On Discrimination

Media frenzies like these push me further into apathy. Why do we care what the government of Indiana has on their books? Why don’t we all just shrug our shoulders and go on our way when politicians write more words and add more pages to their tomes? What if we treated them like we treat the guy mumbling about aliens on the street corner?

Everybody gets so worked up that we start to use words the wrong way and throw the baby out with the bath water. Just the word–“discrimination”–becomes vilified and it leaves a bad taste in our mouth. We forget that discrimination is an essential part of society. The freedom to choose and associate is bedrock for a well-functioning and growing economy. Making choices based on our preferences is the fundamental element of all exchange, all of the division of labor, all production, consumption, investment, borrowing, lending–branching into other aspects of life–friendships, relationships, groups, cooperation, celebration, relaxation, fun, games, discussion, debate–even further–worship, prayer, and love. Discrimination is choice. Discrimination is selecting something over something else because you prefer it that way.

Yet, some kinds of discrimination are bad. Refusing to bake a cake for somebody because their skin is a certain color or because they’re gay or because they go to a different church than you or don’t go to church at all or anything like that is morally wrong. We should treat people the way we want to be treated, and we don’t want to be ostracized based on superficial characteristics or personal beliefs or orientations.

Some kinds of discrimination are good. Choosing Bakery A over Bakery B because you like the cakes from Bakery A better than Bakery B is morally acceptable. Choosing Bakery A over Bakery B because you like the people at Bakery A is morally acceptable. If Bakery A charges more for wedding cakes because they are bigger and more ornate and the willingness to pay for such cakes is higher, this is morally acceptable.

Here’s the stretch: some kinds of racial and gender discrimination are morally acceptable. When they were casting for the movie Selma, was it wrong for the movie producers to only consider black men to fill the role of MLK Jr.? Movie producers have an ideal physical type and look in mind even when casting fictional characters, like Katniss Everdeen in The Hunger Games movies (a role that never would have been filled by a black man). When fashion magazines select models, is it wrong for them to choose models based not only on gender, but skin tone, body size, body proportions, facial features, hair length, hair color, eye color, and any other superficial features?

Religious discrimination has morally acceptable manifestations, too. Should a Baptist church looking for a preacher consider Presbyterians? Catholics? Buddhists? Atheists? Deroy Murdock has more hypotheticals in a National Review article:

Do we respect a gay baker’s right to choose not to bake a cake for the Westboro Baptist Church with icing that reads God Hates Fags?

Do we respect a Jewish calligrapher’s right to choose not to produce hand-written invitations for a Hitler Day brunch organized by a local neo-Nazi group?

Do we respect a black jazz band’s choice not to perform at a Ku Klux Klan chapter’s “Negro Minstrel Show”?

Do we respect a vegan woman’s right to choose not to bake a cake for the Indiana Pork Farmers’ Man of the Year dinner?

Our knee-jerk response is emotional. Whenever somebody refuses service based on these categories, we cry out, “Of course that’s morally wrong!” or “Of course that’s morally justified!” But what distinguishes a scenario that makes us angry and one that makes us root for the one doing the discriminating? Our own preferences shape our emotional reactions. We don’t like racism, so we are happy when people discriminate against racists. We like tolerance, so we are happy when people of all races and creeds are allowed into stores and communities. We don’t like Nazism so we are ok with anybody refusing service to Nazis, especially when people like the hypothetical Jewish calligrapher that Murdock offered are doing the refusing.

So discrimination itself is not what we hate. We hate some of the reasons people discriminate. The critical question, though, isn’t “What sort of discrimination are we as a society going to hate, and which ones are we going to uphold as morally acceptable?” We’ve already settled this question, as evidenced by our easy reactions to the different scenarios offered here and elsewhere. The critical question is “What should be illegal?” or “Which kinds of discrimination are ok to respond with violence?”, said one more way: “When do we point a gun in the discriminator’s face?”

My answer is “Never.” Violent responses should be reserved for violent aggressors. And if the black jazz band isn’t a violent aggressor for refusing to perform for the KKK, then the KKK member isn’t one when he refuses to serve the same jazz band in his restaurant. If the gay baker isn’t a violent aggressor for refusing service to the despicable Westboro folks, then the other baker isn’t a violent aggressor for refusing service to the gay couple.

What can be done, then, about the racists, sexists, and other sorts of intolerant people we don’t like in our society? Are they to be given carte blanche to act upon their prejudices? The answer should make you smile: we can discriminate against them! We can shun and boycott the racist restaurant owner, the sexist businessman, or the anti-gay baker. The market is not a test of right and wrong, but it can reveal consumer and business preferences for the types of discrimination that are acceptable vs. reprehensible. We know this because it happened to the entire state of Indiana (in a case of punishing a large group for the legislative acts of a few–see my opening remarks) after the infamous legislation was passed. Conferences were moved out of the state. Concerts cancelled. Travelers and tourists diverted.

While we may boycott a business that discriminates against people we think shouldn’t be discriminated against, we clearly shouldn’t hold a gun to the owner’s head and say, “Serve all of these people or else!” And if we lack the authority to do such a thing, we cannot delegate such authority to someone else–even if they sit in the legislature or wear a badge. We should limit violent responses to violent acts only. Nonviolence is the only proper response to nonviolent acts of discrimination, no matter how ugly and morally wrong such acts are.


This post was pieced together and rewritten based on an article published in The Austrian. Thanks to Ryan McMaken for editing the pieces that made it this far. I found that video on Robert Murphy’s blog.

You should also listen to Tom Woods’s podcast on the Indiana law (with details on court interpretations and the history behind the law) and libertarian responses to this issue.

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