In Defense of (the Freedom of) Discrimination
By Barry Loberfeld
Imagine a man with a thick down-home accent arguing in 1964 that the “public accommodations” (Newspeak-to-English: private property) clause of the Civil Rights Act would eventually mean that homosexuals could force unwilling people to provide them with any services they demand. The New York Times and other organs of the prevailing “liberalism” would have derided such a projection as the most preposterous pronouncement one could expect from “opponents of civil rights.” Yet half a century later, that is exactly the case. Ideas indeed have consequences, just as implications involve commitments.
The current derision of Indiana’s Religious Freedom Restoration Act reveals the popular belief among today’s “progressives” that Jim Crow consisted of all people rejecting those of other races in a free market of social relationships. For instance, blacks and whites never paired up because they all chose exclusion—not because of anti-miscegenation laws. Evidently we are to conclude that total racial separation is what you get when you allow people total capitalist freedom.
Progressives are entitled to their own opinions, but not to their own historical rewrite. In a REASON magazine review of David W. Southern’s The Progressive Era and Race: Reform and Reaction, 1900–1917, Damon Root notes the economic regulations that comprised Jim Crow:
Take the Supreme Court’s notorious decision in Plessy v. Ferguson (1896), a case that has rightly come to symbolize the South’s Jim Crow regime. In Plessy, the Court considered a Louisiana statute forbidding railroads from selling first-class tickets to blacks, a clear violation of economic liberty. In its 7–1 ruling, the Court upheld [government-imposed] segregation in public accommodations so long as “separate but equal” facilities were provided for each race, setting off an orgy of legislation throughout the old Confederacy. South Carolina, for example, segregated trains two years after Plessy. Streetcars followed in 1905, train depots and restaurants in 1906, textile plants in 1915–16, circuses in 1917, pool halls in 1924, and beaches in 1934.
Root acknowledges that without such regulations a business could still have chosen to exclude blacks. However:
[I]n a market free from Jim Crow regulations, other businesses would have welcomed blacks, or at least black dollars, forcing racist enterprises to bear the full cost of excluding or mistreating all those potential paying customers. (This was one of the chief reasons the segregationists pushed for those laws in the first place.) The state, in the eloquent words of the historian C. Vann Woodward, granted “free rein and the majesty of the law to mass aggressions that might otherwise have been curbed, blunted, or deflected.”
Too obviously, the affinity of racism and state coercion is not something that today’s statists wish to confront. If I may be indulged a (loooong) self-quotation:
We must point out that “discrimination” originally referred to the bias not of individuals in their private dealings, but of government in its defense of the life, liberty, and property of all people (in other words: political equality). That’s because Jim Crow was not a social custom, but a political system. Here we come to the reality that the Left cannot face. Ever since the Sixties, the Left has spun the line that racism is the outgrowth of “capitalism.” Without government controls, bigotry will germinate from every square inch of the open society. However, it is a theory of racism that is falsified by the practice of racism. Almost without exception, the history of racism is a history of statism, i.e., of government imposition of racism on society. From the Old South to Nazi Germany to apartheid-era South Africa, it is government that (directly or through indifference) murders people because of their race, establishes segregated economic and cultural institutions, criminalizes interracial sexuality and marriage, and in general is responsible for almost every image that comes to mind when we speak of racism. If bigotry is the natural reflex of the social masses, why have racists always had to turn to the State to keep people of different races from teaching each other, hiring each other, marrying each other, and basically living together as members of the same society? Indeed, if there is an organic relationship between racism and capitalism, then history’s greatest racist should also have been its greatest capitalist. Our textbooks would record how Adolf Hitler and his National Capitalist Party created the ultimate racist regime by implementing completely the libertarian free-market agenda: an unregulated economy, freedom of expression, freedom of sexuality, private education, open borders, equality before the law, anti-militarism, etc. Of course, actual National Socialist policy was the polar opposite on every point. Hitler chose totalitarian socialism (that is, total socialism) as the means to his racist end because he understood what every other racist has always understood: that mass bigotry is “socialist,” not capitalist—statist, not societal—in nature. Our anti-discrimination laws were not a response to a history of market bias, but a deduction from the tenets of Leftist dogma, which now seeks to redeem the ideology of statism by placing the blame for bigotry on the American people. Thus, when a Michael Eric Dyson preaches that racism is “America’s original sin,” we must remember that the vision of a virtuous elite taking control of a villainous society that the Left brings to this issue, is the vision that the Left brings (and has always brought) to every issue.
And that is what has brought us to the fear that if today we allow a Christian florist to “discriminate” against a same-sex couple, tomorrow we’ll wake up in Bull Connor’s Dixie—or at least a society in which all homosexuals are denied access to flowers. (Almost invariably, these apocalyptic predictions have been followed by reports of mass resistance, from the streets to Corporate America, to the idea of bias against gays.)
Today’s statists wish to compensate for Progressive Era racist regulation by instituting “anti-racist” regulation. That’s a big part of why progressives so vociferously defend “public education”: After forcing children into segregated state schools, they consider it an act of redemption to force them into integrated state schools. (Remember busing?) Perhaps we should be thankful that they haven’t (yet) sought to atone for anti-miscegenation laws by now mandating interracial copulation (although we grant that at that point the feminists would object to regulation, just as they do for the abortion industry). Could we imagine the reaction of these leftists if it were suggested that the criminalization of religion under Bolshevism necessitated the establishment of an Orthodox theocracy? They simply cannot face that their position is the nothing better than a mirror image of the segregationists’. A government that persecuted people who wanted to associate with those different from themselves has inverted into one that persecutes people who don’t want to. But what is “oppression” when imposed on you doesn’t become “liberation” when shifted onto others. The only remedy for the repression of any people is the institution of freedom for all people.
And freedom is the issue. The First Amendment guarantees the “right of the people peaceably to assemble.” If that phrase means anything, it’s the voluntary association of consenting adults—which is violated by the forced integration of any (nonconsenting) party. If legislating liberals’ morality now nullifies this clause, what about freedom of religion? Well, as the Left’s universal reaction to the Religious Freedom Restoration Act indicates, this freedom too must yield to “anti-discrimination” legislation (rather than vice versa, as we once might have thought). How then will freedom of speech remain sacrosanct? If we can ban “hate assembly,” why not “hate speech”?
To go from rhetoric to reality, we need only go north. Canada has demonstrated what happens to civil liberties when state punishment of a citizen’s private bigotry becomes priority No. 1. To speed straight to the intersection of religion and bias against homosexuals: The late Rev. Jerry Falwell had to edit from his sermons anything about homosexuality before submitting them to Canadian television lest he run afoul of that nation’s “hate speech” laws. That’s right: A minister could not deliver a simple sermon on personal morality for fear of government reprisal. Other social democracies have similar censorship laws—and these are the countries that our domestic progressives point to as examples for America to follow.
This development is not without its own logic. For decades now, we have seen leftists insist that “civil rights” trump “civil liberties.” That’s because these term are simply contemporary substitutes for the Left’s older distinction between socialism’s (good) “economic rights” and capitalism’s (bad) “political rights.” The former refers to a right to take other people’s property, which is hailed as “social justice”; the latter refers to a right to control one’s own resources, which Engels mocked as “sham-liberty.” As a mixed economy’s commitment to “economic rights” waxes, its commitment to political rights (such as those in the Constitution) wanes. (Canada and Western Europe are way ahead of us in demonstrating this.) For instance, when you have a right to free contraception, your employer can no longer have any right (say, of religion) to not provide it. And when you have a right to a job or any particular service, no one can deny you that. The slope is as slippery as ever.
As noted, the slide began with the Civil Rights Act of 1964’s “public accommodations” clause, which bans “discrimination” by private businesses. The liberals of that time swore up and down that mandating economic conditions would never lead to anything like quotas. Today, “affirmative action” is Democratic orthodoxy. As the example of Ward Connerly illustrates, there is no longer any possible “liberal” dissent. To change metaphors: It is the root that determines what will bloom, which is why “reparations” arose in the first place and have sprung up again in The Atlantic and on MSNBC. And censorship in the name of “civil rights” has long been supported by the Ivory Tower Left (as if we should be shocked that socialists want a free market in ideas no more than in anything else). Already many of yesterday’s Let’s-regulate-speech-the same-way-we-regulate-business “radicals” have become establishment “liberals” (e.g., Cass Sunstein, administrator of the White House Office of Information and Regulatory Affairs in the Obama administration).
To get right at that root: What exactly is someone denied when he is “discriminated” against—the services of another person? How can he have a right to something like that? Why does he, not the other person, get to control the other person’s behavior? Are we to accept that no one has a right to control himself, but everyone has a right to control everyone else? And if his right to those services is violated when he is denied them, is it also violated when he is charged for them? What is now called “civil rights”—the forced extraction of another’s labor—was in more honest times known asinvoluntary servitude.
Similarly, a job is not anyone’s to take, but an employer’s to give—on whatever terms he offers. Consider that in relation to another “civil rights” issue that liberals regard as beyond polite debate: “sexual harassment.” Isn’t it absolutely unacceptable for a man to deny a woman an economic relationship unless she provides him with a sexual relationship? I don’t know: Is it absolutely unacceptable for a woman to deny a man a sexual relationship unless he provides her with an economic relationship? If a man has reasonable cause to believe that a woman will not date him because he doesn’t have a high-end (or any) job, can he sue her for “economic harassment”? Men are no more the success objects of women than women are the sex objects of men—which is what coercion reduces people to. The concept of choice means more than just reproductive-rights-for-only-women-in-the-name-of-gender-equality. “No” is a choice that all individuals must have in all relationships.
And “No” is what a lecherous employer will get from the overwhelming number of job-seekers, along with competition from honorable employers, public shaming, and boycott. That last may be defined as the withholding of one’s resources, which is really all that the alleged crime of “discrimination” consists of. Maybe this is just a matter of pronouns: “boycott” when I do it, “discrimination” when you do it. “Freedom for me, but not for thee”—that might well be the ultimate mix of the mixed economy. Of course this mentality fails to grasp that what defends the freedom of any man is the defense of the freedom of every man. Yet as the self-styled progressive distinguishes himself from the people he characterizes (with scattershot accuracy but increasing frequency) as bigots, he finds he can no longer allow these wrongdoers to “hide behind” the rights of speech, religion, assembly, or anything else. In its essence, it’s hardly a new phenomenon:
Roper: So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
And that’s where we stand today: faced with a Left that recognizes no limitations on its crusade to exorcise this country of prejudices real and imagined. State initiation of force, despite its history, is the one thing the Left will never reject as an evil. Without the equal protection of the law, any party can condemn any other as witches, in a hunt that will inevitably prey on us all. Yes, bigotry is an irrational thing: an irrational idea. The proposal that we fight an irrational idea with brute force is the delusion that we can defeat the Bad with the Worst.