It happens every time the Democrats are in trouble politically. There is some national event du jour that spurs outrage, emotive cries to end the madness, and the entire nation gets mad at those bigoted neanderthal knuckle dragging Republicans and the crazy evil that they have truly come to symbolize. Arizona’s Legislature just proposed a state law that said the Politically Correct Self Anointed will no longer have the right to inflict its desires upon private property owners wishing to conduct commerce in Arizona. O.K. it went just a little farther than that. It mentioned that their own personal views on religion could be used for discriminatory purposes to determine with whom they would effect trade. For example, if their personal religious views were such that they did not wish to trade with homosexuals, the new law would have protected their decision, within the confines of their private businesses, to not engage in that commerce.
Many of my friends, most of whom I do respect, went nuts. How could Republicans have behaved in such a manner? As you may have guessed from the picture above, I do not believe this particular issue to be so simple. The Brewer veto of that Bill has also continued the tradition pictured above, which is part of the point. All swords cut both ways. If a Nazi for example ambles into a Jewish owned bakery in Arizona, that baker is now prohibited from not baking the above cake for him, in his own shop.
Don’t get me wrong, I understand the emotion, and most of the time, I even agree with the sentiments being emoted. I have never doubted the sincerity of those wearing their feelings upon their sleeves, and believe me, I share your view more than you know. I however do not believe that those emotions have any place in determining public policy or with economic decision making. The mixture of the two are dangerous, and this dangerous precedent, whether you wish it to or not, has the capability to destroy a nation. Just because our nation is the wealthiest and mightiest ever to have developed in the world, does not make us immune to things that might bring us down. Remember this simple truth, the mosquito is the deadliest animal on Planet Earth. Remember this also, this whole kerfuffle represents nothing less than the battle over whether we as Americans do indeed have rights to determine how our personal property is to be used, which is one of our founding principles. Jan Brewer’s Veto is a mosquito.
The political left has learned the fine art of whipping up mobs, and controlling mob behavior. The problem with being part of the mob however pure and virtuous the emotions were which lead people there in the first place, is that they can be easily directed towards unsavory ends. Discriminating against people for a seemingly shallow reason is wrong. We all, or the vast majority of us anyhow, recognize this. It is just plain wrong. There are two problems however with our well intentioned laws to prevent this injustice. One, it is not the business of government, ours anyhow, to legislate human behavior. Two, who gets to define the terms of which reasons are worthy of being used for discriminating behavior, and which reasons are indeed shallow. Who are these angels we’ve chosen to come and organize our Society for us?
Much of the discussion over the past couple of days has centered around the Civil Rights Act and the Fourteenth Amendment. The latter is something that I’ve gone on record as arguing for repeal previously. That article remains today one of the top read posts of this blog. For those who claim that this is where the Equal Protection concept comes from, I would point you to Article VI and believe that Equal Protection is inherent there, and in the Tenth Amendment. This is a conversation for another day, to be sure. The interpretation of the CRA, combined with the Fourteenth Amendment, is that government has the authority to abrogate the individual property rights of business owners who allow other private citizens to enter their shops if public policy is being violated. The CRA goes on to list several examples of the public policy in question.
The situation which developed is of course a problem. All bad laws lead to these types of problems. If a homosexual couple enters a bakery in Arizona and the shop owner says, “I refuse to serve you, and I have no reason for this,” he is currently acting within his rights and is correct under the law. If that same shop owner says, “I refuse to serve you, and my reason is that I find your life style abhorrent,” he has violated the CRA. If the Neo Nazi enters the same shop, the same rules apply. The question here, is the objection to the Neo Nazi a shallow objection, or is it well deserved? Speaking as a person of the Jewish faith myself, I would like to be able to tell the Nazi where to stick his cake while I refuse to bake it.
The CRA was a misguided piece of legislation designed for a noble purpose. In the 5 decades since its passage, it has accomplished nothing. The very same things that people were complaining about 50 years ago still exist, and to the extent that things have gotten better, the CRA had nothing to do with it. People’s feelings and behaviors can not be legislated.
There is something that has worked however, and that is the free market system. The only accomplishments of the laws designed to legislate fairness have always been to reduce the economic costs associated with capricious behavior to zero. What the CRA replaced is the perfect example of that. The Jim Crow laws are supremely misunderstood in our country. They were evil to be sure, but what is missed is why they were passed in the first place, and how they became entrenched.
If there were two diners in town, one owned by a knuckle dragging moron, and another owned by a man who wished to succeed with his business, what would be the result of the moron excluding a third of his market through some shallow measure. Perhaps making them only sit at tables near the kitchen or the bathrooms. Pretty soon, that segment of the population would visit the diner across the street. Sooner or later, the one across the street would be able to begin making capital improvements, expanding, employing economies of scale and offering lower prices, etc. The Jim Crow laws sought to end the unfair advantages gleaned by business owners who bucked the trend of treating a third of the population poorly. The reason the laws were passed in the first place is that not everyone was on board. The economic cost associated with capricious behavior was legislated to zero.
While the CRA did take the step to eliminate those unconstitutional laws, which also abrogated the private property rights of those conducting private commerce, it also sent the pendulum too far in the other direction. I would argue that it would be far more effective to eliminate shallow discrimination by allowing for others to open similar businesses and steal the market share eschewed in the first place.
Imagine this statement on a marquee in Arizona.
“Johnny’s Bakery, order a wedding cake and get a dozen cupcakes free. Homosexual couples get a baker’s dozen for free.”
How long do you think it would be before I had 100% of the gay community’s business in that town?
The bottom line is that the right to private property was one of the founding principles of our nation. Anything that screws with that principle is dangerous to our existence, no matter how well intentioned. Knee jerk reactions seldom turn out as planned. If a bakery owner refused to sell to a gay couple because they were gay, or to a black couple because they were black, or to a Martian couple because they were from Mars, I would probably find another bakery to go to. That would be my business. Telling that bakery owner that he is legally forbidden from making that decision however is not my business. I’d rather open up across the street and welcome all of the revenue he’s decided to throw away.
Cross Posted from Musings of a Mad Conservative.
Tags: Arizona, gay marriage
