To the best of my knowledge, since the fall of Apartheid there’s no jurisdiction anywhere in the world under which it’s illegal for me to prefer a white woman in my bed to a black one. But in most jurisdictions, at least here in the West, not only for the government but also for private enterprise, it’s illegal to deny service to someone because of her race or religion or ethnicity. And many jurisdictions are now including sexual orientation in this list of prohibited grounds. What remains a grab bag are things like the customer’s criminal record, or her political affiliation. That varies from country to country and from state to state.
But – or so it’s argued – it’s not just the rights of the customer that have to be considered here. What about the rights of the service provider not to violate her religious or moral convictions? Well, it turns out that too is something of a grab bag.
There are a lot of issues here. Let’s see if we can parse at least some of them.
There’s no denying that in a virulently racist town, a black man sitting at the lunch counter might turn some white patrons off their food. But we’ve decided that in this case the rights of the black man trump, the idea being that eventually no lunch counter will be found in which there won’t sometimes be a black man at the counter, and so any good ol’ boy hold-outs will just have to get used to it. That is, a no-smoking bylaw doesn’t kill one’s business provided it applies equally to her competitors, so it should be the same with a no-discrimination law.
But now suppose my religion tells me that it’s an abomination in the eyes of God that a white man should break bread with a black one. Now we have a head-on with freedom of religion. This one’s easy. My religion might tell me that we’re to suffer no homosexual to live, and so a law protecting homosexuals from stoning is a violation of freedom of religion. Well, live with it!
The problem case – the one that’s actually making its way upwards in the courts – is whether a baker can decline to make a cake for a same-sex wedding. I’m inclined to say he can, but only because he’s not the only baker in town. But what if he is? Well, we might say, they’ll just have to do without a cake.
But are we going to say the same thing about abortion if the only accessible hospital is Catholic? That she’ll just have to carry the product of a rape through to term?
One thing that’s at issue here is whether access to abortion is a negative right or a positive one. If it’s a negative right then she has a right not to be interfered with, but there’s no one who has a duty to assist her. If she has a positive right then it falls to the state to ensure that assistance.
And if it can’t? That one’s easy too. Since ought implies can, if it can’t then it can’t be obligated to. And if it can’t be obligated to, then she can’t have a positive right to it. So any positive right, it would seem, is a contingent one. If but only if the state can, then it must.
This seems to dovetail with our intuitions about subsistence. If one has a right to subsistence, then the polity to which she belongs has an obligation to provide it. But not if it can’t because it doesn’t have the wherewithal, for example if there’s a famine. That covers much of the Horn of Africa.
But what if it could feed her, but only by forcibly expropriating food already in the rightful possession of others? This is precisely what governments are forced to do in times of famine or war. And what this shows is that ‘rightful possession’ is always subject to this contingency clause. What’s yours is yours unless and until it’s needed more urgently by others.
But hang on. Why should it be any different with the ‘rightful practice’ of one’s religion? If yours is the only hospital within range of a woman legitimately seeking to end a pregnancy, why can’t your services be forcibly expropriated? They could, you answer, if she were suffering from a gunshot wound, for which she has a positive right to assistance. But to assistance in ending a non-therapeutic pregnancy she only has a negative right.
That seems right to me. Or at least it would, until it’s pointed out that a right not to be interfered with can be trivially honored by seeing to it that no interference is necessary. By this I mean that if there’s no hospital that will assist her, she’s only trivially not being interfered with. So where such trivialization is available, the distinction between a positive and negative right can ring more than a tad hollow.
And then so does the right to one’s religious convictions. If your religious convictions stand in the way of what would be my positive right to, say, a blood transfusion, or if they trivialize my negative right to a non-therapeutic abortion, then something’s got to go. And then it comes down to what we consider more important, one’s life and/or reproductive autonomy, or another’s religious liberty.
Is there a fact-of-the-matter about which we should consider more important? Not categorically more important, because we can imagine circumstances under which siding against religion would lead to civil war. And as is well known, war, which is virtually defined by killing and rape, is a respecter of neither lives nor reproductive autonomy.
Now let’s bring this discussion home to what it’s really all about. Should a member of a reviled Administration have the right to eat in peace at a privately owned restaurant? Does she have a right to eat in a privately owned restaurant at all? A supporter of that Administration was recently asked to remove a hat proclaiming that support. Suppose he removed it. Should his having announced his support for the Administration be grounds to refuse him service, even though he is now indistinguishable from any other patron?
To all of the above, I’m reluctantly inclined to say yes.
The question is not whether the Trump Administration is rightly reviled, though I think it is. The most benign Administration will be reviled by someone. Nor is the question whether the rest of us have a right to harangue the likes of Sanders while she tries to eat. Of course we do. Make the bitch’s life as miserable as possible! say I. It’s whether one has the right to withhold a service which is understood to be being offered to the public.
Some people argue that we prohibit grounds about which the victim of discrimination has no choice, like sex or race. But one does have a choice about serving as a President’s press secretary, or wearing a Make America Great Again (MAGA) cap. But that can’t be the right sortal. One also has a choice about hanging a Star of David or cross around her neck, or wearing a burka. Why should a MAGA hat be any different? If certain political affiliations are grounds for shunning, why not certain religious affiliations? And if religion, why not race? The grounds for discrimination is not whether you chose to be what others revile. It’s that you are what others revile.
What this shows, I submit, is that whether your right to be served does or does not trump my right not to serve you has nothing to do with the grounds I have for not wanting to serve you. Nor is which trumps which a metaphysical or moral issue. It’s a purely political one. We can imagine circumstances in which the first would trump the second, and others in which the second would trump the first. For that matter we could imagine circumstances under which it should be illegal for me to prefer a white woman in my bed to a black one. If this be doubted, remember that there was a time and place in which it seemed equally unimaginable that it should be legal for me to prefer a black women to a white one.
So I think the question comes down to one similar to the right to bear arms. Whether rightly or wrongly, the American people have decided that maintaining the means of rebellion against a government that’s turned against them is worth those deaths brought about by domestic and criminal gun violence. That’s a judgment call, about which reasonable people can and do disagree. But I think it would be unreasonable to withdraw the right to shun. If the after-hours lives of members of the Trump Administration can be made sufficiently uncomfortable, if not downright intolerable, then the Administration won’t be able to recruit, and if it can’t recruit, it can’t function, and if it can’t function, it has to step down.
But, of course, this opposition to the Administration faces a collective action problem. So long as Sanders and her ilk can find venues that will welcome them – and instead will refuse service to those who would harangue them – the shunning becomes a merely symbolic gesture, though not for that reason to be in any wise dismissed.
The danger – or so some have suggested – is that if this shunning isn’t nipped in the bud, it could lead to Democrat- and Republican-only restaurants, and then to partisan segregated housing, and then … And that would make an already-polarized polity indistinguishable from Apartheid. And what’s wrong with Apartheid? Just that people who break bread together don’t kill each other. It’s people who don’t that do.
This is the argument against my position, and it’s a damn good one. What I can’t get out of my mind, however, is all the decent Germans who continued to invite their Nazi neighbors to dinner because it would have been churlish not to.