Gut the Civil Rights Act

Joe Biden invoked Jesus on Friday responding to Ben Carson’s bizarre argument that prison inmates “turning gay” after going into prison straight proves homosexuality is a lifestyle choice, rather than a genetic or otherwise innate trait.

As a libertarian, this debate holds little interest for me. Even if homosexuality is a lifestyle choice, it is one that does not harm other people and thus falls into that vast category of human behavior called “liberty,” which should be beyond the reach of any government.

What does concern me is Carson’s argument on why homosexuals “don’t have a right to be served in every single store.” Carson argues that store owners should be able to “refuse service if it violates their religious convictions.”

I’m immediately reminded of George Orwell’s Animal Farm, where a law at the beginning of the book reads “No animal should kill another animal,” but by Chapter 8 reads, “No animal shall kill another animal without cause.”

Conservatives are similarly qualifying the right of freedom of association. They are changing “No one shall be forced to associate against their will” to “No one shall be forced to associate against their will if it violates their religion.”

I am fully aware that this argument runs afoul of the Civil Rights Act of 1964, which underpins LBGT arguments for a right to demand service. Questioning that law is a third rail for politicians. But I’m not running for office, so I’ll just say it.

Bob Dylan’s favorite politician was right. Titles II and VII of the Act were wrong then and they’re wrong now. It’s time to repeal those two sections and let the market sort out discrimination in employment and “public accommodations.”

The Civil Rights Act’s employment mandates and Orwellian reclassification of private property as “public accommodation” have already done more harm than good. Smoking bans, the ADA, and fraud in government contracting are just a few of its stepchildren.

Ironically, it’s now being used to violate the Thirteenth Amendment, which doesn’t prohibit slavery “unless the slave refuses based on the sexual orientation of the master.” It says no one can be forced to work for another person if they don’t want to, period.

And no, compensation doesn’t change that. We don’t call volunteers at a charity function “slaves.” It’s the involuntary nature of the servitude that makes it slavery. Forcing someone to bake you a cake against her will is no different, even if you offer to pay for it.

For those who haven’t stopped reading and started yelling “bigot,” here is why we have nothing to lose by losing Titles II and VII:

First, it isn’t 1964 anymore. Just as conservatives seem to believe it’s perennially 1939 and every tin pot dictator is a Hitler who must be stopped with a war, progressives seem to believe it is always 1964 and this law is the only reason there aren’t still “Whites Only” signs. Times have changed, even in the south.

If you want proof of that, visit any southern city, instead of listening to politicians who have an incentive to exaggerate racism. There you will see what you see everywhere else in 2015 America: white and black people working together, eating lunch together and going to school together.

It’s ludicrous to believe that would change if two sections of a fifty year old law were abolished.

Regardless, that’s not the main reason. The principle here is people have a right to refuse to associate with anyone they don’t want to associate with, for any reason they choose. They have a right to decide who enters their property or whom they purchase services from, i.e. “employ,” for any reasons they choose.

Have some politicians in the past used these rights as cover for racism? Absolutely. Might bigots use them as cover for discrimination against LGBTs? Probably. That doesn’t invalidate them as rights, any more than a murderer using the right to due process as cover invalidates the right to due process.

Besides, the argument for Titles II and VII was counterintuitive even in 1964. Jim Crow wasn’t business owners voluntarily refusing to serve blacks. It was state and local governments prohibiting business owners from serving blacks.

Some business owners would have served blacks if free to do so. Otherwise, they wouldn’t have bothered to pass Jim Crow laws in the first place. Jim Crow was government racism, effectively abolished by other sections of the Civil Rights Act that nobody disagrees with.

Progressives who fear abolition of these laws today are really thinking like conservatives. Conservatives believe that long-established legal traditions are society’s only protection against man’s inherently dark nature. They form a wall of protection against the violent chaos conservatives believe would exist without them.

This is why they oppose gay marriage. Changing the long-established legal traditions regarding marriage removes a brick from the protective wall. Today, two women get married. Tomorrow, as Bill Murray would put it, “human sacrifice, dogs and cats living together, mass hysteria!”

Personally, I think they’re nuts, but this is what they believe. Progressives aren’t any less crazy believing most people would be racist if there weren’t laws prohibiting it. If that were true, the Civil Rights Act wouldn’t have passed in the first place.

Even if I’m wrong, the market would ultimately solve this problem. As long as governments are prohibited from enforcing segregation, restaurants who only serve whites or heterosexuals will lose to competitors who serve everybody. Employers who consistently refuse to hire more qualified gay applicants would lose to competitors who hire the best person for the job.

Only politicians could ruin a great idea like the Civil Rights Act. The majority of the law, which took power away from governments, did enormous good. Titles II and VII did exactly the opposite. They gave vast new powers to the government over private property and personal choices. That part has been a disaster.

There’s no reason the good has to be thrown out with the bad. Let’s talk about repealing Titles II and VII and trying freedom for a change. The worst that could happen is some new competition for bakeries.