Private Sector Nondiscrimination Laws Are Ridiculous

In a nod toward female empowerment the Alamo Drafthouse chain of movie theaters plans to offer several screenings of the soon-to-debut Wonder Woman film to female customers only.

The company has released a statement saying: “Apologies, gentlemen, but we’re embracing our girl power and saying ‘No Guys Allowed’ for several special shows…”

This is blatantly illegal.

Not that it should be. Alamo Drafthouse is a private company and should be free to discriminate till the cows come home. The women-only screenings nonetheless violate state and local law in multiple localities. An Alamo cinema in Brooklyn, for example, will be in violation of New York State law which declares it to be “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of…sex…directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof…” Similar laws can be found in other cities and states where Alamo Drafthouse is holding its flagrantly illegal screenings.

The reason Alamo Drafthouse is getting away with illegal sex discrimination is because the word “sex” in nondiscrimination laws has morphed before our eyes. Some government entities are now interpreting “sex” to mean “sexual orientation” which is almost always a code word for sexual conduct. It’s also being interpreted to mean “gender identity” or “gender expression.” What this means in practice is that laws that were intended to protect women are now being interpreted to protect men who have sex with men as well as men who think they’re women. The only thing that “sex” apparently doesn’t mean these days is its actual dictionary definition. Consequently, businesses now feel free to discriminate on the basis of sex and no one does anything about it…as long as it’s only men who are being discriminated against, of course.

Isn’t it about time to admit that private sector nondiscrimination are ridiculous? I think so but I’m apparently in the minority on this issue. Almost everyone claims to revere these laws, even conservatives. Most righties support them laws in principle but resent their arbitrary enforcement—and rightfully so. Alamo Drafthouse is proof that the government discriminates in its application of nondiscrimination laws. A law that clearly and unambiguously prohibits discrimination based on sex is only invoked to protect one sex. What’s equal about that?

Nonetheless, a broad consensus exists that private sector nondiscrimination laws are both righteous and necessary. We Americans love them so much that we’ve enacted them by the boatload and created almost as many enforcement agencies to back them up. If a person is refused service he may be able to file simultaneous complaints with the city, county, state, and federal governments. This legal barrage often results in the business owner’s unconditional surrender even if he wasn’t harboring an illegal thought when he decided not to do business with this person. Capitulation is just easier.

Even among conservatives I find myself swimming against the tide on this issue. I’ve tried in vain to explain to my fellow conservatives that they shouldn’t brag about more Republicans than Democrats voting for the Civil Rights Act of 1964. It’s true but it’s also a horrible black mark on the party’s record. A few Republicans understood what a monstrosity this law would become and opposed the statist (and racist!) Lyndon Johnson in his efforts to pass the bill. Their names were Barry Goldwater and Ronald Reagan—perhaps you’ve heard of them?

Politicians certainly don’t speak out against the Civil Rights Act, even conservatives and so-called libertarians like former New Mexico Governor Gary Johnson. It’s political suicide. I know of only one elected official currently holding office who has ever criticized it—Rand Paul—and he quickly walked it back.

The Civil Rights Act of 1964, like all private sector nondiscrimination laws, is big government at its worst. It appears to exist primarily to keep an army of litigators employed. It is selectively enforced against disfavored groups and it is often warped with new “interpretations” that are at odds with its text and original intent. It is an affront to sovereignty, privacy, dignity, and property rights. It’s a crap sandwich that the whole country has been choking on for more than fifty years. It needs to be struck down as unconstitutional and we need to teach our children to be ashamed that it ever existed in the first place.

The Wonder Woman kerfuffle makes me wonder where all of the nondiscrimination hardliners have gone. Former Congressman Barney Frank, for example, ought to be the first to file a complaint with one of our many wasteful, redundant “civil rights” bureaucracies because he has zero patience for people who discriminate. Or at least that’s the position he pretended to hold during the debate over Indiana’s religious freedom law.

Barney Frank operates under the false impression that there’s some kind of law that requires businesses to serve everyone. Said Mr. Frank: “When you open a business, you are being given a set of privileges and protections from the society to make some money and in return the obligation has always been under basic common law that you serve the general public, that anybody who behaves well can be served…” Actually, there is no such law and it would be unconstitutional even if there were. Businesses can decline any economic transaction whatsoever as long as they provide a proper government-approved justification. I think that “I don’t want to” should suffice but the law says that’s just not good enough.

It’s important to really hear what Frank is saying here. He’s not saying that there ought to be a law compelling businesses to serve everyone. What he’s saying is that such a law already exists and has existed since time immemorial. He’s trying to pass this off as some kind of great American tradition, as if forcing businesses to serve the general public without exception has been part of our social contract for generations. This is the big lie that surrounds and pervades the debate over private sector nondiscrimination laws. They want us to believe not only that business owners are bondage servants with no right to pick and choose which economic transactions they will engage in but also that it’s always been this way.

I have encountered Frank’s argument roughly a zillion times while debating private sector non-discrimination laws. The argument is that business owners, simply by going into business, have already agreed to “serve the public” which includes absolutely anyone walks in the door. In essence, that means that they have already waived any rights they may have under the Constitution to protect themselves from government coercion. Any business owner who later decides that he doesn’t want to do business with a particular customer or fulfill a particular order is somehow going back on his word and shirking his duty to the public. This is absurd. Business owners don’t make any such promise to “serve the public” nor should they be required to. They can serve those members of the public they want to serve—or at least that’s the way it should be. It’s a two way street; just as customers can choose which businesses to patronize, businesses should be able to choose which customers they will take on. That’s freedom—and it scares the living crap out of some people.

Another candidate for the Hypocrite of The Year award is opinion commentator and militant lesbian Sally Kohn. In 2015, she wrote a column in which she argued that maximum freedom comes through maximum government coercion. “Everyone deserves equal treatment, and businesses should be forced to serve everyone,” was the sub-header.

The gist of Kohn’s column is that nondiscrimination laws are eminently fair because they bind everyone just as they protect everyone. Anyone who doesn’t like these laws must be accustomed to discriminating without being discriminated against. They’re scared because they feel their privilege slipping away. She tries to pretend that she’s very consistent, pointing out she supports laws that work both ways. Yes, she believes that a devout Mormon couple should be forced to rent a hotel room to a radical lesbian feminist but she also thinks that the same law should apply in the reverse scenario. Kohn writes: “The point is that businesses should serve everyone the same and not discriminate. Once upon a time it was lunch counters. Now it’s wedding cakes.” Yes, then it was movie theaters and Sally Kohn was AWOL. She didn’t force her morality on the movie theater owner the same way she would a devout Christian bakery owner because—let’s face it—her supposed consistency isn’t that consistent.

But mine is. Businesses shouldn’t have to serve anyone and they shouldn’t have to explain themselves to the government. I don’t care if it’s lunch counters, wedding cakes or movie theaters. Economic transactions should be made on a voluntary basis. Period.

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