When Rights Collide

Creative Commons photo by Phil Whitehouse

In the mid 1860’s, laws were passed, predominantly in southern states, that forced business owners to deny service to blacks and other “colored” Americans. Nearly 100 years later, Congress passed laws that banned business owners from denying service to all consumers based upon race, color, religion or national origin. The former laws, given a title after a “blackface” character named Jim Crow, were enacted following the era of Reconstruction, and prohibited African American patrons from enjoying the industry of white business owners. The latter were passed amidst the Civil Rights Movement under John F. Kennedy’s presidency as a strategic move to legislatively rid the nation of systematic and social racism.

The Civil Rights Act is still regarded today as a major step forward in the right direction for American progress. But was it?

The strange contrast between the two periods is that, in the former, lawmakers told business owners to do something; and then, in a dramatic but familiar fashion, lawmakers told business owner not to do that same thing. In either case, where legislators mandated corporate compliance, for better or worse, proprietors lost the essential freedom to choose.

In a liberal market, where capital is dependent upon the free and willful exchange of goods, a state in which one party is forced to suffer another, thus subverting a willful exchange, that party is no longer free. To simplify: A business owner is a free agent of a particular trade. He or she is at liberty to set the bylaws and decorum conducive to their business needs. And in order for that business to see capital growth, it is required to trade goods for a certain monetary price from another free agent. But, when either party demands that an exchange be made beyond the will of the other, he or she has lost the liberty to choose and is no longer a free agent.

There is no natural liberty to shop wherever you please. That is to say, it is a natural human right to serve, but not to be served. Coercion is not essential to service, but it is to servitude. To deny white business owners the right to gain commercial wealth from African American consumers was an infringement upon the liberties of the owners themselves. And the echo of denying all business owners the right to refuse service to anyone is that same infringement with a “moral” flair.

As a general rule of thumb, the majority of Americans detest racism and its proponents, and wishes to see them struggle and fail in pushing their bigoted agenda of segregation and animosity towards people of a different color. So, when it comes to the matter of free trade, it would appear that the “equal protection of the laws” which criminalizes segregation in business, does more to help the bigots than hurt them.

Some would argue that forcing them to serve those of a different color is as a type of punishment or torture, much like a level of Dante’s Inferno. But the error in this logic is that the one they intend to “hurt” is the one they are now funding.

In the liberal market of free and willful exchange, the individual who chooses to deny service to any particular patron is, in fact rejecting the wealth and monetary value that comes with that patron. The wealth of the consumer is transferred into the wealth of the owner, thus funding their business and encouraging expansion and growth.

No exchange means no wealth, no business and no growth, while forced business equates to forced wealth, forced exchange and forced growth. The irony of Jim Crow laws was that they wound up hurting the people they were designed to help, and civil rights laws are now helping those they were expected to hurt.

Now let us look at our current state of affairs in regard to discrimination and exchange.

Cases are sprouting up around the country where religious store owners are refusing service to gay and lesbian patrons. The owners of Sweet Cakes by Melissa were fined $135,000 for refusing to bake a wedding cake for a same-sex couple. The fine was awarded by the Oregon Bureau of Labor and Industry as a compensation for “emotional suffering,” because “the lesbian couple suffered great angst.” The store owners, Aaron and Melissa Klein, refused service based upon religious conviction along with several other business owners.

Mississippi House Bill 1523, a bill to protect “freedom of conscience from Government Discrimination Act,” was shot down as unconstitutional under the equal protection of the law. This bill would have given store owners the right to refuse service based upon religious and conscience conviction.

Are these rulings progressing in the right direction?

Is “emotional suffering,” (sadness, anger, offense or the like) a legitimate grievance for government to step in and “set things right?” At what point does the luxury and delight of a patron transfer from customer service to the Federal Government? Better yet, does it ever?

Thomas Jefferson expressed that we all have an unalienable right to “the pursuit of Happiness,” but not happiness itself. Pursuit is not a demand; and in the pursuit of one’s own self interests, we are capable of rejecting the service of an offensive, rude or bigoted business owner. But by the same token, is not the owner entitled to his or her own pursuit of happiness as well? Is a proprietor any less of a person with rights than the patron? If two individual lifestyles offend one another, is either one justified to punish the other due to an emotional grievance? And if that grievance is based upon a sense of morality, then by what standard are we to legislatively rule one moral code better than the other?

Nobody wants to feel like a second-rate-citizen, and many of us have been subject to the “great angst” that comes with discrimination. But offense is not an infringement of rights. And if the rights of the patron have not been harassed, then neither should the rights of the owner.

If a business determines that it goes against their conscience to serve a patron or patrons for whatever reason, and the law determines that conscience is not a legitimate motive to deny service, is that store owner still a free agent under the law? If so, is the emotional state of a denied patron a legal means to penalize a business owner? And, if a grieving patron feels the obligation to harm the business itself, in a free and liberal market, would it not be far more just to simply deny to that store owner an exchange of wealth? Could not that same-sex couple simply take their business elsewhere and promote the expansion of another’s industry?

But, what is possible far more appropriate to ask, with such a precedence set by such cases, is the market of legitimate and willful exchange, any longer free?