On Government and Private Business

Monday, April 14, 2008 10:07 pm Daniel J. Summers

This past weekend during Sunday School, we briefly discussed the raid of the polygamist compound in Texas. During this discussion, one very good point was raised - those handling this situation need wisdom. Previously decided cases hold a lot of weight in the judicial realm, and while, by all accounts, what was going on at that ranch was illegal and immoral, they are claiming it is part of their religion. It is good that those people have been stopped - however, what is to stop the government from deciding that something most mainstream churches do is illegal?

That led the discussion to this story about a photographer in Albuquerque, New Mexico who refused to photograph a “commitment ceremony” between two people of the same gender. There are lots of ironies in this story, and I would expect that this decision would be quickly vacated / overturned / made null. Can you really legally force someone to photograph an event that's illegal by nature? However, if it stands, there are much more troubling questions, some of which we have already seen. In California, a Catholic-run hospital was sued for refusing to perform gender reassignment surgery, and the state has sued the US government over a provision that strips Federal funds from states that force medical practitioners to perform or refer abortions.

During the course of the discussion, I took the (somewhat unpopular) opinion that a business should have the right to refuse service to whomever the business owner wanted. (I also did that a bit strongly at one point - if you're reading this, sorry about that.) Someone asked “What if they say they're not going to serve Jews?” My reply was that, if that was their stance, the word would get out, and those who found that abhorrent would also not patronize them, and they would go out of business. (And yes, I think I did actually use the word “abhorrent” in class… heh…) In further discussions with other people, including my wife, my position continued to be unpopular. I heard things like “What about people in the South not serving blacks?” and “I just think discrimination is wrong.”

I still cannot see the government requiring a private business to serve, sell, or perform any good, service, or person that the owner does not want. Why should I invest my money and time in an enterprise if the government is going to come and mandate to me how I do it? However, by the same token, I also feel that racial discrimination is bad. However, for anyone to say, unqualified, that “discrimination” is wrong simply doesn't realize how much discrimination occurs on a day-to-day basis.

Let's imagine I'm a photographer. I don't like trying to get kids posed for a picture, so I create a policy of no more than one child per pose. That's discrimination - I am discriminating against large families (though not completely - they're just not going to get an entire family portrait from me). Maybe I don't want to photograph some people because I feel they're unattractive - do “Uglo-Americans” have a right to have me photograph them? Maybe I'm a really popular photographer, and I can't be in two places at once. I'll have to be discriminating in how I set up my schedule. There simply isn't a scenario that convinces me that the government has an overriding interest in forcing me to photograph someone I don't want to. The “right to photography” is nowhere in the Constitution.

Now - let's put the brakes on that and look at the government. While I believe that a business owner has the right to discriminate pretty much however he or she feels like, I also just as strongly believe that the government should not be in the discrimination business. Equal protection under the law should be just that - equal. Firefighters should (and do) respond just as quickly to fires in desirable neighborhoods as they do to fires in undesirable neighborhoods. Everyone should (and does) have access to their legislators, and the right to vote for the ones they think will best represent them. Everyone should have access to government-run educational facilities, with the same requirements for everyone. (OK, we need to work on that last one…) The bottom line is, government should not discriminate on anything other than merit and scarcity (i.e., we can't give everyone $1k if we don't have it).

But, in reality, this isn't the way it is; I alluded to it above regarding education. When the government starts trying to play identity games, “level the playing field,” or any other sort of tinkering, they invariably get it wrong. According to the NM government, this photographer “violated human rights” by refusing to photograph a same-sex commitment ceremony. Would the pastors of my church be guilty of the same if they refused to officiate one? In finding this photographer guilty of discrimination, the state is, in effect, discriminating against her free exercise of religion. (See? Every choice is discrimination!) This is the danger of giving the government the power to decide what's “good” discrimination versus what's “bad” discrimination.

The solution? From my view, I believe that there are very powerful forces at work in the economic marketplace. Eliminating “Jim Crow” laws was a good thing - they were a violation of the equal protection clause. Forcing state-run universities to integrate was a good thing - again, equal access to government resources. Forcing businesses to cater to those to whom they do not wish to cater? That's bad. Sure, I believe that businesses shouldn't discriminate based on race - but is it the government's place to tell them they can't? Some people think that discrimination based on gender is wrong; in fact, a few years back, there was a big kerfuffle over Augusta National not allowing women to become members. How many of those people would advocate my joining Curves? It's all perspective, and because one person's perspective may be different than another's, the government should stay out of it.

To me, this is a heart thing. Sure, you can pass a law and make people comply, but all you've done is made people upset by forcing them to do something that they didn't want to do. I believe in giving people enough rope so that they can hang themselves (figuratively speaking, of course) - if someone wants to open a racially-discriminatory business, that's their own stupidity in eliminating a big chunk of their potential customer base. If someone wants to open the “No Purple Pants Club” and refuse to admit anyone wearing purple pants - well, it's their money and time they're pouring into the business. And, if someone wants to refuse to provide their goods and services to those they find morally reprehensible, more power to 'em.

In each of these cases, one of two things will happen. One, they may flourish as a business, which will prove there was a market for their goods and services, even without the people they excluded. Two, they will fail, and learn via the “school of hard knocks” that they shouldn't restrict their pool of potential customers. Either way, the business owner gets out of his business exactly what he put into it, and I really don't have a problem with that.