Is there a right to discriminate?

Groucho Marx
Groucho Marx

Is there a right to discriminate?
Groucho Marx, an American Jewish comedian, was visiting a country club when he was told he could not use the swimming pool. He joked: “My daughter is only half Jewish, can she go in up to her knees?”
I’m Jewish and I would have felt hurt and angry if I had been in that situation.  But was a joke better than a lawsuit?
A more serious situation involving discrimination arose in World War II, when the U.S., as well as some other nations would not alter their immigration quotas to allow in people fleeing for their lives from Germany.

St. Louis Porthole
St. Louis Porthole

For example, The MS St. Louis was a German ocean liner most notable for a single voyage in 1939, in which her captain, Gustav Schröder, tried to find homes for 937 German Jewish refugees after they were denied entry to Cuba, the United States and Canada. They had to go back to Europe. This did not seem to be such a disaster for them, until German troops blitz-krieged into Europe. Historians have estimated that, after their return to Europe, approximately a quarter of the ship’s passengers died in concentration camps. Gustav Schröder cared so much about his passengers that he had actually thought of running his boat aground on the American coast.

As the above two examples show, discrimination can come from the government, or it can come from private individuals and businesses.
So is there a right to discriminate?
Senator Rand Paul of Kentucky wrote a letter to the Bowling Green Daily News, in which he said:

A recent Daily News editorial supported the Federal Fair Housing Act. At first glance, who could object to preventing discrimination in housing? Most citizens would agree that it is wrong to deny taxpayer-financed, “public” housing to anyone based on the color of their skin or the number of children in the household.

Rand Paul
Rand Paul

But the Daily News ignores, as does the Fair Housing Act, the distinction between private and public property. Should [discrimination] be prohibited for public, taxpayer-financed institutions such as schools to reject someone based on an individual’s beliefs or attributes? Most certainly. Should it be prohibited for private entities such as a church, bed and breakfast or retirement neighborhood that doesn’t want noisy children? Absolutely not.Decisions concerning private property and associations should in a free society be unhindered. As a consequence, some associations will discriminate.

This letter is quoted by Jed Babbin, a conservative who disagrees strongly with Senator Paul.
Mr. Babbin says:

Discrimination in housing sales is and should be illegal. Paul believes it shouldn’t be illegal because it conflicts with his beliefs in the constitutional rights in property. (The Fifth Amendment protects Americans from the deprivation of life, liberty, or property without due process of law. There’s no constitutional right to property any more than there is a constitutional right to smoke pot.) There is absolutely no chance that a man with this record on civil rights will ever be elected president. Nor should there be.

I usually agree more with Jed Babbin than I do with Rand Paul, but the issue gets quite muddy.

We all discriminate in life. If we are married, we may have chosen our spouse from several candidates. If we have a job, again, we may have turned down other jobs. We select our friends, and if we are an employer, we select our employees. Somebody always gets left out in the cold.

Lets consider what has happened in a country that has made discrimination into a legal offense.

We just had a major financial crisis, due partly to the government pressure on lenders to lend to poor credit risks. Poor credit risks were disproportionately black-Americans, and if a lender discriminated against a person who had little money and hadn’t paid his bills in the past, he was disproportionately likely to be discriminating against a black person.

The result of all these good intentions – which involved coercing the private sector to take risks that the do-gooders themselves did not take – was a disaster. The median net worth of American adults is now one of the lowest among developed nations—less than $45,000, according to the  Credit Suisse  Global Wealth Databook. That compares with approximately $220,000 in Australia, $142,000 in France and $54,000 in Greece. Almost a third of American adults have a net worth of less than $10,000. Those statistics don’t convey the pain endured by millions of American families who lost their homes.

And we haven’t learned from this disaster – some of the same policies are being pursued again.  Perhaps this is not surprising, given that our current president, in the days when he was a lawyer, sued banks to force them to issue subprime loans.

Our businesses are now frequently sued for discrimination, for instance, the home-supply store “Home Depot” spent more than $87 million to settle a class-action sex-discrimination lawsuit in 1998. By its own count, Wal-Mart, a retail chain, was sued 4,851 times last year — or nearly once every two hours, every day of the year.

Immigration policy is another question. Oddly enough, the Obama administration has unilaterally eased restrictions on asylum seekers with loose or incidental ties to terror and insurgent groups, in a move one senator called “deeply alarming.”

And given that many Christians are fleeing, with good reason, from the Middle East, its odd that we haven’t heard anything from the Obama administration about letting them in.

So here we have our government letting in people who have a bad record, and not letting in people fleeing for their lives. Its a strange type of discrimination, even though it can be supposedly justified as outreach to “Muslim refugees” who really couldn’t help having some association with anti-American organizations.

Then there is the lawsuit brought by the EEOC (Equal Employment Opportunity Commission – a government body) and others against the U.S. Census Bureau alleging the bureau’s system of criminal-background checks unlawfully discriminated against up to 100,000 Blacks and Latinos “who are more likely to have arrest records than whites.”

Take a look at the EEOC website (, its just one lawsuit after another – by the government – against companies.

The issue of whether discrimination should be forbidden is quite timely. In January 2008 Elane, a freelance photographer who owns Elane Photography, refused to shoot a gay wedding between two women and was later sued by Vanessa Willock for discrimination against a person’s sexual orientation. Elane lost the lawsuit, she did appeal, but I haven’t followed the case since.

This raises a question: is Elane a outdated homophobe who needs to be coerced into ignoring her religious teachings? Is there a government right to make a person do something he or she believes is wrong?

When Obama introduced his national health mandate, he perhaps did not realize that it would conflict with some beliefs of Christian employers. For instance, Conestoga, a company owned by Mennonites (a religious sect akin to the Amish), does not want to have to pay for contraceptives for its employees.
The modest furniture maker’s pending lawsuit is one of nearly 50 that have been filed in federal courts from various corporations, challenging the birth control coverage benefits in the law.
Again, are these employers to be coerced since they believe in some retrograde, outdated religion that conflicts with the march to more and more justice and rights? Are the “progressives” really progressives, and do these employers need to be dragged into the twenty first century?

So to go back to Jed Babbin and Rand Paul – I think Paul has a point – it is better to allow some discrimination in the private sector, rather than make the government the arbiter of all these decisions. The “perfect” is the enemy of the good.

Sources: – (Jed Babbin’s article)

Mortgage Crisis Redux: Obama Pressures Banks To Make Home Loans To Low-Income Buyers

Are Criminal-Background Checks Discriminatory?

Christian Photographer Who Refused Gay Wedding Lost Lawsuit


2 thoughts on “Is there a right to discriminate?

  1. Surely it all depends what discrimination is based on. We should mostly agree that if it is based upon factors such as gender, age, ethnic group etc. then it is wrong, regardless of who is doing the discriminating. Discrimination based on e.g. past behaviour, allegiance to terrorist organisations, criminal activity etc — why not? The grey area is in belief systems — do we discriminate against people with a different set of beliefs?

  2. What you say makes sense.
    One problem in the U.S. is that when you have laws against discrimination, you then need bureaucrats to decide who is discriminating, and they use proportion in the population as a guideline. So, if less women are employed in the carpenter type jobs at “Home Depot”, that could be proof of discrimination. Without intent to discriminate by gender, the US has ended up with more men operating car-repair shops than women, and more women accountants and child care workers than men. I think that is OK, and nothing to lose sleep over.
    It gets really crazy when they decide that a bank can’t use a credit history, or a company can’t use a criminal background check, because the result might discriminate. (It looks like the EEOC is not winning its lawsuit to remove criminal background checks, fortunately.)
    Belief systems are an interesting question. I visited Ellis Island and saw one display where a communist was sent back to his original home. The U.S discriminated against communist immigration at the time. Was that OK? Canada has an immigration policy that discriminates in favor of intelligent (or at least successful) immigrants. Is that OK?

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