EAllusion wrote:When you hold yourself out as open for business with the general public, you have made a freedom of association choice. You have chosen to associate with the general public, albeit not with any particular individual from the general public. What you're saying here means you want it both ways: you want the benefit of holding one's self out as servicing the public in general, without the trade-off of...servicing the public in general. If you (rhetorical "you," not you personally) want to preserve your freedom of association, then you have the option of holding yourself out as a private club or business that only serves select members of the public. That would restrict your potential customer base and hence potential revenue, but rhetorical you didn't want to service them anyway, remember?
There is the crux of the disagreement. When I think you open a business to serve members of the public, I do not think you are necessarily opening your business to serve all members of the public. There's nothing incoherent about the idea tailoring which members of the public you want to serve with your business. I think people should have the right to shape which body of people they want to serve. I think people have a right to freely associate with whom they please on their private property, and this is encapsulated in that.
But see, rhetorical you already does have that right. You do get to open a business that only serves particular members of the general public. You follow a lot of civil libertarian issues, so I'm going to assume you're at least passingly familiar with
Boy Scouts of America v. Dale. That's an example of a defendant successfully showing that it was not open to the general public under the organization's own terms, and so freedom of association trumps state public accommodations law--although I think a more accurate way to say that is state public accommodations law was inapplicable because by definition the BSA is not a place of public accommodation, regardless of whether "place" of public accommodation means an actual, physical place or not. (I think the Supreme Court got the law right but the facts wrong in this case. I think the direct amount of public subsidies and government entanglement precludes the Boys Scouts from claiming to be private.)
I'm bringing up
Dale just because it was a high profile case that discusses the interplay between place of public accommodation and freedom of association. There are hundreds of cases about private clubs, country clubs, and so on (and as you know, these issues arise with areas like the ADA and employment law, too). Not only is there no reason rhetorical you can't open a business that only caters to certain classes of people, you have an affirmative right to do so. You
already have an affirmative right to do so. In the
Elane Photography case from New Mexico, the New Mexico Supreme Court, in the course of holding that taking a photograph of a gay couple was not compelled speech, explained that the public accommodations statute would not apply if Elane Photography did not hold itself out as servicing the public in general (this is on page 13 of the slip opinion):
http://www.nmcompcomm.us/nmcases/nmsc/s ... 33,687.pdfElane Photography has misunderstood this issue. It believes that because it is a photography business, it cannot be subject to public accommodation laws. The reality is that because it is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work. If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography’s choice of whom to photograph or not. The difference in the present case is that the photographs that are allegedly compelled by the NMHRA are photographs that Elane Photography produces for hire in the ordinary course of its business as a public accommodation. This determination has no relation to the artistic merit of photographs produced by Elane Photography. If Annie Leibovitz or Peter Lindbergh worked as public accommodations in New Mexico, they would be subject to the provisions of the NMHRA. Unlike the defendants in Hurley or the other cases in which the United States Supreme Court has found compelled-speech violations, Elane Photography sells its expressive services to the public. It may be that Elane Photography expresses its clients’ messages in its photographs, but only because it is hired to do so. The NMHRA requires that Elane Photography perform the same services for a same-sex couple as it would for an opposite-sex couple; the fact that these services require photography stems from the nature of Elane Photography’s chosen line of business.Saying that the mere act of opening a business to the pubic is automatically a choice to freely associate with all members of the public begs the question in this context. It reminds me of pro-life advocates who simply assert that once you've chosen to have sex, you've chosen to carry a child to term. That's a position to be argued for, not assumed. I think you expend a lot of energy in your post explaining what the law currently is, but I am not interested in that, nor do I dispute the the framework of the current legal system. I'm not saying non-discrimination laws are unconstitutional under the first amendment. I'm saying freedom of association is a good principle is that is applicable in deciding the merits of non-discrimination laws. I do not think people's economic decision making should be tightly regulated because it has global economic impacts. I'm not sure if you are pointing this out to point out the regulatory authority congress has to pass anti-discrimination laws, or if you are arguing for that basis.
I'm arguing for that basis, which is a policy argument (the legal argument is whether Congress has the constitutional authority to implement that policy). The reason I don't agree that it's an all-or-nothing decision like "if you choose to have sex, you choose to get pregnant" is that I didn't say, and existing law doesn't say, that you have no right to exclude once you open up your business to the general public. We're talking about restricting certain bases for exclusion. I don't dispute that freedom of association is a good principle both on its own terms and in relation to whether public accommodations laws should exist or how they should operate if they do exist. However, I think the way Anglo-American law going back to the Middle Ages has balanced ownership of property with use of property is a reasonable guide for the principle that using property in a way that's inconsistent with a right to exclude waives the latter to a degree in which you invite others onto your property. In real property law, the degree to which you can waive your right to exclude ranges from a defense to a claim of trespass (you invited me) to a constructive easement all the way up to a change of ownership through adverse possession. And as you know, the idea that you can lose some of your rights to exclude exists in the context of a legal framework that generally gives vigorous protection to private property, so the idea of a right to exclude and waiver of a right to exclude are not mutually exclusive.
I get that you see the value judgment of ad hoc exclusion---acting as if you're open to all of the public when you're really not---as being worth the cost of either the personal indignity and inconvenience to our hypothetical black woman or the cost of harm to intra- and interstate commerce overall. I just don't agree that's the right balance between personal freedom of a business owner and the general interest of society in a free and mobile economy. If I thought the free market on its own could correct for discrimination---and remember, I'm taking the most utilitarian tack here for having money and talent flowing in the marketplace, not the higher consideration of basic human decency--that would be fine. The history of this country or of relatively free market societies in general doesn't give me any persuasive reason that things actually work out that way.
Of course, then we must ask whether societal attitudes prevent that consumer behavior from reaching critical mass in the first place. See, because if that really happened on its own in discernible reality, then not only would public accommodations laws never have come around to begin with (since there would be no discrimination to prevent), we wouldn't need equal employment laws, either.
If you have a class of people that is cut off in access entirely from a service, chances are the law allows for this because the government is in the hand of the people who possess the pervasive attitudes that lead to that discrimination in the first place.
Sometimes that's true, like with Jim Crow laws in the South. I don't believe there's any failsafe way to prevent this, even with giving Congress power to regulate interstate commerce to try fixing that with civil rights laws, because you can't take it for granted that Congress is going to be more enlightened all the time. That's a problem with a completely laissez-faire market, too, because it's not a given that either the people with capital or consumers are going to be interested for either economic or human decency reasons to stop discrimination. At some point you have to just come up with the best checks and balances you can think of and hope it works out. I think our difference is that I don't trust the invisible hand to work that out on its own, for reasons similar to why I don't trust democracy on its own to preserve itself.
Instead, what likely is to happen is pockets of tolerance will develop in businesses as social attitudes change, which creates scenarios where oppressed classes of people are geographically localized, but not split off from commerce. As societal attitudes shift, this expands with the law shifting around it. By the time sexual orientation-based anti-discrimination laws became popular, discrimination against homosexuals in business was already more the exception than the rule. In states where racial discrimination was not legally mandated, race-based discrimination was mixed at the time of the civil rights act. By the time the law gets involved, it is stamping out pockets of discrimination rather than creating pockets of tolerance.
I think that's true in the sense that this is a part of social change, but based on both the history of civil rights in this country and the way labor and other markets have really worked over time, I don't think it's a cause and effect. I think the social attitude and the changes in law interplay. Take the example I was talking about with women's earnings. Here in Utah, we have one of the worst income disparities between men and women in the country. Changes in societal attitudes and legal action on already-existing equal employment laws are both going to have to happen to fix that.
So I don't think a scenario where a member of an oppressed class is cut off from food, shelter, water, etc. is realistic. What is realistic, which I referred to in my post, is territorial pockets being cut off from them. I view this as deeply unfortunate, but I don't see people as having a right to hotel access every 50 miles.
I don't think the complete cut off from basic necessities is realistic, either. What's demonstrably realistic, though, is that access to services that most people take for granted is going to be so limited and degrading that the disfavored class is simply going to stop trying. I can see the social contract bargain in saying that my right to privacy on my property, business or otherwise, is proportional to how much I open up my property to the public, because if we collectively recognize that as a right then I get that right, too. I don't agree that the harm to society's interest in having the free flow of goods and services, which is also part of individual autonomy, is worth the cost of pockets of no-man's lands where a disfavored class will be unable to or actively choose not to spend money or take jobs. Preserving that scenario through force of law in my opinion will prevent the market from correcting that, and I think the experience of history bears me out here. whether you're talking about blacks moving en masse to Chicago from the Jim Crow South or a gay couple trying to rent an apartment in Orem, Utah.