One temptation for many libertarians is to simplify the complexity of life down to one principle, which they apply to every situation, no matter how forced the analogy may become. In reality, there are multiple principles libertarians have to juggle — not just one. Admittedly life would be easier — that is, take less effort — if there were just one rule that solved every problem, but that isn’t the world we live in, nor is it a world we are likely to live in.
For instance, we talk about the freedom of the individual to make sexual choices for themselves. That clearly applies to all competent adults — which is most people. But, that rule becomes a lot more nuanced the younger the person is making the decision. One libertarian argued all that matters is consent. Well, no there is more to life than that. I asked him about his young daughter and what he would do if she, as a grade school child, allowed a man to have sex with her for a piece of candy. If she consented, is that all that matters?
His response was he’d kill the man. Well, one purpose of discussing rights and the limits of human action is to prevent people from simply killing one another. Clearly he didn’t think all that mattered was his daughter’s consent, otherwise he wouldn’t have to resort to executing people without any pretense of due process. If he thought that image reassured me regarding his vision of a free society — where each individual is quite literally a law unto himself or herself, he was wrong.
Consider the conflict between freedom of association and contractual obligations. There are explicit contracts and implied contracts. If you sit down in a restaurant and order a meal, eat the meal and then walk out without paying, you are stealing a product. No, you may not have explicitly agreed to pay for the food, the contract is implied. It doesn’t matter if the meal in question is worth $10 or ¢10. Violating a contractual obligation is theft; more specifically it is theft through fraud.
Libertarians like to make the point, “there ain’t no such thing as a free lunch.” TANSTAFL, as some libertarians abbreviate the concept. Similarly, they will discuss how, in a free society, “there is a cost to discrimination.” The latter is generally true, but not always. In Nazi Germany the costs were imposed on those who weren’t bigoted toward Jews.
The American South was a hodgepodge of violence and intimidation, which was used to prevent property owners from refusing to go along with racial segregation. Businesses that wanted to treat all customers fairly were harassed, sometimes by the law, and sometimes by organized violence in the form of the Klan, which was allowed to intimidate because the Southern states were very selective in whose rights they would protect. Conservatives would scream about “states’ rights” but no state has the right to violate the life, liberty and property of its citizens, and the Southern States were violent hell holes where anyone who wasn’t a bigot risked their own life by being decent. There was NO freedom of association in the South, not matter how much conservatives and conservatarians — conservatives who hold some libertarian views or pretend to — invoke that mantra. It simply was NOT allowed.
That, unfortunately, is the nature of bigotry. Bigotry is inherently authoritarian. It is not libertarian. This is not to say that one person may hold competing and conflicting views. Someone may be a bigot and still respect the rights of others — it just isn’t common, or likely. Worse, when the wider society adopts bigotry as a general principle, intolerance turns into actions that violate rights without exception. What may be true when random individuals are juvenile bigots is not true when it becomes a general principle. Hate is imperialistic; it always seeks to spread and to act.
The Germany of the late 1800s and early 1900s was remarkably liberal and tolerant. Not only were Jews widely allowed freedom to trade, but the earliest gay rights groups — lead by libertarians like Karl-Maria Kertbeny — were also active and widespread, pushing for ideas such as individual choice. By the 1930s much of that was gone, by the 1940s liberalism was all but wiped out and replaced with a hate-inspired dictatorship that slaughtered anyone who got in the way and routinely scapegoated Jews and homosexuals for all the world’s woes.
But, in a free market, in a liberal, tolerant society, bigotry would come with a cost — in general. It all depends on whether the bigot is able to pass that cost on to innocent third parties or not.
Bigots, who dominated the American South, or apartheid South Africa, tended to use the political process in order to pass the cost of bigotry on to everyone. The bigots were unwilling to pay the full cost of their own prejudices. By requiring everyone to be prejudicial they were able to spread the cost around.
Let’s say old Hans Herman runs a shop that won’t tolerant blacks, gays, Hispanics, non-white immigrants, etc. Well, all those people — under free market theory — can go shop elsewhere, so the theory goes. (Reality is often more complex than theory allows.) Hans will pay the price for his bigotry. He doesn’t like that so he invents a theory by which he justifies excluding blacks, Hispanics and non-white immigrants from the society. Then for good measure he comes up with reasons to physically remove those terrible gays. Now, the objects of his bigotry can no longer support Mr. Herman’s competitors, putting him on equal ground with them.
He was able to pass the cost of his own small-minded hatred on to others.
To a large degree that is what the Religious Right wants today. We see fundamentalist extremists, who are authoritarian theocrats demanding “religious freedom” to discriminate against anyone they hate, while simultaneously demanding anti-discrimination laws to prevent people from discriminating on the basis of religion. There is NO debate on total freedom of association. That is not on the agenda. All conservatives are pushing for is the right to hate gays, while gays are not allowed the right to discriminate against fundamentalists. That IS the actual debate and many libertarians, who are thoughtlessly invoking “freedom of association”, are giving aid and comfort to religious conservatives demanding special privileges for themselves.
Recently a bakery took an order for a birthday cake. They promised to fill the order. But the baker, being a fundamentalist twit went to Facebook to investigate the customer. After the order was accepted for a surprise birthday party, the baker canceled the order because the customer was a lesbian. This was no wedding cake. It was a simple birthday cake, but apparently they are now inventing a new doctrine of Christianity where Jesus doesn’t want gay people to have birthdays. The surprise party was ruined because the bigoted fundamentalist canceled an order she had previously accepted.
When a contract is unilaterally violated it inflicts a cost. Either the person who violates the contract pays the cost of the other person is victimized. The cost, like the meal in the restaurant, may be large or small. In either case there is a fraudulent infliction of damage on an innocent second party.
In most of the U.S., it is quite legal for businesses to refuse to serve LGBT customers. But, it is quite rare for any business to openly invoke that right by saying, upfront — “NO GAYS ALLOWED.” Why?
Well, most businesses won’t discriminate, but some will. So why don’t they openly announce who will not be served? The reason is simple — if they keep their prejudices quiet they impose the cost of their bigotry on the innocent third party instead of on themselves.
Consider a hotel that takes a reservation from a gay couple. The couple travels to this hotel with a reservation in hand, the room is bought and paid for. But, on arrival the owner says, “We don’t want your kind. Your credit card will be refunded.” No harm? Wrong, there is still a cost inflicted on this innocent couple. The owner, by hiding their policies, engages in fraudulent transactions with most his customers. Those he hates find they don’t have a room. They may have to find another accommodation, if they can, and could easily pay a substantially higher fee to do so. They may have to go from hotel to hotel trying to find a place to stay. Some have to return home. The actual costs inflicted on them by the dishonest acceptance of a contract can actually be quite high.
In other cases, it could be low. In the case of a surgeon, it could be the cost of a life. A patent has surgery schedule and the surgeon, at the last second, says, “I don’t work on your kind.” By the time they are able to reschedule a surgery they could be dead.
Of course, there is another alternative. The bigot can openly state he’s a bigot. Then what happens? First, he can’t impose the cost on the victims of his prejudice, but he may have to pay them himself, or herself, as the case may be. Betty Bigot hates gays and won’t serve them. So, she posts a sign on the door of the Betty Bigot Bakery announcing her refusal to serve “queers, fags and other perverts.”
What happens next? Well, according to libertarian theory she’ll see a general decline in business. She’ll pay the cost of her bigotry. And, in modern America that is what will generally happen. So, the gay couple goes somewhere else. But, so do a lot of their straight friends. So do people who have gay loved ones or family members. They all start taking their business somewhere else. Betty Bigot is very unhappy. So she takes down the sign but keeps the policy in place.
Instead of openly warning her customers of her policy, she selectively inflicts it to maximize her profit — profit is more than financial gain, of course, it includes the emotional satisfaction she gets from indulging her own personal hates. Instead of paying the cost herself, she passes it on to the innocent customer who finds their order canceled at the last minute, or who suddenly has to incur new search costs as they run out to find a new baker. To avoid paying the costs of her prejudices Betty Bigot passes them on.
In addition, all those other customers, who would avoid Betty and her bakery, are, due to the deception, spending their money in a place they would otherwise avoid. Betty, by hiding her “freedom of association” denies all her non-bigoted customers their right to “freedom of association” by avoiding her. She has hidden facts from the objects of her hate, inflicting what may be large costs on them, and hidden facts from the other customers who would normally avoid her. By passing on the costs of her prejudice to unwitting individuals, Betty redistributes wealth to herself at the expense of others.
I’ve always felt competitive businesses should be free to associate as they wish, but I don’t think they should be able to do so deceptively, that is by inflicting costs onto innocent people. Take what you want, but pay the price, don’t inflict the costs on others. Now, there are exceptions where the market is distorted by crony capitalism. For instance, a monopolistic electric company can’t have the right to only sell electricity to whites, while competition is forbidden. Ditto for monopoly hospitals where supply is restricted by government edict. But, bakeries are a different matter, as are grocery stores and the like.
There was a time when bigoted businesses were open about their prejudices, including the infamous “No Irish Allowed” signs of older times. Those signs disappeared as bigotry fell out of favor, so now the bigots attempt to secure the same sort of one-sided benefits by selectively hiding their prejudices. That maximizes the costs on those they hate, and inflicts unacceptable costs on all the customers who’d leave the business if they only knew the honest truth about it.
I’d be happy to abolish the discrimination laws, if bigots had to openly warn the objects of their hatred what would happen if they went into that business. Give the victims fair warning and then pay the costs. That won’t happen.
The conservatives want to keep the laws as they are; they just want exceptions so they can indulge in their own prejudices. That isn’t libertarianism and libertarians should stop giving them aid and comfort. Demand from them full repeal, but honesty in business, where prejudices are explained so innocent people don’t pay the costs. But, that’s not what the Religious Right wants and it isn’t going to happen.