AZ Legislature turns back clock, resumes segregation, but this time for gays

[All Along The Watchtower]

Putting aside the legality, wouldn't you agree that refusing service to someone on account of their sexual orientation is despicable behavior? 

Of course it is, but just because something is despicable does not automatically mean that it should be illegal.

Maybe not automatically, but it certainly weighs in favor of protecting gay people. 

I'm just not following the counter argument here.  On one hand, there is a tremendous problem for someone who is denied employment, access to housing, civil rights, credit, schooling, etc on account of sexual orientation.  On the other hand, what?  There's an interest in people having the ability to engage in despicable behavior?  I don't understand why that's giving you pause.

I think the argument is basically a traditionally liberal (in the correct sense of the word) one, and it basically boils down to: the government should not interfere in disputes between individual actors (businesses vs customers, for example) that can (supposedly) otherwise be resolved between the actors in question. It is all about individual liberty, freedom of association, and freedom of choice-regardless of the outcome of the choices that are made.

Of course, this is, IMHO, way too much of an idealized abstraction to be used as an effective rule for society, and causes more problems than it is worth, so I hope we can find a better way to address the problem of discrimination against minority groups.

[True Federalist (진정한 연방 주의자)]

Putting aside the legality, wouldn't you agree that refusing service to someone on account of their sexual orientation is despicable behavior? 

Of course it is, but just because something is despicable does not automatically mean that it should be illegal.

Maybe not automatically, but it certainly weighs in favor of protecting gay people. 

I'm just not following the counter argument here.  On one hand, there is a tremendous problem for someone who is denied employment, access to housing, civil rights, credit, schooling, etc on account of sexual orientation.  On the other hand, what?  There's an interest in people having the ability to engage in despicable behavior?  I don't understand why that's giving you pause.

Government-forced association has historically not been a tool used only to encourage the acceptance of minority groups by a majority that has discriminated against them.  The idea that we need to force association so as encourage a broader more homogenous society has more often been used against minorities that wish to avoid encroachment by a majority. Take for example the programs to force the assimilation of Native Americans and Australian Aborigines.  So the idea that forced association never can be a real problem or that it always works to the benefit of minorities is bunk.  Using the tool of government-forced association to deal with discrimination can potentially legitimize its use for less savory purposes.

Hence, whether to use this tool to combat discrimination depends on how serious a problem discrimination is.  I think you would agree that the sorts of things you mention above which are covered federally by Title VII of the CRA in the case of other groups can be more problematic than the sorts of things which are covered by Title II, and as I understood it, the law in question was dealing with situations analogous to Title II.  I'm not particularly convinced that we need Title II at all these days in the case of race, gender, or religion, hence my skepticism of extending it to sexual orientation.

While there would be some occasions on which its lack would lead to additional instances of discrimination, I'm not convinced that at the level I would expect it to happen that it would lead to anything more than some minor emotional distress, and that distress would be likely to happen anyway given the comments that would likely be made if associations were forced in such instances.  Since no matter who you are there will people who won't like you, and sometimes they won't like you for things you have no control over, that's a common problem that we all need to deal with.  (Ehhh, that sounds sanctimonious.  I need to find a better way to express that unpleasant truth.  Especially since there are unfortunately those for whom it is truer than it ought to be.)  Now if it goes beyond minor emotional distress, then it is a problem that needs to be dealt with.  Similarly if that dislike leads to the commission of physical harm, that needs to be dealt with in a manner commensurate with the harm done.

I hope we can find a better way to address the problem of discrimination against minority groups.

So do I.  I just don't see anti-private discrimination laws as the panacea progressives make them out to be.  They can be useful on occasion, but they are a tool that are better left for egregious cases.  Perhaps it simply hasn't come to my attention, but I'm not aware of widespread denial of public accommodations or retail shopping opportunities to the LGBT community in this country that would make the extension of something like Title II to sexual orientation the absolute necessity it was in 1964 with respect to racial discrimination.

[bedstuy]

Government-forced association has historically not been a tool used only to encourage the acceptance of minority groups by a majority that has discriminated against them.  The idea that we need to force association so as encourage a broader more homogenous society has more often been used against minorities that wish to avoid encroachment by a majority. Take for example the programs to force the assimilation of Native Americans and Australian Aborigines.  So the idea that forced association never can be a real problem or that it always works to the benefit of minorities is bunk.  Using the tool of government-forced association to deal with discrimination can potentially legitimize its use for less savory purposes.

That seems like a crazy stretch to me.  I can't even fathom how preventing discrimination against gays is going to lead to genocide or the elimination of minorities. 

Hence, whether to use this tool to combat discrimination depends on how serious a problem discrimination is.  I think you would agree that the sorts of things you mention above which are covered federally by Title VII of the CRA in the case of other groups can be more problematic than the sorts of things which are covered by Title II, and as I understood it, the law in question was dealing with situations analogous to Title II.  I'm not particularly convinced that we need Title II at all these days in the case of race, gender, or religion, hence my skepticism of extending it to sexual orientation.

Let's just stipulate to the fact that these types of public accommodation lawsuits will be rare.  But, what's the harm in adding gay people to the list of protected classes?  It sends a message and it's a natural inclusion in that list under the CRA.  Plus, let's just say there is a egregious example of discrimination, you would leave people with no remedy.  Just because you have this subjective belief that examples of sexual orientation discrimination are rare?  Anti-Christian discrimination is also rare.  Would you like to amend the CRA to only include discrimination against non-Christian religions? 

Plus, we've had anti-sexual orientation discrimination laws on the books for years in cities.  Has there been any negative consequence from that?   

While there would be some occasions on which its lack would lead to additional instances of discrimination, I'm not convinced that at the level I would expect it to happen that it would lead to anything more than some minor emotional distress, and that distress would be likely to happen anyway given the comments that would likely be made if associations were forced in such instances.  Since no matter who you are there will people who won't like you, and sometimes they won't like you for things you have no control over, that's a common problem that we all need to deal with.  (Ehhh, that sounds sanctimonious.  I need to find a better way to express that unpleasant truth.  Especially since there are unfortunately those for whom it is truer than it ought to be.)  Now if it goes beyond minor emotional distress, then it is a problem that needs to be dealt with.  Similarly if that dislike leads to the commission of physical harm, that needs to be dealt with in a manner commensurate with the harm done.

I guess that's true as far as it goes.  But, of course people aren't going to file lawsuits because of trivial discrimination.  That doesn't vary based on the existence of the statute.   

But, imagine we have these anti-discrimination laws on the books.  Gay people with legitimate claims are going to have remedies (even if it occurs rarely).  Corporate legal affairs departments are going to tell their employees not to discriminate.  There will be greater social consciousness of how society views discrimination as wrong.  We're going to create a norm of treating people fairly.  These are all good things.  But, you're against it because adding two words to a statute is a hassle? 

I hope we can find a better way to address the problem of discrimination against minority groups.

So do I.  I just don't see anti-private discrimination laws as the panacea progressives make them out to be.  They can be useful on occasion, but they are a tool that are better left for egregious cases.  Perhaps it simply hasn't come to my attention, but I'm not aware of widespread denial of public accommodations or retail shopping opportunities to the LGBT community in this country that would make the extension of something like Title II to sexual orientation the absolute necessity it was in 1964 with respect to racial discrimination.

There isn't widespread homicide by flamethrower either, it doesn't mean it should be legal.  You just haven't justified why we should only ban discrimination when it's a total necessity.  You just assert it like it's a fact.  We don't even have to hire new DOJ lawyers, build a bureaucracy or anything, we're talking about adding a phrase.  Why is the test absolute necessity?

[True Federalist (진정한 연방 주의자)]

Anti-Christian discrimination is also rare.  Would you like to amend the CRA to only include discrimination against non-Christian religions?

No.  And even if I did, it would be unconstitutional to treat Christianity differently than any other religion under the law.

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Have there been any positive consequences?  You ask me to argue why an anti-private discrimination law isn't needed.  I would say that the onus is on arguing why it is needed, as should be the case with any law.  We have too many laws as it is.  While a case can be made for such a law and it isn't a bad case, when it comes to public accommodations discrimination, I think circumstances favor leaving Title II alone for now but I won't be at all upset if Congress someday decides otherwise.  After all, how much discrimination is sufficient to require government action is a subjective one and as I have often said, legislatures are where subjective decisions should be made by governments.

[bedstuy]

Anti-Christian discrimination is also rare.  Would you like to amend the CRA to only include discrimination against non-Christian religions?

No.  And even if I did, it would be unconstitutional to treat Christianity differently than any other religion under the law.

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Have there been any positive consequences?  You ask me to argue why an anti-private discrimination law isn't needed.  I would say that the onus is on arguing why it is needed, as should be the case with any law.  We have too many laws as it is.  While a case can be made for such a law and it isn't a bad case, when it comes to public accommodations discrimination, I think circumstances favor leaving Title II alone for now but I won't be at all upset if Congress someday decides otherwise.  After all, how much discrimination is sufficient to require government action is a subjective one and as I have often said, legislatures are where subjective decisions should be made by governments.

You're not making any sense or responding to what I'm saying, so I suppose I should just give up on this.  But...

When it comes to protecting the rights of zoroastrians and Polish people, we have enough room in our law books to protect them.  We have room for millions of pages of text, but we can't add a few phrases to protect millions of people from discrimination?  That's a ridiculous argument.

As it is wrong to discriminate against someone on account of their race, so with religion, sexual orientation, gender, etc.  It doesn't matter how often it happens, it's wrong in of itself.  If someone was fired for being gay or denied service because they're black, and it was the first time ever, it would still be wrong.  Since, it's a terrible thing to do and results in actual harm to its victims, there should be an appropriate legal remedy.  We can argue about the appropriate remedy and how to administer the system.  But, it's silly to deny justice to potential victims just because you thought it was unlikely that their harm would occur because nobody can tell if someone is gay.

[True Federalist (진정한 연방 주의자)]

Let me make something clear since I think it may reflect on the difference between our positions.  I am not and never have been of the philosophy that even one injustice is too many and thus requires that something must be done.  Why?  Not because a think a little injustice is good.  No, even a little injustice is bad, but at low levels of injustice the amount of effort needed to combat it outweighs the potential good because that effort could be better spent elsewhere.  Of course everyone has their own subjective opinions as to the best place to spent the limited resources of the government in time and money.

When it comes to protecting the rights of zoroastrians and Polish people, we have enough room in our law books to protect them.  We have room for millions of pages of text, but we can't add a few phrases to protect millions of people from discrimination?  That's a ridiculous argument.

If you go back over this thread, you'll note that I think that we're at a point in this country where Title II could be safely repealed in its entirety.  However, I don't think the benefit of simplifying the law by repealing Title II is worth the effort it would take to do that which is why I want leave Title II alone.  Now if we were to go the effort of revising the Civil Rights Act, I'd easily accept adding LGBTs as a protected class to Title VII (and to the Fair Housing Act) in exchange for repealing Title II.  However, I'm under no illusion that such a moderate antihero stance would ever stand a snowball's chance in Saudi Arabia of passing.

[pbrower2a]

Good, good. To be honest though, how easy is it to tell whether somebody is gay or not. I mean, sure, there's a few out there who set off the old gaydar, but realistically now. 'Tis pretty difficult sometimes.

The Gaydar? Are you sh**tting me? That's just a horrible thing to say.

Gaydar? I suspect that it is a portmanteau for "gay radar".

People militantly anti-gay often have some unanswered questions about themselves. Among them are politicians who make ferocious anti-gay statements. Then we discover that they get to an airport restroom several hundred miles from their state, solicit gay sex illegally, and find that the calling card from the intended partner is a police badge.

 

[bedstuy]

Let me make something clear since I think it may reflect on the difference between our positions.  I am not and never have been of the philosophy that even one injustice is too many and thus requires that something must be done.  Why?  Not because a think a little injustice is good.  No, even a little injustice is bad, but at low levels of injustice the amount of effort needed to combat it outweighs the potential good because that effort could be better spent elsewhere.  Of course everyone has their own subjective opinions as to the best place to spent the limited resources of the government in time and money.

When it comes to protecting the rights of zoroastrians and Polish people, we have enough room in our law books to protect them.  We have room for millions of pages of text, but we can't add a few phrases to protect millions of people from discrimination?  That's a ridiculous argument.

If you go back over this thread, you'll note that I think that we're at a point in this country where Title II could be safely repealed in its entirety.  However, I don't think the benefit of simplifying the law by repealing Title II is worth the effort it would take to do that which is why I want leave Title II alone.  Now if we were to go the effort of revising the Civil Rights Act, I'd easily accept adding LGBTs as a protected class to Title VII (and to the Fair Housing Act) in exchange for repealing Title II.  However, I'm under no illusion that such a moderate antihero stance would ever stand a snowball's chance in Saudi Arabia of passing.

I'm not a huge fan of how the Civil Rights Act works either.  Not because I think it's a burden on anyone to avoid discriminating, but because it can be difficult to prove anything decisively.  But, your argument really makes no sense.  What is the limited resource being consumed or burdened by keeping these statutes on the books or adding another category?

It's clearly not the effort of adding text to a statute.  It's not the burden on the businesses.  It's not the liberty interest of homophobes.  What is it that is consumed here?

The only plausible argument I can think of is DOJ and judicial resources.  But, as you said, these cases are going to be fairly rare as Title II cases are in general.  Plus, the DOJ doesn't prosecute all statutes evenly.  They use their best judgement and they would continue to do so.  If you're just adding words and not increasing the enforcement budget, you won't be adding any expense. 

[Хahar 🤔]

Government-forced association has historically not been a tool used only to encourage the acceptance of minority groups by a majority that has discriminated against them.  The idea that we need to force association so as encourage a broader more homogenous society has more often been used against minorities that wish to avoid encroachment by a majority.

So?

[True Federalist (진정한 연방 주의자)]

If you're just adding words and not increasing the enforcement budget, you won't be adding any expense. 

In that case, you're adding to our bloated law code (albeit not much in this case, which is part of the reason why Title II repeal is not something I'd put on the Congressional agenda even if had a chance of passage).  Individually, laws that don't really accomplish anything aren't a burden, but collectively they are and they add to the frustration and discontent with a government that seems to promise everything yet seems to accomplish little.  I'd much rather have no words than empty words.

[bedstuy]

If you're just adding words and not increasing the enforcement budget, you won't be adding any expense. 

In that case, you're adding to our bloated law code (albeit not much in this case, which is part of the reason why Title II repeal is not something I'd put on the Congressional agenda even if had a chance of passage).  Individually, laws that don't really accomplish anything aren't a burden, but collectively they are and they add to the frustration and discontent with a government that seems to promise everything yet seems to accomplish little.  I'd much rather have no words than empty words.

Are you being serious with this?  How is anyone this pedantic?

It's not empty at all.  It's "civil rights under law."  It should be enough that sexual orientation discrimination is materially the same as other types of discrimination and belongs in the statute where race, religion, national origin, etc are already there.  Like my example of flamethrower homicide, just because a certain type of harm is relatively infrequent is no real argument against legal recognition and remedy.

[True Federalist (진정한 연방 주의자)]

If you're just adding words and not increasing the enforcement budget, you won't be adding any expense. 

In that case, you're adding to our bloated law code (albeit not much in this case, which is part of the reason why Title II repeal is not something I'd put on the Congressional agenda even if had a chance of passage).  Individually, laws that don't really accomplish anything aren't a burden, but collectively they are and they add to the frustration and discontent with a government that seems to promise everything yet seems to accomplish little.  I'd much rather have no words than empty words.

Are you being serious with this?  How is anyone this pedantic?

It's not empty at all.  It's "civil rights under law."  It should be enough that sexual orientation discrimination is materially the same as other types of discrimination and belongs in the statute where race, religion, national origin, etc are already there.  Like my example of flamethrower homicide, just because a certain type of harm is relatively infrequent is no real argument against legal recognition and remedy.

Your flamethrower example doesn't really bear merit.  We don't need specific laws for "flamethrower homicide" because they can be covered by just plain "homocide".  But we can't simply legislate against generic "discrimination" because discrimination is simply those forms of choice we as a society decide are wrong.  Hence any anti-discrimination law must list what forms of choice are wrong and moreover it makes sense to list the more serious wrongs rather than all wrongs, even if we could list all wrong choices.  Is it wrong to discriminate against the overweight, the short, those without a sense of rhythm?  Yes, but it's also clear that those aren't as serious as discrimination due to race, gender, or sexual orientation.  Now if I felt Title II could do more than I think it currently does, I'd be all for adding sexual orientation to that list. But I don't think it would accomplish enough to be worth the bother of changing the law.

But now that I got that out of my system, let me get back to your point "just because a certain type of harm is relatively infrequent is no real argument against legal recognition and remedy".  All remedies have a cost and all harms impose a cost.  Thus it only makes sense to apply a remedy if the cost of the remedy is less than the cost of the harm it could prevent.  I don't see Title II preventing enough harm to justify the costs associated with it.  That the cost of the remedy is small doesn't by itself justify it.  Now I think it is fairly obvious that you feel the preventable harm caused is greater and/or the cost is lower than I feel they are and so you reach a different conclusion.  That's perfectly understandable, especially since we're not dealing here with harms or costs that can be reduced down to mere dollars and cents.  That means our estimates of the benefits and costs and thus our conclusions are bound to be subjective.

[bedstuy]

Your flamethrower example doesn't really bear merit.  We don't need specific laws for "flamethrower homicide" because they can be covered by just plain "homocide".  But we can't simply legislate against generic "discrimination" because discrimination is simply those forms of choice we as a society decide are wrong.  Hence any anti-discrimination law must list what forms of choice are wrong and moreover it makes sense to list the more serious wrongs rather than all wrongs, even if we could list all wrong choices.  Is it wrong to discriminate against the overweight, the short, those without a sense of rhythm?  Yes, but it's also clear that those aren't as serious as discrimination due to race, gender, or sexual orientation.  Now if I felt Title II could do more than I think it currently does, I'd be all for adding sexual orientation to that list. But I don't think it would accomplish enough to be worth the bother of changing the law.

But, that's just a matter of definitions and how easy or hard a wrongful act is to define.   Your argument is that legality should depend entirely on whether a list is a certain number of terms long.  Do you think that's an adequate basis for barring claims entirely?  It's not like the CRA has a laundry list in title II.  It's the difference between 4 terms and 5 terms. 

You should just say you're against Title II if you're against title II.  But this whole argument that it's too different to expand a list from 4 to 5.  That's blatantly silly.  How is it difficult to change a comma and two words in a statute?

But now that I got that out of my system, let me get back to your point "just because a certain type of harm is relatively infrequent is no real argument against legal recognition and remedy".  All remedies have a cost and all harms impose a cost.  Thus it only makes sense to apply a remedy if the cost of the remedy is less than the cost of the harm it could prevent.  I don't see Title II preventing enough harm to justify the costs associated with it.  That the cost of the remedy is small doesn't by itself justify it.  Now I think it is fairly obvious that you feel the preventable harm caused is greater and/or the cost is lower than I feel they are and so you reach a different conclusion.  That's perfectly understandable, especially since we're not dealing here with harms or costs that can be reduced down to mere dollars and cents.  That means our estimates of the benefits and costs and thus our conclusions are bound to be subjective.

That's very abstract.  Let's just look at the nuts and bolts here.  If there are zero claims, the cost of the remedy is zero dollars.  There are no fixed costs associated with adding this category.  The compliance costs are essentially zero because complying with Title II is simply common sense.  So, it's just a case-by-case determination by the courts.  If there is a trivial claim, the plaintiff will lose on a motion to dismiss.  That's the solution to your giant abstract problem.  You make all these abstract gestures but what is the actual cost in real terms?

[True Federalist (진정한 연방 주의자)]

You should just say you're against Title II if you're against title II.  But this whole argument that it's too different to expand a list from 4 to 5.  That's blatantly silly.  How is it difficult to change a comma and two words in a statute?

I did say.  And it's as difficult to add words as to subtract them (unless you're a lobbyist with campaign contributions to hand out who wants a change in the law that few will notice).  We only pass a few hundred laws each Congress even when it functions smoothly.

The compliance costs are essentially zero because complying with Title II is simply common sense.  So, it's just a case-by-case determination by the courts.  If there is a trivial claim, the plaintiff will lose on a motion to dismiss.  That's the solution to your giant abstract problem.  You make all these abstract gestures but what is the actual cost in real terms?

You seem to have a fairly utopian view of how the legal system works.  Even with a trivial claim, there is still all the time, effort, and money that must be spent to get that dismissal and courts rarely if ever punish those who bring trivial claims.  Plus you have to worry that if you do discriminate against a member of a protected class for a reason other than being in the class that you'll get sued for discriminating against em for being the class.  Now you may think these costs are essentially zero since so few cases are brought, but you still haven't addressed the other half of the equation.  I think that at this point in our society the benefits of Title II are essentially zero.  It doesn't matter how cheap something is if it's not worth the price.

[bedstuy]

You should just say you're against Title II if you're against title II.  But this whole argument that it's too different to expand a list from 4 to 5.  That's blatantly silly.  How is it difficult to change a comma and two words in a statute?

I did say.  And it's as difficult to add words as to subtract them (unless you're a lobbyist with campaign contributions to hand out who wants a change in the law that few will notice).  We only pass a few hundred laws each Congress even when it functions smoothly.

The difficulty of the political process doesn't make a difference from a normative perspective.  A proposed change in a law is not wrong because it would be controversial.   That doesn't make sense.  By that logic, slavery was a good thing in 1840. 

You seem to have a fairly utopian view of how the legal system works.  Even with a trivial claim, there is still all the time, effort, and money that must be spent to get that dismissal and courts rarely if ever punish those who bring trivial claims.  Plus you have to worry that if you do discriminate against a member of a protected class for a reason other than being in the class that you'll get sued for discriminating against em for being the class.  Now you may think these costs are essentially zero since so few cases are brought, but you still haven't addressed the other half of the equation.  I think that at this point in our society the benefits of Title II are essentially zero.  It doesn't matter how cheap something is if it's not worth the price.

That's not an argument against sexual orientation discrimination claims.  That's an argument against Title II claims in general.  It's completely arbitrary then to allow claims for religious discrimination and not sexual orientation discrimination.  Why don't we also deny social security benefits to gay people?  That's also very costly. 

Are you actually saying that a sexual orientation discrimination claim is less likely to have merit than other discrimination claims under Title II?

[True Federalist (진정한 연방 주의자)]

That's not an argument against sexual orientation discrimination claims.  That's an argument against Title II claims in general.  It's completely arbitrary then to allow claims for religious discrimination and not sexual orientation discrimination.  Why don't we also deny social security benefits to gay people?  That's also very costly.  

Are you actually saying that a sexual orientation discrimination claim is less likely to have merit than other discrimination claims under Title II?

No.  I'm arguing against Title II in general but feel that it isn't worth the effort it would take to expunge the existing Title II.  As I already said several times in direct reply to you and thus I am getting tired of repeating myself, if the effort were to be made to alter Title II, I feel that it would be better to spend that effort to expunge Title II than to add additional protected classes.

You should just say you're against Title II if you're against title II.

I did say.

When it comes to protecting the rights of zoroastrians and Polish people, we have enough room in our law books to protect them.  We have room for millions of pages of text, but we can't add a few phrases to protect millions of people from discrimination?  That's a ridiculous argument.

If you go back over this thread, you'll note that I think that we're at a point in this country where Title II could be safely repealed in its entirety.  However, I don't think the benefit of simplifying the law by repealing Title II is worth the effort it would take to do that which is why I want to leave Title II alone.

Now that I've said today for at least the third time directly to you that I favor repealing Title II, will you kindly switch to another point of argument.  Bringing it up a fourth time is not going to accomplish anything except getting me to put you on ignore since you seem to be doing the same to what I write.

I don't mind if you disagree with what I write.  I don't expect anyone to agree with me 100% of the time and I'm fully aware that on this point I'm a moderate antihero likely to please very few.  I don't mind you trying to convince me that I'm wrong about the benefits of Title II being insufficient to justify the costs.  However, I do mind you apparently not bothering to read what I write and then repeatedly ask me the same question that I already answered.

[bedstuy]

I don't necessarily have a problem with your conclusion.  Myself, I would rewrite Title VII substantially in a number of ways.  I think it's a statute that can be abused to harass employers and there are numerous evidenciary problems with Title VII.  I'm no bleeding heart liberal about this.  I have a problem with the reasoning you use to get there and your callousness towards the harm people suffer from discrimination.

Ultimately, you are saying that it should be legal for a motel chain or restaurant to hang a sign outside saying, "no blacks allowed or no Jews allowed."  Even if there is a massive amount of frivolous Title II litigation (I'm 98% sure that's not true), why not just tweak the law to fix that problem while allowing the clear, bulletproof case of Title II discrimination to go forward?

[Small Business Owner of Any Repute]

If it was legal to discriminate based on race or religion I imagine that millions of anti-Muslim signs would have gone up in businesses across the country on Sept. 12, 2001, don't you?

The free market would have a really nasty time trying to stamp out popular discrimination. That's the problem with anti-gay bias -- it's still really effing popular. And in many places, it's culturally OK to do.

[True Federalist (진정한 연방 주의자)]

I don't necessarily have a problem with your conclusion.  Myself, I would rewrite Title VII substantially in a number of ways.  I think it's a statute that can be abused to harass employers and there are numerous evidenciary problems with Title VII.  I'm no bleeding heart liberal about this.  I have a problem with the reasoning you use to get there and your callousness towards the harm people suffer from discrimination.

Ultimately, you are saying that it should be legal for a motel chain or restaurant to hang a sign outside saying, "no blacks allowed or no Jews allowed."  Even if there is a massive amount of frivolous Title II litigation (I'm 98% sure that's not true), why not just tweak the law to fix that problem while allowing the clear, bulletproof case of Title II discrimination to go forward?

The thing is, I think that we've changed enough as a society since 1964 that even if the signs could go back up, almost no place would put them back up.  I think Title II cases aren't rare just because they're a pain to file, but because they are rare.

Consider this example from around here because it was in the news recently.  We had a local restauranteur by the name of Maurice Bessinger who died a couple weeks ago.  His father opened up a barbecue place 75 years ago and he took over the operation when he was still a fairly young man and turned it into a local chain of drive-ins. Back when the CRA was passed and Title II came into effect, he was sort of our local Lester Maddox, save without the axe handle or the success in politics. He took his case all the way to the Supreme Court, where he lost 8-0 in 1968. He complied, but very grudgingly, and you'd find inside his restaurant a rather strident defense of Southern culture incorporated within, including a defense of the virtues of slavery back in the day if you bother to read some of the posters or pamphlets.  Still, the food had a reputation for being good and he developed a lucrative business selling his mustard-based barbecue sauce not just at his restaurants, but also in supermarkets here in South Carolina and beyond. Walmart sold his sauce as did the military in its post exchanges.

But then the controversy over removing the Confederate flag from the State House dome came up and he didn't just voice his opinion on it staying up, he did so rather stridently.  When the flag left the dome, it went up at all of his restaurants in place of the US flag at first tho later in the number three position below the US and SC flags just as it had been on the dome. He also made it quite clear his views hadn't changed one whit since 1968 (or for that matter since 1868) and as a result his restaurant business suffered some and his barbecue sauce business collapsed as no retailer wanted to associate themselves with his racist views. A few years ago, he began to show the symptoms of dementia and his kids started to take charge of the business. While they didn't do it all at once, the memorabilia came down.  When the Confederate flags wore out, they were taken down and not put back up.  While they haven't yet apologized for the past, they are trying to put it behind them and they cheerfully serve all who will come and have some of their barbecue. Or at least that's what our local liberal weekly, The Free Times, indicated when they did a story on the kinder, gentler Piggie Park a couple months ago.  I never have eaten there, partly because I don't eat out much, but also because given where I grew up, for me barbecue means Shealy's not Maurice's.

Still, the example is instructive. Discrimination, especially open discrimination, is not good business like it once was.  Society has changed since 1964 and I have no fear that we'd revert to that past society if Title II were no longer on the books.

[bedstuy]

I just looked up DOJ's list of recent Title II cases.  It's not a long list, but it's instructive. 

Marriott canceling the booking of a Muslim conference after 9/11, Domino's systematically refusing to deliver pizzas in black neighborhoods, nightclubs and country clubs keeping out blacks and minorities, it's not as bad as Jim Crow, but it shouldn't be legal.  The fact that nightclubs and country clubs are the most common case is instructive.  Those are exclusive institutions with no economic incentive to take everyone's business. 

Not being allowed to join a private club is not a trivial matter.  That might be the only place in your area with a good golf course, gym or tennis courts.  Access to a golf course can be pivotal in making business deals.  Why just ignore that blatant unfairness and discrimination?  Just because you feel like racism, sexism, homophobia and ethinc hatred are over?

[True Federalist (진정한 연방 주의자)]

Not being allowed to join a private club is not a trivial matter.  That might be the only place in your area with a good golf course, gym or tennis courts.  Access to a golf course can be pivotal in making business deals.  Why just ignore that blatant unfairness and discrimination?  Just because you feel like racism, sexism, homophobia and ethnic hatred are over?

No, they are not over, but they have declined considerably and they have declined to the point that I think protest and boycott can be as effective in curbing it.  Also Title II doesn't cover private clubs tho it does cover businesses that call themselves nightclubs but aren't private clubs.  It's why for example Augusta National Golf Club was able to defer having female and minority members for so long. It wasn't covered and still is not covered by Title II.  So even if Title II were extended to cover sexual orientation, that wouldn't help gain entry into actual private clubs. (Tho of course, if as private club opens its facilities to the public as a public accommodation, they are subject to Title II then.  Hence ANGC can't discriminate when it comes to admitting people to see the Masters.)

You do seem to take the POV that even one case of discrimination is too many and that even one justifies having a law.  I agree with the first point, but not the second.

[Badger]

Can we just acknowledge that Ernest disagrees with the Heart of Atlanta decision, notwithstanding the overwhelming historical success of CRA-mandated desegregation in public accomodations, based on his relatively narrower interpretation of the Constitution and leave it at that?

[True Federalist (진정한 연방 주의자)]

Can we just acknowledge that Ernest disagrees with the Heart of Atlanta decision, notwithstanding the overwhelming historical success of CRA-mandated desegregation in public accommodations, based on his relatively narrower interpretation of the Constitution and leave it at that?

Actually, I agree with Heart of Atlanta, but as is the case with Shelby County, which found that it isn't 1965 and thus the old preclearance formula of Section 4(b) of the VRA was no longer appropriate for today, I recognize that it isn't 1964.  Indeed, even with that recognition that this is not 1964, because Title II is not dependent upon antiquated data as was the preclearance formula, I do not think there are, or ever will be any grounds for the courts to revisit Heart of Atlanta and that any repeal (or expansion) of Title II must come from Congress.

While ideally Constitutional laws and good laws would be identical sets, they aren't, nor can they be.  Indeed, I wouldn't even say that Title II is a bad law, just one I think is not particularly needed today.

[bedstuy]

Not being allowed to join a private club is not a trivial matter.  That might be the only place in your area with a good golf course, gym or tennis courts.  Access to a golf course can be pivotal in making business deals.  Why just ignore that blatant unfairness and discrimination?  Just because you feel like racism, sexism, homophobia and ethnic hatred are over?

No, they are not over, but they have declined considerably and they have declined to the point that I think protest and boycott can be as effective in curbing it.  Also Title II doesn't cover private clubs tho it does cover businesses that call themselves nightclubs but aren't private clubs.  It's why for example Augusta National Golf Club was able to defer having female and minority members for so long. It wasn't covered and still is not covered by Title II.  So even if Title II were extended to cover sexual orientation, that wouldn't help gain entry into actual private clubs. (Tho of course, if as private club opens its facilities to the public as a public accommodation, they are subject to Title II then.  Hence ANGC can't discriminate when it comes to admitting people to see the Masters.)

You do seem to take the POV that even one case of discrimination is too many and that even one justifies having a law.  I agree with the first point, but not the second.

Yeah, that's true about the private club/country club, nightclub distinction. 

My basic point is that the marginal cost of frivolous lawsuits and judicial resources also decreases if public facility discrimination becomes rarer.  There is less necessity in having the law, but at the same time, the costs are lower.  And if frivolous lawsuits are actually a problem, you could tweak the law to cut down on those costs.

I would also point out that there plenty of things in the USC that similarly remain despite the decline in prominence of what they regulate.  Take 18 USC 2194, the federal law against Shanghaiing.  Maybe we could get rid of that law and we would have saved enough text.

[True Federalist (진정한 연방 주의자)]

I would also point out that there plenty of things in the USC that similarly remain despite the decline in prominence of what they regulate.  Take 18 USC 2194, the federal law against Shanghaiing.  Maybe we could get rid of that law and we would have saved enough text.

I agree that 18 USC 2194 could be covered by more generic kidnapping and labor law statutes that now exist but were not part of United States law when the anti-shanghaiing law was passed.  There are a number of obsolete laws that ideally should be revised or repeal, but there is unfortunately not much call for it.  Congresscritters run on introducing new laws (or blocking those proposed by the other side).  They rarely run on a call of repealing existing law, with the recent Republican monomania about repealing Obamacare being an exception that proves the rule.

However, one distinction between the anti-shanghaiing law and Title II is that unless you take an extremely cynical and expansive view concerning the right to enter into a contract, there is no clash between competing rights that is being resolved by 18 USC 2194 as is the case with Title II.