Adamâ€™s post about the California Supreme Courtâ€™s recent decision, and the resulting brawl in the comments got me thinking about the basis of discrimination. In 1998, while I was a senior at BYU I spent a semester in Williamsburg, Virginia doing research in the archives at the College of William and Mary. The week before my job in Williamsburg was to begin, I drove down from DC, where I had been working over the summer, to find a place to stay. I had three options. One turned out to be unfurnished, which took it off the list. The second option was a house filled with a mix of grad students and college seniors. The ownership structure wasnâ€™t entirely clear, but I think that the house actually belonged to the parents of one of the students. After showing me the room, my putative landlord asked me why I was in Williamsburg. I explained that I was a BYU student doing research in the archives. He got a very serious look on his face, and explained that he had grown up in Spokane, Washington with many Latter-day Saints and found them to be very â€œun-Christianâ€ and would prefer not to rent to a Mormon.
At the time I was furious. I ended up renting a furnished room in the house of a nice old lady of the hard-core Virginian variety. (You need to be south of the Rappahannock to meet this type today.) However, I also considered looking into the possibility of suing the householder for discrimination. (I was studying for the LSAT at the time in addition to going through old Supreme Court files, so law was on the brain.) I felt this stinging sense of personal hurt, despite the fact that at the end of the day I had no problem finding another place to live and frankly didnâ€™t much care for the house from which I was excluded, which was extremely gamey and had a distinct aroma of pot. I now realize that I was firmly on the horns of the dilemma undergirding anti-discrimination laws. There are, it seems to me, two families of arguments in support of these laws.
One argument is essentially related to anti-trust and says that those in targeted groups are the victims of a cartel of sorts so that they cannot get certain services or else must get the services at a significantly higher cost. Note that under this rationale, the presence of comparable alternatives constitutes a powerful argument against anti-discrimination laws. The second argument for anti-discrimination laws is that there is some evil to the act of discrimination itself, regardless of the availability of comparable alternatives. This evil can be seen in two ways, either (1) as the perpetuation of evil beliefs, e.g. blacks are inferior, Mormons are evil, etc.; or (2) in the harm to oneâ€™s dignity that is suffered when one is rejected on the basis of some status. Note that under this rationale the fact that there are lots of other alternatives available doesnâ€™t really undermine the case for anti-discrimination laws.
Upon reflection, I find the first family of arguments more compelling than the second family. Indeed, in 1998 â€“ when I was more doctrinaire in my libertarianism than I am now â€“ I ultimately decided that there was something deeply wrong with my urge to bring the law crashing down on the head of the grad student/landlord. I am less sanctimonious about it today, but I still think that we are probably best off letting those with idiosyncratic prejudices go about their business so long as the prejudice isnâ€™t so pervasive as to distort oneâ€™s access to the market. There are harms to oneâ€™s dignity involved in being rejected, but on the whole it seems to me we are best off letting people contract â€“ or not contract â€“ with those that they wish.
Understanding this tension at the heart of discrimination law, however, is part of what makes the reactions to the doctorâ€™s case so intense. Note, that one of the reasons one might have anti-discrimination laws is as a way of discouraging evil beliefs. Hence, those subject to sanctions under anti-discrimination laws because of their beliefs are hardly unjustified in believing that the state has in effect stepped beyond its position as a neutral arbiter and affirmatively singled their religious convictions for opprobrium via legal sanctions.