Public Accommodations: A Ridiculous, Non-Hypothetical Example

This morning I was thinking about public accommodations law and trying to come up with a generally-supportable example of when it would be acceptable for a business owner to discriminate against a patron. All of the examples I was able to brainstorm seemed too far-fetched, so my thanks to David Bernstein for providing a ludicrous, 100% real example:

Here’s the story, from a VC post from 2006:

There is a German restaurant called the Alpine Village Inn, in Torrance California. A group of four neo-Nazis went there to eat, each wearing a lapel pin with a swastika on it. The management asked them to take off the lapel pins. They refused. The management asked them to leave. They refused. The management called the police, who arrested them.

Then, remarkably, the Southern California ACLU gets involved, and sues the restaurant for calling the police on the Nazis! This much I’ve confirmed from media accounts. According to the commenter who first alerted me to this story, “the defendants’ insurer eventually settled following unsuccessful pretrial challenges to the complaint, believing they could not prevail under California law!”

Ridiculous and, hopefully, the tail end of the distribution, but the point is nonetheless valid. What do we make of the management's actions? Was it acting within it's rights when it asked the gentlemen to remove their swastikas? I don't know that I've ever met anyone who would question the propriety of management's behavior in this instance. They no doubt exist, but as I've no idea what their argument might be I'm going to leave the question hanging. The "yes" position, on the other hand, is ripe for further discussion.

If we assert that the restaurant management was within their rights in this instance then we must accept that there are some circumstances in which it is acceptable to discriminate against individuals in the context of public accommodations. The question then becomes "Where do we draw the line?".

One potential boundary is a person's immutable characteristics, the theory being that such discrimination is especially pernicious because these traits are accidents of history and do not reflect on the person as a person. However, if we bind behavior solely by a prohibition against discrimination on the basis immutable characteristics, we end up with a system which probably wouldn't satisfy contemporary ethical intuitions. Sex will be a protected category¹, but what of gender, or sexual orientation? Are they fungible enough that they fail to pass the test for immutability? And this definition completely fails to encompass some categories, most notably religion, which have been deemed worthy of protection.

Moreover, immutability taken on its own is too simplistic; there are some aspects of a person's being, such as historic facts regarding past behavior/associations, which will never change yet may rightfully be said to reflect on the person. We might balk at the notion that someone would be treated differently because they used to belong to a union or a certain political party, but what if they used to belong to NAMBLA? Is it ok to discriminate in that case? The distinction between belonging to a particular race and being a past NAMBLA member is clear; the former state is thrust upon the person and the latter is chosen. Our ethical intuition tells us that, while there might be cases where it's legitimate to discriminate of the basis of a person's choices, its never acceptable to discriminate on the basis of traits which aren't chosen.

Which brings me back to religion... why is it protected? People convert all the time, become "spiritual but not religious", decided to have no religion at all, and so on; they choose which religion, if any, they may practice. So why protect it? I had this discussion with someone not so long ago and the answer was because "religion is special", by which I believe they meant that religious habits are so deeply ingrained that they might as well be immutable. Perhaps, but then should we protect other deeply ingrained behaviors? If we extend special protection to religion why not extend the same protection to non-religious philosophies? The only thing which distinguishes the two is their stance regarding the supernatural, something which hardly seems relevant when we're discussing civil rights.

And thus we're back to our Nazis. We admit an exception for religion which, if we were being consistent, leads us also to admit an exception for philosophic. From there its just a short jump to political philosophy, at which point the Nazis have a case. And yet we probably still think that the restaurant management behaved correctly.

Which brings me, somewhat circuitously, to my point: The division into "protected" and "non-protected" classes in public accommodations is entirely arbitrary. This, IMHO, is horrendous for a number of reasons:

• Governments at all levels have a really shitty track record when it comes to making fine distinctions.
• The process of deciding who deserves protection and who doesn't is, itself, an act of discrimination. It's far too susceptible to the biases and bigotries of a particular person/place/time to serve as an adequate basis for civil rights law.
• A corollary to the above is that the groups which are most likely to be protected are groups which already have access to the levers of power. Thus those groups who may really need/merit protection are the least likely to actually get it.

Ultimately there seems to be no rational basis for deciding who is worthy of protection. I'd much rather get rid of the law, and rely on the morality of my fellows, than give the government yet another tool to misuse.

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1 Though my wife, a physician, argues that biological sex is defined by organs rather than DNA and, as such, can be changed to some degree.