Thursday, September 03, 2015

Bakers, Florists, Psychics, and the Structure of Libertarian Thought

by Michael Dorf

This is my third and final installment of my mini-series on the American Sociological Association meeting. (Earlier installments appear here and here.) I'll begin by repeating a finding that was reported on my plenary panel by one of the other panelists. He and his team conducted surveys post-Obergefell on public attitudes towards public accommodations laws. They found that most respondents believe that an individual (as opposed to corporate) business owner (such as a baker or florist) with a religious objection to providing services for a same-sex wedding or to serving LGBT customers should be exempt from public accommodations laws but that there was even stronger support for a simple right of such business owners to refuse service based on a non-religious objection.

That finding is prima facie puzzling. One would think that religious reasons provide a stronger basis for exceptions to public accommodations laws than do non-religious reasons. I suspect that the sort of person who would oppose religious but not non-religious exceptions is primed by the question about religious reasons to want to object to religious favoritism for some of the same reasons that drove the Supreme Court's ruling in Employment Division v. Smith.

But whatever the explanation, the main takeaway is that most Americans want to give exceptions to public accommodations laws for anyone who objects--which is another way of saying that most Americans oppose public accommodations laws (because such laws only have bite against business owners who object to serving customers of a certain sort). Support for exceptions, and thus opposition to public accommodations law, was weaker when the relevant provision forbids race discrimination than when it forbids sexual orientation discrimination but the support for exceptions there too was over 50 percent. So, a half century after the 1964 Civil Rights Act, fewer than half of Americans support public accommodations laws.

For those of us who think that public accommodations laws play an important role in protecting equal rights, that is very disheartening news. Americans appear to be pretty strongly libertarian. How libertarian? An interesting test case might be how to address psychics.

A story in the NY Times last Friday reported on parole hearings of people doing time for various crimes arising out of their business as psychics. It turns out that . . . wait for it . . . psychics aren't actually psychic. And some of them don't just charge $5 per palm reading or tarot card reading (which is plausibly construed as mere entertainment), but string people along for very large sums of money.

I was less interested in the story itself than by the comments, which fell into several categories. Predictably, a few "real" psychics complained that the "fake" psychics were tarnishing the reputation of the "profession" as a whole. As a victim of spellcaster comment spam, I found these comments amusing. More relevantly here, some commenters said, essentially, that if someone is stupid enough to pay a self-described psychic a lot of money to foretell the future, then the sucker should not be heard to complain. But then some other readers responded that the law frequently serves to protect the gullible and vulnerable from unscrupulous people who wish to take advantage of them.

If I had to guess, I'd say that the NY Times readership probably skews less economic libertarian than the U.S. population as a whole, and there's obviously a selection bias in who comments on news stories, so it's hard to draw any firm inferences from reader comments on this particular story. Still, I'd be surprised if there were not a correlation between people who oppose public accommodations laws and people who think that the law oughtn't to protect suckers from foolishly giving their money to psychics.

Economic libertarians who oppose anti-discrimination law (such as Richard Epstein) on the ground that the market will do a good enough job with fewer costs typically distinguish between voluntary market transactions and those involving force or fraud. If one regards psychics as engaging in fraud, then one might oppose public accommodations laws but favor prosecution of psychics who falsely claim to be predicting the future.

However, I suspect that people with libertarian views will want to define fraud as narrowly as possible. It would be surprising to me if there were not a correlation between opposition to public accommodations laws and, say, favoring assumption of risk in tort law. With respect to psychics, a libertarian might say that it's not fraud to falsely promise to predict the future in exchange for money because any reasonable person would know that such predictions are nonsense.

Put differently, the fundamental difference between libertarians and the rest of us is that the libertarians are committed to leaving harms where they fall, absent a very strong reason for government intervention. Broad accounts of fraud and other harms (such as externalities in the realm of environmental regulation) threaten to undermine that libertarian commitment.


Shag from Brookline said...

I wonder if American Christians in that response thought about there being no room at the inn back in those early days.

A random thought: Can there a conspiracy of libertarians?

Also, what would a government controlled by libertarians look like? Has such a government ever existed following "original sin"?

Regarding psychics, how about authors of legal articles who "predict" the past? (Yes, I'm talking about originalists employing law office history.)

Mike, were you mentally shaking your head as you heard the comments at the panel you served on?

David Ricardo said...

One problem with relying upon the ‘market’ to regulate discriminatory actions by private businesses is the lack of information. Many of us would not conduct business with an establishment that discriminates, but we lack the knowledge that it does so. Without this knowledge the market cannot work in place of legal prohibitions.

So one solution would be to allow any business to refuse service to any group as long as they prominently posted that information so that potential customers could make their own decisions on whether or not to utilize the services of that business. Yep, just a large sign saying we refuse service to gays, Jews, Blacks, Asians, etc would do just fine. Such businesses could operate under an umbrella group, like Bigots R Us, and maybe it would be sufficient for them just to display that logo.

And of course one cannot read this excellent post without thinking about the current controversy in Kentucky involving a county clerk who will not issue marriage licenses despite the ruling by the Supreme Court. She states that her authority to refuse to obey the law comes from God (who surely wants her to keep that nice $80k a year job instead of resigning, which would be the principled thing to do).

Harking back to an earlier discussion on this Forum about what the 14th Amendment means, here we have an individual who clearly states that she is not subject to the jurisdiction of the United States. So it is logical to conclude that she is not a citizen as delineated under the 14th Amendment, is in the country illegally and hence the resolution that should please everyone, particularly the nativists, would be to deport her. Certainly removing her to Saudi Arabia or Iran or some of the former Soviet republics would place her in an environment far more conducive to her beliefs then where she currently resides.

Shag from Brookline said...

The Kentucky controversy may lead to a movement to extend Hobby Lobby to government employees.

Michael C. Dorf said...

Thanks for these comments. I"m writing my Verdict column on the Kentucky case for next week. Davis is not sympathetic but I think her case is harder than is generally acknowledged, for reasons I'll detail.

Joe said...

Putting aside a person cited in the article that killed someone, the psychic referenced appear to be in prison for bilking people of a large amount of money. The cynical might suggest -- see a recent John Oliver segment -- they chose the wrong field. Certain religions ("other" religions?) would have been legally profitable.

The fantasy mindset of many libertarians has a quasi-religious, faith based flavor to it. Anyway, the support of free market bigotry (I'm sorry to be rude there) is disconcerting and helps explains delays in getting ENDA passed. Guess we need SOME group for which discriminating against is allowed. A few note fat people seem to be a suitable in the eyes of many; the path to gay equality too as a ways to go.

Questions do arise. How do we determine a customer is actually gay? If that is the line a store owner can draw, it isn't always going to be about wedding cakes (what if a friend buys the cake? would that be a violation of the owner's rights that is sanctionable if the friend isn't open about "violating my religion!"?) after all. The fact that sexual orientation and sex discrimination is locked together will be ever more clear.

Thanks for the preview of the next column with what amounts to a trigger warning.

Greg said...

David Ricardo proposes an interesting market-based solution to equal accommodations, but I think it ultimately fails. The problem is the small-town with a single hated person problem. In this situation, people may generally not purchase from a store UNLESS the store displays a sign saying they refuse service to the hated person. That's hardly a good solution to equal accommodation, as the law needs to at least appear to function in that case. (regardless of if it actually works in practice.)

I suspect that many business-owners aren't thinking blatant discrimination when they think they want to be allowed to refuse service to anyone. They're probably thinking people who are rude or look like a theft risk. Unfortunately, this would probably take the form of race discrimination, regardless of if that is the intent.

After a fair amount of thought, my personal feeling is that I'm for equal accommodations laws, but only because I don't have a better solution. At first I felt like I would be for them only for "essential services," but then realized that I would classify nearly every business as an "essential service."

Still, Elaine Photography and some other cases bug me because of the potential for compelled speech. The rule should probably be that a business should only be required to sell the exact same good or service to anyone, regardless of who that person is. This would protect the baker who is willing to sell an "I love Obama" cake to anyone, but is unwilling to sell an "I hate Obama" cake to anyone. I'm not sure how even this kind of rule would be applied to a business whose only product is speech, like a photographer.

In short, this is a much harder problem than I think either side lets on, and none of the current solutions is good, but we as a society must try to choose the least bad one.

Paul Scott said...

I cannot distinguish between psychics and churches. Both seem to be taking huge amounts of money from people based on a fraud.

I think the objection to public accommodations laws is rooted in a lack of historical consideration, but I likewise think that the importance of those same laws is greatly diminished today. I find it, for example, hard to accept that any gay couple anywhere in the US would find it difficult to have their wedding professionally serviced by bakers and photographers (or any other professional service for that matter). The origins of PALs, however, really did show wide-spread difficulty for blacks to have available any number of businesses willing to serve them.

These days, I think PALs mostly serve the purpose of giving people like me a wonderful schadenfreude when some religious nut is put in a position where they can give up their job/profession/business or violate their deeply held religious "principals."

David Ricardo said...

I do not believe that the anti-discrimination/public accommodation laws prevent any business from refusing service to an individual customer where that customer is disruptive to the business and where the refusal is not based in prejudicial animus and applied to a class of protected individuals. So I continue to believe that if any business wishes to be excluded from those laws then they should be willing to publicly profess their policy and allow the market to rule. In reality, however, in a few short years all of this will be a non-issue. Those of us who lived through the civil rights era when these laws were first passed saw a similar reaction which soon faded.

And such disclosure would have been helpful in the election that sent Ms. Davis to the job of issuing marriage licenses. It was surely known when she was elected that she might in the future be called upon to issue a license to a gay couple, and what I assume to be her failure to disclose the fact that she would cease to issue any marriage licenses in that event is just one more reason why she should resign the office. But again, as an economist I continue to believe this is all about money, that her desire to keep what is a very highly paid position in her area trumps her religious principles and that is why she will not resign.

Joe said...

It is my understanding the the original source of the rule here were places like inns that were deemed to have a particularly "public" character to them and a duty to serve the public. The lack of alternatives was a factor, but not the only one. If there were three inns with vacancies, the rule was not waived.

The "difficulty" rule is as Greg suggests likely hard to apply in practice. What happens if someone needs a good late at night (let's say condoms) and only one store is available, the nearest one ten miles away, not everyone having a car? Is traveling a half hour even a suitable "tax" for let's say a black person who won't be served? Weddings also involve a range of goods and services. Sometimes, only certain places have what is required or can fill the order in time. How do we line draw?

Anyway, ease of access is not the only purpose of anti-discrimination laws. They provide a general positive right of equal treatment and overall promote equality via rules applied to businesses open to the public that are particularly licensed and regulated in ways different from fully private activity. Elane Photography, e.g., is a for profit corporation. They get special privileges. In return, the government can provide certain rules of equal treatment.

Privately, I can choose not to photograph any wedding I want. The "coerced speech" issue is covered by the ruling in that case but suffice to say business requires various speech. Line drawing to me would be rather complicated. Especially when wedding cakes are understood as "speech" too, when clearly they are for some people. I don't think this is all simple but the complexity of it seems unclear to me at times. When the alternative is that blacks can be denied service. For some, somehow, gays are different. Why? Separation of the races is in the Bible too -- just ask the district judge in Loving v. Virginia.

Greg said...

David Ricardo, I intentionally avoided using a more specific example, partially because I was treating your proposal as a complete solution. Assume the small town people refuse to patronize a store UNLESS it displays a sign saying that it refuses to serve people who belong to a specific protected class? THAT's the problem I was really trying to point out.

Joe, I mostly agree with the decision in Elaine Photography, the primary area of concern for me is specifically the issue of compelled conveyance of another private party's speech. The majority relies extremely heavily on Rumsfeld v. Forum for Academic & Institutional Rights, Inc. but I'm not sure that the parallels are as strong as the opinion implies. Further, the court seems to limit Pacific Gas & Electric Co. v. Public Utilities Commission of California to purely economic objections to the speech, which is incredibly restrictive.

In paragraph 56 of the Elaine Photography opinion the court tries to create a slippery slope from siding with Elaine Photography to elimination of all public accommodations laws. I'm quite frankly unconvinced. Further, I'm unconvinced by the paragraph that someone who holds views that I find repugnant should be compelled to convey speech that they disagree with simply because their views are unpopular.

What EXACTLY does a wedding photographer have to do in order to satisfy their requirements under NMHRA? Is a wedding photographer paid to document a wedding (thus involving a number of artistic choices that the photographer continues to be in control of) or are they paid to convey a specific message about that wedding, such as a message of joy or happiness? Could a photographer provide a different message (but still make technically sound photographic decisions) and not be in violation of NMHRA? The broad language and interpretation of the statute would seem not to allow this change of message.

The more interesting question for me is not if a wedding photographer is compelled by NMHRA to attend and take technically sound pictures at the wedding (they are,) it's if they are compelled to take pictures that convey a message that the couple would actually like. It is this second part that implicates the compelled speech problem.

Going the other way, could Elaine Photography take good pictures, but include in wedding books that portray a message they object to a prominent page saying that the pictures were taken "against their will" due to the force of "unjust" discrimination laws? Again, NMHRA is pretty broad, and might be interpreted to prohibit this as discriminatory as well.

Anyway, I consider my disagreements in Elaine Photography to be quibbling around the margins and the corner cases of public accommodation law, not a fundamental objection to it.

To get back to the original topic, in some ways I would argue that public accommodation law is an area that shows why republican government is better than direct democracy. People are right to be skeptical of laws that fundamentally restrict their freedoms the way public accommodation laws do. It's only with the kind of careful consideration that should be provided by an elected legislature that the need for these laws can be correctly weighed against their significant drawbacks.

Joe said...

The fact that Elane Photography is a corporation that gets special government privileges to me makes it an easier case -- the special privileges can be provided with a proviso that the business follows equal access laws.

And, that is what is at stake there -- the corporation provides a service and cannot single out same sex couples, a form of sexual orientation/sex discrimination -- to not provide it. The concern here is that "speech" is involved. But, a range of businesses include a speech element. Cakes are deemed expressive now. This is a big loophole to anti-discrimination laws. And, sometimes you need to speak -- a hotel cannot selectively not speak to gay customers.

But, I'll grant it is a limited issue but you don't seem to. Your last paragraph speaks of how public accommodation laws "fundamentally restrict freedoms." I push back on that. What particularly should we be 'skeptical' about equal access in public places? Public places, including public business that are licensed and/or get special corporate benefits from the state - us, blacks, whites, gays, etc. -- should be places open to all equally. What "significant drawbacks"? Sounds too much like Sen. Goldwater voting against the Civil Rights Act of 1964.

Does this mean there is NO balancing of interests. No. But, I can think of various other areas where the balance is harder than this.