Civil Society Defeats Bigoted Policy

Thursday, January 27th, 2011

When then-candidate, now-Sen. Rand Paul (R-Ken.) got into hot water over his later-walked-back comments about the 1964 Civil Rights Act last year, there was some interesting intra-libertarian discussion about whether federal laws against private discrimination are still necessary, about whether they’re legitimate government interventions, and, if they are legitimate, about whether the Commerce Clause was the appropriate way of implementing them. (My own view: They were necessary in the segregation era (in part because of the effects of state enforcement of unconstitutional segregation laws), probably aren’t necessary any more, but should have been implemented by other means—like the 13th Amendment—to avoid eviscerating the Commerce Clause in the process.)

Outside of libertarian circles, there was much mocking and derision about how this could even be up for debate, complete with references to free market fairy dust and scornful ridicule of the idea that market forces could sufficiently deter businesses from engaging in bigotry.

It’s just one example, but here in Nashville, that magical free market fairy dust has in fact overturned a discriminatory policy, and in a place many people would probably find unlikely.

It all began last month, when the private Christian college Belmont University fired women’s soccer coach Lisa Howe shortly after Howe revealed to her players that she and her same-sex partner were expecting a child. Belmont has maintained that Howe was not fired for her orientation, and resigned on her own. But no one in town really believes that. Howe’s players say she told them she wsa pressured to resign because of her orientation.

Belmont is a very conservative school. All faculty members are required to sign a declaration of faith before they’re hired. Until 2007, the school was officially affiliated with the Tennessee Baptist Convention. And as a private institution, Belmont was well within its legal rights to fire Howe. Tennessee’s anti-discrimination law does not include sexual-orientation, but even if it did, such regulations often include exemptions for religious institutions.

But that doesn’t mean Belmont is immune from criticism and pressure from outside the government. And in the following weeks, a curious thing happened. Belmont students held protests in support of Howe. Faculty members spoke out on her behalf. The Faculty Senate passed a resolution in support of the school’s gay employees, and demanded that school administrators sponsor an open discussion about Belmont’s discrimination policy. Belmont benefactor, trustee, and Nashville music baron Mike Curb threatened to withhold his financial support for the school, and wrote a public letter praising the faculty for speaking out on what he called a “basic civil rights issue.” (Interestingly, Curb was the Republican Lieutenant Governor of California from 1978-1982. He is also a partner in the gospel music company World Label Group.)

The payoff: Belmont trustees announced just today that they are adding sexual orientation to their non-discrimination policy.

Again, this is just one example. But it’s a pretty compelling one. This conservative, Christian school in the buckle of the Bible Belt was convinced by private actors to explicitly protect homosexuals from discrimination in hiring, promotion, and firing decisions. And all without the threat of force stemming from a law or regulation.*

(*The Nashville City Council is considering a bill that would bar companies that have contracts with the city from discriminating on the basis of sexual preference. I don’t find these sorts of bills particularly objectionable. There are gay people in Nashville. There’s nothing wrong with the city refusing to give its business to companies that discriminate against some of its residents. But as a private school, it seems unlikely that the bill would have significantly affected Belmont.)

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113 Responses to “Civil Society Defeats Bigoted Policy”

  1. #1 |  BSK | 


    I’m pretty sure that businesses can’t just turn individuals away for no *good* reason. I could be wrong on that, but I’m pretty sure if I walked into a store, they couldn’t legally deny me service because I was wearing a green shirt. If I’m right, than all those forms of discrimination are also outlawed. I’ll look more into it.

    I’m sorry, but the move or be discriminated argument is just nonsense. Why couldn’t I flip it around to you and say move or deal with the “immoral” laws? The fact is, one should not be forced to up and move because the only grocery store in walking distance decided they didn’t want to sell to gays and they don’t own a car to drive to another one. If that is the world you want to live in, I want no part of it.

  2. #2 |  BSK | 

    Perhaps if we had laws for 200+ years that ensured power, wealth, equity, and property would be concentrated in the hands of black lesbian women, that’d be an option…

  3. #3 |  CharlesWT | 

    I welcome the redundancy of our black lesbian women overlords.

  4. #4 |  BSK | 

    Well played, sir.

  5. #5 |  Highway | 

    BSK, why can’t they? There’s no law against it. Is there actually a law that says to every restaurant “You have to serve every person who can walk in that door”? Obviously not. They can turn away folks that they think are causing trouble, or that don’t pay, or that smell bad. That’s the point: You have no *right* to service in someone else’s business.

    But legislation like the CRA invents a right to that, whereby some people have more rights than other people. It doesn’t give them immediate access. It gives them a huge bludgeon to use after the fact – to “punish” and “set an example” with.

    People don’t put up signs that say “No Gingers!” because most people don’t think that red-headed people are causing them harm. But are red-haired people any different from black people? There was *no good reason* for blacks to be excluded from those businesses. It was just because they were perceived to be different.

    But they didn’t pass a law that said you had to have a good reason to exclude people from your business. They passed a law that said you had to serve a protected subclass of people. That’s not the same thing at all.

    As for your other challenge: I do make the decision between moving and ‘dealing with immoral laws’. Everyone does. Nobody lives in their own utopia.

  6. #6 |  Radley Balko | 

    The free market is equally compatible with an ongoing slave trade, for example.

    I wish you had indicated much earlier in the thread that you aren’t really interested in having an intelligent discussion.

    Would have saved us both some time.

  7. #7 |  delta | 

    Radley, your work on policing issues is good and important. Continued good luck with that.

  8. #8 |  BSK | 


    See here on the right of businesses to refuse customers:

    Seems like there are a lot of vagueries in the law but, generally speaking, you can’t simply turn a person away without good reason. Stealing or disrupting the business are legitimate reasons. Looking different is not. So, yea, the law does extend to pretty much everyone. You should probably check the facts before assuming that CR legislation bequeathed a right to some that is otherwise not enjoyed by others.

  9. #9 |  supercat | 

    BSK–Certainly there are some businesses that practice racial discrimination and try to come up with any excuse to refuse service to black people while ignoring the same ‘offense’ when committed by white people. If the business owner would in fact serve a black person who showed up in a football jersey, a rule forbidding basketball jerseys would not be racially discriminatory.

    Like it or not, there are some people who would, if allowed into a business, disrupt operations or otherwise cost the owner money. Any business owner who wants to be successful has to keep out such people. If a grossly-disproportionate portion of people who show up in basketball jerseys would disrupt the business, and if the troublemakers would rather disrupt someone else’s business than wear some other attire, a policy forbidding basketball jerseys would be entirely rational, even if the vast majority of people who would want to wear basketball jerseys happen to be black. Such a policy may not be the optimal way of separating trouble-makers from customers, but if a disproportionate number of would-be trouble-makers happen to be black (as is the case in some geographical areas) any good policy must weed out a correspondingly disproportionate number of blacks.

    As for the question of whether markets will resolve everything, they won’t do so quickly, but businesses who needlessly shut out those who would be good customers or good employees will hurt themselves financially by doing so. Further, an environment in which people who feel discriminated against have to prove their worth is apt to work out better in the long run for all concerned than one in which people are allowed to claim that anyone who doesn’t overvalue their worth is “discriminating” against them. Baseball teams certainly discriminated against blacks in the past, but Jackie Robinson was able to break through the color barrier by playing so well that fans wanted to see him. The fact that a team was willing to hire him despite his being black let people know that he really was something special. By contrast, if every team had been required to have a black player, it would have been much harder for any black player to be regarded as anything other than a “token black”, and it’s unclear that Jackie Robinson would ever have had a chance to stand out.

  10. #10 |  BSK | 


    In my experience, dress codes are rarely the ideal way to create a desired culture in a bar/restaurant/etc. If your establishment is otherwise catering to or invites assholes, limiting a certain attire will not likely keep them out. Of course, businesses are free to enforce whatever dress code they like, so long as it is consistent (though I would add that a dress code that violates religious liberty, such as banning Jewish yamakas, should be prevented). I just think there are probably better ways to do it that also avoid the potential for abuse and discrimination.

    I just don’t think we have enough evidence to conclude that businesses will ultimately seek equitable practices, either because of social pressure or finances. If that was the case, why do companies still engage in unjust practices, when it is not only (supposedly) socially unacceptable, financially irresponsible, AND illegal to boot? I also think about far smaller minorities of whom there is often universal or widespread disdain. I think of the Roma people in much of of Europe (Italy, in particular, in my personal experience). At the risk of getting into a discussion on how Roma culture interacts with the local culture, the fact is that if discriminating against the Roma was legal (and it very well may be), they would likely find themselves with few to no options and little support. I know that is not the most pertinent example for America, but I think it demonstrates how small minority groups that are not accepted by the majority and larger minority groups my simply find themselves with no way to life. Do we resort back to the take-a-hike mantra then?

  11. #11 |  supercat | 

    Dress codes are far from perfect as a means of distinguishing customers from troublemakers, but in a geographical area where a grossly disproportionate percentage of troublemakers happen to be black, it’s hard to formulate a policy which will turn away troublemakers while allowing in customers without such a policy being declared “racist” for turning away mostly black people.

    I’m not familiar with the Roma people you mention, so I can’t comment on them, but will suggest that in the absence of forced-integration laws, excluded groups will be pressured to conform to the norms of others; anti-discrimination laws convey the message that such conformity is unnecessary. If black people acted in a way that was indistinguishable from white people, racial stereotypes and racial discrimination would fade away rather quickly. Many blacks, however, deride conformance with cultural norms as “acting white”; such attitudes reinforce the stereotypes they’re complaining about.

  12. #12 |  BSK | 


    Roma are more often referred to with the pejorative gypsy.

    Personally, I’m not comfortable with the idea that a majority culture can essentially demand that a minority culture abandon it’s culture through segregation . It is one thing if there is something inherently disruptive about the culture (which is potentially the case with the Roma, as they are generally a nomadic people who, in Italy at least, have taken kindly to panhandling; however, it is hard to know which is the chicken and which is the egg there) but if it is simply different, or perceived to be different, I find that incredibly disconcerting. If you want to keep violent or verbally abusive people out of your establishment, that is understandable. But if you want to keep people out because they speak slightly different or dress different but, otherwise, are no different than the rest of your clientele, I have a problem.

    I find your last statement troublesome… the notion that blacks are deriding conformance implies that African-American culture defines itself through what it is not (white). That ignores all that is inherent to it. There certainly is an element of avoiding “acting white”, but that is not how the culture is defined or how it came to be. To define it as such is to reduce it to being simply contrarian.

    I find the argument that people either A) move, B) abandon their culture, or C) live under segregation and, by extension, oppression quite antithetical to the notion of liberty. Especially since either of the alternatives to segregation is no guarantee to end it.

  13. #13 |  supercat | 

    For people from different cultures interact, it is often necessary for them to set aside certain aspects of their own culture during the interaction, but there is nothing compelling them to abandon their culture altogether. A group of people who would normally e.g. (abstract hypothetical example) dance naked prior prior to eating may be expected to refrain from such conduct while visiting a restaurant where such conduct is unwelcome. Having to refrain from naked dancing while dining in a restaurant in no way implies that members of the group would be unable dance naked before most of their meals, unless the group was for whatever reason only able to eat at restaurants that didn’t allow such conduct.

    There is a huge difference between government-enforced segregation, in its various forms, and the tendency of many people to want to associate with others like themselves. To the extent that groups wish to retain a unique identity which others would find disagreeable, they should strive toward self-sufficiency so that neither they, nor the others, would be forced to accept others’ norms. If the naked dancers want to be able to practice their culture, they should open up a restaurant to cater to other like-minded individuals. Of course, it’s entirely possible that governments may impose obstacles to the opening of a new restaurant, but that would seem a more fundamental problem than the fact that many diners would prefer not to have other diners dance naked in their presence.