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HomeCommentary21st Century Effects of Discrimination: Do We Still Need Anti-Discrimination Laws?

21st Century Effects of Discrimination: Do We Still Need Anti-Discrimination Laws?

Refuse ServiceDiscrimination ain’t what it used to be. That’s a good thing! Discrimination, especially discrimination based on race, gender, age, sexual orientation, etc, used to be prevalent and potent. Since 1964, however, the United States has made huge strides in promoting equality under its laws and a more culturally tolerant society. Again, that is a very good thing!

The pendulum of intolerance, however, has begun to swing back toward people who have sincere religious beliefs that certain lifestyles are immoral. It is rapidly becoming a faux pas to pass any kind of moral judgment on any decision anyone makes with respect to how they live their lives, especially in the realm of personal relationships.

Groups like GLAAD (formerly the “Gay & Lesbian Alliance Against Defamation”) have begun persecuting business and individuals, like the Robertsons of Duck Dynasty fame, and even some huge businesses have joined with GLAAD and other fringe special interest groups to lobby against laws that protect Americans’ natural rights and constitutional rights to the free exercise of religion and to freedom of association.

According to the Seattle Times, “Some major travel companies, including American Airlines, Southwest Airlines and Delta, have called on Arizona Governor Jan Brewer to veto a bill permitting businesses to refuse service on religious grounds, a measure that opponents say is meant to allow discrimination against gays.” Predictably, GLAAD’s President, Sarah Kate Ellis, was recently on CNN to talk about Arizona’s SB1062, which would give license to discriminate and refuse to do business with anyone, particularly LGBT people.

GLAAD is right about discrimination: it is bad for business, and potentially bad for “LGBT” people. But is SB1062 a bad law? I believe a law cannot be a bad law if it would provide protection to people who are exercising their natural & constitutional right to the free exercise of religion, and their natural & constitutional right to choose the people with whom they do and do not want to associate. The government exists to protect our lives, our liberties, and our properties from being violated by other people, not to act as society’s referree—ensuring the enforcement of one group’s or another’s interpretation of “fairness” or “respect” (often at the expense of our natural rights and personal liberties).

It’s the 21st Century, not the 1960s. There are no dogs and hoses being turned on civil rights marchers. There are no federal troops enforcing the desegregation of public schools. No one needs to ride public buses to promote seating equality. We don’t have separate bathrooms for people of different races anymore. Furthermore, no sane, reasonable person—no one whose opinion is worth listening to—advocates a return to an era when discrimination is reinforced by the rule of law, when the law forces discriminatory practices to happen.

But what about laws, or even an entire legal system, permitting discrimination? What place, if any, does such a legal system have in this Golden Age of Equality?

If a retail seller of widgets refuses to sell his widgets to homosexuals or other “LGBT” people, what happens? Well, there is a public outcry, for one thing—and it is loud! The press are usually all over it with both news and opinion coverage (almost invariably opposed to the discrimination). Remember Chik-fil-A, Duck Dynasty, etc., etc.? There are widespread campaigns to boycott the widget seller, as activists and activist organizations, like GLAAD, etc., get involved. In short, there is a lot of bad publicity. Perhaps worse, however, the widget seller loses the potential revenue it could have generated by selling to the segment of the population that has been alienated by their discrimination, along with anyone who supports and stands with that segment of the population.

The market essentially punishes firms that discriminate against groups of people, like those who self-identify as part of the LGBT demographic, by reducing the amount of revenue available to the discriminating firm and by giving the discriminating firm’s competitors an advantage if they are willing to offer similar goods and services to the now-alienated group. This market punishment is good for the alienated group of people, because it provides an incentive for more firms to avoid discrimination.

When the government steps in, however, and forbids discrimination, what usually happens is that the discrimination still occurs anyway! Often, however, the discrimination takes on a less efficient form (for example, using higher prices to discriminate against groups for which there is a high correlation between race and low income), increasing the cost to the business of engaging the discrimination—costs which are passed on to the business’s customers. Essentially, anti-discrimination laws raise the cost of doing business, which makes everyone suffer, because businesses pass those costs on to consumers in the form of higher prices.

The amount of actual discrimination usually doesn’t decrease as the result of regulation, because if people want to discriminate, they’ll find a way to do it. The reduction in discrimination over the last fifty years is attributable more to a cultural shift than a legal shift, although the cultural shift did produce a correlating legal shift in the case of racial discrimination. There is good reason to believe, however, that in the information age, a cultural paradigm shift is likely to occur without the need to resort to legal action in the form of new anti-discrimination laws. Information costs are so low, now, that the market will provide adequate punishment for firms that choose to discriminate.

That’s why laws like SB1062 are good laws—they increase competition, protect religious freedom, and protect freedom of association. If you choose to characterize SB1062 as a law that “gives license to discriminate and refuse to do business with anyone, particularly LGBT people,” that is one way to see it. On the other hand, you might consider that laws like SB1062 give businesses license to commit financial suicide in an adequately competitive free market. Markets, like people, need to be free, and vetoing SB1062 makes everyone less free and may actually harm the very people a veto of such a law ostensibly might protect.

Noel R. Bagwell, III, Esq.
Noel R. Bagwell, III, Esq.http://www.ExecutiveLP.com/
Noel R. Bagwell, III, Esq. is an attorney and the founder of ExecutiveLP® a business law firm for start-ups and small-to-medium businesses (SMBs). Noel is also the National Center of Preventive Law's Leader for Start-Ups and Small Businesses. A graduate of Cumberland School of Law at Samford University in Birmingham, AL, Noel distinguished himself by earning the 2010 Scholar of Merit award for his academic performance in Economic Analysis of Law. He has since won multiple awards for pro bono legal service, much of which has been provided to veteran entrepreneurs in Middle Tennessee and beyond. He also has extensive experience as a public speaker and Continuing Legal Education (CLE) instructor.  NOTICE: The opinions and ideas expressed in this article are solely the opinions of the author, and may not necessarily reflect the views of the website on which they have been published. Nothing in this article should be construed to be “legal advice.” No attorney-client relationship results from the consumption of this media material. Please contact an attorney if you need legal counsel. This article was written by Noel Bagwell for ClarksvilleOnline.com, and is intended only to inform the general public of the author’s opinion. The opinions expressed in this article are those of the author, and not of any government agency, company, corporation, or individual.


  1. I absolutely agree with you, Bill; that’s why I think it’s so awful that Jan Brewer vetoed SB1062 in Arizona. Now, the liberties of many business owners–to practice their religious beliefs and to peacefully associate (or not) with whomever they wish–will be infringed upon by a minority of individuals exercising their freedom to engage in commerce.

  2. But that also applies to a business owner’s religious beliefs. The Business owner’s religious freedoms ends when they begin to dictate whom they will serve or not based on that person’s following the the business owner’s chosen religious principles. At that point the business owner infringes on the religious freedoms of their customers, and that is already prohibited by both the U.S. Constitution and by federal law.

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