Creative Destruction

May 21, 2007

No Facts Which Offend Me May Exist

Filed under: Debate,Human Rights — Robert @ 12:44 pm

A somewhat frustrating conversation with Mandolin over at Alas is shut down. Apparently, the existence of facts (laws forbidding classes of discrimination have costs) causes too much emotional distress to be borne.

The irritating part is that if the situation were reversed – if leftists were obliged to compromise their values in order to comply with the law – they’d be (justifiably) screaming bloody murder about the oppression. I guess harms to people’s freedom of conscience only count if the conscience tends liberal.



  1. Whoops. I’ve been chewing on some comments, and I’d like to concede the merit of some of Bonnie’s and Brandon Berg’s remarks. Since it’s too late to do so at Alas, may I do so here?

    Bonnie noted:

    . . . the remedy isn’t money damages; no, it’s specific performance. I’m compelled to continue living there and working there.

    Disingenuousness check: Sorry, no. Specific performance in employment generally is not the remedy….

    Further, specific performance in landlord/tenant relations is a tenant’s, not a landlord’s, rememdy….

    Bonnie makes a good point. I should not have referred to specific performance remedies. I admit that can’t identify any instance where someone was compelled to provide specific performance as remedy for quitting a job for discriminatory reasons, or leaving an apartment for discriminatory reasons. Nor can I identify any instance where someone was required to pay financial compensation.

    And that’s because it’s perfectly legal to quit your job or leave your apartment for discriminatory reasons. That’s the point I needlessly obscured.

    It’s easy for me to say that civil rights laws are costless; I’m not an employer or a landlord. Indeed, only a minority of people are employers or landlords, and it’s easy to ignore the perspectives of minorities.

    So I suggested that we make employees and renters liable for acting on discriminatory bases, too. As a matter of substance, this policy would seem to fulfill our impulse to prohibit discrimination. But more important to the current discussion, this policy would finally make the majority of people – renters and employees – subject to potential liability for discriminatory conduct. And in so doing, this policy might impress upon others the idea that civil rights laws are not costless.

    I’m not opposing civil rights laws; I’m opposing the idea that there is no trade-off in adopting them.

    Comment by nobody.really — May 21, 2007 @ 1:24 pm | Reply

  2. Robert:

    I guess harms to people’s freedom of conscience only count if the conscience tends liberal.

    Not at all. It cuts both directions on this false dichotomy. Liberals want their agenda, and so do conservatives. So in the argument at Alas, liberals want to add laws, ordinances, or whatever protecting gay rights alongside rights granted on the basis of race, gender, disability, etc. You may disagree, but it’s a legitimate agenda. (I disagree that it’s costless, because it obviously removes the ability of some people to discriminate on the basis of sexual orientation. Whether there is harm in that or not is immaterial.) On the other side of the aisle, many conservatives want to retain or reinstate religious observances in schools and other government-sponsored institutions. It’s also a legitimate agenda. But either way the decision goes, it comes with a cost to those arguing for the losing side. I suspect if the discussion were about prayer in schools rather than housing for gays then the conservative side would be itchy about harms to their freedom of conscience. (Yes, I realize that conflating conservative with religious is questionable, but that’s the way the Republican party has swung in recent years.)

    Comment by Brutus — May 21, 2007 @ 1:30 pm | Reply

  3. Brandon Berg:

    In contrast, I justify civil rights laws as reflecting a judgment that the benefits to society of protecting people from certain types of discrimination outweigh the cost to society of impinging on the interests of bigots.

    That’s not the full equation, though. As Robert pointed out, the cost to society is greater than the cost to bigots of not being allowed to act in certain bigoted ways. Even if we grant for the sake of argument that property rights should, in some hypothetical world where this could be done costlessly, be abridged for the sake of preventing discrimination, we still have to account for the costs associated with false charges of discrimination, whether frivolous or mistaken, as well as the costs (opportunity and accounting) associated with proactively fending off such charges. Even legitimate claims of discrimination take resources to litigate.

    Fair enough. I should have said I justify civil rights laws as reflecting a judgment that the benefits to society of protecting people from certain types of discrimination outweigh the cost to society, period. And Brandon Berg has a point that laws barring discrimination that almost never occurs might prove to be more trouble than they’re worth. But this position still stands in contrast to Robert’s argument that we should refrain from barring discrimination when the discrimination is popular.

    I suspect that discrimination is unlikely to be a huge problem in places where there’s enough local support to get it banned (though this doesn’t necessarily apply to the application of federal anti-discrimination laws to the South in the ’60s).

    Indeed. There have been a dozen federal civil rights laws dating back to immediately after the Civil War. They just weren’t enforced.

    Kennedy initially proposed a new civil rights law, but dared not promote it because he needed Dixiecrat votes for re-election. It was Johnson, skillfully exploiting the national trauma after Kennedy’s death, who got the Civil Rights Act passed over Southern objections. But many Democrats acknowledged that the Civil Rights Act would cost them the support of the Dixiecrats. And by the time Nixon ran his Southern Strategy, the prediction had come true.

    Was finding housing really a problem for homosexuals in San Francisco and Berkeley?

    Dunno about homosexuals specifically. But when the California legislature adopted laws in the 1960s barring discrimination in the sale or lease of property, the public adopted a state constitutional amendment by initiative that repealed those laws. This initiative was challenged as a violation of the 14th Amendment. In Reitman v. Mulkey, 387 U.S. 369 (1967), the Supreme Court struck down the amendment. It was undisputed that the legal consequences of the amendment could have been achieved constitutionally by a mere repeal of the anti-discrimination laws. But the Court held implicitly that the symbolic consequences of the voters’ actions violated the Fourteenth Amendment.

    [T]he intent of [the initiative] was to authorize private racial discrimination in the housing market, . . . and to create a constitutional right to [discriminate].
    * * *
    [After the amendment,] discriminations in housing were not only free from [the anti-discrimination laws] but the also enjoyed far different status than was true before the passage of those statutes. The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State’s basic charter . . . . Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority….

    The only legal distinction the Court specifies between rights “authorize[d]” or “create[d]” and those merely permitted is the ease with which they may be changed. The Court found no greater distinction between rights “embodied in the State’s basic charter” and those embodied in common law. Arguably the Court did not find fault with a private person exercising a right to discriminate, but rather with a state action that symbolically lent legitimacy to of the exercise of such right.

    Comment by nobody.really — May 21, 2007 @ 1:34 pm | Reply

  4. Brutus – you’re basically making the same argument as me. There are rights in balance, not a victim class which has moral authority and an oppressor class whose interests are intrinsically valueless.

    Comment by Robert — May 21, 2007 @ 4:06 pm | Reply

  5. Right, we agree on half of the argument. The part about conscience counting only if it’s liberal we disagree on.

    Comment by Brutus — May 21, 2007 @ 9:43 pm | Reply

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