23 September 2013

And now back to the CRA debate


As a general rule, societies are probably going to be better off in the long-run using markets to establish whether discrimination is worthwhile or costly than to impose it as a requirement that it not exist. What happens is mostly that people withdraw from the market under those circumstances that they not practice it, rather than amend any discriminatory market behaviors. Or they go somewhere else where they don't have to. Under the former system, they may continue to operate, but new players may emerge who will not practice such tactics and strategies as refusing to serve particular people on whatever basis. They can then gain market share by serving the people who are turned away, perhaps allowing them to charge lower rates on everyone if they wish and drive out the bigots anyway.

Still. I'm not entirely comfortable with a world where someone can decide they don't want to serve someone as a customer on the basis of "who" they are or what they represent rather than other more personal understandings of their (potential) customer. I'm not sure that anti-discrimination laws are the best way to achieve avoiding that world. It might be that loosing licensing laws for starting many kinds of businesses might be a better option in many cases. Anti-gay discrimination while still prominent, is not so widely spread that there would be many businesses that could long afford refuse it as with Jim Crow (where there were both rigid discrimination laws and centuries of culture in place to do so). From the story, the public as polled broadly opposed to laws allowing businesses to make those discriminatory practices legal. This was probably not the case in the South, or even significant portions of the North in the 1950s and 60s.

The net result of that approach doesn't seem to be appreciated by either proponents of anti-discrimination laws or the people presuming to be attacked by them, that the types of businesses that would discriminate against particular groups of people on some class basis (and not because the customer was some sort of aggrieved asshole personally), can only persist in an environment where discrimination against particular groups of people is a more popular action than not discriminating and thereby not subject to demonstration and protest via popular concern or via competitive market entries. I think there's a case for that with homosexuality, but it's not as strong as Jim Crow was. In part because we've had anti-discrimination laws from Jim Crow era in place preventing people from segregating lunch counters and buses and the like, it seems intuitive to our generation that a photographer shouldn't get the same privilege to segregate what weddings they might do. Might they claim they wouldn't do inter-racial weddings, and how would we interpret that as a behavior? People share a certain discomfort with those still as well as they might with homosexual couples. What this suggests to me is that the type of laws preventing such behaviors are also generally unnecessary, because the public backlash against the businesses that do so could be significant in most cases.

I am unclear on what one's private religious beliefs have to do with photography or floral arrangements that they should deny service of those skills on religious grounds and that this is in fact some variety of religious freedom argument rather than a position of entitled privilege that has finally shifted culturally against traditional practices of discrimination to make those practices now unacceptable rather than tolerated common practice. If one doesn't believe homosexual people should get married on religious grounds, they can find churches and other religious assemblies who share that interpretation and will not perform such ceremonies, and it might even be possible to perform these associated private services like photography or floral arrangements on some contract with those assemblies. But I'm also unclear why it wasn't possible to contract with someone else of equal skill and aplomb to conduct those services locally for the discriminated couples, or to contract with someone who might have more enthusiasm for the task requested and perform it with less disturbance and perhaps a better outcome than someone with private religious misgivings that they express as a basis for their refusal to participate.

I suspect there is a point somewhere in between rigid application of religious principles that I don't understand how they apply under these circumstances and a question about how easy it might be to perform these services professionally to compete against such applications and drive them out of business (or nearly so). That point is very likely some variety of market failure, and some variety of social and perhaps even government response is warranted to correct a social injustice caused by widespread biases and prejudices. I'm not comfortable with the approaches being made available, but I'm also not comfortable with people trying to hide behind "religion" to justify certain market commons behaviors. I think there needs to be some social response to that behavior, and that social response could take the form of protest and economic boycotts, negative reviews, and market competition instead of compulsory laws. 
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