You didn’t respond to what I actually said.
If you’re making money from it, then you can’t discriminate.
Yes, some professions are free-lance. I write fiction and attempt to sell it. I don’t need a license for this, although I do have to pay taxes on any (ha!) profits.
Even so, I’m not allowed to discriminate in hiring. If I wanted to hire a secretary to type up my notes for me, I am not allowed to say, “No Irish need apply.”
I’ll agree that the anti-discrimination laws are difficult, or even nearly impossible to enforce in certain situations. Very small service and freelance businesses are at the top of that list - simply because they may take a very limited number of clients or service a very small geographical area. They may turn down lots of clients for lots of reason other than protected class, so it would take a concerted “sting” type operation to catch them, and a one person business isn’t going to generate enough complaints to merit that kind of activity.
Look at Elane Photography vs Willcock. This is a case I previously mentioned where a photographer was sued by a gay woman who contacted her on-line looking for a photographer for her wedding. Elaine Huguenin declined, politely explaining that she could not work for them because of her deeply held religious beliefs.
(funny how these people always need to constantly explain that they discriminated politely).
Now, if Elaine had politely managed to keep her unsolicited opinions to herself and said “I’m booked that day”, it probably would’ve ended there. I guess it’s possible that they would’ve had a straight couple call and try to book the same day but they probably would’ve just moved on.
Now I don’t think the outcome would’ve been any different if she hadn’t had a business license- I don’t even know that she did. But I think the key element is that she solicited business as a wedding photographer.
Again, just because it is really hard to prove that a small service business is discriminating (unless they run their sanctimonious yaps about their intentions), that doesn’t mean that it is legal for them to do so.
Yes, you might find a few cases where discrimination is legal – I’m not sure you’d have much of a case against the homeless guy holding a “Will Work For Food” sign beside the expressway ramp if he refused to work for a black man. But you really should try not to sound so gleeful about the idea of “legal discrimination”.
Actually, you could if the forum allowed it and there were no state laws expressly prohibiting it. Most newspapers and craigslist and job sites won’t allow you to do that.
There’s a reason why anti-discrimination laws don’t just say, “Discrimination is illegal in all commerce.” that’s because it isn’t. You can rent out a room in your house and discriminate on any basis you wish to. The CRA even expressly exempts private homeowners who are renting out a part of their home. And again, employees can freely discriminate against employers. There are no laws that I’ve ever heard of that govern person to person commerce where no formal business is involved.
Say a gun owner was selling his gun and a black guy wanted to buy it. The gun owner is racist and won’t sell to a black guy. Does the victim of discrimination have any recourse?
I’m not gleeful. I’m libertarian. Not even hardcore libertarian, because I support existing anti-discrimination laws and enforcement at the federal level and would support including gays under that umbrella.
What I don’t support is states and localities trying to basically stamp out discrimination whether it does substantial damage or not. As I said before, the purpose of anti-discrimination law isn’t to protect people from hurt feelings, but to enable people to fully participate in the economy. Businesses, large and small, that discriminate, can harm people in that way. Individuals do not have such power. It’s not just a waste of resources to go after such people, it’s also taking anti-discrimination law into areas it probably shouldn’t go. Institutional bigotry is a problem that needs to be addressed. Photographer bigotry not so much. If we’re going to go after these folks, then we might as well start also including employees and homeowners in anti-discrimination law. Minority-owned businesses do actually suffer from discrimination by prospective employees, so a case can be made that there’s actually a problem to be solved there:
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1064&context=lelb
Apparently there is at least recourse for minority business owners if a union is doing the discriminating.
This is tricky. If you want a roommate who will help share the cost of the rent, that’s “free association.” But if you’re running a B&B, then you’re a business and cannot discriminate.
I agree that there are legitimate “free association” instances. But “Pay me $75 and you get a room for the night and a meal…oh, and no Negroes” is illegal.
Yes, definitely. But I was referring to the common practice of homeowners renting out a room. the CRA exempts them, although as always, state and local law may differ.
And again, simply exchanging money in a buyer/seller relationship is not sufficient to draw in government regulation. A lot of this type of commerce is left unregulated unless there is a public safety aspect to it, such as food sales or medicine. If I’m fixing your computer or writing an app for you, there’s no government interest at stake, not even a minor one.
Again, it depends. If you do this for a lot of people, then you’re a business.
Look, I agree, really small potatoes discrimination is de facto legal, because it’s almost impossible to detect, let alone prove.
But that’s just like claiming that shoplifting is legal, because I know I can do it without getting caught.
It’s a really shitty moral defense, kid. Yeah, groovy, you can break the law without getting caught. Fucking proud of yourself?
It’s not intended to be a moral defense. Not all that is immoral should necessarily be illegal, a concept I’m sure you have no disagreement with.
But what led us here is that I believe that freedom of religion is a legal defense for some bigotry, and we already recognize it as a legal defense in many cases. Religious institutions can discriminate against those of other religions and can pretty much discriminate at will with the ministerial exception.
It makes no sense to me that institutions would have rights that individuals don’t. It flies in the face of liberals’ own arguments about the nature of rights. You can’t say on one hand that a person has political speech rights but that a corporation is not a person, then turn around and say that a religious institution has certain rights but a religious person does not.
Well wait a second on that one. Years ago when I rented out a room in my house I was allowed to put in my ad “Straight male preferred”. Note - I didnt say no gays or women, just what I preferred (and funny thing is I had 2 women call me).
To me its just like saying no smokers. And I did interview people and we talked about our personal habits and it became a thing of compatibility.
Besides, putting that in the ad stopped alot of embarrassing questions because before I had several gay men calling me up and one shouldnt have to declare ones sexual preference or ask if the issue is ok or not. Two actually suggested trading sex for rent.
How does that make bigotry okay? How does that make you not a bigot?
It doesn’t, just as not wanting to have any black friends makes you bigoted. But freedom of association means the government can’t sanction you in any way for refusing to have black friends. Just as freedom of association is a legal defense, so is freedom of religion.
Well, you’ve acknowledged one key point: not wanting to have any black friends makes you bigoted.
I certainly acknowledge another: it’s quite legal to be a bigot in this country. Freedom of association means you can exclude blacks from being your friends.
Neither freedom of religion nor freedom of association allow you to exclude blacks from business opportunities. You’ve shown that this rule can be dodged in various very minor cases. What, exactly, does this benefit you, or the country?
What’s your fucking point?
Simply that the government allows discrimination in cases where a person’s freedom of association overrides the government’s interest in preventing discrimination. Given that freedom of religion is in the same class(they are both part of the 1st amendment), the same should apply to cases where freedom of religion and anti-discrimination policy come into conflict. Or freedom of religion and health care policy, as in the Hobby Lobby case.
All I ask is that the government be required to demonstrate a compelling interest. Will gays be excluded from the marriage business if individuals within it can refuse to work gay weddings? No. There is no harm in letting these people refuse gay weddings other than hurt feelings. Not one gay wedding will be stopped or particularly hampered. There is just no compelling government interest at stake here. If their refusal is hateful to you, there are private means of dealing with that.
This is your opinion, but it’s not fact – I think the government may well have a compelling interest. This just seems like the start of what could be small scale “sundown towns” – if some town is 80% bigoted, wedding planners could be informally required to discriminate – any planners that try not to might never get any business from the 80%. “Discriminate or move your business elsewhere” could become the informal mantra – the only way to run a catering, or baking, or florist, or wedding planning business in these towns could be to discriminate, because to not do so means not getting any business from the bigots, resulting in towns and localities in which gay people can’t get various services.
This is why I’m so leery of boycotts. It’s difficult, sometimes, to tell the difference between a boycott and the tyranny of the majority.
Bad people can use boycotts as easily as good people. Also, boycotts tend to be “strategic,” akin to “selective prosecution” in law (which is forbidden.)
(There was also the 80s phenomenon of “Strategic Lawsuits Against Prominent Persons.” The suits were frivolous, and rarely succeeded, but they cost the defendants a lot of money, and had a chilling effect. Big tobacco used them against scientists who published anti-smoking studies.)
There isn’t any remedy for the misuse of boycotts…but they do make me nervous. An organized bigots’ boycott of businesses that do do work for gay couples could be devastating.
(In my home town, there was a boycott against the Isis Dress Shop. It was a little fashion shop, catering to large-sized women. But right-wing assholes saw the name “Isis” and thought it referred to the Islamic State!)
I think the metric is if you make your services available to the general public. I could probably plan a wedding for my sister and take money for it, then maybe even do the same for my best friend, without obligating myself to plan weddings for people that call me and ask. But as soon as I hand out business cards at a bridal fair, start a website or run advertisements I am obligated not to discriminate based on reasons of protected class.
So if you are a freelance computer tech and can drum up enough business to make ends meet working for family and friends, you are free to continue to do so. But if you start making up those signs advertising your business where people can tear off your phone number and hanging them on phone poles and in laundromats, then you are offering your services to the general public.
Now it would probably be very easy to get away with discriminating in both these cases but that still doesn’t make it legal
I agree in principle. In practice, one tends to blur into the other. First I only repair computers for my family. Then close friends. Then friends of friends. Finally, somebody I’ve never heard of says, “Hey, you fixed Billy’s computer; what’ll you charge to fix mine?” And I’m thinking, Billy? Who the hell is Billy?
If you’re so small as to be beneath this level of notice…frankly, no one is going to care because no one is going to know.
But the moment someone says, “Hey, how much will you charge to fix my computer,” and you say no, because of the guy’s race, you’ve broken the law, even if that fact is known but to God.
You can say, “I’m all booked up” while in your heart the reason is “I don’t work for those kind of people.” Well, okay, some folks get away with murder. They simply never get caught. In terms of abstract truth, it’s still murder.
This is my beef with adaher. He seems to think he’s made some great moral point, and won some deep rhetorical victory, in the fact that some people break the law in ways that aren’t detected. It’s like a kid spray-painting “SHED” on the sidewalk and running away. This is the basis of a moral system?
I’m staying strictly in the realm of legal. The only moral aspect of interest to me for the purposes of this discussion is whether the government should quash immoral conduct as a general rule. Since no one is making that argument(I hope),then there’s no issue.
And for what it’s worth, I agree with Ann for the most part. Once you advertise and hand out cards, you are a business. But if you’re just a freelancer who takes or declines jobs for whatever reason as they come to your attention, then your just some person who does some stuff, an odd jobs person. I live in a community with tons of immigrants and you’d be amazed at the wide variety of stuff many of them do. There’s a guy who can fix air conditioners, do some plumbing, and paint. Whether he works for you depends on how much you offer and whether he likes you or not. Which is absolutely fine.
Well, now that we’ve battled you back into your corner, and you’ve disavowed any moral support for bigotry, and you’ve acknowledged that businesses are regulated by anti-discrimination laws, and we’re all pretty much in agreement, great.
Now are you going to claim the world is flat…and then fall back to agreeing that it’s pretty much a sphere, but since it has hills and valleys and mountains, it never was “flat” to begin with?
Maybe you’ll deny global warming? That has rich opportunities here. You can re-define the term to mean “I’m wearing a heavy coat today, so I’m quite warm.”
You’re a strange duck…