Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
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Kevin S. Willis
Michigoose
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quarterback
ScottC
yellojktA post by Eugene Volokh on VC talks about a recent jury award under the CA public accommodations anti-discrimination statute against a (Muslim) hotel owner that kicked out a Friends of the IDF gathering. I think the major issue is whether property owners are free to discriminate on the basis of non-religious (or religious) beliefs. A secondary issue is whether property owners can discriminate on the basis of speech (Note: it is not clear to me whether the Friends of the IDF gathering was just a party or a fundraiser with speeches, etc.).
The link to the LA Times article has a little more information on the background.
So, an additional question is: should we have different rules for property owners in different states? Volokh makes it sound as if this result is specific to CA.
Filed under: First Amendment, law |
All Things in Moderation 
Mike, I agree with EV [of course]. More, later, as I have to take the twins to the pool.
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Interesting link. But I need a lawyer. Did this turn on the question whether it was discrimination* on the basis of race or discrimination* based on religious belief?
* meaning selection, and not intended in a pejorative sense
It seems to me that business owners should have a right to decide which events to allow on their property.
I think this is slippery slope area, but I’m thinking practical application more than theory or principle.
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Mike, yes, the result is specific to California (yet another aspect of its craziness). I also agree with Volokh. In fact, I’ve always thought that the Pruneyard decision was plainly wrong because a state law forbidding a property owner from regulating speech on its property violates the owner’s federal 1st and 5th Amendment rights. They get around this by taking upon themselves to decide that some property isn’t really “private” property.
The answer to okie’s question whether this verdict was race- or religion- based isn’t clear to me from the articles. It’s entirely possible that if you read the whole record it still wouldn’t be clear.
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Mike:
Interesting case. I don’t know what the law actually says (given the ACA decision among others, seemingly whatever 5 judges want it to say), but as a matter of principle, property owners ought to be able to discriminate against anyone for any reason when it comes to the use of that property.
The only thing that makes this a difficult position to defend is the history of official racial discrimination within the US. At a time when governmental discrimination against blacks was so pervasive and destructive in some places, and blacks had been placed at such a disadvantage by the government, that in order to rectify the situation even some forms of private discrimination needed to be prevented. So a case can be made for a racial exception to the general principle. (Or at least could have been made back when such discrimination was outlawed.)
Beyond that, I think the hotel owner is perfectly within his/her rights to prevent the use of his property by people he doesn’t like. That, of course, ignores any possible breach of contract, as Volokh points out.
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Scott:
property owners ought to be able to discriminate against anyone for any reason when it comes to the use of that property.
So, would you say that the hotel owner should be able to exclude Jews from renting a room? Like Mark and QB, I agree with Volokh that the owner should be able to restrict speech on her property. But complete exclusion? I’m not sure I’m willing to go that far.
I also wonder what is considered private property, at least in CA. Since malls are considered “public” based on Pruneyard, does that mean all private universities are also considered public accommodations? Is Pepperdine (for example) required to allow speakers on campus without regard to content?
Then there are cases like Christian Legal Society, where SCOTUS ruled (5-4) that UC Berkeley Hastings College of Law did not have to officially recognize CLS because they discriminate against LGBT although they allowed CLS to meet on-campus. Did that strike a proper balance? If not, then where is the line for which groups get recognition? Is there a line?
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Mike:
So, would you say that the hotel owner should be able to exclude Jews from renting a room?
Yes. It’s his property. If he cannot dispose of it as he sees fit, calling it his property begins to lose its meaning.
Like Mark and QB, I agree with Volokh that the owner should be able to restrict speech on her property. But complete exclusion? I’m not sure I’m willing to go that far.
Well, if you think restrictions on speech should be allowed, how about restrictions on actions? For example, should a hotel owner be able to disallow homosexual sex acts on his property? If no, why not, particularly in light of your agreement that restrictions on speech ought to be allowable?
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On vacation in Mississippi this spring my wife rented a room at a bed and breakfast which only rented to married couples. A few days before the visit, on the pretense of confirming our reservation, the owner called to determine we weren’t a same sex couple since she had heard that was legal in Maryland. I found that more off-putting than the married-couples only policy.
I never had the courage to confront her on it. She was very friendly and charming but I was not comfortable in her presence knowing she was prejudiced against homosexuals.
Revised to correctly state the gender of the B&B owner.
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Scott:
should a hotel owner be able to disallow homosexual sex acts on his property?
How would you enforce a ban on homosexual acts? Or heterosexual acts, for that matter? If it requires putting a camera in the room, then no, the hotel owner should not be allowed to do that. Legally, excluding homosexuals would work since they are not a protected class.
BTW, what do you mean by “homosexual acts”?
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It’s worth noting that all ‘homosexual acts’ can be performed by heterosexuals and by the sheer weight of demographics, are performed by a much greater number of straight people than gays.
And implicit in that concern is that people only purchase the services of a lodging provider so as to engage in sexual intercourse (hence the popularity of the admonition to “get a room”). Sadly I have great anecdotal evidence that staying in a hotel room with a person of your preferred orientation is no guarantee of sexual activity.
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Mike:
How would you enforce a ban on homosexual acts? Or heterosexual acts, for that matter?
Presumably one way would be to prevent homosexuals (or heterosexuals) from renting rooms. But really that is a problem for the owner to work out for himself.
If it requires putting a camera in the room, then no, the hotel owner should not be allowed to do that.
Assuming the owner made it clear to anyone renting a room that he was doing it, why not?
Legally, excluding homosexuals would work since they are not a protected class.
For our purposes here, I am not concerned with what the law does do. I am more interested in what you think it should do. If disallowing undesired speech is acceptable, why not disallowing undesired actions?
BTW, what do you mean by “homosexual acts”?
Actually I said “homosexual sex acts”, by which I meant sex acts engaged in by homosexuals with each other. But that hardly matters. The issue is whether you think the owner should have the freedom to disallow actions (however he defines those actions) on his property in the same manner that you think he should have the freedom to disallow speech. I think he should.
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May I ask why you didn’t cancel the reservation? I’m not sure how I would have handled that — particularly if I’d already made a deposit.
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Nova,
A couple of reasons. Yes we did have a non-refundable deposit. Also, lodging choices in Eupora, Mississippi are very limited, particularly on short notice. My wife had already rejected one B&B because she was put off by the prominence of the Bible quotations on the place’s website. So the place we booked would have appeared to have been the better choice at the time.
Finally, this trip through Mississippi (we also stayed in Jackson and Natchez) was part of our quest to visit all 50 states and get some local flavor. Not canceling satisfied a bemusedly anthropological curiosity of mine. I wanted to meet this woman. As I mentioned earlier she was not A Monster and had a very interesting personal narrative on how she came to be a B&B proprietor.
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“Not canceling satisfied a bemusedly anthropological curiosity of mine.”
That’s a fascinating project. How close are you on visiting each state?
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I have four states left, Iowa, Nebraska, Idaho, and Alaska. We are hoping to knock off the first two with a long weekend getaway this Fall to Des Moines and Omaha. Tourism suggestions are welcome.
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Presumably one way would be to prevent homosexuals (or heterosexuals) from renting rooms.
A very good test is to see if a policy is as palatable if the word “African-Americans” or “Jews” is substituted for “homosexuals” (or “heterosexuals” for that matter). We aren’t that far away from the Gentleman’s Agreement era.
Assuming the owner made it clear to anyone renting a room that he was doing it, why not?
I can’t imagine anybody renting a room under those conditions.
Actually I said “homosexual sex acts”, by which I meant sex acts engaged in by homosexuals with each other.
Particularly circular reasoning. Other than the gender of the participants, what distinguishes these from heterosexual sex acts? The same equipment and orifices are in play, so to speak. If one ‘allows’ (and I don’t see how one couldn’t) heterosexuals to have sex on your property in the course of providing lodging accommodations to the public, I have no idea how one makes the distinction vis-a-vis homosexuals.
As a side note, when I went on a vacation to Key West a couple of decades ago, the local tourism authority had taken great pains to note in their lodging guides which hotels were ‘family’ and which were ‘adult’, euphemisms it didn’t take me long to figure out. A distinction that has only become more blurred with time.
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yello:
A very good test is to see if a policy is as palatable if the word “African-Americans” or “Jews” is substituted for “homosexuals” (or “heterosexuals” for that matter).
Apparently you did not read my original comment.. And the question isn’t whether it is palatable. It is whether or not it should be made illegal. (Unfortunately, for far too many people, the distinction escapes them. And thereby freedom gets destroyed, even in a democracy.)
I can’t imagine anybody renting a room under those conditions.
Me either. And thus does freedom work its magic.
Other than the gender of the participants, what distinguishes these from heterosexual sex acts?
You might as well have asked “Other than the thing that distinguishes one from the other, what distinguishes one from the other?”
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Scott:
The issue is whether you think the owner should have the freedom to disallow actions
Sure. As long as s/he is up front about it and doesn’t break any laws trying to enforce the ban, the hotel owner doesn’t have to put up with skateboarding, cooking, or homosexual sex acts. But I’m not good with exclusion on the basis of race, religion, or national origin (i.e., suspect classes), which was the point I was making in the first paragraph of this post. In a legal sense, I’m OK with exclusion based on gender (thinking about YMCA/YWCA hostels) and sexual orientation (“gay” hotels), at least until either becomes a suspect class.
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Mike:
But I’m not good with exclusion on the basis of race, religion, or national origin (i.e., suspect classes), which was the point I was making in the first paragraph of this post.
To be clear, I’m not “good” with it. I just don’t think it should be illegal in a free society. As I said, I think the unique history of the US might have provided a reasonable argument for laws preventing race-based discrimination, but if so it is a unique exception to the general principle of ownership.
So, if exclusion based on gender or sexual orientation is acceptable to you (from a legal standpoint), why should exclusion based on, say, religion not be acceptable?
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Scott:
So, if exclusion based on gender or sexual orientation is acceptable to you (from a legal standpoint), why should exclusion based on, say, religion not be acceptable?
Because suspect classes have been historically discriminated against and stigmatized.
You think the US is a free society?
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Mike:
Because suspect classes have been historically discriminated against and stigmatized.
I don’t know what you mean by a “suspect class”. But apart from that, I think this begs the question. If the question is “Why should private discrimination against X be made illegal”, the answer “Because X has been discriminated against in the past” only makes sense if one is assuming first that discrimination should be remedied by legal means.
You think the US is a free society?
Less and less every day, it seems. And some states more than others, of course. But I do think we should strive to have as free a society as possible while still maintaining that society’s viability.
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Apparently you did not read my original comment.
So is your argument that homosexuals have not been the subject of pervasive and destructive discrimination or that private discrimination against them is acceptable?
To generalize the original topic, what groups would merit not being allowed to hold an event at a private business which is in the business of hosting such events:
Friends of the IDF
Arab American Institute
Friends of Sinn Féin
NAACP
Nation of Islam
Aryan Nation
Family Research Council
And if so, on what grounds?
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yello
So is your argument that homosexuals have not been the subject of pervasive and destructive discrimination or that private discrimination against them is acceptable?
As I tried to make clear in that original, in principle I think that, with regard to personal property, private discrimination against anybody for any reason ought to be legally acceptable. I think that a reasonable argument for excepting racial discrimination from this principle can be made.
I don’t think the same exceptional case can be made for sexual preference, or really on any other grounds. That is, afterall, what makes the racial case an exception rather than the norm.
To generalize the original topic, what groups would merit not being allowed to hold an event at a private business which is in the business of hosting such events:
You would have to ask the owner of that business. We are not talking about my preferences, but rather whether or not the owner of a business should have the freedom to act on his own preferences, whatever they may be.
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Scott:
only makes sense if one is assuming first that discrimination should be remedied by legal means.
Even legal means are clearly not sufficient to remedy discrimination. But what are we supposed to use? Harsh language?
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Mike:
Even legal means are clearly not sufficient to remedy discrimination. But what are we supposed to use? Harsh language?
That is certainly more conducive to freedom than using force to make people you disagree with follow your preferences. And of course one need not use the law in order to alter discriminatory behavior, as today’s big news makes plain.
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Scott, try prioritizing rights as life [1], liberty [2], and property [3]. I have no trouble with this philosophically as well as legally so I am skipping a defense of the prioritizing, and assuming, by assumption, that the conversation can proceed from that point.
Now posit that the liberty interest includes, for citizens and legal aliens, the right to travel within the United States. Then assume that the liberty interest in traveling is a fiction if a group of citizens, based on something other than their criminal records and/or communicable diseases, are singled out as unworthy by the owners of the restaurants and hotels along the highways and at the destinations. I am overstating for emphasis. The liberty issue for me trumps the property right. However, the good behavior demanded by the property owner of his invitee/licensee is a standard which, for me, trumps the liberty interest. Don’t mess up my property is a fair limit on the licensee’s liberty. Don’t fight with the other licensees is a fair limitation. There are many of these. But in the first instance, I have no problem with government telling a property owner who hires out his property to the public that she cannot exclude classes of them, as an ethical prioritizing of the liberty interest of the traveler over the property interest of the inn keeper.
For the property owner who keeps everyone out but his friends and family and is not placing his property into commerce – who does not purport to be a public accommodation – the homeowner, obviously, the right to discriminate is his. There is no serious competing liberty interest. That would seem to go without saying, but we do see places in America where local ordinances immorally favor deadbeat tenants, who should be treated as trespassers rather than as having acquired some right by squatting.
It is an interesting topic, because of competing basic interests. I think all topics where values conflict: truth vs. kindness; honesty vs. loyalty; property vs. liberty, are interesting and worthy of lengthy bull sessions among folks who like to think about stuff outside the immediacy of their lives.
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Mark:
try prioritizing rights as life [1], liberty [2], and property [3].
First, let’s stipulate that when we speak of rights, we are speaking of natural or human rights, not legal rights.
Second, I think we need to agree on what these terms even mean, because I suspect when you refer to a “right to liberty” you mean something other than what I understand it to mean. Your view here seems to indicate a positive conception of rights, ie your right to X implies an obligation of others to positive action. You are saying that your right to liberty or to travel requires that others make accommodations available to you. I think such a positive view of rights is contradictory and therefore ultimately doesn’t make sense.
I think the only coherent conception of rights is one of negative rights, that is one in which such a right does not require the active facilitation by others, but rather places a restriction on the actions of others, namely in the case at hand any action that would physically prevent you from traveling. As long as I am not physically preventing you from traveling, your liberty or right to travel cannot be said to have been abridged.
Rights, by nature, must be able to co-exist. (In what possible sense of the word can a thing be called a right if it can be “trumped” by another right?). And it is only under this negative view of rights that individual rights can be said to co-exist, ie we all have equal rights at all times. And therefore the tension you propose, ie between property rights and liberty rights, doesn’t really exist, and indeed cannot.
I do agree when you mention conflicting values. However, the conflict I see is not between property and liberty rights, but is instead between valuing inclusiveness/non-discrimination and valuing freedom/rights. These values can and do conflict, and it is fine, I suppose, to argue that the former should trump the latter, but we should at least be honest about that and not try to fit the square peg of forced non-discrimination into the round hole of rights protection. They are not the same, and achieving the former requires the sacrifice of the latter.
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Scott:
Well, that’s an apples-to-oranges comparison. Augusta National is a private club and they have every right, legal or otherwise, to discriminate in choosing their members. A hotel, however, is a public accommodation and is subject to different regulations and laws. As it should be, IMO.
Guess my Alien reference went over like a rock …
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Mike:
Well, that’s an apples-to-oranges comparison.
The point was not to compare the entities doing the discriminating (although I disagree that they aren’t comparable.) The point was that discriminatory behavior can be and has been altered by means other than the the force of law.
As it should be, IMO
Why?
Guess my Alien reference went over like a rock …
I was trying to place it. Sorry…
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Scott:
Why?
Why should public accommodations be regulated differently than private clubs?
Put simply, because they are two different entities. Public accommodations are meant to serve the public and to engage in commerce. Private clubs are not open to the public and do not engage in commerce. If you want to interact with the general public, then there are specific rules (laws) you must follow. This true of most, if not all, ordered societies. If you only want to interact with your club members, then different rules apply. Obviously, some rules always apply (don’t kill anybody, etc.).
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Mike:
Why should public accommodations be regulated differently than private clubs?
No, why should owners of property that you call a public accommodation be disallowed from discriminating in ways that owners of property that you call a private club are not disallowed from discriminating? (Again, I am not interested in what the law is or why the law is what it is. I am interested in your justification of laws against discrimination that you support.)
Public accommodations are meant to serve the public and to engage in commerce.
The use of private property is “meant” to serve whoever and engage in whatever the owners of the property desire. If the owner decides that he wants to serve not the general public, but rather only a certain portion of the public, why should he be told he cannot?
As for your use of commerce as a distinction, I don’t think that is a good one. Plenty of private clubs engage in commerce. Costco, Sam’s Club, military commissaries are all “clubs” that require membership but which also engage in commerce.
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First, let’s stipulate that when we speak of rights, we are speaking of natural or human rights, not legal rights.
I cannot stipulate that. Natural rights depend on a shared belief in natural law, which is posited from sources believed by some to be divine. It depends on rights seen as absolute and not relative, immutable and never changing. Often, then, to state the premise is to state the conclusion. No discussion is necessary.
I can join a discussion of rights as relative and resulting from a social compact. That is not the discussion you would have.
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Mark:
I can join a discussion of rights as relative and resulting from a social compact. That is not the discussion you would have.
Correct, that is not a discussion I can have. To understand the term to mean something relative to and dependent upon, rather than external to, what society says at any given time is to render it meaningless. According to your understanding, it is impossible to argue that society’s failure to recognize certain rights is unjust because, by definition, no such rights can exist. For instance, abolitionists in 1850 Mississippi could not have argued against black slavery on the grounds that blacks have the same rights as whites because according to your understanding of the term, by definition they did not. The “social compact” said that blacks had no rights, therefore they did not.
Is it really your contention that enslaved blacks in 1850 Mississippi were being rightfully enslaved simply because the social compact at the time gave whites the right to enslave blacks? I find that highly doubtful, and for that reason I find it highly doubtful that you really do understand rights to be relative in the sense you are claming above.
I had this argument many times with Bermie over at PL.
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To understand the term to mean something relative to and dependent upon, rather than external to, what society says at any given time is to render it meaningless.
No. Even when we say rights depend upon a social compact, especially when we say that, we must be able to argue what those rights should be. Arguing from natural law we can only say what those rights are. What are the bases for deciding what those rights should be? “GOD said?” “Jesus said?” “George III said?” “Kierkegaard said?” “Confucius said?” The call to an authority has its limits.
We have our strongly held sense of right and wrong, of moral boundaries. So do they. In the marketplace of ideas someone can win by force, or by reason, or by sheer perseverance. Slavery won throughout history, but we finally rejected it. I like to think I would have rejected it had I lived in Georgia in 1861 or Virgina in 1791. Jefferson and Washington kept slaves. Hamilton thought it was an evil practice. I’d like to think I was with Hamilton. But whatever argument I may have used to counter Jefferson, whether I called upon my faith or upon biology or upon philosophy or upon an economic construct, it would have been my argument. And that is true of the Muslim arguing against me, or the Hindu, or the Marxist, or Thomas Jefferson, may he rest in peace.
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The liberty issue for me trumps the property right.
I like your way of prioritizing rights, but I look at it from a slightly different perspective.
Whenever I hear about Natural Rights I wonder why nobody ever talks about Natural Responsibilities. Most ethical systems have some variation of the Golden Rule which then becomes the basis of the concept of fairness and justice. We have a responsibility to treat others as we would want to be treated. Nobody seeking lodging would want to be turned away solely because of their ethnic origin or religious belief or sexual orientation or hair color, hence we institutionalize rules that prevent others from doing so.
Most injustices that we have eradicated, slavery, women as chattel, non-universal suffrage, had their roots in one class of people being legally treated as different from another class. Without balancing individual rights against the rights of other individuals, it all descends into the basest form of Objectivism. We should not need laws if everybody treated everybody else equally and respectfully but we do. Even the most basic right to live has to be protected with the injunction “Thou shalt not kill.”
A person has right of free association, to do commerce to with whom he wants, but the person wanting to do commerce with him has the right to expect that he will be treated fairly and without prejudice in the broadest sense of the word.
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yello:
Whenever I hear about Natural Rights I wonder why nobody ever talks about Natural Responsibilities.
Natural rights implies only the responsibility of individuals not to deal with other individuals through the use of force or fraud.
Without balancing individual rights against the rights of other individuals, it all descends into the basest form of Objectivism.
I suspect you don’t actually know anything about Objectivism. It posits that all humans possess the same rights, and that individual rights cannot conflict. Therefore, there is no “balancing” required, or, perhaps, rights are by their nature “balanced”. My right to something cannot logically be said to be restricting your right to something else. It also posits that individual rights can only be violated through the use of force or fraud. Therefore, Objectivism maintains that all human interaction should take place in the absence of force or fraud, and that coercion should only be used as a retaliatory measure against the initiation of force or fraud, or the threat thereof.
The problem that anti-Objectivists generally have with Objectivism rests on the fact that anti-Objectivists like to initiate coercion against others so as to order the world around them in a manner to their liking, which Objectivism says is wrong and incompatible with a coherent conception of universal human rights.
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yello:
A person has right of free association, to do commerce to with whom he wants, but the person wanting to do commerce with him has the right to expect that he will be treated…without prejudice in the broadest sense of the word.
These two “rights” are incompatible. They cannot be said to exist at the same time and in the same respect. Person A cannot be sensibly said to have a right to do commerce with “whoever he wants” if at the same time person B has a right to do commerce with person A even if person A doesn’t want to do commerce with B.
What you propose is not logical or possible.
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YJ, if it is not obvious from my reply to Scott below, I agree with you about responsibility as the corollary of right.
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Mark:
Even when we say rights depend upon a social compact, especially when we say that, we must be able to argue what those rights should be.
Our use of language does not support your conception of what a right means. Outside of a strictly legal context, no one does argue about what rights “should be”. When we see an injustice and argue for it to be remedied, we argue on the basis of what rights are.. Opponents of abortion do not say that a fetus “should have” a Right to life. They say that it does have a right to life that the law should protect. Opponents of abortion laws do not say that women “should have” a right control their own body. They say that they do have such a right, and that the state should not violate that right. When we hear about societies in which female genital mutilation occurs, we don’t investigate the “social compact” under which they live to see if women have a right not to have their genitals mutilated. We presume that they do have such a right, and that any “social compact” that allows it should stop violating that right. When the UN drafted its declaration on universal human rights, it was not putting forward a list of rights that various societies “should” include in their “social compact”. It was putting forward a list of rights that it believes all humans posess and that all societies should recognize and protect.
Rights are, first and foremost, moral notions. Appeals to rights are appeals to morality, to that sense of right and wrong that you spoke of. And moral notions gain their force precisely from the presumption that they exist objectively and externally to us. It is incoherent to say that morality is simply the result of a societal consensus, because a consensus is the sum total of individual judgement about some thing. What is the thing about which this moral consensus is derived? Obviously individuals must hold morality to be independent of what the consensus says, in order to be able to offer an opinion which then helps to form a consensus. If we were to pose the question “Is X moral or immoral?”, no one would say “Well, let me take a vote and see.” They would examine their own personal beliefs about right and wrong.
No one speaks of what “should be” moral. No one speaks of what “should be” right and wrong. And outside of a strictly legal context, no one speaks of what rights “should be” possessed by individuals. The very concept of “should” presumes the existence of an objective, independently existing morality which governs proper action. Therefore instead we speak of what morality is, what right and wrong is, what rights are possessed by individuals, and how we “should” act as a result of them.
The source and even the existence of these presumed rights and the morality from which they derive is certainly an interesting question, and one that has preoccupied philosophers since the beginning of time. But our moral language does indeed presume their independent existence, and precludes the relative conception of them that you propose.
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Scott, both Jefferson and Hamilton thought they were arguing “the right” on slavery. We know that Washington was extremely uncomfortable with the notion but remained the owner of perhaps more slaves than anyone in his part of Virginia. We know that Jefferson elevated the property right over the liberty right because he believed that black persons were not fully human, or so he wrote, and white persons had to take care of them, while using them for God’s design for them.
Religious language presumes independent existence of morality. Mine says “Love your neighbor as you love yourself”, “Do not do unto others what you do not want done unto yourself”, “Proclaim liberty throughout the land to all the inhabitants thereof”, and “Do justice, love mercy, and walk humbly with your God.” It poses a universal set of 7 precepts derived from the Book of Noah that define in broad terms how all people should act. Two of these universal laws are “no cruelty to animals” and “establish a just society with courts of law to settle disputes.” Really. Nowhere are these moral concepts argued or analyzed. The theology of my religion is narrative theology, not catachism theology, so the allegories substitute as the argumentation for the precepts.
In my religion, your views are worthy of respect unless the application of them violates “do not do unto others as you do not want done unto you.” This phrasing of the Golden Rule comes from a narrative where Hillel is asked at sword point by a Roman soldier, @10AD, to recite all the wisdom of Judaism while standing on one foot. The narrative is powerful for me. Thus, in the example with which we began our discussion, I place myself in the position of the traveler for whom there is no room at the inn, when in fact there are rooms at the inn.
Language does indeed shape thought, by limiting it. We have more capacity to think than we have words to express thoughts. Compared with numerical thinking, literal thinking leaves us in about 1626. Language is merely useful, Scott. Both of us value life, liberty, and property. In defending what we value, we can assert absolutely, or conditionally, or relatively. I would have asked TJ whether he would have accepted for himself the condition of slavery. I would have pushed him to explain why he would not. When he compared blacks to horses, which he would have done, I would have thrown Sally Hemmings in his face. I would have tried to shame the man with a narrative.
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mark:
Religious language presumes independent existence of morality.
Yes it does. But I think all moral language does, even if the speaker doesn’t. If, when you say that X is immoral, what you mean to indicate is that a majority of people in a given society don’t like X, all you have done is provided an accounting fact. You haven’t made a positive claim about what anyone “should” do. But indicating what people “should” do is precisely the purpose of moral language. Again, the very notion of ‘should” carries with it the presumption of an obligation external to us, and it is this fact that gives moral claims their force and meaning. Without the existence of that externality, who cares what is or isn’t moral? In other words, why should anyone avoid behavior that a majority of their societal compatriots don’t like?
And, again, if morality is defined as being simply the product of societal consensus, what is the thing about which individuals are providing their individual judgment in order to form that consensus?
Language is merely useful, Scott.
Sure, but it is not even that if we don’t have a shared understanding or experience of the thing that language is referring to. Ultimately the use of language is founded on the ability to point to a thing and say “That is what I mean.” Which is why I try to use examples when explaining my thinking. I think there exists a thing, which we all experience (in part through intuition and conscience), which not only acts as a guide for our own personal behavior, but which we presume (certainly I presume) applies universally to all humans. The terms right and wrong, among others, refer to this thing. And when I point to an instance of, say, black slavery, and say “That is wrong,” by “wrong” I do not mean simply that I’ve taken a poll and discovered that a majority of people have a distaste for slavery. Nor do I suspect that others interpret me to be saying that, nor do they mean that when they refer to something as “wrong”. And one of the reasons I don’t think they mean that is because pretty much everyone I know has, at one time or another, expressed the belief that something is “wrong” as an indication that they disagree with a current societal norm. As have I. So I am pretty positive that when most people refer to something as “wrong” (or immoral, or a violation of rights), they are not saying simply that most people find it distasteful. They are referring to this presumed, universal, code of behavior that applies no matter what other people may think.
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They are referring to this presumed, universal, code of behavior that applies no matter what other people may think.
I am sure they are. When you and I agree that murder is wrong we bask in the justification that all religions we know of and most philosophical constructs we know of think murder is wrong. But when I tell a Baptist friend that his religion permitted abortion at the time of the BoR and that mine thought abortion in a rape case was mandatory we have two different sets of universal presumptions. But how can that be? Is it a paradox?
You pose a Manichean view, it seems to me, in which decision making is only and always between two choices, and no more. That is how I read your refusal to credit anything more than the traveling within the boundaries of the public thoroughfare as embodied in the notion of a liberty of movement. You see my view as dangerously reliant on society.
I am posing that the shoulds and oughts all need to be examined and reexamined, and argued in good faith. And that society can be wrong when it argues its course is moral, based on the “Higher Authority”. And that no single source for morality exists and the assumption that it does has led to slavery, warfare, and terrorism in our history.
Life is more difficult when there are no easy answers. If I could get 20 of 20 folks to agree not to treat others in a way they did not want to be treated, I would be thrilled. Of course, in my profession, I have been ethically bound to treat others in a way that I would have not wanted to be treated. I have cross examined a witness and made her out to be an inconsistent liar when in fact she was simply an anxiety ridden human being. I can justify what I have done in each such instance, because I stayed within the bounds of professional ethics, in order to serve a nobler cause. Well, sometimes it was noble. No easy answers, indeed.
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Mark:
But how can that be? Is it a paradox?
If one person posits that there is no God, and another posits that there is a God, is that a paradox? No. One of them is just incorrect. We may not be able to establish with certainty which one, but we can certainly know that they cannot both correct.
You pose a Manichean view, it seems to me, in which decision making is only and always between two choices, and no more.
Not always, but certainly in some instances. God either exists, or he does not. Morality/rights exist as an objectivity reality, or they do not. Rights are either compatible with each other, or they conflict. Some things are an either/or choice. Refusing to make a judgement about which is correct does not change the fact.
That is how I read your refusal to credit anything more than the traveling within the boundaries of the public thoroughfare as embodied in the notion of a liberty of movement.
Well, to be fair we never really got this far in the discussion. You rejected the premise upon which my analysis was based, namely that when we speak of rights, we are talking about natural, human rights and not legal rights. If you reject this premise, then of course my analysis will not make sense. That is why we have since been hung up on establishing the validity of the premise.
You see my view as dangerously reliant on society.
To be honest I’m not even sure I know what your view is at this point. If you think specific moral claims made by society can be wrong, as suggested in your last, then it seems to me you must accept the existence of an objective, universal morality. But you rejected this notion earlier. So color me confused.
I am posing that the shoulds and oughts all need to be examined and reexamined, and argued in good faith.
And I am saying that we must first agree on the concept that “should” refers to before we can examine and argue in good faith about specific “should” claims.
And that no single source for morality exists…
Certainly there is no single source for moral claims, but that does not imply that there is no single source of morality itself. If Christians are correct, that single source is God. Of course they may be incorrect. I think they are.
Life is more difficult when there are no easy answers.
I don’t know what you think are “easy answers”. If the implication is that my principled, logical approach to the issue is designed to produce “easy answers”, I reject the implication entirely, and in fact have quite a lot to say about it. But please clarify before I do.
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Scott, I’m changing the subject ever so slightly.
The question of God’s existence is worth pondering.
The question of what God wants from me, individually, and from us, collectively, is worth pondering.
You suggest the issue of God’s existence as determinative of what God wants from me, and us.
I don’t think it is.
I think the God I believe in wants me to conform my behavior against the yardstick of respect for humanity, demanding respect for myself as a human, and respecting the natural creation. I get to reject killing the Amalekites to the last generation, because I cannot square these commands in my conscience, or in logic. But I have not had a revelation, and I don’t trust revealed religion. So I reject the notion that anyone else has a better handle on what God wants from me than I do. Or that I have a better handle on what God wants from you than you do.
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Further, a discussion of morality must resonate for the non-believers, as well, or else the believer is proposing that the infidel must adopt the believer’s concepts based on a faith the infidel does not share.
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Faced with the variety of religious and non-religious belief among them, most prominently, Deism, in which God was viewed as prime mover and humans as the junior partners with dominion over the Earth, the Founders agreed on some values. Life. Liberty. Property. Commerce. Equality of opportunity, not outcomes. However, they struggled. They compromised on slavery. Women did not vote. In some states, only male landholders voted.
Just as I think the plain command to kill the Amalekites to the last generation fails against the greater principle of “do not do to others what you do not want done to you” I think slavery and classes of citizenry fail against the greater values of life, liberty, and property.
You and I will often agree on “the right”. We would enjoy pursuing philosophy over drinks. I look forward to it, some day.
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mark:
You suggest the issue of God’s existence as determinative of what God wants from me, and us.
Oh no, not at all. I really must not be expressing myself well.
The only reason I even introduced the subject of God’s existence was as an analogy to your suggestion that conflicting moral claims might represent a paradox. It no more represents a paradox than does conflicting claims about the existence of God. Or conflicting claims about the existence of life outside our galaxy. Or conflicting claims about any aspect of the universe. It may be the case that the absolute truth of one claim or the other cannot be established, but the laws of logic tell us that they cannot both be true. There is no paradox. One of them is, indeed must be, simply incorrect. And there really isn’t anything remarkable or controversial about saying so.
My point here is not (yet) to discuss and debate the content of morality, ie what is and is not moral. It is to discuss the concept of morality itself, ie what do we mean when we speak of morality. My contention is that implicit in the very concept of morality, no matter what moral claims one is making, is that morality exists as an objective, universal reality. It is this implication and this implication alone that gives moral claims their meaning and force.
Murder is wrong. Slavery is wrong. Abortion is wrong. Denying health care to someone is wrong. Beating your wife (or vice-versa, to keep things topical) is wrong. All of these claims presume the existence of some external code that applies to everyone. They are not contingent claims relative to societal norms or some “social compact”. Indeed, they are often, perhaps even most often, asserted precisely because they are not reflected in social norms or the “social compact”.
Recognizing this should not be controversial. But it is essential to make explicit, because it has logical implications for when we do try to discuss and analyze what we consider to be the content of morality.
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Scott:
No, why should owners of property that you call a public accommodation be disallowed from discriminating in ways that owners of property that you call a private club are not disallowed from discriminating?
Well, we’ve come again to a point where I cannot tell whether you are feigning ignorance, arguing for argument’s sake, or truly do not grasp what I’m trying to say. With the quote above, you have merely restated my previous question to you, unless you don’t think that disallowing discrimination is regulation (which I don’t believe for a second). OTOH, in trying to make it sound like I made up the terms “public accommodation” and “private club” out of whole cloth, you show that you are not familiar with these legal terms so maybe you have missed the point of the original post, the term “public accommodation” being in the title. Your further use of Sam’s Club as an example of a private club reinforces that supposition of your unfamiliarity with the terminology.
But rather than continue down this clearly fruitless path, let me end my part of this conversation by restating what I view as our disagreement in the bigger picture. My understanding of your view is that personal liberty should trump all, whether in private or in public. My view is that we give up certain rights when we decide to join a civil society in order for that society to function properly and that there is, and always will be, tension between what rights we are willing to cede and what rights society asks us to cede.
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Mike:
Well, we’ve come again to a point where I cannot tell whether you are feigning ignorance, arguing for argument’s sake, or truly do not grasp what I’m trying to say.
What I am trying to do is to move the discussion away from what legalities exist, which simply are what they are and therefore relatively uninteresting to me, towards a reasoned justification of the worldview that generates such laws. Appealing to what is or is not legal in order to justify a view of what should be legal is circular reasoning. As you point out, the term “public accomodation” is simply a legal invention. So basing your worldview justification on that notion sort of puts the cart before the horse. Consider:
Person A has a piece of property and is willing to make that property available for use to some subset of the population, but not everyone.
The above statement accurately describes both the golf club that doesn’t allow Jews to join and the hotel that doesn’t allow Jews to rent a room. You would allow the former but not the latter. What is the distinction? You seem to be claiming that the former does not hold itself out as “serving” the “general public”, while the latter does. But in fact the latter, by definition, is not holding itself out as a servant to the general public. That is precisely the problem….it is by definition restricting itself to a certain subset of the population, and not everyone. Just like the golf club. So the distinction you are drawing does not look like a distinction to me.
Your further use of Sam’s Club as an example of a private club reinforces that supposition of your unfamiliarity with the terminology.
If you are saying that Sam’s Club is legally classified as a “public accomodation” and that classification justifies the law precluding it from discriminating, that simply reinforces my sense that you are appealing to the law itself in order to justify your support for the law.
Sam’s Club is, undoubtedly, a club. In order to shop there, one must be a member, just like one must be a member in order to golf at Augusta National. Why shouldn’t Sam’s Club be allowed to, say, restrict its membership to men-only if Augusta National is allowed to restrict its membership to men-only?
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These two “rights” are incompatible. They cannot be said to exist at the same time and in the same respect.
No right is absolute (except perhaps the right to live and even that one is more honored in the breach) as any one person’s right at some level interferes with someone else’s. Society is based on constructing the mechanism by which we determine which rights in certain circumstances supersede another person’s rights. These are called laws and they govern behavior at all levels. Traffic laws impede on your right to drive wherever and how fast you want in the name providing safety to other people who have the right not to drive in fear of an imminent accident.
In the world of public accommodations (as well as other forms of commerce) once a person offers a good or service to the general public he has the responsibility to honor that offer to strangers regardless of {pick your choice of criteria} as long as other fundamental qualifications are met (ability to pay, isn’t going to engage in criminal activity, etc.) because that person has a right to accept a commercial offer that has been offered.
Rand Paul got some blowback when he objected on libertarian grounds against civil rights laws that ‘force’ businesses to serve customers regardless of race. Using philosophy in defense of bigotry (or at least the right to be a bigot) is morally indefensible except in the oddly bifurcated selfish mindset where everybody acts only in their own interest.
And society enforces these conflicting rights with force or the threat of force. People would not pay taxes without the threat of jail. Since there is an implied threat, all taxes are theft, but the right for one to keep all their money is trumped by the right for society to pay for public goods, real or perceived.
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yello:
No right is absolute (except perhaps the right to live and even that one is more honored in the breach) as any one person’s right at some level interferes with someone else’s.
If rights are not absolute, I have no idea what you can mean by the term. I suspect you don’t, either.
Traffic laws impede on your right to drive wherever and how fast you want
Not if the road is owned by someone else.
In the world of public accommodation…
It makes no sense to cite law as justification for law.
once a person offers a good or service to the general public he has the responsibility to honor that offer to strangers regardless of {pick your choice of criteria}
If a person explicitly disavows offering his service to a particular demographic, he is by definition not offering his service to the “general public”.
Using philosophy in defense of bigotry (or at least the right to be a bigot) is morally indefensible except in the oddly bifurcated selfish mindset where everybody acts only in their own interest
Interesting. I guess you think the first amendment is morally indefensible on philosophical grounds.
BTW, is your claim objectively true, or does it depend on what “society” says?
the right for society
Moral notions apply to human beings, not abstractions.
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Ok, I’ll ask all commenters here, is there a Universal Moral Law. Not asking to say where it came from, just if there is a Universal Moral Code that exists.
My answer is yes, there is a Universal Moral Code.
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McWing:
Ok, I’ll ask all commenters here, is there a Universal Moral Law.
Yes. The concept of universality is implicit in the very notion of morality and the language we use to express it. The difference between saying “I think slavery is distasteful” and “I think slavery is wrong” is precisely that the former expresses a personal preference while the latter asserts a universal truth.
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