Opinion

JEFF JACOBY

Fight for your right to discriminate

FILE - This Thursday, March 1, 2018, file photo shows a Dick's Sporting Goods sign at one of their stores. A 20-year-old man in southern Oregon has filed a lawsuit against Dick’s Sporting Goods and Walmart after he says they refused to sell him a rifle. (AP Photo/Rogelio V. Solis, File)
AP Photo/Rogelio V. Solis
A 20-year-old man in southern Oregon filed a lawsuit against Dick’s Sporting Goods and Walmart after he says they refused to sell him a rifle.

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Amid the nation’s angry and polarizing debate on guns and gun control, three prominent American retailers — Walmart, Dick’s Sporting Goods, and L.L. Bean — announced last week that they will no longer sell firearms to anyone younger than 21.

In many states, 18 is the minimum age to purchase a rifle and certain other guns, so the companies’ new policy amounts to discrimination on the basis of age. But that didn’t seem to disturb many people who, in other circumstances, would be outspoken in denouncing discrimination on the basis of innate or personal traits. The New York Times reported that Twitter messages referring to Dick’s skyrocketed after the company’s announcement, and that “about 79% of the tweets had a positive sentiment … including supportive messages from Hollywood actors and actresses.”

Would the responses have been so supportive had Dick’s, Walmart, and L.L. Bean announced — in the wake, say, of a jihadist terror attack — that they would no longer sell weapons to Muslims? Not from Hollywood and the left, it wouldn’t. But it doubtless would have drawn cheers from plenty of other Americans, presumably including many of those who were outraged by the companies’ new decision to deny guns to customers under 21.

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When it comes to discrimination, everyone has double standards. Federal and state laws bar private companies from discriminating against a long list of protected classes — race, sex, religion, age, ethnicity, disability, veteran status, sexual orientation, marital status, and more — but nobody regards all forms of discrimination as pernicious. Regardless of what the law says, just about everyone thinks vendors and employers should have the right to automatically say No to certain groups of people — and just about everyone thinks vendors and employers should be forbidden from automatically saying No to certain other groups of people. In other words, most of us uphold freedom of association in some cases; most of us are willing to repress it in others.

On the day Dick’s and Walmart made their announcement, I commented on Twitter:

Masterpiece Cakeshop is, of course, the Colorado bakery owned by Jack Phillips, whose refusal to create a custom-designed wedding cake for a gay couple is at the heart of a case now before the US Supreme Court. That case is being litigated on First Amendment grounds; the court is being asked to decide whether forcing Phillips to use his artistry to provide a specially-designed cake to celebrate a wedding to which he has grave objections amounts to unconstitutional compelled speech. In my view, it does.

But I’d go further. I think Phillips should have the right to decline commissions for same-sex weddings not only on free-speech grounds but as an exercise of his freedom of association. I think Dick’s, Walmart, and L.L. Bean should have the right to turn away customers younger than 21 for the same reason.

Similarly, I think ride-hailing companies and fitness clubs should have the right to serve female passengers only, I think GoDaddy should be free to deny an Internet domain to a group whose politics it finds repellent, and I think gyms ought to be entitled to turn away police officers and military personnel. I think the gay owner of a cafe should be allowed to exclude pushy Christians from his establishment — and I think the Christian owner of a café should be allowed to exclude pushy gays from his establishment.

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Americans have gotten too used to the idea that discrimination on the basis of demographic identity ought be banned and punished by law. It isn’t healthy. Of course tolerance and pluralism are important values in a free society, but so are choice and association. And just as we don’t let the state compel customers to patronize businesses against their will, in an ideal society we wouldn’t let the state compel businesses to accept customers against their will.

The law should extend the widest possible leeway and respect to choices made in the private sector — not because people will always make enlightened and benevolent decisions, but because it’s none of the state’s business whom private actors choose to deal with. And because where markets are as unfettered as possible, bigotry and xenophobia tend to recede.

After all, the vast majority of vendors will always welcome business from anyone with money to spend, regardless of their religion, sex, politics, or character.

Writing in the 1730s, Voltaire famously described the London Stock Exchange as a place “where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mohammedan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts.” Gary Becker earned the 1992 Nobel Prize in economics in part by demonstrating that discrimination is economically detrimental — that is, that free markets punish employers who discriminate for reasons unrelated to skill and productivity.

If it were up to me, there would be no antidiscrimination statutes or protected classes in the private sector — with one exception. Because American law — colonial, federal, state, and judge-made — for so many generations mandated racial repression and injustice, it is prudent that the law now should actively prohibit discrimination on the basis of race. Civil-rights legislation was necessary to counter the centuries of slavery, government-imposed segregation, and denial of voting rights that left such an ugly stain on American life.

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But other than race, private vendors and employers should be given the widest possible latitude to make business decisions for themselves. As long as no fraud or force is used, as long as no one is cheated, business decisions should be shaped by markets and public opinion, not by prosecutors and legislatures.

Am I saying that a hotel should be free to deny service to Jews, or a company allowed to hire only LGBT employees, or a travel agent permitted to have a no-Democrats rule? Yes. Do I think that companies ought to do those things? Not at all. But I have more confidence in the ability of a free and competitive market to stamp out invidious, indecent, or irrelevant discrimination than in the ability of the government to do so.

The right to discriminate is vital to human liberty. The freer private citizens are to choose their own associations, the more peaceful and tolerant society will be.

U.S. Supreme Court Chief Justice John G. Roberts, U.S. Supreme Court Associate Justice Stephen G. Breyer, U.S. Supreme Court Associate Justice Elena Kagan, U.S. Supreme Court Associate Justice Neil M. Gorsuch listen to President Donald Trump's State of the Union address to a joint session of Congress on Capitol Hill in Washington, Tuesday, Jan. 30, 2018. (AP Photo/J. Scott Applewhite)
AP Photo/J. Scott Applewhite
Supreme Court Justices John Roberts, Stephen Breyer, Elena Kagan, and Neil Gorsuch during the State of the Union address on Jan. 30.

Answering Justice Kagan

During last week’s oral argument in Janus v. AFSCME, the Supreme Court case involving public-sector unions, there was a fair amount of discussion about stare decisis: the principle that courts should adhere to previous judicial decisions as settled law. The justices are being asked in this case to overrule a 41-year-old precedent, the 1977 Abood case. Abood upheld union shops in government workplaces, clearing the way for unions to collect mandatory payments, known as agency fees, even from workers who don’t wish to join the union and who don’t support its political views.

My column last Wednesday, ICYMI, was about Janus and why Abood should be overturned — fears that disallowing agency fees will lead to intolerable upheaval, I argued, have little basis in reality. But I want to take up the point again here from a different angle, focusing on a question posed by Justice Elena Kagan to William Messenger, the attorney representing Mark Janus, the petitioner in the case.

“I don’t think that we have ever overruled a case where reliance interests are remotely as strong as they are here,” Kagan said:

Twenty-three states, the District of Columbia, Puerto Rico, all would have their statutes declared unconstitutional at once. Thousands of municipalities would have contracts invalidated. Those contracts probably cover millions, maybe up to over 10 million, workers.

So property and contract rights, the statutes of many states, and the livelihoods of millions of individuals affected all at once.

When have we ever done something like that? What would be the justification for doing something like that?

In other words, Kagan was asking, even if there is an argument to be made that Abood was wrongly decided, hasn’t it become so entrenched that overturning it now would cause unheard-of disruption?

Kagan is a member of the court’s liberal bloc and all along has been considered a sure vote against overturning the existing union-friendly arrangement. It seems doubtful that she would be as concerned about “reliance interests” and stare decisis if she weren’t opposed to Janus’s claim. The principle that precedents should not be disturbed tends to be more compelling when the precedent is one you already favor.

It’s clear that scrapping agency fees won’t lead to chaos, since all collective-bargaining agreements are renegotiated every few years anyway. But I was struck by Kagan’s suggestion that the Supreme Court would never render a decision that might turn existing arrangements on their heads.

“When have we ever done something like that?” Surely the justice jests! Some of the most formidable landmarks in US judicial history have done precisely that. Start with Brown v. Board of Education, which declared it unconstitutional for public schools to segregate students by race — thereby invalidating school systems throughout the South and much of the rest of America, and opening the door to desegregation orders that would convulse communities nationwide.

What about Baker v. Carr, the court’s revolutionary 1962 decision to allow federal courts to intervene in legislative redistricting cases? That was the case in which the court declared the “One man, one vote” principle, which would radically upend the composition of state legislatures and congressional maps.

Roe v. Wade struck down anti-abortion laws in all 50 states, thereby unleashing one of the most polarizing and persistent battles in American political history. Heart of Atlanta Motel v. United States, which upheld Title II of the just-enacted 1964 Civil Rights Act, sounded the death knell for Jim Crow segregation in public accommodation, forcing tens of thousands of hotels, motels, restaurants, and theaters to change the way they had long operated. Miranda v. Arizona dramatically altered police practices in the United States, Citizens United v. Federal Election Commission has sharply transformed election campaigns and how they are paid for, and Obergefell v. Hodges — which announced a constitutional right to same-sex marriage — toppled a principle of family law that had existed since the American founding.

Agree or disagree with those decisions, all of them worked profound changes in American law, culture, and expectations, far more profound than an end to agency fees. “When have we ever done something like that?” Kagan asks. The answer is that the court has done so time and again, when a majority of its members has been convinced that crucial principles of justice and constitutional freedom were at stake.

It remains true that longstanding precedents should never be overturned casually or promiscuously. But stare decisis is a rule of thumb, not an insurmountable barrier to righting a wrong — especially when it is a wrong that the court itself committed.

More protectionism = less infrastructure

The new tariffs President Trump says he intends to impose on imported steel and aluminum will hurt millions of Americans by driving up the cost of every product made or purchased in America that uses imported steel or aluminum. Those millions of Americans will be unable to spend as much as they otherwise would have on other purchases or investments. The result will be a weakened US economy, which will result in fewer jobs being created, fewer enterprises being started, and fewer workers earning higher incomes.

All of this is widely understood in the marketplace, which helps explain why stock values plunged in response to Trump’s latest tariff announcement. As economists have been explaining since at least the time of Adam Smith, protectionism is economic self-sabotage. Far from making America great again, the president’s protectionism will only make America poorer.

It will also undermine a key plank in Trump’s economic platform — his call for more infrastructure investment.

Donald Boudreaux, a professor of economics at George Mason University (and proprietor of the excellent economics blog, Cafe Hayek) points out that Trump’s forthcoming tariffs on steel (25%) and aluminum (10%) will drive up the cost of critical commodities used in the construction of infrastructure. (Another such commodity is lumber, which was made more expensive by an earlier round of Trump tariffs in April.) In an open letter to the president, Boudreaux noted that Secretary of Transportation Elaine Chao went to Capitol Hill Thursday to testify in support of the administration’s plan to provide $200 billion in “seed money” to spur non-federal investments in roads, bridges, and other infrastructure projects. The same day, Trump announced his intention to hit steel and aluminum imports with hefty new taxes.

Boudreaux connected the dots:

Your inconsistency is astonishing. At one location on Pennsylvania Ave., your administration expressed its determination to spur state and local governments to invest more in infrastructure, while at another location on Pennsylvania Ave., and at very nearly the same time, your administration proudly unveiled a scheme to unnecessarily raise the costs of infrastructure investments by artificially jacking up the prices of major infrastructure materials.

Do you or do you not wish to make infrastructure investments as attractive as possible to non-federal entities? Do you or do you not wish to have infrastructure built, repaired, and maintained as efficiently as possible? And do you or do you not wish to reduce Americans’ tax burdens – burdens that will rise directly because of the tariffs and indirectly as the tariffs swell governments’ costs of supplying infrastructure?

Elsewhere on his blog, Boudreaux calls attention to a second jarring paradox of Trump’s tariff scheme.

Had China ordered its navy to interdict America-bound cargo ships carrying steel and aluminum, and thereby caused the price of those materials to jump by 25% (steel) and 10% (aluminum), Washington would rightly regard China’s interference as “an unpardonable and egregious act of war.” Yet when the exact same damage is inflicted on American commerce through US Customs and Border Protection (the federal agency that collects tariffs on imports) the president and the Secretary of Commerce hail it as a great advance for American economic power.

Obviously it can’t be both. If scarcity is a bad thing when it results from enemy hostility, it is a bad thing when it results from a presidential proclamation. Trump’s steel, aluminum, and lumber tariffs will increase the scarcity of key construction materials. A handful of well-connected domestic producers will grow richer. The rest of us — the rest of America — will pay the price.

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Site to See

Amid the internet’s vast ocean of drivel, some websites are extraordinary islands of knowledge and discovery. Each week, in “Site to See,” I call attention to one of these online treasures.

This week’s site is “American Whiskey” [URL: http://www.ellenjaye.com/]. It’s a quirky but information-packed compendium put together by the husband-and-wife team of Linda and John Lipman, collectors and aficionados of American distilled spirits. The site contains well-written histories of distilleries the Lipmans have visited, discussions of different kinds of whiskey (rye, bourbon, rum, even moonshine), and pictures of their extensive collection of American whiskeys.

Here’s a snip from the Lipmans’ account of the rise, fall, and revival of American rum:

Massachusetts and especially Rhode Island were the centers for an amazing number of rum distilleries, 60-something in Massachusetts, and over 30 in Rhode Island by the mid-1760s, 22 of them in Newport alone. The reason for this was the notorious Triangle Trade. . . .

No one knows, or ever will know, what New England rum tasted like. That is also true of Monongahela and Bourbon whiskey. The generic roots of all three extend deep into the misty past before there were bottles and labels and such. If you are lucky enough to have experienced tasting whiskey made in the 1930s through the ‘70s you will understand that whatever similarity they might happen to share with brands using those names today is either imaginary or completely accidental. A sampling of whiskies bearing names such as “J. W. Dant” or “Old Taylor” today will provide not the slightest clue as to what those brands of whiskeys tasted like forty years ago. The same is true of “Old Fitzgerald” and “Old Crow.”

Want to recommend a website for this feature? Send me the link (jeff.jacoby@globe.com) , and put “Site to See” in the subject line.

The last line

“Villains!” I shrieked, “dissemble no more! I admit the deed! – tear up the planks! here, here! – It is the beating of his hideous heart!”

— Edgar Allen Poe, “The Tell-Tale Heart” (1843)

Jeff Jacoby can be reached at jacoby@globe.com. Follow him on Twitter @jeff_jacoby.