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Oregon has levied fines on a family (after their business has already been dissolved) because the owners refused to bake a cake for a gay wedding.

The owners (and future cake making business owners) are clearly being coerced to do something they don't want to.

At the same time, the government has deemed that discrimination for certain protected classes, race, gender, etc. is illegal so that everyone has the same access to goods and services.

Would a Libertarian argue that a government should do away with protected classes and allow anyone to discriminate for any reason they choose to or that the greater good of society is cause for coercion?

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    – yannis
    Commented Apr 29, 2015 at 7:58

6 Answers 6

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The "classical" libertarian solution to this dilemma is simple:

  • If a business wishes to discriminate non-violently, they are free to do so...

    • Some libertarians have a curious point of view that calling police to remove a gay couple from a private place is considered "violent" - in other words, a business is free to request gays to leave the premises, but shouldn't be free to make the State to force them out. Personally, this seems somewhat inconsistent, as the State isn't being used for discriminatory reason (despite the end result) but to enforce private property rights.

  • However, the other are free to do one of the following:

    • Create a competing bakery that serves LGBT needs. If enough other businesses discriminate, that new bakery makes a killing profit-wise.

      • Now, this is an important point. In non-libertarian society, creating a competing bakery may be quite difficult. Register a business. Comply with zoning laws. Get permissions. Don't run afoul of union rules and other labor laws. Allocate a huge expense for other regulatory compliance.

        One of the central tenets that makes this solution a workable one in libertarian society is that you need pretty much none of those extra costs to start a new bakery. Only direct economic costs of directly baking and selling cakes.

      • Caveat: The above makes sense if many other bakeries discriminate as well. OTOH, if only a few other businesses discriminate, it's not even a practical issue worth abusing the government power in the first place.

    • Advertise in the community that the bakery is run by people who refuse to serve LGBT wedding cakes. Plenty of people would refuse to patronize said bakery (including tons - or even most - of libertarians who today would side with the bakery despite totally disliking the bakery's actions - but who worry about government power abuse far more).

  • MAJOR CAVEAT 1: Some libertarians, justifiably, restrict this view to non-monopoly situation only. E.g. if pre-split Ma Bell denies phone service to a gay couple, that's a whole different kettle of fish. E.g. here

  • MAJOR CAVEAT 2: Some libertarians, justifiably, restrict this view to a situation where the business doesn't derive its business from government, at least in major ways. For example of the fine distinction: Boy Scouts should be free to prohibit gays from serving as troop leaders [1 - see comments]. BUT, they cannot be free to expect free accommodation from the state property to hold their meetings if that happens.

For details of the libertarian position, you can read, for example:

.

The abstract political/philosophical reasoning behind this is very very simple:

If you give the government the power to enforce laws that break free association rights - then you have given this or any future government the power to break any other free association rights. So the next governing person who happens to NOT like gays, will pass a law that a pro-gay group is to be fined/prohibited. Because you just removed the freedom of association from your list of unassailable principles.

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    An interesting aside is that those who yell about "greater good" and "discrimination" a lot usually don't really mind discrimination as a concept. Only its application that hurts whoever they personally deem to be more worthy of protection. As a random example, notice an absolute deafening silence on the part of people in the anti-discrimination racket about height discrimination - in both workplace and mating preferences.
    – user4012
    Commented Apr 27, 2015 at 18:26
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    @DVK The Supreme Court made height discrimination illegal in 1977, see Dothard v. Rawlinson
    – bain
    Commented Apr 28, 2015 at 12:40
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    @bain - you just proved my case. That decision was very explicitly OK with height discrimination that didn't involve gender disparate effects - it was only argued as discrimination against women and NOT short persons. E.g. if you discriminate against short men and short women but not tall women, it's perfectly fine with everyone (courts included)
    – user4012
    Commented Apr 28, 2015 at 14:17
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    @DVK Yes, but since most height discrimination does involve gender disparate effects, the decision effectively outlawed height discrimination unless the employer can demonstrate that it is necessary for the job. Which is what I thought you were talking about. Whether the airforce should be allowed to discriminate against 7 foot tall fighter pilots is a different issue...
    – bain
    Commented Apr 28, 2015 at 15:30
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    That's not the only philosophical argument (and not even the most common one, as far as what I've read on this). The other is that what makes free trade moral is it's mutualism (the term is "mutual exchange"). You willingly give me $15 dollars and I willingly make you a cake. From a libertarian standpoint, no claim of coercion can exist here. But when I don't want your $15 and the government makes me make you the cake anyway, that is coercive. You just had someone come bully me into making a cake I didn't willingly decide to make. This is much less of a "slippery slope" argument, IMO.
    – Tyler
    Commented May 5, 2015 at 3:58
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As a "lowercase l" libertarian, I have long maintained that individuals have the right to declare themselves 'married' to anyone they see fit, but that does not imply a right to compel anyone else to do anything in response. If two people's relationship is widely recognized by the population as a whole but some particular person doesn't want to acknowledge it, the populace may shun the latter person for his boorishness, but if the latter person is fine with that it should be his right.

Further, I would posit that business rules at issue should not relate to religion, but rather basic business freedom. If a mixed-sex couple were to go to a bakery and try to order a magenta wedding cake with lime green flowers, the owner should have the right to refuse such an order on the basis of taste. Even if the design is one most people would think was tasteful, the owner of should still be entitled to use his own sense of taste in deciding what orders he will or will not accept, with no legal duty to justify his decisions to anyone.

In the event that a same-sex couple goes to the bakery with an order that offends the baker's sense of taste, the baker should have the same right to refuse that order as he would have if it came from a straight couple, and as before the baker should have no legal duty to justify his decisions.

To compel a business owner to serve someone with whom the business owner has not consensually entered into any relationship is to make the business owner a slave of the person in question. Most business owners will recognize that needlessly turning away business will generally be bad for their bottom line, and many that don't realize that will go broke, making way for others who would recognize it, but such decisions should be made by the business owners in question. Further, if a firm doesn't want a customer's business, forcing the business to serve that customer will generally result in a lower quality of service than could be received from a firm who actually wants the business.

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    Are there exceptions for monopolies? For example, if a privately owned electric company, of which there is only one in the area, decides not to serve Christians, or Muslims, or Atheists, should the government force them to provide that service against their will? This is not a cherry picked example. In some small towns there is only one bakery, one supermarket, one mechanic, one gas station, one hospital, etc. Not all of us live in an area with choices for everything we need and desire.
    – CramerTV
    Commented May 9, 2016 at 17:49
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    @CramerTV: That would depend upon what factors prevent the emergence of competitors. Oftentimes monopolies are protected by local government policies, and the act of protecting a monopoly that refused to serve someone would effectively forbid that person from receiving service. On the other hand, if the only factor preventing someone from opening a bakery to compete with an existing bakery would be a lack of customers who would favor the new bakery, the government should not be seen as responsible for that condition, nor be required to "correct" it.
    – supercat
    Commented May 9, 2016 at 18:00
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    Fair enough, but the startup costs for a bakery and for a power plant are significantly different. Given the tremendous startup costs, would a power plant be able to recoup those costs if they were able to take 50% of the market? If the answer is no, and the monopolistic power plant refused to serve Buddhists for example, how should we resolve that discrimination?
    – CramerTV
    Commented Dec 30, 2017 at 3:17
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    @CramerTV: Power plants generally sell electricity as a fungible commodity. The kilowatts they provide Buddhists are indistinguishable from those they provide to anyone else. Further, in many cases power plants don't sell electricity direct to consumers, but instead sell it to delivery companies who buy it on consumers' behalf. If a power delivery company refused to serve a Buddhist, that might be an issue, but most power delivery companies have local governments assist in providing rights of way for wiring, which would tie in with the locally-protected monopoly principle.
    – supercat
    Commented Dec 30, 2017 at 3:44
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Yes, libertarians would and do argue that anti-discrimination laws are unhelpful precisely because they involved coercing both actions and use of private property. Most libertarians I've talked to view the portions of the Civil Rights Act that coerce the actions of individuals or their use of private property to be a ill-guided and would rather people "vote with their wallets" (e.g. by boycotting racist businesses.) However, libertarians do generally agree with the 14th amendment that the government should treat people equally. So, a state targeting a particular race for citations or favoring a particular race for hiring would be a no-go with most libertarians.

Incidentally, the U.S. Constitution also bans what Oregon has done here (and what others in other states have also tried to do.) The U.S. Constitution quite clearly says that "Congress shall make no law... infringing on the free exercise [of religion]."* While this initially limited only the actions of the federal government, the ratification of the 14th Amendment applied this restriction to the state and local governments, as well. As such, forcing someone to implicitly or explicitly condone a homosexual wedding in violation of their religious beliefs is explicitly unconstitutional. I expect that these laws will be struck down on that ground, probably by the Supreme Court.

One ironic point of people trying to use the Civil Rights Act here is that the it also contains this beauty, codified in 18 USC 242:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both.

As such, the state officials who passed the laws fining the bakeries, florists, etc. could be fined and imprisoned under this law. Frankly, I think they should be in order to send a message that such violations of Constitutionally-protected civil rights will not be tolerated.

* In case anyone is wondering, no, I didn't change the meaning of the relevant clause at all in the abbreviation. The full text is "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

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    Thanks for your answer. It raises a question in my mind though. "free exercise [of religion]" is fraught with ambiguity. The Bible calls for the stoning of adulterers yet we do not allow that particular exercise of the Christian (and others) faith. Which 'exercises' do we allow?
    – CramerTV
    Commented Apr 27, 2015 at 20:39
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    @CramerTV First of all, Jewish laws aren't part of the Christian faith. There is no such commandment anywhere in the Christian faith. Second, the ones that interfere with the Constitutionally-protected rights of others (such as the right to not be deprived of your person or property without due process of law) are obviously not allowed. Otherwise, they should all be allowed to the maximum extent possible, IMO. The somewhat lesser but still quite strict legal standard of Strict Scrutiny is commonly applied.
    – reirab
    Commented Apr 27, 2015 at 20:44
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    @bain That case invalidated a law banning interracial marriage. That's a completely different issue from forcing someone to participate in it. Libertarians would agree that the government shouldn't discriminate between people, but that's not the issue here at all. The debate over whether the government should allow homosexual marriage is completely distinct from the debate over whether someone else can be forced to participate in one.
    – reirab
    Commented Apr 29, 2015 at 14:13
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    @bain Yes, it is. And, yes, whether the marriage is legal and whether someone can be forced to participate in it are indeed completely different issues. Now, if a baker refuses to make a cake for an interracial wedding on religious grounds, the libertarian solution (and the legal one) would be for people who didn't agree with them to boycott said baker, not to force the baker to make the cake. Frankly, I don't personally understand why someone would even want to do business with someone who would discriminate against them, but that's another matter.
    – reirab
    Commented Apr 29, 2015 at 14:24
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    @bain The limits on what the government can do and the limits on what an individual can do are completely distinct issues, both Constitutionally and in libertarian philosophy (and in almost any reasonable legal system, for that matter.)
    – reirab
    Commented Apr 29, 2015 at 14:30
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Yes, the business would be free to discriminate. It rests in the distinction between negative rights vs. positive rights. Here is an explanation:

Positive Rights vs. Negative Rights

This is an explanation of what would happen if a business does decide to discriminate:

Anti-Discrimination Laws Are Stupid

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  • The video you link to actually uses the example of going to the store to buy something and how no one should "ought to stop [one] from making a trade" for goods. Seems to be that's arguing exactly the opposite.
    – user1530
    Commented Jun 27, 2017 at 23:40
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    No you are not understanding. If you go to the store to buy a cake, no third party ought to stop that trade from happening as it does not interfere with the third party. However, if the baker decides they don't want to sell a cake, then still no third party ought to compel or force the baker into slavery to provide a cake. Cakes are not positive rights. No one is entitled to a cake. Hoisting an obligation to provide a cake upon a baker turns it into a positive right. Instead, a better, negative right would be: Government shall not prohibit people from owning cakes.
    – Chloe
    Commented Jun 28, 2017 at 3:28
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    Please ask your professor to explain negative rights and positive rights. And yes, freedom means freedom to be an ass.
    – Chloe
    Commented Jun 28, 2017 at 3:38
  • The video I thought explained it OK...but where it seems to get messy is who/what decides who's rights trump others. And I guess the answer is 'whoever wants to be the bigger ass'. :) Which is fine...it's a philosophy. Not sure it works well in a large society, though.
    – user1530
    Commented Jun 28, 2017 at 3:40
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    All negative rights can co-exist, because it involves NOT doing anything, or just not acting. All positive rights will conflict with each other eventually.
    – Chloe
    Commented Jun 28, 2017 at 3:46
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A libertarian can approach this question in many ways:

  1. She imagines a libertarian utopia, and hypothesizes how this sort of conflict would be addressed in such a society.

  2. She takes US society and government as they are, and asks herself how a principled, intelligent, and idealistic libertarian should respond to this situation, as an individual.

  3. She examines how US society and government presently work, and looks for a realistic strategy for moving them closer to her libertarian ideals.

If we're going to discuss option #2 or option #3, then we need to admit the reality of the present situation, which is that US law, as it presently exists, contains literally thousands of provisions that are explicitly intended to foster heterosexual marriage and predominantly heterosexual activities such as child-rearing. For example, a very large chunk of state income tax and sales tax revenue goes toward subsidizing the K-12 education of people's kids.

In this respect, the situation is very much like the one we had ca. 1940 with respect to Jim Crow laws; Jim Crow was not a voluntaristic system, but rather a state-sanctioned system of segregation.

One good, principled libertarian response to the situation would be to advocate strongly for the dismantling of all of the government subsidies and preferences currently bestowed upon heterosexual people. Dismantle the heterosexist legal system, just as we dismantled Jim Crow.

A much poorer libertarian response would be to ignore the context and pretend that a business such as a bakery exists in a legal and social vacuum. This would be akin to pretending that a segregated lunch counter in Georga was operating without a system of legal coercion in the background.

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    How exactly does this answer the question? I thought you were supposed to be saying whether a libertarian would side with the bakery or accept state intervention in discrimination protected classes. Yes, libertarians would be against tax subsidies (that pay for public schools) , but that isn't the question at hand.
    – user1873
    Commented Apr 28, 2015 at 5:11
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    This seems to answer the question...at least to me. I didn't see the question asking which side a libertarian would take.
    – user1530
    Commented Apr 28, 2015 at 15:59
  • The question explicitly asks how a libertarian non-coercion policy would apply to this case. I don't see an answer to that here. The second-to-last paragraph addresses how a libertarian would deal with the marriage issue, but not the issue of coercing a private business owner to take part in it, which is the question here.
    – reirab
    Commented Apr 28, 2015 at 18:26
  • Gays can have kids too you know, through a variety of different methods. "Dismantling the heterosexist system" in this case is just a cover for eliminating tax revenue to public education so that once again, only the wealthy have access to any education at all, greatly exacerbating income inequality and pretty much eliminating upward mobility.
    – Ernie
    Commented Apr 29, 2015 at 18:42
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It's positive right of gays to be treated like all others VS negative right of businessman not to be coerced to any deal forcefully. Libertarians admit only negative rights, the only positive right they admit is that all people have equal negative rights. So, in this situation businessman is right, gays or state are not.

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    what is a 'negative right'?
    – user1530
    Commented Jun 27, 2017 at 23:37
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    @blip let me google for you. To take Adrian has a negative right to x against Clay if and only if Clay is prohibited from acting upon Adrian in some way regarding x. In contrast, Adrian has a positive right to x against Clay if and only if Clay is obliged to act upon Adrian in some way regarding x. A case in point, if Adrian has a negative right to life against Clay, then Clay is required to refrain from killing Adrian; while if Adrian has a positive right to life against Clay, then Clay is required to act as necessary to preserve the life of Adrian.
    – dzu vog
    Commented Jun 28, 2017 at 0:06
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    One has negative right to engage in commerce, yes. 'Negative' means others cannot violate this right UNTIL he himself violates other peoples negative rights, which he actually does when he forces other party to participate in commercial deal with him. In other words you cannot have negative right to violate other peoples negative rights. In other words all contracts have to be voluntary. Or negative rights just have no sense.
    – dzu vog
    Commented Jun 28, 2017 at 1:10
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    @blip - there's no general "negative right to commerce". There's only negarive right to enter into one side of voluntary commercial transaction (e.g if a shop wants to sell you X, you have a right not to be stopped from buying it. If someone wants to pay you for Y, you have the right to not be stopped from selling it). There's no right to force someone else to enter the second side of that transaction with you.
    – user4012
    Commented Jun 28, 2017 at 2:21
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    @blip - (1) current society is exactly what you describe, except around positive rights (which is much worse because it means those aligned groups are all about forcing others to provide those positive rights at the barrel of a gun). (2) Negative rights would actually be less likely to lead to factions, as they are pretty much about "live and let live". Inasmuch as humans by nature are able to be less-factionish (which they aren't, in any idea system, due to human nature).
    – user4012
    Commented Jun 28, 2017 at 13:14

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