, totalitarian, and pretty much unenforceable. Without qualifiers (and you presented it without qualifiers), I would be able to claim based on such a "right" that some supermodel should have sex with me, because she has sex with someone else and I should be treated as the same.

    I know that's not what you meant, and probably no one would call such a thing a natural right, but there any widely recognized subset of such an idea that I would consider a natural right.

  • tfowler

    Business "have rights" because businesses are owned by, run by, and employ people, and people have rights.

  • mlhouse

    Sorry, it certainly is a natural right.

  • tfowler

    What specifically do you claim as a natural right? Obviously it can't really be "to be treated the same as anyone else. That would be a totally ridiculous claim, both utterly impractical and unjust as an idea for a natural right. Presumably its some less comprehensive idea of some sort to not be discriminated against based on certain factors, but please be specific.

  • mlhouse

    I certainly do. Just as "to be left alone" is a natural right, so is "to be treated the same as everyone else" an equivalent natural right. If you don't think so, the next time you see a line just go straight to the front of it. I think that will prove my point.

  • tfowler

    No it won't prove your point at all. "To be treated the same as everyone else", isn't just not a natural right its a ridiculous idea as a natural or legal right. People always treat people differently, and doing so often isn't even unfair let alone some violation of their rights. I gave the example of having sex with the supermodel as some sort of half joking extreme but if you really did have a right to be treated the same as everyone else then I'd have a legitimate claim. I guess also Apple has to give me hundreds of millions because that's apparently the total value of Tim Cook's compensation package. After all, isn't it my right to be treated the same as him? Also parents have to care as much about me as their kids (or at least act like they do, they don't have to actually care, just treat me as if they did). And if I commit a serious crime the cops can't lock me up, after all they didn't lock you up and I have a right to be treated the same. The whole idea is nonsense on stilts.

    Normally I wouldn't dispute someone's direct statement about their own thoughts and beliefs, but I really don't think you actually support a right to be treated the same as everyone else. I suspect that you believe that people have a natural right not to be discriminated if the only reason for different treatment is part of some limited set of things, race, sex, national origin, sexual preference, whatever.) I'd still strongly disagree with that idea, but at least it isn't crazy.

    I don't accept the idea of positive rights, like a "right to be treated the same" (or even the more common more limited ideas that many people actually accept in terms of anti-discrimination rather then a real "right to be treated the same as anyone else"). You have a right to not have someone harm you, not a right to insist they give you their property, or associate with you.

  • John Moore

    The framing is wrong. The issue is not businesses refusing service based on the identity of customers, but rather, in a very few cases, business members being required to *participate* in activities (typically, lately, gay weddings) in a way that they consider sinful - they themselves are sinning by that participation.

    You will not find a major religion that precludes service to whomever it considers "sinners" or "unclean" or whatever. Christians refusing to serve someone just because they are gay are violating Christian ethics.

    Even your "best" frame above misses this absolutely critical point. It's no wonder that nobody is able to discuss this will.

    BTW... my take: public accommodation laws have long passed the threshold of involuntary servitude. Jim Crow was about laws prohibiting businesses from serving blacks. Now we have businesses required to serve anyone for anything that person demands.

  • John Moore

    13th Amendment also.