Jared | Right to private discrimination?

Should there be a right to privately discriminate? Does a restaurant owner have the right to serve only whites, or only men? Is a segregated lunch counter (like at Woolworth in 1960’s North Carolina) okay, as GOP U.S. Senate candidate Rand Paul was asked? Is a business, like a hotel, private? Or more like government, and public?

Remember that 90 percent of the Civil Rights Act of 1964 (the culmination of M.L. King’s work) was dealing with government and public actions, only 10 percent expanded the notion of non-discrimination into the formerly private realm of hotels and restaurants.

I can choose to date and marry only white women, right? No Civil Rights Act should be able to tell me differently. Plus you could invite only straight people, or Democrats, to your Christmas party, and no Civil Rights Act should be able to tell you differently, right? The same for a private social club. We agree here because these are areas of private life. But can’t a business be similarly seen?

Private property rights (and their corollary, 1st Amendment free association rights, including the right not to associate) really are the bedrock of America’s economic system that has created the wealthiest society ever. Private property rights, and being able to enforce them in court, are a prerequisite to a wealthy society.

So if a business like a bar was “public” like liberals want, then I could insist on bringing a gun into your bar and you couldn’t deny me that. This is wrong. You should be able to ban guns from your business premise. He who pays the piper calls the tune. If you’re a business owner and you don’t want to serve atheists, Jews, NRA members, Republicans or the elderly, you should be allowed to do it. But you won’t last long.

A bigoted business would be so boycotted, picketed, filmed and humiliated for its neanderthal values and driven out of business. Do you know you can picket a person’s home during reasonable hours as long as you’re not unduly loud or disorderly? Bigoted owners would have their homes picketed.

That we’re having this debate, and that it is seemingly so controversial to discuss the right to privately discriminate, shows that Americans have lost the idea of the public-private distinction in property. Just because someone opens a business, doesn’t mean their property is now “public” and can be commandeered by the state.

But who cares if a restaurant started denying gays or blacks? One or two novelty joints might open up but they’d boycotted out of business quickly. TV news cams would humiliate them. They’d feel the pain of what sociologists and anthropologists call “informal sanctions.”

As Voltaire said, “I hate what you say, but I’ll support your right to say it,” true constitutionalists like Rand Paul should say, “I hate your discriminatory business practices, but I’ll support your right to do them.” Property rights are just as important as free speech rights and the same concept should apply.

And remember what societal ills the Civil Rights Act of 1964 was primarily aiming at. It was government laws and facilities, not private business conduct, that M.L. King was marching against. And remember that with the private bus companies in Alabama (famous for Rosa Parks), it was a government law that started the bus discrimination in Montgomery, Alabama, not a privately formed bus cartel.

The only color the market sees is green. The power of the color of money is stronger than the power of the color of skin. It may not have been in 1964 in the Deep South, but 46 years later in 2010 with a black President, I’d submit that it is throughout America. In a free market, greed and profit incentive will trump racism so I don’t worry that a segregated shopping mall will spring up if we protect property rights.

Jeff E. Jared is an attorney and political writer in Kirkland.

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