Discrimination and a Free Society

"By the same token, if I prefer to rent my home to married couples instead of unmarried ones, serve in my restaurant Whites instead of Blacks, allow into my theater heterosexuals instead of homosexuals, put up in my hotel Democrats instead of Republicans, sell merchandise in my store to Christians instead of Jews, and permit to join my club men instead of women, then I have the natural and moral right to do so. The fact that I don't have the legal right to do any of these things means that the state is violating my rights instead of protecting them."

Discrimination and a Free Society
by Laurence M. Vance

So, Rand Paul, the Kentucky Republican nominee for the U.S. Senate, is in hot water for disparaging remarks he has made about the Civil Rights Act of 1964.

Good for him.

Rand is merely echoing the sentiments of his father, Rep. Ron Paul (R-TX), who, on the fortieth anniversary of the Civil Rights Act, cast the lone nay vote against H. Res. 676 in which it was resolved that the House

(1) recognizes and honors the 40th anniversary of congressional passage of the Civil Rights Act of 1964; and

(2) encourages all Americans to recognize and celebrate the important historical milestone of the congressional passage of the Civil Rights Act of 1964.

The vote on June 24, 2004, was 414–1, with eighteen representatives not voting.

On a related note, the Civil Rights Act of 1964 Commemorative Coin Act (H.R. 2040) was passed via voice vote in the House and Senate in 2008. It was signed into law by President Bush on December 2, 2008.

Defenders of liberty and a free society should not be intimidated by enemies of liberty and a free society – liberal and conservative, Democrat and Republican, and even some libertarians – who label them as racists, bigots, or Neanderthals for objecting to certain provisions of the Civil Rights Act.

This is not to say that no congressmen who voted against the Civil Rights Act were racists, bigots, or Neanderthals. But the fact that some or all of them were doesn't mean that the Civil Rights Act – like most legislation passed by Congress for the past 100 years – wasn't an unconstitutional expansion of federal power that destroyed the rights of private property, freedom of assembly, freedom of association, free enterprise, and freedom of contract.

The Civil Rights Act of 1964 was introduced in the U.S. House of Representatives as H.R. 7152 by Emanuel Celler (D-NY) on June 20, 1963. It passed the House on February 10, 1964, by a vote of 290–130. It passed the U.S. Senate with revisions on June 19, 1964, by a vote of 73–27. The House agreed to the Senate's revised bill on June 30, 1964, by a vote of 289–126. The Civil Rights Act was signed into law by President Johnson on July 2, 1964, thus becoming Public Law 88-352.

Unlike the gargantuan bills that Congress passes today (the recent health care bill was 2,409 pages), the Civil Rights Act is only 28 pages long, divided into 11 titles. The complete text can be viewed here.

The preamble reads as follows:

To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

The second-longest and most far-reaching part of the Civil Rights Act is Title II: "Injunctive Relief against Discrimination in Places of Public Accommodation." The internal justification for this title is the ambiguous commerce clause in Article I, Section 8 of the Constitution that gives the Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." More evils have resulted from the federal government abusing the commerce clause than from any other part of the Constitution. But as Congressman Paul has said: "The framers of the Constitution intended the interstate commerce clause to create a free trade zone among the states, not to give the federal government regulatory power over every business that has any connection with interstate commerce."

The key part of Title II is the first section:

SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment (A) (i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

(c) The operations of an establishment affect commerce within the meaning of this title if (1) it is one of the establishments described in paragraph (1) of subsection (b); (2) in the case of an establishment described in paragraph (2) of subsection (b), it serves or offers to serve interstate travelers or a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce; (3) in the case of an establishment described in paragraph (3) of subsection (b), it customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment which move in commerce; and (4) in the case of an establishment described in paragraph (4) of subsection (b), it is physically located within the premises of, or there is physically located within its premises, an establishment the operations of which affect commerce within the meaning of this subsection. For purposes of this section, "commerce" means travel, trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia and any State, or between any foreign country or any territory or possession and any State or the District of Columbia, or between points in the same State but through any other State or the District of Columbia or a foreign country.

(d) Discrimination or segregation by an establishment is supported by State action within the meaning of this title if such discrimination or segregation (1) is carried on under color of any law, statute, ordinance, or regulation; or (2) is carried on under color of any custom or usage required or enforced by officials of the State or political subdivision thereof; or (3) is required by action of the State or political subdivision thereof.

(e) The provisions of this title shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b).

Because this part of the Civil Rights Act in particular was an unconstitutional expansion of federal power that destroyed the rights of private property, freedom of assembly, and freedom of association, free enterprise, and freedom of contract, it was opposed by members of Congress like Barry Goldwater. Although it has been part of federal law for over 45 years, it should still be repudiated by all proponents of liberty and a free society just like the rest of Lyndon Johnson's Great Society programs.

Although the inns, hotels, motels, restaurants, cafeterias, lunchrooms, lunch counters, soda fountains, gas stations, movie theaters, concert halls, sports arenas, and stadiums referenced in Title II of the Civil Rights Act are all in business to offer goods and services to the public, they are all still private businesses (excepting certain halls, arenas, and stadiums that are owned by a municipality, in which case my comments would not apply).

Just as no one has a right to enter my home, so no one should have a right to stay at my inn, hotel, or motel; eat at my restaurant, cafeteria, lunchroom, or lunch counter; enjoy a beverage at my soda fountain; fill up at my gas station; view a movie at my theater; listen to a concert in my hall; or watch a sporting event at my arena or stadium.

There should be no distinction between a private home and a private business. In a free society, as Jacob Hornberger has recently pointed out, "a person has the fundamental right to associate with anyone he chooses and on any basis he chooses." In a free society, business owners, like homeowners, would have the right to run their businesses as they choose, including the right of exclusion. In a free society, everyone would have the right to discriminate in his place of business – yes, discriminate – against male or female, Blacks or Whites, Christians or Jews, Protestants or Catholics, heterosexuals or homosexuals, atheists or theists, natives or immigrants, smokers or nonsmokers, obese or anorexic.

The simple truth is that Americans don't live in a free society, although they may think they do. We live in a relatively free society compared to people in many other countries, but we do not live in a society that is absolutely free. We have a nanny state. We have a government full of politicians, bureaucrats, and regulators and a society full of statists, authoritarians, and busybodies who all want to use the force of government to impose their values, remake society in their own image, and compel others to associate with people of their choosing. It is futile to attempt to change human nature. Like attracts like, whether it is political preference, sexual orientation, religious piety, or skin color.

It's time to stop considering discrimination to be a dirty word.

I prefer Wal-Mart to K-Mart, ketchup to mustard, blue to pink, Chevy to Ford, blonds to brunettes, and Coke to Pepsi. Pepsi may be cheaper, healthier, and better tasting, but I still prefer Coke. Perhaps I just like the color, the smell, or the Coke logo on the can. My preference for Coke over Pepsi may be completely irrational, but in a free society it is my choice to discriminate against Pepsi as long as I don't violate the rights of Pepsi drinkers.

By the same token, if I prefer to rent my home to married couples instead of unmarried ones, serve in my restaurant Whites instead of Blacks, allow into my theater heterosexuals instead of homosexuals, put up in my hotel Democrats instead of Republicans, sell merchandise in my store to Christians instead of Jews, and permit to join my club men instead of women, then I have the natural and moral right to do so. The fact that I don't have the legal right to do any of these things means that the state is violating my rights instead of protecting them.

To say that proponents of liberty and a free society long for the return of Jim Crow laws is a gross misrepresentation. Jim Crow laws, which banned White businessmen from serving Black customers, are just as wrong as anti-discrimination laws. These government-mandated and government-enforced laws denied the fundamental right of Whites to associate and conduct business with Blacks. The real problem with segregation and discrimination is that they were de jure, not de facto; mandatory, not voluntary; public, not private.

In a free society, discrimination could serve as the mother of innovation and entrepreneurship. If a restaurant is for Whites only, someone can open a similar one for all races or for just Blacks. If a store is for Christians only, someone can open a similar one for all religions or for just Jews. But discrimination could also function as a death knell for any business due to bad publicity, boycotts, and too narrow of a market to generate sufficient profits.

In a free society the possibilities are endless. As much as some enemies of liberty and a free society don't want to hear it, and as much as some defenders of liberty and a free society have waffled on the issue, a truly free society means the freedom to discriminate – against any group for any reason.


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