01 May Who Gets to Discriminate?
Until recently, I can remember walking in to storefronts of all types, and often seeing a sign that, if not in these exact words, expressed the sentiment: “We reserve the right to refuse service to anyone for any reason”. While I recollect entertaining the thought that actually refusing service for any reason may be a tad harsh, I must now concede that I miss the days when people had a right to choose their associations, in business and otherwise, since, now, refusing service to anyone for any reason may bring dire consequences.
Though not by any means the first case of its sort, Sweet Cakes by Melissa has been assessed a fine of 135,000 for refusing to do a wedding cake for a lesbian couple. Regrettably, Melissa is not the first person who faces unjust financial ruin for failing to honor her state’s nondiscrimination ordinances. The camel has now managed to bring his entire body into the tent. The special rights of some segments of society have now been brought to bear on the silent majority, and the silent majority bafflingly remains silent.
In addition to the obvious anti-constitutionality and inherent injustice in Melissa’s case and other similar ones, two crucial considerations scream the folly of nondiscrimination law.
First, what if the supposedly marginalized individual to whom service has been refused, has a history with the business as being a substandard customer? Only naiveté respecting the fairness of human nature would lead one to believe that such a disgruntled customer would not prosecute a claim against the business owner for any damages he might possibly receive, and on any grounds that they might be brought. Even when the business owner carries the day in court, he is still out time, stress, hassle, and money for the professional fees incurred in defending himself from a wrongful action against him. Hence, antidiscrimination laws will increase an already great burden that business owners bear every day.
Secondly, what would happen in a situation where service is declined an individual because a professional does not consider himself fluent in context of the matter brought before him, and the matter touches on the status for which the individual may be discriminated against? For example, a party to a same-sex marriage contacts an attorney to handle his divorce. The attorney, competent in family law, is not familiar with the nuances of divorce under relatively new legislation and judicial activism that have legalized same-sex marriage. He simply has not dealt in that area of the law, and is not refusing the homosexual individual based on his same-sex marriage, but based on the attorney’s lack of professional qualifications in the matter. Not wanting to malpractice the individual, the attorney refers him elsewhere. His action lies open to wrongful interpretation by either the courts or the homosexual individual as discrimination. While the same-sex aspect of the marriage is the reason the attorney refused the case, he did not refuse it on a discriminatory basis. Again, this attorney could be in for a very unpleasant process, with plenty of bad publicity on his firm, even if he wins in the end.
Nondiscrimination laws are flawed because they deny personal choice, thrusting upon some the values of others, and because they provide an avenue to sue for unrealized damages to the individual who believes, or wants to believe, that he has been the object of discrimination.