Tuesday, March 4, 2014

When Opposing Discrimination is Opposing Freedom

I am becoming more and more concerned that the use of discrimination laws are having a dangerous impact on some fundamental civil  liberties. In fact there appears to efforts in some places to use the fight against discrimination as a way to make certain political and social views to go away. We see this as to Campus student groups where that battle is hot right now and where perhaps the ultimate trend of who will win in that battle is in doubt.

The question of what is just discrimination and what is unjust discrimination is not always clear. Because the fact that it is not always clear that is good reason in my mind to be wary of enforcing Government sanction against without thinking that course through.

Law Prog Greg Sisk over at Mirrors of Justice had two good post over the weeked that are worth reading. See On the Pain of Discrimination and the Role of Law and Government (Part One)  and On the Pain of Discrimination and the Role of Law and Government (Part Two).

In part II Prog Sisk describes a discussion he has been having with other on this question and the areas of agreement. As to the area of disagreement :

....Now, and here I return to the point where consensus has not been reached, I would submit that some of the same or similar characteristics or principles that define this second category of free choice also encompass the case that has been highlighted of the wedding photographer who declines to photograph a ceremony with which she disagrees. 

Similarly, an attorney may choose to represent only plaintiffs who allege they are victims of sexual abuse and simply refuse to represent defendants who are accused of sexual abuse. An advertising agency may refuse to work up a promotional campaign for a Republican politician. A public relations firm may refuse to take on a Catholic archdiocese seeking to counter negative publicity related to priest sexual abuse. A psychologist may specialize in counseling women who have suffered abuse, while choosing not to accept male clients. A couples therapist may focus on gay couples, while not choosing not to work with straight couples. Now each of these examples could be described as involving “discrimination.” But we have also used another term to describe these choices: Freedom. 

What I would argue distinguishes these business choices from the general prohibition on discrimination in goods and services is that the service or good provided is inextricably intertwined with a message or perspective that the provider may or may not wish to endorse. In these examples, the services are being devoted directly or nearly so to the promotion of a message, which thus implicates freedom of thought at its most critical. Moreover, because of the personal nature of these kinds of services, the service-provider necessarily must identify with the client, becoming a partner with the client in directly advancing the client’s goals. The connection between the provider of goods or services here is anything but collateral to the message, ceremony, position, etc.

 To use the law to require the service-provider of this distinctive nature to become involuntarily tethered to a viewpoint that he or she does not endorse is simply not compatible with fundamental liberty principles. That we may not agree with those choices, or even find one or another choice repugnant, cannot be the measure of our response, if freedom is have any purchase. Here at least, we should say that the law may proceed no further.

I think the part I put in bold is where the critical distinction and discussion needs to be focused on these matters.

1 comment:

Katy Anders said...

I agree with that point even though I am not against sexual orientation being added to the public accommodations laws.

It might be a quirk in the Washington State public accommodations law, but the photography story was really.... weird.

Traditionally, public accommodations laws have covered what are basically fungible goods. A pair of shoes sold to you is like a pair of shoes sold to me.

On the other hand, you have artists and singers and services like that, which are clearly specialized and specific to the audience or consumer. The public accommodations laws are not going to bar a Jewish singer from declining a Christmas concert.

The photography thing seems more like a performance to me than a widget. It's a poor case, and it is scaring the heck out of people all over.