Response to a Distressed Libertarian Reader about Discrimination

By William K. Black
Quito: April 8, 2015

Well, the key to getting strong responses from readers is now clear.  All I need to do is violate the standard rule on the three subjects to avoid to increase the chances of polite conversation – sex, religion, and politics.  My series of three articles on Indiana’s original Act authorizing discrimination discusses each of those subjects.  I thank Andrew for commenting on my third installment, which addressed the op ed in the Wall Street Journal urging “libertarians” to come forward to lead the charge to repeal all laws banning discrimination in private contracts.  Merchants, landlords, and employers should all be allowed to discriminate against any group without the necessity of creating a religious pretext for that discrimination.  I urged libertarians who were not nostalgic for the return of Jim Crow and the Klan’s embrace of discrimination to write and express their support for laws banning discrimination against groups in the marketplace.  None has taken up my invitation, but I thank “Andrew” for writing to express his support for the repeal of laws banning discrimination against disfavored groups in the marketplace.

April 8, 2015

Sorry, I don’t get it. If someone doesn’t want to do business with you because of who you are, why would you want to force your business on them by government edict? I’d be walking out the door, shaking off the dust from my feet, and glad to be enlightened concerning where my money was going to go.

Freedom of Association, which you, Mr. Black, refuse to say by name, is the most essential freedom. It is freedom of choice. Its the right to chose who you want to be with and interact with on a daily basis. Its the base of the right of being able to chose who you marry, or who will have your children, or who will be your business partner(s) or who you decide to hire as an employee, what families you and your children will interact with, who you socialize with, and where you want to live?

I know you clearly don’t believe Americans should have a right to freedom of association in economic matters, in hiring, and in housing decisions – these questions must be filtered through the bureaucracy and judiciary whenever someone claims discrimination.

Why don’t you come right out and say whether we have a freedom of association in anything at all?

Is there any limit to the supposed power of the state to tell us who we must spend any given moment of our lives with? If there is some limit, what factor or principle sets that limit? Why for example, do we get a free choice of who to marry, but not who to do business with? Isn’t marriage and childbearing far more a compelling state interest given that it is the future of the state itself, than some ephemeral economic transaction?

My response:

I hope that Andrew is exaggerating his inability to feel even the slightest empathy for the victims of discrimination or the slightest familiarity with the literature on effects of discrimination on the victims.  We can agree that the key is that he doesn’t “get it.”

“Sorry, I don’t get it. If someone doesn’t want to do business with you because of who you are, why would you want to force your business on them by government edict? I’d be walking out the door, shaking off the dust from my feet, and glad to be enlightened concerning where my money was going to go.”

Andrew’s claim as to how he would react to discrimination – it would make him “glad” harkens to one of the most infamous passages the Supreme Court has ever issued in an opinion – and the most devastating takedown of the Supreme Court’s mendacity.

The disgraceful Supreme Court decisions, Plessy v Ferguson, 163 U.S. 537 (1896), upheld racial segregation under the rationale of “separate but equal.”  The Court upheld Louisiana’s law segregating rail cars against the claim that the law violated the equal protection clause.  The two sentences from Justice Brown’s opinion for the Court that have haunted Supreme Court Justices of conscience for over a century read:

“We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

Richard Kluger quotes this passage from Plessy in Simple Justice (1976) and then comments:

“Of all the words ever written in assessment of the Plessy opinion, none have been more withering than those … [of] Yale law professor Charles L. Black, Jr., who [said that in] … the two sentences… ‘The curves of callousness and stupidity intersect at their respective maxima.’”

I would add the curve of mendacity also intersected at the same point.  The Supreme Court was not so much “stupid” in Plessy as it was dishonest.

Human beings are not “glad” to learn that a merchant refuses to serve them because they are Catholics,” or that they will never get their dream job in commercial banking because they are Jews, or that their daughter was called a “whore” by the landlord when she drove 45 minutes in response to a rental ad, but showed up without a head covering.  Normal human beings are outraged, greatly inconvenienced, and internalize the bigotry.

So, why would I want to “force [my] business on them by government edict?”  Well, first, because I’d like my dream job in commercial banking.  (Jews were in fact excluded from commercial banking for over 50 years.)  I’d also like our daughter not to be called a whore by the landlord who refused to rent the apartment that was the right price and the right location for our daughter’s new job.  I know that our daughter would not react by being “glad” to be called a whore because the landlord considered her clothing “immodest” and be denied the apartment, particularly after a 45 minute drive out to where her new job would be.  (That example, thank G-d, is hypothetical.)  Our daughter would be devastated and my wife and I would be almost incapacitated with rage and the inability to do anything once Andrew repealed the anti-discrimination laws.

I know from historical accounts that Catholics in Indiana during the height of the Klan’s domination of that state were not “glad” to be denied services by merchants who were Klan members or intimidated by Klan members.  The nature of bigotry is a noxious mixture of hate and fear.  While there are polite bigots there are many bigots who not only wish to deny you, your children, your spouse, and your best (Irish Catholic) friend who you have invited to join you as your guest at a restaurant to celebrate her birthday service but delight in telling your party to leave the restaurant because “we don’t serve her kind.”  And, no, real humans are not “glad” to have this happen to them.

Andrew seems to argue that it is impossible to distinguish between the marketplace and personal relationships when it comes to “freedom of association.”  As he observes, we let people pick their spouses and friends, and we all know that such choices are frequently constrained by prejudices.  He makes this statement, which he seems to feel is real challenge.

“Why don’t you come right out and say whether we have a freedom of association in anything at all?”

Yes, we have a right, whatever our Mom believes, to decide who we love and hope they will love us.  I oppose arranged marriages, even though it is the family rather than the State that arranges marriages.

Love, however, has a way of confounding prejudices once people from diverse backgrounds meet.  Our anti-discrimination laws, by reducing residential segregation and the exclusion of minorities from universities and jobs (the three principal places people meet in the real world) have remarkably expanded “freedom of association.”  Intermarriage rates have expanded dramatically in the United States as a result.  If you want to expand the scope of “freedom of association” in our most intimate relationships (which Andrew characterizes as “the most essential freedom”) then the single best way of doing so is to have effective anti-discrimination laws in housing, employment, and education.  These laws are also one of the best means to reduce bigotry because as Americans increasingly associated with different ethnic groups we discovered overwhelmingly how much we had in common with each other.  It is not simply intermarriage, but friendships among diverse Americans that became increasingly common.  No one mandated this, it was simply the product of associating with diverse people in the schools and workplace.  It is a (pun intended) pale version of “freedom of association” if our right to choose our friends and romantic loves is limited to a subsection of Americans who look just like us because we live segregated lives due to discrimination in education, employment, and dwellings.

Andrew conflates the unrestricted right to pick your spouse with the “right” to tell a black man that your firm does not hire blacks, the “right” of the supermarket not serve women who are not “modestly” dressed, the “right” of a city’s largest landlord not to rent to Jews or LGBT, and the “right” of a private (secular) college not to admit Muslims.  He says that the right to choose your spouse is “the most essential freedom.”  He implies that the same must be true of the three decisions in the marketplace and the secular private college I just discussed.

Andrew assumes that “economic transaction[s]” are so “ephemeral” that they are unworthy of a democratic government’s concern.  Higher education lasts 4-10 years and forms for most Americans who complete higher education one of the most important bonds in terms of institutions and friends of any aspect of our life.  For many of us, it is where we meet our future spouse.  Employment relationships can last for decades and are a vital part of how many Americans define their lives.  Among our first questions upon meeting someone is “what do you do?”  We live in our apartments for years, and in our homes for decades.  So, no, the civil rights laws’ anti-discrimination provisions do not relate to “ephemeral” and inconsequential relationships.  These facts also explain why humans do not react to being denied entry to university, the right to buy a home or rent an apartment, or the denial of their dream job on the basis of discrimination as to their race, gender, or religion by being “glad” or blithely unconcerned because the results of such denials are so “ephemeral” that they are inconsequential.

Businesses are given licenses to serve the general public, particularly our most dominant form of business – the corporation.  If they are unwilling to serve the general public because their hate for a particular group, such as blacks or Jews, as employees or customers is so palpable that they cannot function, then they are in the wrong line of work and perhaps even in the wrong Nation.  But real life, and the literature, agree that is the rarest of business persons confronted by a ban on discrimination in the marketplace that suffers such associational terrors from employing a black person or serving a Jewish customer that he chooses to sell the business to avoid being compelled by a “government edict” to have a marketplace relationship with such groups.  What has happened instead, commonly, is that the businessman’s bigotry is diminished when he actually has a marketplace relationship with black employees and Jewish customers.

The reason that bigotry against LGBT citizens has fallen so rapidly is that straights were already associating with gays closely – they simply did not know they were associating with gays.  As gays “came out” Americans learned that their friends, relatives, and colleagues were LGBT.  Instead of gays being the sinister unknown, they turned out to be your buddy who had the same concerns about his mortgage, his chances at promotion, and his sick mother that you had.  Other hated minorities, however, rarely occurred in your own family and were easily observable – and therefore easily avoided.  The civil rights acts’ bans on discrimination in the educational and commercial spheres, therefore, provided a far more critical role in reducing discrimination against these more observable minorities.  Again, this greatly increased the scope of “freedom of association.”  And nobody, despite the civil rights acts, other than your mother, tries to tell you who to marry.

Andrew is dubious that discrimination exists, and outraged that the victim of discrimination could have recourse to the rule of law.

“I know you clearly don’t believe Americans should have a right to freedom of association in economic matters, in hiring, and in housing decisions – these questions must be filtered through the bureaucracy and judiciary whenever someone claims discrimination.”

No I do not think that employers and landlords should be allowed to refuse to employ, rent to, or sell to black people.  Yes, the victim needs to “claim discrimination” to start the defense of their rights under the law.  Yes, this triggers legal rights to bring a claim before the judiciary.  But why is Andrew so suspicious about claims of discrimination?  Any historical awareness would make it clear that discrimination was the norm.  And why the hostility to the “judiciary?”  The judiciary is overwhelmingly strongly supportive of business interests, so the judiciary is rarely a hostile venue for business people.

Andrew Endorses the Absolute Legal Power of the CEO

Andrew asks me:  “Is there any limit to the supposed power of the state to tell us who we must spend any given moment of our lives with?”  Andrew has raised a good point.  What are the limits on the business CEOs’ powers under Andrew’s view of an absolute right of the CEO to discriminate against any group or individual for any reason and to govern relationships through “voluntary” contracts?  There are none.

Here is what happened in the U.S. when there were no protections against discrimination in the marketplace.  We have seen the reality of what Andrew calls “freedom of association” as ruled by CEOs.  I’ll begin with an aspect of his view of “freedom of association” that I have not yet discussed – unions.  Favor a union?  We won’t hire you.  If you favor a union after you are employed we will fire you on the spot.  How did the employer learn of workers who supported unions?  They had undercover informers hired from detective agencies infiltrate workers’ meetings.  Oh, and one company did not simply fire you, they blacklisted you throughout the employer association.  Company towns and stores would get the workers in long-term debt so they were easily extorted to resist unions.

Disfavored minorities: the CEO has an absolute right to refuse to hire them, pay them far less if he does hire them, and constantly verbally abuse them.  The landlord, real estate agent, and seller have an absolute right to discriminate – and discrimination in housing was the norm.  People of color and women were systematically denied entry to most institutions of higher education.  Jews were limited by quotas.  It was nearly unthinkable to be openly gay and seek admission.  It was common for merchants to deny services to blacks at hotels and restaurants.  The victims of these forms of discrimination would have zero legal rights for protection from such discrimination or any redress.

Women:  the CEO has the absolute right to refuse to hire them, pay them far less if he does hire them, and constantly verbally abuse them.  But since most CEOs and corporate big shots are straight males, they can also engage in sexual harassment with impunity.  In particular, they can condition hiring, pay, retention, and promotion on providing sex.  After all, it’s obviously the women’s fault if they stay at such a firm!  They must be whores pretending to virtue if they stay and complain about the officers’ behavior.  After all, from Andrew’s perspective this is all “consensual” behavior arising from “freedom of association.”

Your Wife’s “Freedom to Choose” Sex with the Slimy CEO or Being Fired

There were no legal limits on CEOs’ power in any of these areas.  Absolute power corrupts absolutely.  The victims had no one they could complain to.  The CEOs’ absolute legal power was not “filtered through the bureaucracy and judiciary whenever someone claims discrimination” because no one would have any legal power to protect the victims of discrimination of anti-union retaliation.  Nor under Andrew’s plan would the victims of discrimination have any right to petition their democratically elected government for redress.  Under Andrew’s plan it is absolutely illegitimate for the government to take any action against any of the forms of discrimination and anti-union retaliation I have set forth.  That is true even when the CEO tells your pregnant wife that unless she has sex with him he’ll fire her on the spot – two days before her pension vests.  The “freedom” part of Andrew’s vision of “freedom of association” in the marketplace is a cynical oxymoron designed to place the business elites in a position of absolute legal power over the non-elites.  Your pregnant wife has the “freedom to choose” whether to be fired or coerced into sex with her slimy CEO.


The worst CEOs, of course, positively wish to restrict your freedom of association, e.g., with union organizers, and will have the absolute legal right to do so should Andrew get his way.  At Charles Keating’s Lincoln Savings, for example, he required senior officials he appointed to promptly fire someone.  They people being fired hadn’t done anything wrong.  Indeed, they were far more likely to be fired for doing the right thing and acting ethically.  But Keating was a past master in the realpolitik of “freedom of association” in the workplace.  He was an all-purpose bigot who despised people of color and gays.  The requirement to fire someone was a “signaling” device that you were the right kind of executive, by which he meant the worst kind of executive.  So ask yourself what happens to whistleblowers in a world run under Andrew’s divine rights of CEOs regime?  They have no protection, for any protection would have to come from a “government” “edict” that Andrew despises.

There can be few more painful restrictions on a CEO’s “freedom of association” than to require that he continue to associate with the whistleblower who is exposing the CEO’s felonies to the Department of Justice and the FBI.  This is why the probability of retaliation against whistleblowers closely approximates 1.0.  We do not have to speculate about the dominant approach of CEOs to whistleblowers today.  CEOs overwhelmingly sought to have the SEC force whistleblowers to first bring notices of the CEOs’ crimes to the corporation controlled by the CEO!  That would, of course, alert the CEO to the investigation by the SEC and the FBI and allow them to destroy documents and retaliate against the whistleblower.  The industry position was outrageous – and close to universal – because Andrew is correct that felonious CEOs are desperate to end their association with whistleblowers.  But criminal CEOs do not simply fire whistleblowers, they seek to discredit them.  Keating, for example, paid for at least two private investigations of me in order to seek to discredit me.  I was not the only regulator subjected to such investigations – which the corporation pays for even though the CEO is looting the corporation.

Corrupt CEOs routinely settle with whistleblowers through agreements that bar the whistleblower from making public the CEOs’ and the corporations’ crimes.  CEOs are actively pushing employment contracts that give the workers no rights but require them to promise not to blow the whistle to the SEC and DOJ if they discover crimes by the officers or the corporation.  Workers can be not simply fired, but sued, for doing the right thing.  CEOs and their lackeys also encourage other employees to make the whistleblower’s life miserable.

I wrote a series of four columns recently about Richard Bowen and Sherry Hunt, the Citi whistleblowers to whom the Nation owes such thanks.  I showed that they, and Bowen’s boss, suffered intense retaliation.  Under Andrew’s precepts the criminals at Citi could retaliate against Bowen and Hunt with absolute impunity.


Andrew views the harm of barring discrimination in the marketplace and barring retaliation against union workers and whistleblowers as so self-evident that he does not attempt to demonstrate the harm of such laws.  The strong opposition of the CEOs of many firms to the original Indiana Act demonstrates that they do not view anti-discrimination laws as harming their “freedom of association.”  The business community has had over 60 years of experience with anti-discrimination laws and has never suffered an effort by “government edict” to tell them who they should date or marry.  They did, however, probably suffer from efforts from Mom.  But even libertarians have no solution to the desire of Moms to give their children advice on their romantic interests.

14 responses to “Response to a Distressed Libertarian Reader about Discrimination

  1. Jerry Hamrick

    I have often said that your light never dims.

    I should have also said that it does from to time burn evn brighter.

  2. This is why I don’t tweet yet. It’s hard to say this much in 40 words or less. Yet, some things need to be said. Excellent post, worth reading and considering.

  3. James P Savage III

    May the FORCE be with you Dr. Black!

  4. You did an excellent job of exposing the juvenile assumptions of libertarians. The rich and poor are equally free to sleep under bridges.

  5. Erick Borling

    Kind of long-winded but still great. “Some of my best friends are not white.” I just made that up.

  6. Magnificent, Professor Black!

    Oh, how I wish you were the Attorney General of the United States. I mean, I can dream, can’t I?

  7. There’s a little Andrew in most of us, particularly the level of comfort that comes from oversimplification. Many Americans have an innate revulsion to bureaucracy. Sometimes libertarians (or some famous hedge fund managers) really strike a populist chord when they write of freedom stripping Government overreach. Fortunately Professor Black gives us anaylsis that reveals depressing ulterior motives. Depressing because, one has to wonder whether CEOs in the US aren’t depraved more often than not.

    It might have relevance, as a point of contrast, that fraud maximizing lenders, and even savvy real estate agents were quick to offer that they didn’t discriminate during the heady days of the housing bubble. Blacks, white. gays were all assisted to buy their own homes. No realtor would refuse to work with latinos, gays, jews or muslims. In other words, business was wide open to all – no easy to understand concepts of discimination. I hear Andrew saying that the customers, or marks, at the bottom of the financial crisis should have been “happy to walk out the door shaking the dirt from their shoes.” Well, were it obvious that they were ground zero for huge negative consequences, not only those to themselves, they certainly would have. As it’s generally agreed, they were being drawn around the bend by various levels of professionals who knew better. What was, or maybe is, most distressing is they are keenly aware of laws against discrimination since apparently that would bring the wrath of law enforcement, as opposed to fraud.

  8. Andrew and his reasoning, demonstrate why there has been no country on earth that has ever adopted or even attempted to organize a libertarian society.

    It begs the question as to why hasn’t a libertarian nation or even a libertarian regime even been born?

    • And the few times a “true” libertarian community has been attempted, they’ve fallen apart either due to the impossibility of society even existing with so many people together using that mindset, or in the case of that Galt’s Gulch, the whole thing was just a big scam.
      Guess we can’t be shocked by that!

  9. I thought it was well known by now…Freedom means the freedom to discriminate and abuse/use others!
    Freedom of religion means not the freedom of all people to believe and practice, nay it means people can shield themselves from beliefs they dont like.

    Just like how everyone having the maximum freedom to pursue money comes at the expense of much of society.
    Crazy days we live in where “freedom” has come to mean everyone can do whatever they want, even at the expense of others. Maybe its how individualistic we are, but the cruel irony is this “maximum freedom” notion actually makes us all less free. Sure, it’s the gay community being discriminated against here, but we’re all open to it…especially when it comes to the freedom of business and finance vs the rest of us!

  10. Chance Nation

    I’m pulled in different directions in the “freedom of association” debate. I’m not in a group that is discriminated against so what I say has to be taken with a grain of salt. It’s only conjecture, but if I was being discrimated against for something outside of my control, I’d want to know about it, as opposed to being served by someone that was doing it through gritted teeth and could put me in a position where something nasty is being done behind my back (spitting in my food, doing a poor job on fixing my car, etc.) To me, having more information is usually better than having less information. Would I be “glad” if I was aware that someone was discriminating against me? Of course not, but I would be aware and with that awareness I would do everything in my power to make EVERYONE aware of the practices of that business. With social media and instant information dissemination, I would join with like minded people and make those assholes sorry. Maybe I’m giving social media and social action too much credit though. Boycotts, shaming businesses that supply the offending business, the whole nine. I’m usually in favor of bottom up solutions as opposed to top down solutions. In todays world I think it’s getting harder and harder for bigots and racists to hide. It even hits the news when it is found out that certain politicians are bad tippers, for example.

  11. Although your utilitarian argument is compelling, you are not, I think, addressing the core of Andrew’s argument.

    Although he makes a weak utilitarian case, the core of Andrew’s argument is essentialist: a right that is abridged is no right at all, regardless of the utilitarian consequences. Thus, even if every Christian were terribly aggrieved by my critique of Christian theology or practice, that (superficial) utilitarian consequence would not in the least bit justify abridging my freedom of speech, at least not as we construct freedom of speech today.

    Similarly, Andrew argues that regardless of the immediate consequences, however his opponent can describe them with great pathos, freedom of association is a fundamental right, and its abridgment an injustice.

    There are two moves that I think are better. The first is just noting that by establishing a business that is open to the public, the business owner is voluntarily waiving his or her freedom of association. In just the same sense, propping my front door open voluntarily waives my right to arbitrarily exclude strangers from my home. Similarly, the decision to operate a business or university entails voluntarily waiving certain aspects of freedom of association. No one is forced, neither de jure or de facto to open a retail business to the public, start a business and hire employees, operate a college or university, or engage in other economic activity. Any right can be waived — freedom of speech, for example, does not compel me to say anything; I can always waive my right to speak — and waiving a right does not undermine its status as a right.

    The second move is that all rights have limitations and exceptions; historically, these limitations and exceptions do not necessarily undermine the essential nature of the right. Freedom of speech excepts libel, slander, conspiracy, fraud, and the distribution of child pornography. Andrew demands specifications and limitations on exceptions to freedom of association, but they actually exist. Limitations are specific and explicit as to both the scope of activity (commercial transactions: retail businesses, housing, employment, etc.), and the characteristics (race, sex, religion, national origin, marital status, (sometimes) sexual orientation, etc.) where freedom of association can be abridged.

    In the largest sense, Andrew perhaps might be reminded that, although we fall woefully short of the goal, we aspire to democracy. At least notionally, the people, and only the people, are sovereign; Andrew’s personal conception of natural law is not sovereign. If Andrew does not like popular sovereignty, he is free to emigrate from the United States; as far as I know, there are no limitations on emigration for those who are not incarcerated or on parole or probation following a criminal conviction. If Andrew might have difficulty finding or relocating to a state more to his liking, well, by his own philosophy, we have no obligation to fulfill his desires; we have only the obligation not to prevent him from fulfilling them.

  12. Larry:

    Thank you for your thoughtful response. Side note to other commentators, despite my position on this topic, I am not a libertarian and do not think of myself as a libertarian. I am more a proponent of the traditional “American System” of John Quincy Adams and Henry Clay, and I’m in full favor of many economic regulations put in place by the progressives of the Teddy Roosevelt era and later. I’m commenting on this site because although I would think of myself as being politically to the right, I am not a goldbug and I fully agree with MMT regarding or monetary system. I don’t believe people need to fit politically into a neat little box, where my accepting of one proposition (say MMT) entails accepting multitudes of others (say gay marriage and public accomodation laws) that are not logically connected.

    I understand the position that public accomodation and being a business open to the public, and owning real property sold through a public transaction in the under current law subjects you to a regime where the government has decided that a compelling state interest (ending racial discrimination against blacks and other minorities) overrides the right we otherwise have to chose our associates. Granting this is a (possible by legitimacy, actual by fact) government power, I wish to know what its actual limits are.

    I would like to note the following problem with the position that the government can dictate terms on freedom of association in economic matters. The current Civil Rights law of 1964 (and several related laws), which is the basis of the present controversy, created a new regime of enforced association in the sphere of public accomodations and business open to the public. This has proven problematic to many small business owners and individual proprietors who suddenly found themselves put into a position where they had to conduct business with people with whom they did not wish to do business due to a moral objection where the business person felt they were being forced into a choice of violating their conscience or giving up their business. The present controversy over gay marriage is hardly the beginning of this – for example, there were similar previous issues for example over small hoteliers and landlords being forced to rent single rooms to unmarried couples. They felt this made them a party to what they viewed as a sinful act.

    Mr. Black brought up the previous regime of Plessy vs. Ferguson. The laws blessed by Plessy vs. Ferguson created a prior regime of enforced disassociation – the government created a set of rules that instead of forcing white and black people to associate forced them to NOT associate. If a railroad wanted to let its black and white customers mix, they would be forbidden. If a hotel wanted to rent a room to a mixed race couple, it could not. If a property owner wanted to sell a house to a Jew or a black in certain towns, they could not. This was also stated to be because of a compelling state interest that was backed up by ademocratic majority.

    It would seem that if the litmus test for abriding freedom of association is a “compelling state interest” as conceived by a whatever the current transitory governing majority believes, we are actually potentially subject ot a very wide array of laws, including those that force us not to associate of the Jim Crow variety. Jim Crow was built on penal laws, not freedom of association. I personally do not see a philosophical difference between laws where the government tells me I must associate with person A and I must not associate with person B. In fact, I think the same basic philosophy of government power vs. personal freedom underlies both Jim Crow and the 1964 Civil Rights Act – namely that people do not have freedom of association in the public sphere.

    It would also seem Mr. Black’s position and that of others is that going into business forces you to check your conscience at the door. You are simply not allowed to have a moral objection to any potential economic transaction. I see this as especially problematic for individual proprietors and small businesses, and as a person who tries to act according to my conscience in economic life, I am deeply moved by the moral dilemma some people find themselves in solely because of this law. I personally work for a large multinational engineering consulting company that engages in a wide variety of business. Some of those lines of business are not things I would pursue if I were in the C-suite. For example, I am a pacifist, but my company is involved in providing operational support to the US military. I am also opposed to certain medieval mid-east regimes, but my company is happy to do business in Saudi Arabia. I can personally avoid the consequences of these issues by requesting not to work on assignments I might morally oppose. If I were given no other choice by my supervisor, I can also quit and find new employment with another firm with less objectionable lines of business.

    When a gay couple goes to an individual proprietor baker who is a Christian and asks for a wedding cake, the baker doesn’t have my choice of passing on the assignment to another employee. What is more, what the baker is really being compelled to do is not to bake a cake, but to put their artistic skills into creating a special and edible work of art for a specific ceremony, and then to participate in the ceremony as an artist by presenting the cake. If all the gay couple wanted was a cake, they could certainly just buy a cake, and it would cost less than $50, not $500 or $1000. But what they really want is a personal service and an artistic service at their cermony, and that is what they are offering to pay hundreds of dollars for, and it is the use of personal art to facilitate the cermony the and participation in the cermony that is the objection, not the baking.

    Look at it with a different question. Say there is a Christian stained glass artist. Obviously the application of his art to a Church is done to facilitate worship and as an act of worship. If a Mosque or Hindu Temple or a Church of Satan requested the design and installation of a window, would the government compel the artist to lend their skill and artistry and passion for worship to the assignment with what the artist would view as a false religion? It would seem that Mr. Black and others here would say yes.