The right to choose your customers
We have this on-going discussion about rights, about what they are, what we mean by them, what they aren’t or shouldn’t be or shouldn’t be thought to be, how they are justified, and the like. We have some commenters defending the idea that Christians do have rights to refuse service to gay people in public accommodations. They’re using arguments that have a certain familiarity. The ‘right to free association’ for instance. From a comment on ‘The fundamental right to say get outta my store’: ‘the right to free association. That’s the very same right denied in apartheid south africa or in the US under segregation or by many anti-union laws.’ Well, no, actually. It was the defenders of apartheid and segregation who resorted to talk of rights to free association or to choose one’s own company or customers, not the opponents. There is this 1964 incident in the career of William Rehnquist, a recent Chief Justice of the US Supreme Court, for instance:
he opposed [Phoenix, Arizona’s] public accomodations law, defending in a letter to the Arizona Republic ‘the historic right of the owner of a drug store, lunch counter, or theater to choose his own customers.’ [Peter Irons, A People’s History of the Supreme Court, p. 443]
The churches, whether they realize it or not, are aligning themselves with intransigent segregationists of the 1950s and early ’60s. They can do that, of course, but it’s as well to be aware that the defense of ‘free association’ has particular historical resonances. It emphatically does not refer to or mean the right of black people to associate with whites, it means the right of white people not to associate with blacks, and to exclude them from public accomodations for that purpose. Not a pretty or inspiring kind of right, not one that reasonable people (frankly) ought to defend. The picture to form in your head is not a living room full of friends but a restaurant with ‘No Niggers’ or ‘No Queers’ on the door.
At the risk of introducing a false dichotomy, perhaps it might be useful to distinguish between public rights and private rights?
I think the law already does; for instance it refers to public accommodations, not just any old accommodations. The rules change once one offers a public ___ for sale.
What you do in your home is your business.
What you do on the street, or any “public” place is the law’s business.
Is that correct?
What you do on the street, or any “public” place is the law’s business…
Gudrun, as the law stands in most EU countries, in the field of employment and occupation, almost everything is the law’s business.
Example: if you, as a passionate atheist shopkeeper (Tingey’s Groceries), reject an applicant for a vacancy on the grounds of his religion, you are committing a criminal offence.
At least that’s more or less what it says in “Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation”.
There’s an exemption, though. Create an Atheist Church or Temple. Then you may be able to invoke Article 4(2) of the Directive, which runs:
Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.
Good luck with your grocery store!
Yes: just as, in the US (and other places too perhaps, I don’t know), conscientious objector status is available only to adherents of recognized religions. Religions get all these special exemptions and special rules and yet they complain of having their rights taken away. Their special privileges ought to be taken away, or else expanded to include everyone (whichever is better on the merits).
Note it says ‘religion or belief’ — interesting. Does this define all ‘belief’ as religion, or do they mean anything that one might ‘believe’, which might include both ‘There Is No God’, and ‘Blacks Are Inferior’…? Mind you, I suppose the latter is ruled out under ‘acting in conformity with national constitutions and laws’… Give them time, maybe the former will be too…
Their special privileges ought to be taken away, or else expanded to include everyone (whichever is better on the merits).
Bingo! Now we’ve got our finger on the nub: of course religiosity should not be the basis for special exemptions (does anyone here think otherwise? Even ChrisPer?). The question is which is better on the merits, and that’s the sticking point with this freedom of association/non-association thing.
Do I, as the landlord of the Tap and Whistle, have the right to exclde the perfectly peaceable skinhad with the ‘Kill orl neggerz’ tattoo on his forehead? I’d like it, please! Of course, if he becomes aggressive or something I can throw him out, but I want to exclude him altogether: I don’t want to let my place be associated with his type, nor are my customers of a type to appreciate the gentleman’s presence.
But do I have that right? On what grounds? And if I do have that right, how is my position different from that of the couple who run the Wafer and Wine down the road, who have similar reasons to mine for wanting to exclude that rather cute but very camp queer in the skintight pink trousers and rainbow tie-die tank top? (OK, one difference is that my moral convictions are based on sound liberal principles and theirs on petty small-minded prejudices, but I’m not convinced that makes a good yardstick.)
Any offers? Is it simply that I do not actually have the right to set the tone of my establishment as I feel fit at all? That I am morally and legally obligated to serve the leader of the local nazi party just because my bar happens to be right on the corner where he gets off the bus on the way back from the weekly book-burning rally?
It’s the moral issue I’m interested in here more than the legal, by the way.
I like outeast’s analogies, and personally think that ChrisPer’s example from several days ago of the liberal blacksmith asked to make slave collars is a very good one; does he have the right (legal or moral) to say “I do not approve of slavery; I will not help you imprison your slaves”? Does his shop fall under public accommodation laws?
I say this as a *supporter* of those public accommodation laws; I am uneasy about this case (and its modern equivalents; selling lawful weapons and techonologies to oppressive regimes; do I have a right to not sell them things?)
Outeast, very neat — congrats. You steal my words.
The problem with the ‘public accommodations’ justification of restrictions on freedom of association is that it is — and has been — a genuine slippery slope.
First the pseudo-liberals take some ‘reasonable’ action, like criminalising restaurants or hotels that discriminate against people of colour. Then they extend that positive right to cover the entire field of employment and occupation. Then they include women, the aged, the handicapped, practising homosexuals, visible transvestites, transsexuals, hijab-wearing Muslims, cross-wearing Christians, etc etc.
Then they introduce not only physical but also verbal ‘harassment’ as a no-no, including for example criticism of the gay lifestyle, or anti-religious jokes.
In France you can be sentenced to imprisonment for publicly saying that homosexuality is sinful or harmful to health or society. I’m not joking – a politician has already been sentenced to a suspended sentence and a heavy fine on these grounds.
If the present trend continues (and why shouldn’t it?), we can all begin to file charges against people whose opinions or lifestyles or beliefs we do not share: gays v. Christians, Christians v. Muslims, women v. ‘misogynists’, Christians, Muslims, Jews, Hindus and Jains v. Humanists (and vice-versa).
Dave asks:
Note it says ‘religion or belief’ — interesting. Does this define all ‘belief’ as religion, or do they mean anything that one might ‘believe’, which might include both ‘There Is No God’, and ‘Blacks Are Inferior’…?
Dave, you won’t ‘believe’ this but apparently , taking Directive 2000/78/EC by the letter, belief does include more or less everything, ranging from garden fairies to the teachings of the British Humanist Association. I’ll try to find legal commentaries on the directive and if I do I’ll fill you in.
Outeast, if a skinhead goes to the trouble of having “Kill all niggers” tattooed on his forehead then he isn’t peaceable.(If the pub in question is in Brixton, then he’s suicidal.) So it would seem reasonable to me if the landlord asked him to leave. The flamboyantly dressed gay man in the Wafer and Wine is no threat to anyone in that pub, so it isn’t a proper comparison (but it would make a good Little Britain sketch). If he had a tattoo saying “Kill all breeders” you might have something, though.
If gadfly Cathal is right about the EC directive, then I agree with him that it is as bad as the UK religious hatred bill. What can we do about it?
Andy writes:
if a skinhead goes to the trouble of having “Kill all niggers” tattooed on his forehead then he isn’t peaceable ..
On reflection, I think you are right — I skimmed thru Outeast’s posting a bit too rapidly. That really is beyond the limits — even dyed-in-the-wool racists don’t go that far, if they have an IQ of over 100.
As to the EC Directive — it doesn’t go as far (I think) as the religious hatred bill. It’s restricted to employment and occupation and what you do outside the workplace does not come within its scope.
Question: what is the dividing line between ‘religious hatred’ and ‘hostility to religion’?
Crikey, I’m ending up the unwilling ally of segregation now? Please I hope not everyone interprets what I asked as a Cathalism! I’m not a huge fan of that ol’ black-and-white phallusy…
Seriously, Cathal’s outright rejection of all infringements of the right to freedom of (dis)association is at least consistent. Similarly, a denial that such a right exists at all would be consistent and would resolve the dilemma. Are there any other solutions, though? Can anyone offer another answer to my thought experiment?
To make two things clear: thought crimes are a red herring. I’m not interested in protecting people from feeling offended (contrary to Cathal’s slippery slope argument): that’s a whole nother hornet’s nest. Neither do I think Andy’s suggestion that my tatooed skinhead could be excluded on the basis of likelihood of being violent is appropriate, as I don’t want to open up that hornet’s nest right now…
Cathal, theres no dividing line between religious hatred and hatred of religion. The only dividing line is that between attacking ideas and physically attacking people and their property.
Too late, Outeast, I’ve opened the nest. I’d like you to tell me why my suggestion is inappropriate.
Bzzzz…
Because:
a) Certainly as a legal principle this would be tricky, and in practice it would come down to the perceptions of the individual (who might, for examply, regard a person’s skin colour as being as overt an indicator of risk as a tattoo).
b) I don’t like the idea of penalizing people for what they might do.
c) I was clearly using hyperbole. Perhaps the skinhead won’t have a ‘kill orl neggerz’ tattoo; similarly, the gay propbably won’t be prancing around in pink hotpants. It’s the principle, not the specificality, I want to test.
etc.
PS I supposeyou could have a principle such as ‘where the situation is thus that a reasonable person would have due reason to fear the onset of violence’, but this would then not resolve my problem. Perhaps my (hypothetical) pub doesn’t have a very racially diverse clientele: thus I might reasonably conclude that Mr Tattoo is actually there for a quite beer and not to assault the cstomers.
“Is it simply that I do not actually have the right to set the tone of my establishment as I feel fit at all?”
I’ve been wondering about that for days. There were for instance those signs I saw on pub doors in the UK that caused me to reel in astonishment; I don’t think I’ve ever seen such a thing in the US and don’t think it would fly here; but I can’t swear to that. The signs were in London somewhere near Gray’s Inn Road, and Winchester; the London one said ‘No workers,’ the Winchester one said ‘Sorry, no one from construction site.’ [I’ve mentioned this before; sorry for repetition.] Both of those struck me as immoral and (much as I hate the word) highly offensive.
But of course people do try to set the tone of their establishments. One slightly covert method is simply a dress code. Another is pricing. But beyond that…can proprietors stipulate in advance and in explicit language what kind of people they want in their restaurants or bars? Legally and morally?
A rich and pompous acquaintance of mine once sent a letter of complaint to a golf hotel in Scotland because it had allowed a bus full of – the kind of people who are on buses, I guess, to come to the hotel and be around when my acquaintance didn’t want to have to see them. He said they were supposed to have a rule against coach parties. So that would be another covert method – bar not people but coaches. The people on them are incidental.
Does that really solve the problem? Banning (say) cultural appurtenances? Would your ‘no workers’ sign be any the less offensive if it said (say) ‘No overalls, no workboots’?
Legally, covert discrimination might be a workaround to avoid anti-discrimination legislation where that exists. Morally it’s really much the same ground, surely?
Noooo, it doesn’t solve the problem, I didn’t mean it solved the problem, I just meant that’s one way people do it slightly less overtly. (And come to think of it that may be what the Gray’s Inn sign did say – not ‘No workers’ but something about clothes. I think it did.)
“Morally it’s really much the same ground, surely?”
Absolutely. What I’m saying.
Andy writes:
The only dividing line is that between attacking ideas and physically attacking people and their property.
Well, from my blog postings catechism [Entry S-492, SLIPPERY SLOPES, INEVITABILITY OF]: what if you attack somebody’s beliefs by misrepresenting these beliefs either intentionally or inadvertently? What if somebody of good repute (e.g. Sandra Bullock or Richard Dawkins) publicly, repeatedly and falsely alleges that Religion X is based on Holocaust denial and I happen to be a well-known Religion X-ist and (as a result of this false allegation) I am shunned by many of my clients (I’m a shopkeeper, doctor or lawyer, say). As a result of misrepresentation of my beliefs I have suffered severe harm. Am I at least entitled to sue for compensation? Isn’t such an attack equivalent in effect to physically attacking my property?
Now allow me to don my Georgescu-Roegenist hat Here goes. Lovely! Makes my head look bigger.
What a pity the world isn’t an arithmomorphic entity based on the either-ors of formal logic! All those goddam Hegelian dialectical penumbras, fuzzy bits, grey areas.
Still, they give the armchair philosopher something to mull over.
Noooo, it doesn’t solve the problem, I didn’t mean it solved the problem
Well, SOLVE THE PROBLEM, DAMMIT!
Either that, or give me a full refund of my B&W subscription fee.
“The problem with the ‘public accommodations’ justification of restrictions on freedom of association is that it is — and has been — a genuine slippery slope.”
No, I don’t think that’s true. It hasn’t been the case here. And ‘freedom of association’ is deceptive rhetoric; it’s misleading because most people take it to mean the opposite of what you’re using it to mean; what you’re talking about is freedom of non-association, freedom not to associate but to reject, freedom to bar, freedom to eject. Use different language.
Look up Julian’s ‘Bad Moves’ on the slippery slope bad move.
Outeast wrote:'[a customer could be removed] where the situation is thus that a reasonable person would have due reason to fear the onset of violence’, but this would then not resolve my problem.
Aren’t there laws about threatening behaviour that already cover this? If the customer felt aggrieved, they could “name and shame” in the local paper or even resort to legal action. This is in practice quite difficult, but it is possible.
We do penalise people for what they might do. Alcohol is banned from football grounds because drunks might fight. Conspiracy to murder is a more serious offence than conspiracy to steal because of what it might lead to.
Ha! Sorry. No can do. All I can do is say ‘Oh look, an intractable problem; oh dear.’
The harassment one for instance. That one really gets on my nerves. I just don’t see any way not to risk trampling on someone’s rights. That’s not news; but it is irksome.
Ophelia writes:
A rich and pompous acquaintance of mine once sent a letter of complaint to a golf hotel in Scotland …
Got his address? Sounds like somebody whose company I would enjoy. I am all for excluding coach parties – give me gays, transvestites, green berets, Tingeys, Anglo-Catholic Susans any time, but not coach parties.
There is worse.
Some years ago I booked a week in a five-star hotel in Mallorca, together with my wives and children. Crème de la crème for two days. Fawning staff, bowing and scraping round the clock, si senor, yessir, whatever you want sir, etc. etc..
And then?
Then the three-day Annual Conference of German Panel-Beaters kicked off. Yes, I said panel-beaters. Four planefuls of them. And their wives and mistresses too. Enough platinum to plate the Empire State Buildings.
I will spare you the details. Never again.
There should be a law against it.
Yes, Andy, but there we need actual indicative behaviour. Note it’s conspiracy to commit murder: we cannot arrest someone on the basis that we think he’s the kind of person who might one day have his wife bumped off.
What I was talking about was disallowing someone who was not acting violently or agressively. If my bar was frequented primarily by groups of young black men, for example, ‘a reasonable person would have due reason to fear the onset of violence’ when Mr. Tattoo walked in. His advertized propensity for violence involving people of colour, though, would not lead to the same verdict if he was in a (coincidentally) all-white bar.
Look up Julian’s ‘Bad Moves’ on the slippery slope bad move.
Now look who’s patronising me. I was familiar with the slippery slope bad move when Julian was still saying his prayers in short pants.
Mathew, Mark, Luke and John
Bless the bed that I lie on …
Cackle
Sorry!
By the way Julian is still saying his prayers in short pants. He’s a kinky guy.
Then again, of course, notice you still made a slippery slope claim that is pretty dubious, and that you made me snort with laughter rather than admitting as much.
Erm ….
A publican can refuse anyone service in his or her alehouse/hotel/bar and not have to give any reason.
But, if the refusee can then show it was because he or she is gay/brown/pink/yellow then the publican would be in deep trouble.
Which is why they are careful about it.
Refusing people employment for religious reasons is difficault, because there are other laws and directives which counterbalance the one mentioned above.
Oddly enough there are (nominally) muslim pub-owners in this country.
But you could not have a veiled barmaid, any more than you can have a veiled classroom assistant.
One thing is certain is that it is horribly complicated.
Ophelia,
Some day I’ll post my far more sophisticated version of the ‘slippery slope bad move’– one that will make Julian Shortpants and Co green with envy. I haven’t actually written it yet but it’s just waiting to get out. Be patient.
My point was that yes, yes, 99% of the time the slippery slope argument is bollox but just occasionally it makes sense.
See my upcoming S-492 Marc 2 argument: SLOPES, SLIPPERY, NEAR-INEVITABILITY OF, REFUTING JULIAN SHORTPANTS BAGGINI’S RIDICULOUSLY SIMPLISTIC VERSION FOR ONCE AND FOR ALL.
In press.
Doesn’t Spongebob Squarepants (that notorious poofter and subversive) come into all this somewhere?
Outeast:”we cannot arrest someone on the basis that we think he’s the kind of person who might one day have his wife bumped off.”
True, but I’m not talking about arresting the customer – just removing him from the pub.
Outeast:”His advertised propensity for violence involving people of colour, though, would not lead to the same verdict if he was in a (coincidentally) all-white bar.”
Again true, because context is everything. Prince Harry dressed as a Nazi at a fancy dress party is just tasteless. Half-a-dozen similarly dressed men goosestepping outside a synagogue is threatening behaviour.
Cathal: “As a result of misrepresentation of my beliefs I have suffered severe harm. Am I at least entitled to sue for compensation? Isn’t such an attack equivalent in effect to physically attacking my property?”
Yes, I walked into that one. I’ll have to add “misrepresentation that leads to demonstrable harm to livelihood” on the other side of my line.
“Half-a-dozen similarly dressed men goosestepping outside a synagogue is threatening behaviour.”
Yeah well – in some contexts it’s also protected behavior. The ACLU sued to get American Nazis the right to march through a Jewish neighborhood in Skokie, Illinois. Not their finest hour, in my view.
There’s a sensible part of me hoping the thing went off peacefully, and a louder part hoping the Nazis got pelted with bricks. Did the ACLU sue out of genuine belief, or just to show they aren’t the pinkos Republicans think they are?
But the issue wasn’t banning the demonstration entirely, it was location. It’s similar to the burning crosses issue. Yes you can burn a cross, no you can’t burn a cross in front of someone’s house (I think that was a court decision, though I don’t remember where – where in the US I mean).
I’m a bit biased the other way, perhaps. Free speech absolutism is all too easily available here, and I’ve had arguments with a lot of people who insist on the f.s.a. position but without acknowledging or addressing or even bothering to think about the problems. That makes me deeply impatient.
I was and am unconvinced by the necessity for the Nazis to march in that particular location.
“The basic problem being that I don’t think we can draw a clear line between protection of free speech and threatening behaviour – demonstrations are always a show of force, and never entirely unthreatening. Nazis I would regard as pretty much threatening by definition. However, this is mainly because of the opinions they hold.”
No, of course; I quite agree. That’s what all these disputes are about, basically: the difficulty of separating speech from threat; ‘unsympathetic’ or controversial from dangerous or harmful. But I don’t quite accept the force of that ‘However’ – it’s more of an ‘And’. Hitler was threatening because of the opinions he held; that didn’t make him any less of a threat.
There’s a difference between a demonstration that says “You should change your mind” and another that says “You should not exist”. I would put that Nazi demo in the latter category. Large numbers of thugs walking through the streets and wishing death to the residents goes beyond the acceptable bounds of free speech.
‘There’s a difference between a demonstration that says “You should change your mind” and another that says “You should not exist”.’
Good point. Succinct and relevant. I would add ‘and/or your behavior’.
Mill’s corn factor example was in neither case about overt ‘you should not exist’, it was about the risk in certain circumstances of ‘you should change your behavior’ turning into violence. The 19th century wasn’t really used to people marching around saying ‘You shouldn’t exist’. Which is odd, since it is certainly what many people thought about native Americans for instance. I guess it was so taken for granted there was no need to demonstrate by way of saying it. Skip the marching stage, just go straight to removal and slaughter.
Free speech absolutism is all too easily available here, and I’ve had arguments with a lot of people who insist on the f.s.a. position but without acknowledging or addressing or even bothering to think about the problems.
Happy to second this 100% — also my own experience. Hardly do you open your mouth in favour of muzzling some murdering bastards but somebody knee-jerks ‘slippery slope’ — and then you have to spend half an hour explaining why the SS argument is a non-starter 99% of the time.
BTW some of the most cogent arguments for restricting free speech are to be found in James Fitzjames Stephen’s Liberty, Equality, Fraternity (1874) – a detailed and trenchant critique of the weaknesses of Mill’s On Liberty
On line here:
http://terrenceberres.com/stelib1.html