Comments on Anti-Discrimination Laws

Here are some of my comments regarding anti-discrimination laws. My main concern is that if we attempt to enforce anti-discrimination laws in a principled manner we end up infringing on important rights.

However, some, like the Masterpiece Cakeshop, only involve selling a product, the same product that the shop would otherwise provide to anyone else.

I don’t believe that’s true because the wedding cakes are custom-made. As your quotation from the SCOTUS case notes, Masterpiece Cakeshop was willing to sell the couple a generic cake off the shelf.

It’s silly to say that selling a product like a cake or a bouquet is actively participating in whatever the activity the product is used in.

You’re again mis-representing a case. Arlene’s Flowers objected to making a flower arrangement for the gay wedding. She had sold flowers to the gay men in question on other occasions apparently.

If this is the case, then every mattress salesman has actively participated in a gratuitous amount of sex with many, many customers they have sold mattresses to.

If a customer asked for a mattress he could use to rape someone on would you sell him a mattress? Or, if a customer asked for a gun to kill his wife with, would you sell him a gun? If you did sell the mattress or the gun in such cases would you be morally culpable to some degree? Note, I am not asking whether you would be the equivalent of a rapist or murderer; I am asking whether you failed in your moral duty to some extent.

There is an interesting question about what the limits of discrimination law should be. I don’t find it reasonable to leave all discretion up to the market.

Perhaps this is where you can question the relative importance of non-discrimination laws and the freedom of speech, freedom of association, and freedom of religion. You can simply think the latter freedoms trump non-discrimination laws without saying anything about how the market forces will work.

They have structural barriers that prevent them from interacting with basic goods and services like everyone else.

But many of the cases mentioned don’t concern basic good and services. Custom-made wedding cakes, custom-made flower arrangements, and wedding photography are luxuries.

There is a degree of artistic merit involved, and artists are capable of declining and accepting commissions clients as they see fit.

Elane Photography lost its case. Does that concern you? If you truly oppose slavery shouldn’t you realize that forcing people to do custom-work is forced labor?

Furthermore, giving religious exceptions to businesses to discriminate, in fact, promotes religious privilege over religious equality.

The laws are supposed to respect freedom of religion. If a law infringes on religious freedom it should not be passed at all. This would prevent the promotion of what you call religious privilege.

It certainly makes sense to discriminate based on individual behavior, of course.

So the baker can refuse to sell cakes to those who engage in sodomy?

Broadly speaking, however, it makes no moral sense to refuse business-based service on any of these protected class categories.

Even if that’s granted you haven’t provided a reason we should get the law involved.

And I’m certainly not a faceless entity like a business which cannot possibly have religious beliefs of its own.

You could become a one-employee business. Businesses are made up of people who have religious beliefs. You might as well say that businesses can’t have any beliefs at all since I don’t see how a business can lack religious beliefs while possessing, say, moral beliefs.

While discrimination laws have the effect of enshrining “invented” rights into practice, we have to remember that rights enumerated in a country’s constitution are equally invented.

As noted before, this is not how the founding fathers thought.

Why should we care all that much about what the founding fathers thought?

They are the creators of the US law so if you’re going to discuss US law their views are important.

When you order a wedding cake you point to lots of pictures and examples and that’s what they make for you.

I don’t believe this is true in the Masterpiece Cakeshop case. Regardless, why allow the government to decide what is art?

Well, it’s none of the baker’s, florist’s, mattress salesman, etc. what the customer intends to use a product he is purchasing for. None of his goddamned business, flat out.

That’s nice rhetoric but when the customer tells the baker what he intends to use the product for the customer has made it the baker’s business. If you don’t want the baker to know what you’re using the product for, keep your mouth shut, buy something off the shelf, and leave.

You wouldn’t tell THOSE customers they have to depend on whatever is in the case that day.

But I would. If an atheist, say, objects to making custom-made religious-themed cakes I don’t think the government should force him to do so.

There IS a legal “out.” You can simply not offer wedding cakes to anyone.

True, but why should the government bother with such distinctions? If you end up forcing Masterpiece Cakeshop to stop selling wedding cakes at all haven’t we just wasted tons of money, time, and effort in the legal system for a minimal difference? Such a massive waste of resources suggests to me we might as well scrap said laws.

You are failing to distinguish between a customer intending to commit a illegal act from one intending to commit a legal act. The two acts you mentioned here are illegal acts, whereas two gay persons getting married is not.

That distinction is irrelevant for the thought experiment. I’m asking you to put yourself in the shoes of a businessman who will provide a product he believes is going to be used in an immoral way. I purposely used extreme examples (rape, murder) to avoid getting bogged down in whether the acts the customer was going to perform were truly immoral or not. With that in mind, how would you answer my questions? If you did sell the mattress or the gun in such cases would you be morally culpable to some degree? Note, I am not asking whether you would be the equivalent of a rapist or murderer; I am asking whether you failed in your moral duty to some extent.

Or, you can specify how non-discrimination laws and those freedoms should interact in a moral or fair manner. It is already recognized that those freedoms are not absolute.

The First Amendment rights are more basic and important than non-discrimination laws. When held consistently, they logically rule out anti-discrimination laws so we should ditch anti-discrimination laws. Freedom of speech is not absolute if it would lead to, say, the loss of human life because the right to life is more basic and important than freedom of speech.

You assume, incorrectly I believe, that forced custom work is always immoral and/or illegal.

If you’re going to claim slavery is always wrong then I think it will be difficult to argue that forced labor is ever right merely because a payment is made. Of course, you’re free to be your own man and believe slavery is sometimes permissible.

The free exercise of religion is protected, but immoral and illegal discrimination is NOT the exercise of religion

It is not for you and I to decide how another person’s religion is exercised.

Your definition of “free exercise of religion” is way too broad and could include flying planes into buildings. Therefore, a narrow interpretation is required. Such a view is probably what the founders intended too.

Flying planes into buildings violates rights to life and private property. I notice the founding fathers did not enact any anti-discrimination laws. Their religious beliefs influenced their public actions. Freedom of religion requires being able to live out your religion in your daily life. You seem to think it means doing things in a house of worship only.

No he can’t and shouldn’t refuse to do that. The cake would not be used in any act of sodomy, and gay marriage is now legal.

Again, if you can discriminate on the basis of behavior then you can’t make this objection.

Important moral rules should be enforced by law. “In business don’t discriminate on irrelevant grounds” is an important moral rule. We have seen the disastrous results of not enforcing it in law when blacks were refused service for being black.

Some moral rules are too vague or imprecise to make good laws. Determining when a business discriminates on “irrelevant grounds” is just asking for trouble and an even more litigious society. We already see the vagueness causing disagreement in that some people distinguish between (a) the sexual orientation of the customer and (b) participating in a wedding while others don’t.

You conveniently left out that there were laws that forced businesses to discriminate. This can just as easily serve as a cautionary tale for not allowing the government to infringe on freedom of association at all.

Most of them believed that rights were invented and assigned by a god. Same processes, but different and incorrect source.

Rights are inherent in the nature of reality, which is created by God. This is a radically different process than humans inventing and changing rights on a whim, which is, sadly, about all post-modern man is able to do.

In your thought experiment I think you should put yourself not only in that business person’s shoes, but in the shoes of the customer and the people of the community.

If I were a customer denied service I’d find another store or do without. I find forcing someone to bake a custom cake or the like to be abhorrent. It would be like choosing to be a slave master.

Yes, you would be morally culpable to a small degree if you did not call the police to let them know what you believed about the intentions of the customer.

Then you can’t object that a cake baker, from his perspective, is not morally culpable to a small degree in making a custom-made gay wedding cake. You apparently believe that the government of an allegedly free country should use its force to violate the conscience of its citizens over a minor matter like custom-made cakes.

Yes, I can specify how I believe they should interact in that manner. In general, in a business exchange the merchant should provide the goods and services as long as the customer is a “good customer,” as I have already clearly defined.

I find this position inconsistent because it grants the customer freedom of association while denying it to the business owner. It also places the government in the position of having to determine whether a given customer was a “good customer” if a lawsuit is filed. I think government resources can be better spent elsewhere.

Let’s not use the word “slavery” since it is a loaded word. Let’s just talk about “work forced by the state.”

Sorry, but forced labor by the state immediately brings to mind slavery.

Still, what I recommend is a good stiff fine to the merchant who discriminates, every time he does so.

In other words, financially ruin him, force him out of business, or force him to violate his conscience routinely. That doesn’t strike you as excessive punishment for not baking a cake or arranging flowers?

The government can and should regulate behavior of religious persons when it involves an interaction with other people. So, in the end the religious person first decides how he will exercise his religion and then the community, often through the state, will then decide how his decision shall be curtailed, limited, or regulated.

I hope you’re not implying that all human interactions should be regulated by the state. That is not going to be compatible with a free country. My position is that the state needs very strong reasons to infringe on the religious liberty of its citizens.

Discrimination violates rights also, especially the right to fair economic exchange.

I think freedom of association, freedom of religion, and freedom of speech are more important rights than the right to fair economic exchange. And note that we are really discussing whether someone should be forced by the state to make an economic exchange, not whether an actual economic exchange is fair.

But we agree that the right to free exercise of religion is not absolute, correct? We are debating what the limits should be.


I disagree. It is not asking for trouble or a more litigious society.

I don’t see how you can say such laws don’t lead to a more litigious society. Without said laws the cases we’ve discussed would never happen and hence we would have fewer lawsuits.

A “good customer” is a person who is able and willing to 1. Pay a price for goods and services which was previously established for all customers. 2. Comply with community standards for health, safety, hygiene, and dress during the transaction. 3. Be fair to other customers during the transaction. 4. Refrain from disruptive, uncivil, or illegal behaviors during the transaction. 5. Refrain from inducing the seller to cooperate in an illegal behavior.

There is no previously established price for custom-made items. Based on earlier comments, I’m afraid your position would result in anti-discrimination laws allowing the government to determine whether the business is capable of making the custom-made item and what the price of the item should be. That sounds like trouble on an economic level, let alone on the moral/religious freedom level.

I strongly disagree with you here on all points. Of course, rights are not inherent in the nature of reality. If you think so, I’d like to hear your argument. And of course, God does not exist. If you think so, I’d not like to hear your argument because I’ve heard them all, none is reasonable, you probably don’t have a new one, and it would be too far off the present topic.

I point you to the Aristotelian-Thomistic-Scholastic tradition. Start with metaphysics with a book like The One and the Many by W. N. Clarke. From there branch out to morality and natural theology.

Humans rarely change rights on a whim. They usually do it after careful deliberation. Just look at the time and effort put into the Bill of Rights or the International Declaration of Human Rights.

Aren’t the Bill of Rights and International Declaration of Human Rights just fictional documents on your worldview? What are you deliberating about if there are no rights in nature?

The founders did not intend for “the free exercise of religion” to be an excuse to do what you shouldn’t do or not to do what you should do.

In a free society people do what they shouldn’t do and fail to do what they should do all the time. This isn’t an “excuse”, it’s what happens when people act freely.

The business owner has already exercised his freedom of association by opening his business to the public for all “good customers.”

You’re merely assuming the business owner has opened his business to all good customers as you define the term. Perhaps he’s opened his business to all good customers as he defines the term. True freedom of association would allow him to open his business to serve only those customers he desires to serve.

You are engaged in more hyperbole here. I favor progressive discipline. See my response to “lady black” for more details. The punishments I suggest are not excessive at all.

I fail to see the hyperbole. Your (2) is a fine which, along with associated legal costs, can quite easily lead someone to financial ruin. Your (5) is literally forcing him out of business. And if your “progressive” discipline is “successful” then the businessman will violate his conscience on a routine basis.

Neither baking a cake nor refusing to bake a cake is the exercise of religion.

Anything and everything can be the exercise of religion.

These four rights can be harmonized by rational decision making. I have shown you how this can and should be done in the present case.

I’ve shown how a hierarchy of rights allows us to select the more important right over the less important right. Your method seems ad hoc to reach your desired conclusion. You violate a right when it’s convenient and don’t violate the right when it’s inconvenient.

It is not fair for the baker to discriminate against the gay customers, and so I think “the right to fair economic exchange” is an appropriate term for this discussion.

I don’t see how a forced economic transaction can be fair.

There would be more law suits for awhile until the business people give up their unjust discrimination practices.

What you would actually achieve, however, is closing businesses or having businesses switch to not offering certain products (e.g., wedding cakes) or not making custom items. This is why your approach is so pointless even if “successful”. Basically you change how a few businesses operate and waste tons of time, money, and energy. You also set citizens against each other.

True, but it would be a price comparable to that charged for similar items sold to other customers. For example, a baker could not charge a gay couple $1000 for a wedding cake when he had produced many similar cakes for heterosexual couples for $200.

I doubt the government’s/jury’s capacity to know how much cake A and cake B should cost. The price of ingredients can change. The baker may decide to charge more or less for various reasons. The difficulty of creating “similar” cakes may be very baker-dependent.

This would not be a problem. All court cases already look at the evidence and the law.

On the contrary, government control of pricing has had dire consequences in some cases.

No, they are not fictional documents. They are real documents. You can actually read them. And both were produced after long and careful deliberation, contrary to your claim.

I should have said fictional rights. If rights are fictional how can we deliberate about them?

But some people DO try to use their religion to excuse doing what they shouldn’t do. . . . And some people DO try to use their religion to excuse failing to do what they should do . . . .

In terms of laws, I frankly don’t care if someone does or does not bake a custom-made wedding cake. I don’t care if his reasoning is “religious” or “secular”. It is something of little import.

or vote for an atheist when he is the best candidate

What are you talking about? Millions of American Christians just voted for an atheist president they thought was the best candidate :)

This is why government must insist on compliance with sound secular law.

There’s a huge disconnect between most of the examples you listed and someone not baking a cake or arranging flowers. Trying to argue that since someone might fly a plane into a building for religious reasons we need to force bakers to make gay wedding cakes is quite a stretch.

You’re merely assuming that we should allow the business person to sell whatever he wants to whomever he wants for any reason he wants at any time and place he wants. . . . We should not accept the business person’s definition of “good customer.” We should accept my definition. It is a rational and universal definition.

My position is entailed by freedom of association. Clearly your definition is not universal or we wouldn’t be having this discussion.

The hyperbole is there for everyone to see. It involves your irrational focus on #5 to the neglect of the other four. . . . BTW, if he fails five times to do the right thing, then he should go out of business!

I see nothing irrational about noting the consequences of the rules you promote. And now you go on to confirm I was correct in my assessment that you would literally force someone out of business. It’s strange that you’re so defensive about me stating plainly that you’re willing to run someone out of business for not baking a custom-made cake. It’s as if you realize when we put it in those terms your punishments are excessive.

I totally disagree, and I think this idea is nonsense. The exercise of religion is holding beliefs related to an alleged supernatural reality and engaging in a limited set of behaviors designed to symbolize or publicly express those beliefs.

There’s nothing nonsensical about one’s religious beliefs influencing all his thoughts and actions. Your assessment at the very least contradicts the teachings of Judaism, Christianity, and Islam. It’s condescending.

Do you really believe killing a person is the exercise of religion in 21st century America? (It apparently was in 15th century Aztec culture.)

Of course. Have you read jihadist writings? The killings they perform are clearly expressions of their religious beliefs. Now I’ve already noted elsewhere that such things should be illegal because the right to life is the highest right and so supersedes freedom of religion.

Your hierarchy seems ad hoc to reach your desired conclusion. You violate a right when it’s convenient, e.g. the right to fair economic exchange, and don’t violate the right when it’s inconvenient, e.g. the right to speech.

In order for an economic exchange to occur the two parties require the freedom to associate with each other and the freedom to communicate with each other. So, in some sense, economic exchanges rely on freedom of association and speech. This is why I say they are higher rights than a right to a fair economic exchange. Now, how is your position not ad hoc?

Of course it can be fair, as is the case here. What is unfair is to allow the merchant to refuse service to a customer simply because the customer’s worldview does not match the merchant’s. The merchant should not be allowed to act on the belief “You are not like me, I don’t like you, and so I will not serve you.”

But you allow the customer to refuse to purchase a product simply because he doesn’t like a business. There’s the inequality or unfairness. The customer is granted freedom of association/conscience that is denied to the business.

This also raises an interesting issue if prostitution is legal. Your view requires you to believe a “customer” should be able to force the “business” to perform (custom?) “work”. We would normally call that rape but you want us to call it a fair economic exchange, just like we would normally call forced labor slavery but you want us to call it a fair economic exchange.

Nonsense! Records, sir, records! Witnesses too.

Records don’t tell the whole story and there is no record of how much a unique custom-made item costs.

Who said rights are fictional? Nobody I know. Rights are not fictional! Rights are real, but they are invented and assigned.

Are you a moral realist? If so, what metaphysical foundation allows for moral realism on your atheistic worldview? If a right is merely invented and assigned why can’t it be destroyed or unassigned?

In terms of law, I do care and you should too, if you care about increasing justice in the world.

Giving government excessive powers often leads to more injustice in the world.

The same principle applies in all these cases, even if some of the behaviors are more harmful than others. There is no stretch. You should stand with the right principle.

The right principles being freedom of association, religion, and speech.

In this case, when the merchant opened his business, he chose to associate with all “good customers.”

Clearly he didn’t or we wouldn’t have such discussions. You’re trying to tell a businessman what he chose to do instead of listening to what he says he chose to do.

What is irrational about it is your exaggeration of the consequences for dramatic effect.

There’s no exaggeration. You would close businesses.

I agree that an economic exchange presupposes association and communication, but I don’t buy your idea that the right to the former is superceded by the rights to the latter.

Why not? If right A (economic exchange) presupposes rights B (association) and C (speech) then it seems rights B and C are more important than right A. Why are the more important rights to give way to the less important rights instead of vice versa?

These rights are not absolute and are limited by the right to fair economic exchange. I have already explained how my position is not ad hoc. It is totally rational and consistent.

Then please re-state your explanation because all I recall is you asserting your position is rational.

That’s another issue I haven’t thought much about. Cite an official complaint, grievance, or law suit based on wrongful customer discrimination against a merchant, and then we’ll debate the case. For now, I’ll stick with the case at hand and similar cases of merchant discrimination against customers.

There’s no case because it’s not illegal for customers to discriminate against businesses. Instead of me trying to find a case you should be promoting laws that allow the government to force customers to buy from certain businesses if they are guilty of discrimination. At the very least, admit that presently the inequality/unfairness I point out exists.

Where prostitution is legal, if the manager of the brothel said “I’m sorry, I am a Christian and you are a Muslim, we won’t serve you,” then that would be immoral and illegal discrimination.

And this highlights the moral absurdities that result when we try to apply non-discrimination laws consistently.

The words “slavery” and “rape” are not applicable in these situations.

If they aren’t, something quite close is. The business is bound by or subjected to some external power or control against its will. The prostitute is forced to have sex without consent.

Not giving government enough powers often results in continued injustice in the world, as is the case with discrimination.

Historically, some governments have legally required kinds of discrimination you oppose. This can only be allowed by citizens, such as yourself, who think the government should restrict freedom of association.

One thought on “Comments on Anti-Discrimination Laws

  1. This is so simple – if the company gains any state benefit from it’s corporate structure, e.g. limited liability, then it must treat all of the public equally. If it doesn’t get state benefits from its corporate structure then it’s effectively the owner who is the company and Freedom of Association takes precedence.

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