Public Accommodation Laws, Disguised as “Civil Rights,” Authorize Government Control Over Private Property. It’s Time They Go.
Should you enjoy the freedom to choose to whom you want to offer business exchanges and from whom you are willing to accept offers? Or should lawmakers, regulators, and bureaucrats choose for you?
The latter is the premise of all public accommodation laws, which is why they should be repealed and abolished. Public accommodation laws have no place in a regime of liberty that should offer equal protection of the laws for the equal individual rights of each and every citizen.
Controversies revolving around public accommodations laws and the unelected bureaucrats who enforce them are becoming increasingly frequent. Some are well-known, such as the cake baker who didn’t want to bake certain cakes and the photographer who didn’t want to take certain photographs.
These kinds of disputes are typically framed as religious liberty versus anti-discrimination and civil rights legislation. But not always.
In a case from several years ago, a bar well-known for catering to homosexual men refused to admit a homosexual man. The bar defended its actions by pointing to the fact that the gay man in question was dressed in drag and his appearance, dressed as a woman, did not match the photo on his driver’s license (unlike voting, some people apparently believe an ID is still necessary to enter a bar).
This story, however, involved no claims of religious liberty. This story was quite different.
The bar turns out to be famous for catering to “bear” gay men, which means something like gay men who happen to be on the harrier, burlier, “manlier” side of things. Bureaucrats at a state Department of Regulatory Agencies insisted that staff refused admission to the drag queen simply because they didn’t want effeminate-looking gay men in their bar, and that violates the “civil rights” of a man donning a dress, wig, and lipstick.
Let’s think this through:
If it is illegal and a civil rights violation for the owner of a bar for gays to refuse admission to the wrong kind of gay man, and it is illegal and a civil rights violation for a Christian baker to decline making a cake for a man’s wedding ceremony because of where the man puts his penis, then what about a business that refuses to sell its products and services to a man merely because he has a penis?
Are women-only fitness clubs illegal violations of civil rights?
Here we seem to have reached the point of ridiculousness. That ridiculousness reflects the confusion about what are, and are not civil rights. Each and every of these cases can be resolved, and the civil freedom of all U.S. citizens can be protected, by recognizing that these controversies do not involve civil rights at all. They are about private property and individual liberty, not civil rights.
Forty-five states designate certain businesses as “public accommodations” and prohibit the owners from “discriminating” based on race, gender, ancestry, and religion. About half the states have additional prohibitions against discrimination based on sexual orientation and gender identity.
These state laws mirror Title II of the 1964 Civil Rights Act, which prohibits “discrimination on the ground of race, color, religion, or national origin” within places the law declares to be “public accommodations.”
Modern public accommodation and anti-discrimination laws are often referred to as “civil rights” legislation. Yet, they have little to do with actual civil rights and much to do with giving those in government power to control the liberty and private property of citizens.
Civil rights are rights prescribed by law that provide the mechanisms by which citizens participate in the government they created.
Examples of civil rights legislation include laws determining when and where elections will be held, the design and use of ballots, and voting qualifications. Trial by jury, the right to sue in civil courts, protection from warrantless searches and seizures, and the right to stand for election to public office, are also civil rights.
Laws should create and protect equal civil rights for all citizens, and in the United States today, they do.
Forcing someone to make something they don’t want to make, do something they don’t want to do, or engage in any kind of exchange with someone they don’t want to trade with, however, is no “civil right.” No citizen has a civil right to command another citizen to provide a product or service for the simple reason no other citizen has an obligation to provide any product or service, for anyone.
BUSINESS PROPERTY IS PRIVATE PROPERTY
Every privately owned business is private property, no less than a homeowner’s home is private property. A property owner, including business owners, may welcome or not welcome anyone he or she pleases.
Everyone may choose freely to visit businesses that welcome them, just as everyone is free to visit the homes of friends who welcome them, and everyone is free to stay home and visit no one.
No one, however, is free to visit a home or business where he’s unwelcome.
If a bakery owner doesn’t want to bake certain cakes for certain events, that’s his choice. If a web designer doesn’t want to design certain websites for certain occasions, that’s her choice. If a bar owner doesn’t want to admit certain people into his bar, well, you get the point.
At the same time, if someone else wants to bake cakes only for same-sex weddings, and no other events, he should be free to offer that service. If a bar owner wants to serve only cross-dressers, that should be his choice. If a gym wants to offer memberships only to women, have at it.
Every citizen should be free to use his own property however he wants, offer trades of value to whomever he wants to make offers, accept offers he wants to accept, and decline offers he wants to decline.
CUSTOMERS ARE SELLERS, SELLERS ARE CUSTOMERS
What we typically call a “purchase” is an exchange of value. And that exchange ought to be mutually voluntary exchange.
A web designer, for example, has design skills. Someone else has cash. The skills and cash are both forms of private property.
One wants to sell her skills; the other wants to sell his cash; both want the best deal they can find in exchange for their property.
For an exchange to be legitimate, the designer must freely agree to trade her skills for the other’s cash, and the cash owner must agree to trade his cash for the designer’s skills. If either disagrees, no sale ought to happen — and it matters not a whit how either person feels about God, romantic or sexual preferences, or anyone’s skin color. Period.
The dichotomy between “customers” who have some kind of special civil rights in the market place, and “sellers” who have some kind of special civic obligations in the market place, is false.
Any government powerful enough to tell one person what he must do with his cakes, or shots of whiskey, or web design skills, or to whom he must offer a gym membership, is a government powerful enough to tell another person where and how and with whom he must spend his own cash.
In sum, there is no principled difference between cake and cash. Both are personal property. There is no principled difference between “customer” and “seller.” In every voluntary exchange, each party is in some sense a customer and in some sense a seller. The cake baker wants to sell his cakes; he wants to trade his cakes for some cash. The cash owner wants to sell his cash; he wants to trade his cash for some cash.
If a potential customer may, by law, demand that a business SELL its products or services to him, why may not a business owner, by law, demand that a potential customer BUY his products or services?
If it is to be illegal for a business owner to refuse to sell to someone because of the person’s race, ethnicity, gender, sex, or religious beliefs, etc., then so too it should be illegal for a potential customer to refuse to buy something from a business merely because of the owner’s race, ethnicity, gender, sex, or religious beliefs, etc. Right?
In terms of public relations, any business owner likely will make himself look incredibly mean-spirited to others if he refuses to sell products or services to some. Yet, that is the choice of every business owner who is a free citizen.
What should we do? Answer: Let the market deal with them. Just as a business owner is free to refuse service to others, so others are free to refuse to buy the services of a business, and the business might someday find itself with no customers.
Those who demand by law that a business serve him or her look incredibly arrogant, commanding, and even petty.
Freedom includes the freedom to choose with whom to do business, and that freedom goes both ways in any business exchange. If a customer is free to choose where to spend his money in exchange for a product or service, so too a business owner is free to choose whose money he might accept in exchange for a product or service.
WHAT ABOUT BLACK AMERICANS, RACISM, AND JIM CROW?
Let us be clear: Slavery, Jim Crow, and all forms of domestic race-based terrorism and injustice, are terrible wrongs. Demonstrating the injustice of public accommodation laws is no defense of the injustices of Jim Crow.
And as everyone knows, just as two wrongs don’t make a right, two injustices do not make justice.
The biggest problem faced by black Americans after Lincoln and other Republicans abolished slavery via the Civil War and 13th Amendment was violent domestic terrorism by groups like the Ku Klux Klan, the para-military arm of the Democratic Party.
The solution to the problems of slavery, Jim Crow, and all forms of domestic race-based terrorism and injustice, is equal protection of the laws for the equal individual rights and private property of each and every citizen — not public accommodation laws that are now used to force people to do things they don't want to do.
Black slaves and, later, black citizens under Jim Crow proved to be incredibly resilient. Despite the ugly injustices and violence, black Americans tended to marry, stay married, and raise their children. From the time of the American Founding through New Deal of the 1930s, more than 90% of black children were born into homes where both parents were present.
After the Civil War, former slaves and sons and daughters of former slaves were entrepreneurial, creating new businesses and creating new wealth. Where some racists would not allow a black man to eat at a lunch counter, black Americans responded by opening their own restaurants. They launched business ventures of all kinds: black-owned hotels, clothing stores, grocery stores, and banks. In areas such as the “Black Wall Street” of Tulsa, Oklahoma, some were becoming quite wealthy.
As poverty levels among black Americans were steadily going down, literacy rates steadily went up. Black Americans created sprawling networks of excellent schools throughout Southern states, such as the Rosenwald Schools, with black students and black teachers, even during times of economic recession and depression.
Many black Americans during this period simply wanted Democrats hiding under hoods to stop showing up at midnight with torches and guns. They wanted to be left alone and they wanted to be secure in their private property.
But that is not what the Democratic Party offered. The Democratic Party went from enslaving black men, women, and children, to terrorizing the same people during Jim Crow. By the 1960s, Democrats began using the ongoing oppression of black Americans — at the hands of Democrats! — as an excuse to expand government control over the private property of all Americans, disguised as “civil rights” and “public accommodation legislation.”
That was the real “switch” that happened in the 1960s, and that’s how “public accommodation laws” came to be, beginning with Title II of the 1964 Civil Rights Act.
- Is it racist to suggest repealing public accommodation laws?
- When challenging public accommodation laws, how should one respond to accusations of racism?
- Was there ever a need for public accommodation laws?
- Is Title II of the 1964 Civil Rights Act Constitutional? (The Supreme Court argued that it is, in the 1964 case Heart of Atlanta Motel v. U.S. Was the Court right?)
- How can you bring attention to the public accommodation laws in your state?