Thursday, April 02, 2015


Here is a quote from the New York Times:

"It seemed like routine business for the student council at the University of California, Los Angeles: confirming the nomination of Rachel Beyda, a second-year economics major who wants to be a lawyer someday, to the council’s Judicial Board. Until it came time for questions. 'Given that you are a Jewish student and very active in the Jewish community,' Fabienne Roth, a member of the Undergraduate Students Association Council, began, looking at Ms. Beyda at the other end of the room, 'how do you see yourself being able to maintain an unbiased view?'

...The council, in a meeting that took place on Feb. 10, voted first to reject Ms. Beyda’s nomination, with four members against her. Then, at the prodding of a faculty adviser there who pointed out that belonging to Jewish organizations was not a conflict of interest, the students revisited the question and unanimously put her on the board...Reports of anti-Israeli or anti-Jewish sentiment have been on the rise across the country in recent years, especially directed at younger Jews, researchers said." [NYT] 

Yikes! For some reason, many people have come to believe that disagreement is cause for shunning and economic boycott. If A dislikes the policies of country or state I, then A is justified in punishing people who sympathize with I. (Note that "I" could be Israel or Indiana).

Suppose some guy comes into your store wearing a "I heart Indiana" hoodie.  You are gay, or have gay friends.  Do you have to serve him?  After all, you don't like what he stands for.  And...and...well, it's YOUR STORE.  Do you really have to validate this person?  Kick 'em out; he's intolerant.

But the meaning of "tolerance" is respectful treatment of people you disagree with, or hate. And tolerance is required of citizens in a democracy.

The hard problem: How tolerant should we be of other people we perceive (and that we have good reason to perceive, at least in our perception) as intolerant? (Referring now to the Indiana law, of course). Is it legitimate for a corporation to refuse to sell to people from Indiana, given that Indiana is intolerant of same sex couples?

Here is an article from three years ago from Wake Forest Law Review. It gives quite a bit of detail, but comes out against the constitutionality of laws such as those in Indiana.

And here is an even better (IMHO) law review article (from almost 50 years ago, when we were having an analogous argument about black folks) about common carriers and public accomodations. It is quite detailed, and historically useful.

Excerpt from the latter:

Under English common law, it was the duty of common carriers to serve all persons without imposing unreasonable conditions. 

The English courts considered that "a person [who] holds himself out to carry goods for everyone as a business . .. is a common carrier," ' and that any member of the public may create a contract with the carrier by accepting its general offer.  

(Garton v.  Bristol & Exeter Ry.  Co., 1 B.  & S.  112, 121 Eng.  Rep.  656 (1861). See generally, Kline, Origin of the Rule Against.  Unjust Discrimination, 66 U.  PA.  L.  Revd.  123  (1918)  ;  Kline,  Scope  of  the  Rule  Against  Unjust  Dis- crimination  by  Public  Servants,  67  U.  PA.  L.  Ray.  109 (1919). 7 Ingate v.  Christie, 3 Car.  & K.  61, 175 Eng.  Rep.  463, 464 (1850). S Denton v.  Great Northern Ry.  Co., 5 El.  & Bl.  860, 119 Eng.  Rep.  701 (1856))


ConnGator said...

Could I, as the owner of a store selling bespoke widgets, state that I am NOT a "common carrier", but instead run a private, invitation-only store?

This would allow me to avoid selling to despicable redheads, correct?

Anonymous said...

Yes but...we, in the new age conformist world are NOT allowed to "state" anything.

See you in court...

JWO said...

I think most vendors under jim crow wanted to serve all comers but could not. Most vendors today want to server all comers and can.

Tom said...

I wish you hadn't said it. In the sixth paragraph: "...given that Indiana is intolerant of same sex couples." Yes, yes you were trying to make a hypothetical. But framing the issue in such a way begs the question.

The lefty hoard would LIKE to focus on the supposed intolerance of the Christian Memories Pizza folks. But the question could just as easily be whether the Protected Class (gays in this case) can use the force of law to compel others (a "common carrier") to participate in something that the later finds abhorrent. Just who is being intolerant if threats are used to make the pizza people meekly serve in an activity that they believe is wrong?

It's so much worse when it becomes clear that the so-called anti-discrimiation laws (aka anti-freedom of association laws) are totally unnecessary. What happened when Memories Pizza injudiciously said they would not serve gays? The internet devoured them! Memories Pizza owners closed up and went into hiding in less than five days. (Lately, the same internet ponied up $53K for them too.)

It's the use of statute and state power to force everyone into the same mold that creates the heat in the debate over which side is being intolerant of the other intolerant side. Persuasion and the pressure of public shaming are sufficient when an idea's time has come. And no statute can do more that break a society apart if its idea has not yet matured.

L R said...

Come on man. The Indiana law was not put together to allow anti-gay discrimination. Here's an article by a law prof. explaining the issue in detail.

As other commenters have pointed out, the high school textbook version of Jim Crow is just a bunch of crap.

John Thacker said...

Hmm, the article in the Wake Forest Law Review does not support the claim that laws like the one in Indiana are unconstitutional. All the law does is create a claim; a balancing test controls. It merely claims that where such a claim comes into conflict with nondiscrimination laws, the nondiscrimination law will trump. That is indeed what has happened in all the cases where RFRAs have been tested, as Douglas Laycock of UVa has noted.

In Indiana's case, however, the more important point is that sexual orientation is not in its nondiscrimination law. (Even so, surely its treatment is more equal than those states that do not allow same-sex marriage.)

John Thacker said...

After all, RFRAs also apply in a great number of cases where there is no opposing nondiscrimination claim; the laws themselves cannot be unconstitutional for that reason, since they never claim to trump nondiscrimination laws. They only state that there is an interest that can be defeated by any sufficiently compelling state interest, which nondiscrimination laws have always been held to meet.

Ron said...

Why does the author of this post refer to gays as a protected class. My understanding is that in Indiana they are not. This would seem to be a key point to get right in this discussion.

John Thacker said...

So does that common law tradition distinguish between a business open at regular hours (where the one pizzeria promised to serve all customers) and the same business being asked to cater an event?

Indiana is, of course, not as intolerant of same-sex couples as Kentucky and other states. Is it appropriate for people from other countries to boycott the US because we don't ban hate speech or publishing Mein Kampf?

JWO said...

What if a non-religious photographer has no problem with homosexuality and gay marriage as long as he does not have to see two guys kissing holding hands whatever because he finds that disgusting. Should he be forced to photograph, gay weddings at the same rate as other weddings?

VangelV said...

I believe that there is confusion about the Indiana issue.

First, the Indiana Religious Freedom Restoration Act clarifies the federal Religious Freedom Restoration Act of 1993 and is similar to laws passed in more than a dozen other states. The Justice Department and federal courts have accepted the position that RFRA can be used as a defence in private suits that involving laws that involve burdens imposed on the free exercise of religion.

Second, the English common law ruling involves discrimination by a public utility and SHOULD apply to all government services or services by government protected monopolies.

Third, the big issue is the free use of personal property. If examined through that lens not only is there no problem with the clarification in the Act but no need for the Act at all.

Forth, it is ironic that the gay community is using the very police and court powers that progressives used against its members up until the 1970s. How is it wrong for the courts to jail gays for what is voluntary association but right for the same courts to prosecute people who refuse to engage in certain activities that they do not agree with? How is it that the courts can put in jail people for what they choose not to do in what is supposed to be a free country?