Who are Discrimination Laws Meant to Protect?

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Vikram Bath

Vikram Bath is the pseudonym of a former business school professor living in the United States with his wife, daughter, and dog. (Dog pictured.) His current interests include amateur philosophy of science, business, and economics. Tweet at him at @vikrambath1.

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259 Responses

  1. Avatar Gabriel Conroy
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    says:

    Isn’t it also a 14th amendment thing? If some groups were singled out for protection, then the courts would be more likely to overturn the protection.Report

  2. Avatar Brandon Berg
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    says:

    I don’t think a law tailored only to protect women and blacks — those traditionally considered to be marginalized — would have passed in 1959, and it’d have trouble in 2016 as well.

    Back in 1959, was discrimination against white men a concern? I agree with you about 2016, but I’m less sure about 1959, because the intervening years have brought laws and policies that explicitly discriminate against whites (and Asians) and men, and advocacy for more. I’m skeptical that many people in 1959 could have foreseen affirmative action. Or how no-fault divorce and the ensuing custody battles would play out. Or farther-out stuff like Swedish feminists calling for a man tax.

    Putting aside the question of to what extent this constitutes discrimination against whites and/or men, and how seriously we should take the prospect of more extreme variations, they are in fact on the radar as issues. I may well be wrong about this, but I’d be surprised if they were in 1959.Report

  3. Avatar notme
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    says:

    I find it odd that Mary Sue seems so bitter about the use of the laws. You’d think she would be against all forms of sex discrimination. But that’s the rub, liberals have taught folks to only care about their own groupReport

  4. Avatar Damon
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    says:

    I think the law is in the fine spirit of nondiscrimination. When you start calling out specific groups, you by default, endorse discrimination on the non specified groups. I thought we were supposed to be judging people by their character not the color of their skin?Report

    • Avatar notme in reply to Damon
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      says:

      I thought we were supposed to be judging people by their character not the color of their skin?

      No, that’s only the liberal rhetoric for show.Report

      • Avatar Tod Kelly in reply to notme
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        says:

        Actually, the phrase “judging people by their character not the color of their skin” is almost the exact point at of where everything gets hinky.

        To me, “judging people by their character not the color of their skin” means that, to take one of countless examples, you don’t stop and frisk people who have one color of skin more than people who have a different color.

        For others, “judging people by their character not the color of their skin” means that you totally stop and frisk people of one color more, because they are, as a group, less trustworthy, and thus their skin color betrays this potential character flaw.

        For still others, “judging people by their character not the color of their skin” means that you recognize that the science they claim to have vetted “proves” that people of one skin color have inherently greater character, and thus all public policy should reflect this with extreme prejudice.

        One simple phrase, and we all hear it differently.Report

  5. Avatar LTL FTC
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    says:

    Listing the axis of discrimination rather than listing all those who lie on it (and in what order) saved California the unsavory arguments over who merits protection in the decades since 1959. For starters, I’d imagine we would care less about discrimination against Catholics and Jews.

    Could this be done by referendum?

    “Vote yes on 38, since we’re all pretty cool with Catholics at this point!”

    “Vote no on 172, since my neighbor assumed I could answer his investment question because I’m Jewish!”

    We’d also have to add, merge and split out new groups whose numbers make statutory protection necessary. Would the influx of Vietnamese refugees to California in the ’70s necessitate giving them their own class besides “Asian” and “Immigrant” so they could sue Asian immigrant Tiawanese landlords for housing discrimination?

    I don’t get all hot and bothered about “reverse discrimination” and I’m not too worried about the suit in the post, but it seems like if you wanted to write a law guaranteed to sustain a low-level identity politics war of all against all to suck the air from nonwhite electoral coalitions, writing an anti-discrimination statute with listed groups is how you’d do it.Report

  6. Avatar Kolohe
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    says:

    I don’t think a law tailored only to protect women and blacks — those traditionally considered to be marginalized — would have passed in 1959, and it’d have trouble in 2016 as well.

    The pre-clearance classification and resulting procedures under the 1964 voting rights act (and later iterations) come closest to such a thing, though perhaps, without explicitly stating so – and were recently, and not uncoincidentally, largely invalidated by the US Supreme Court.Report

  7. Avatar Oscar Gordon
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    says:

    File under: Sauce for the Goose.Report

  8. Avatar LeeEsq
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    says:

    Ah, the law. When Civil Rights laws were written, there was a kind of understanding or hope that people would not get clever with them. This would be so the spirit rather than letter of the law would be obeyed. It’s why you can still have gyms for women while bars that were formerly for men only had to go co-Ed.Report

    • Avatar notme in reply to LeeEsq
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      says:

      Liberals showed us how wrong that hope was. I hope they enjoy the brave new world they created.Report

    • Avatar Oscar Gordon in reply to LeeEsq
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      says:

      That’s the thing about hoping for the spirit to buoy a sentiment regarding a legal matter. It only takes one judicial decision that the letter of the law matters more to stick, and the spirit sinks straight away.

      It’s a tragic naivety that is right up there with thinking that science can bend toward politics.Report

      • Avatar Saul Degraw in reply to Oscar Gordon
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        says:

        This might be true but I still argue that anti- discrimination laws are better than nothing and trolling is usually far between.

        Anti-discrimination laws are about the rights of everyone to have full participation in economic and civil life. Those that argue against them on grounds of property rights or ineffectuality are often people who will never be the victims of discrimination. I don’t think all these people are racist, many might not be but I do think they are a bit tone deaf and dense when they suggest that people just ignore and boycott discriminatory employers and businesses.

        You can also get philosophical and be about positive v. negative liberty.Report

        • Avatar Oscar Gordon in reply to Saul Degraw
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          says:

          @saul-degraw

          I’m not being critical of the law, as such. I think it was written relatively fairly, and even though I might prefer that it include some showing of harm, I appreciate why that might make the law ineffective. I’m being critical of people who are upset the law is being used in a way that offends their sense of justice.

          Justice is supposed to be blind. I know that it isn’t, especially if a person has money & power, or if a person has none. But justice is supposed to be blind for a reason, and being upset when the blind aspect is actually applied, but for the wrong demographic, just serves to undermine the whole point.

          Perhaps now the law will be changed to require a showing of harm, even if minor, just to help discourage such frivolous abuses.Report

    • Avatar Oscar Gordon in reply to LeeEsq
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      says:

      I’ll also add that from what I’ve seen, the government itself is often the first to toss “spirit” overboard if the letter will help them secure a conviction.Report

  9. Avatar Saul Degraw
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    says:

    It should be noted that the Unruh Civil Rights Act has been expanded numerous times since 1959. The original act did not protect sexuality and gender non-conformity.

    I think Lee is essentially right. The original drafters did not anticipate people using the law in trolling and cynical ways.Report

  10. Avatar ian351c
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    says:

    In theory, we are all equal under the law. And in theory, the United States is a country based on this proposition. In practice, this is not the case. Laws are not enforced equally. The people in charge of enforcing these laws have their own prejudices and motives that frequently contradict the spirit (and often the letter) of the law. So Legislatures across the country pass more anti-discrimination laws in an attempt to further help those that are (still) discriminated against. Many, if not most, anti-discrimination laws are flawed because they are discriminatory in nature (see also: the law of unintended consequences). We are now left with that last, great bastion of equality: our courts. Just kidding! Our “justice” system is a place where money talks, and anyone without money is shown little, if any mercy. People suck…Report

    • Avatar Chip Daniels in reply to ian351c
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      says:

      People suck…

      I’m thinking of that essay where someone spoke about why Bernie Sanders was so weak among black people, even though in theory his policies would do much to help them.

      The answer seemed to be that for black people, it wasn’t the large economic forces that oppressed them, but people personally.

      Being denied service at Lest Maddox’s chicken restaurant didn’t really mean anything to them but the message of exclusion and hatefulness was what was objectionable.

      Anti-discrimination laws are the clumsy hammer of law meant to cure a social and moral problem. But as we saw with the myriad of clever responses to them, from white segregation academies to Citizen’s Councils to white flight, when people are determined to enact injustice, the justice system is ineffective.

      And an awful lot of people really, really, want to enact injustice.Report

      • Avatar Zac in reply to Chip Daniels
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        says:

        Chip Daniels:And an awful lot of people really, really, want to enact injustice.

        Emphasis on awful.Report

      • Avatar Saul Degraw in reply to Chip Daniels
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        says:

        Those clumsy mechanisms are often the only things we have to combat injustice and discrimination. The problem is that subtle forms of discrimination are hard to prove and a lot of people are dense. You see this when you hear about Goldman or the Craft Brewers of America having team be binding events at titty bars are strip clubs. They are intentionally or unintentionally looking for the so called cool girls who allegedly don’t mind such things.Report

        • Avatar Kazzy in reply to Saul Degraw
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          says:

          This is what I was trying to get at below.

          We look the other way at things like the strip club team building events but go after Chic CEO.Report

          • Avatar Saul Degraw in reply to Kazzy
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            says:

            I don’t think we look away. Those things get plenty of media attention. A lot of businesses are smart enough not to hold such team building events because it can lead to disparate impact lawsuits. The Craft Brewers Association is harder because that is not employment but a voluntary trade organization.Report

            • Avatar Kazzy in reply to Saul Degraw
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              says:

              Good point, @saul-degraw . I suppose it would be better to say that we make it harder to fight these more informal forms of discrimination and oppression. Some of that is just reality but some of that is very intentional on some people’s part.Report

      • Avatar El Muneco in reply to Chip Daniels
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        says:

        It’s not that the large economic forces don’t oppress them, but it’s a Maslow kind of thing.

        Middle-aged (how did that happen?) middle-class cis hetero white males like myself can rail against the impersonal trends that gum up the works of the economy – which is why we’re the foot solders of libertarianism.

        But when “driving while black”, “stop and frisk”, and “resumes with names that don’t sound like Leave It To Beaver characters go straight in the round file” are literally part of your everyday life, market forces aren’t that immediate of a deal. It doesn’t mean they don’t matter, but you have to have freedom from the things that are right up in your grill before you have the luxury of caring about the things more remote.Report

        • Avatar DensityDuck in reply to El Muneco
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          says:

          “when “driving while black”, “stop and frisk”, and “resumes with names that don’t sound like Leave It To Beaver characters go straight in the round file” are literally part of your everyday life, market forces aren’t that immediate of a deal. ”

          You make it sound like middle-class cis hetero white males think stuff like that is 100% A-OK and should be not just permitted but encouraged and subsidized.

          What we’re saying is, let’s make a society where people who act that way lose all their money and go out of business.Report

          • Avatar Kazzy in reply to DensityDuck
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            says:

            “What we’re saying is, let’s make a society where people who act that way lose all their money and go out of business.”

            Well, surely you don’t think ALL folks feel that way.

            But even those who claim to… have you refused to patronize businesses that engage in de facto discriminatory practices? I’m not even asking you to suss out those that have. But upon finding out that company A engages in discriminatory practice, have you done your part to make sure they “lose all their money and go out of business”, primarily via boycotts?Report

            • Avatar Oscar Gordon in reply to Kazzy
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              says:

              But upon finding out that company A engages in discriminatory practice, have you done your part to make sure they “lose all their money and go out of business”, primarily via boycotts?

              Sure, but let’s not pretend that a boycott is equivalent to a invoking the power of the government.Report

              • Avatar Kazzy in reply to Oscar Gordon
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                says:

                @oscar-gordon

                Sure.

                But my point was different. If Density Duck says, “We want these companies to go out of business,” but then he shops at them, I don’t really think he wants those companies to go out of business.

                Saying that the market will correct for discrimination when most people simply don’t care enough to use market forces to correct for it means the market won’t correct for it. It can… but it is unlikely to. And this includes people who are often the victims of that discrimination… because the costs of using market forces often far outweigh the benefits, especially on the individual level. And I’m not comfortable saying, “Well, the market didn’t correct for it and therefore it ought not be corrected.”

                Some things are too important to leave to the market, as far as I’m concerned.Report

              • Avatar DavidTC in reply to Kazzy
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                says:

                But my point was different. If Density Duck says, “We want these companies to go out of business,” but then he shops at them, I don’t really think he wants those companies to go out of business.

                Well, that’s assuming perfect knowledge of the market, a common libertarian failing.

                Which is why I always return to that trusted friend: Labeling.

                I’m sure it’s not very liberal of me, but I think businesses should be able to put up signs that say ‘We reserve the right to discriminate against women in our hiring practices.’ and then do so, legally. Or ‘We reserve the right to refuse service to black people’. (I wouldn’t allow public accommodations or other vital services do this.)

                I don’t think they would be very successful.(1) People get outraged by *allegations* of discriminatory behavior, or possible bigoted positions or support of certain organizations by business owners, but those can be ignored or explained as being blown out of proportion. But what if a store had the *official policy* of discriminatory behavior posted on the door?

                As no one would actually put such signs up, I mainly I want to do this so bigoted assholes have less grounds to complain afterward. Because in *their* world they pretend everyone sorta does it, and it’s perfectly fine, you just don’t say it aloud because you’ll get sued.

                Let’s say ‘You can publicly say that aloud now and it means you *can’t* get sued. So…go ahead. Say it. Post it on the door.’, and watch their cognitive dissonance (Because they *actually* know it would cause public outcry, despite what they tell themselves ‘everyone knows’.) make their head explode.

                So let’s remove one of the ‘excuses’ for keeping bigotry secret and, while we’re at it, let’s also remove a libertarian talking point. We’ll be right there with you, Rand Paul. The government *can’t* regulate who private business is willing to serve or hire…all it can do is require public notification of that stated by the business. (That’s not to say Rand Paul was actually right, and the civil rights act would have not worked that way at that time. In fact, there were segregation laws literally require businesses posted signs about who they would serve and where. But it would probably work *now*.)

                1) Of course, the problem here is, of course, they might *also* be randomly attacked by the roving internet mob. Which is a whole nother problem that I’m exhausted of talking about and I think I’ve made my feeling known enough.Report

              • Avatar DensityDuck in reply to DavidTC
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                says:

                ” let’s also remove a libertarian talking point.”

                You’re framing this as though it’s kicking out the post of a libertarian argument, but in fact what you’re sarcastically pretending to advocate here is exactly the kind of thing that libertarians have wanted all along.Report

              • Avatar DavidTC in reply to DensityDuck
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                says:

                Okay, let me emphasis here before words start getting put in my mouth: The idea that we should not apply the civil rights act to private businesses is *not* a position that all, or even most, libertarians hold, as far as I know. I was specifically talking about libertarians that *do* hold that position, not claiming that all of them do.

                To continue:

                in fact what you’re sarcastically pretending to advocate here is exactly the kind of thing that libertarians have wanted all along.

                Except they always seem to miss the ‘require companies to announce their discrimination’ part of it.

                Libertarians are always fans of letting the free market decide, right up until someone say ‘Okay, we can do all that, if we require companies to give customers enough information to *let* them decide.’, at which point most of the libertarians fall strangely silent, and sometimes even complain that’s government regulation and absolutely horrible.

                They keep especially silent in regard to this, because libertarians are smart enough to notice the outcome I said, namely that ‘Allow companies to discriminate if they post their discrimination, but leave existing laws and punishments in place for companies that *didn’t* post any signs’ would result in almost no companies posting those signs, and thus, functionally, the laws would be identical anyway!

                So all that would accomplish is get rid of one the ‘principled property right moral arguments’ that libertarians have, while not changing anything.

                But, hey, if you think I’m wrong, feel free to point me to any libertarian that has argued that private businesses should not be under civil rights laws and be able to discriminate (There are a few of those guys.) as long as they *announce* that fact. (As far as I can tell, there aren’t any of those guys, and it’s certainly not a common requirement.)Report

              • Avatar DensityDuck in reply to DavidTC
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                says:

                “they always seem to miss the ‘require companies to announce their discrimination’”

                uhhhh you kinda forgot to put that part in your post there bro.

                PS that Hester Prynne, what a slut, huh? I mean, you’re all about the labeling, clearly you thought that the scarlet letter was a great idea.Report

              • Avatar DavidTC in reply to DensityDuck
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                says:

                uhhhh you kinda forgot to put that part in your post there bro.

                What the fuck are you talking about? That was literally the second line I said in my post. My entire post was about having companies that discriminate to say so!

                PS that Hester Prynne, what a slut, huh? I mean, you’re all about the labeling, clearly you thought that the scarlet letter was a great idea.

                Do you *really* want to go there?

                Firstly, the scarlet A was not the actual ‘problem’ in that story, the problem was how everyone treated ‘fallen’ women. If some higher court had come in and overturned the decision to make her wear an A, it would have done *nothing at all*. Considering everyone *already know who she was*, wearing that letter made no difference at all. The A is merely a symbol of how everyone thinks about her.

                Secondly, by analog with what I’m saying…you just compared the social norm of ‘shunning and shaming loose women’ with ‘shunning and shaming self-proclaimed racists’. Which, I mean, you *could* make that analogy, it does sorta line up…but I’m pretty certain it’s not an analogy you *want* to be making.

                If you did want to make that analogy, be aware that it’s not a very good one, because the scarlet letter was a *punishment* for a crime, whereas my label was a voluntary opt-out of the law in advance. The Scarlet Letter would have been an entirely different book (And a very confusing one) if it was about a society that allowed women to flaunt the laws against adultery with impunity if they wore a scarlet letter on their hat.Report

              • Avatar Kim in reply to DavidTC
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                says:

                flout not flauntReport

              • Avatar Oscar Gordon in reply to DavidTC
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                says:

                Libertarians are always fans of letting the free market decide, right up until someone say ‘Okay, we can do all that, if we require companies to give customers enough information to *let* them decide.’, at which point most of the libertarians fall strangely silent, and sometimes even complain that’s government regulation and absolutely horrible.

                Perhaps you hang out with different libertarians than I do, but the ones I know are just fine with requiring that businesses provide enough information for the public to make a decision. For instance, I’m fine with telling racists that they will be free from EEOC requirements as long as they hang a sign that says “White Men Only” clearly on the door. Of course, when I say such things, I am told I am wrong, because there will be some place in America where this won’t actually result in a significant negative social impact to the business, thus we can’t do that.

                Additionally, with labelling, etc., libertarians are critical of labelling that is intended to drive a particular ideological viewpoint. For instance, GMO labelling. Most libertarians think that requiring a GMO label is a waste of time and effort because A) There is already a non-GMO label out there, and B) GMOs are so ubiquitous at the various levels of food production that damn near every food item would have to carry the label that it contains a GMO component, which means the non-GMO label is more effective at informing the consumer.Report

              • Avatar DavidTC in reply to Oscar Gordon
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                says:

                Perhaps you hang out with different libertarians than I do, but the ones I know are just fine with requiring that businesses provide enough information for the public to make a decision.

                Well, not to get into One True Libertarian, but I’m sure there are actual principled libertarians who think that. (OTOH, actual principled libertarians have a bunch of *other* things to worry about before worrying about civil rights laws.)

                It’s the people who run around complaining about how ‘political correctness’ doesn’t let businesses pay women less or how everyone has to watch their tongue or they’ll get sued or, etc, etc…and the ‘libertarian columnists’ and Rand Paul who pander to such people by writing how the civil rights act is an infringement on private property rights.

                Letting everyone put their money where cuts a direction of grumbling off. And I’m not just doing that to be ‘malicious’…it’s that sort of grumbling, that people are being *forced* into things by law, that sorta is the bedrock of current racism.

                So, instead, we could do this and have them forced into things by *social pressure*, which is, in my mind at least, probably better at manipulating opinions. It’s easy to think ‘the guberment’ is a bunch of elitism asshole that are wrong…it’s harder to think that everyone in the community that used to do business with you is wrong.

                And like I said, the business owner probably *already knows this* and don’t even have to run that experiment. They will have a few weeks of cognitive dissonance of reconciling what they pretending to believe with what they’ve always known everyone believes, and then just accept it.

                Of course, when I say such things, I am told I am wrong, because there will be some place in America where this won’t actually result in a significant negative social impact to the business, thus we can’t do that.

                Well, to be fair, I’m only suggesting to do that *because* I don’t think there is anywhere where a sign like that *wouldn’t* result a significant negative social impact to the business. (Sure, some random bait shop somewhere might hang a sign barring black people, but those places were *already* the sort of places that discriminated illegally. Now at least us *white people* know how they treat black people.)

                So, technically, I agree with those people…I just disagree about how current society would react to such signs. Frankly, at this point, society (aka, the internet) is extremely *overreacting* to this sort of thing, well past the point I’m comfortable with, and I’d like them to *tone it down* a bit…you do not need to scream insults at poorly thought-out decisions made by local business owners in communities you’ve never been within a hundred miles of.

                Of course, I’m basically cheating when talking about Rand Paul said, because Rand Paul suggested that private businesses shouldn’t be covered under the civil rights act, when this would have been a *really bad* idea and not worked at all. Whereas I’m suggesting this *now*, in 2016, where putting up such a sign will almost certainly cause a lot of negative blowback and no one is going to do it.

                (broken into two posts)Report

              • Avatar DavidTC in reply to Oscar Gordon
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                says:

                Additionally, with labelling, etc., libertarians are critical of labelling that is intended to drive a particular ideological viewpoint.

                …like anti-racism?

                All labeling exists to drive a particular ideological viewpoint. That is the entire point of labeling. It is trying to make people behave in a different way than if the label was not there.

                But, then again, despite what I said…I’m not really sure this even is ‘labeling’, per se. It’s providing an opt-out to a law, as long as they inform people. It’s basically a *disclaimer*, like a ‘not responsible for lost items’. (Except I’m not really sure such a sign changes anything, legally.)

                Most libertarians think that requiring a GMO label is a waste of time and effort

                I’m not letting that fence get hopped so easily.

                Objecting to GMO labeling on the grounds it is stupid and pointless and somewhat meaningless is entirely reasonable.

                Libertarians also like to add in the idea that the government *can’t* require it, or at least shouldn’t be allowed to, and that is what I object to about their anti-GMO labeling objection.

                There is a large difference between ‘should not’ and ‘shouldn’t be allowed to’. Libertarians often stray into the latter when objecting to GMO labeling.

                (This, as a bit of an aside, is one of those things that, cumulatively, work to make me dubious that libertarian objections to certain laws are based in ‘principles’. There cannot possibly be some philosophical or constitutional reason that food manufactures *can* be required to put the amount of Protein on a food label, but *cannot* be require to put whether or not it has GMOs. Yes, one is stupid and one is not, but the government is not forbidden from doing things just because libertarians (and me) think they’re stupid. But all too often libertarians seem to think that way, which in turn makes *me* doubt anything they’re saying about their ‘principles’.)

                Another, somewhat weird, libertarian objection to GMO labeling is that ‘it is too hard to track, and companies would get sued if they screw it up’, so it’s an overly complicated regulation, which sounds a bit more reasonable…except it’s not really, because food companies are *already* tracking where their food comes from, and it would be trivial to just include GMO info on that. Or, if it’s really too hard to track and completely pointless and no one actually cares, just put it on *every* label, and problem solved.

                If libertarians want to object to GMO labeling laws because they’re dumb, they can go right ahead. If they want to object on *libertarian* ground, they don’t really have anything to stand on. They don’t even have a good position on the general ‘less regulation is better’ grounds…we already compel a rather large and complicated label *and* a source tracking system on food manufacturers, so complaining about another line on that label is completely silly.Report

              • Avatar Oscar Gordon in reply to DavidTC
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                says:

                Oh geez the column is getting narrow.

                Let’s just say that we substantively agree, with the caveat that libertarian is a word tossed around by a lot of people who pick & choose at its pieces according to their priors.

                I know quite a few (read: related to) “libertarians” who are suddenly very conservative when gay rights and abortion are talked about, or police & military topics, etc.

                Re: Labeling – no, not all labeling is made to fit an ideological prior. Or, at the very least, the ideology is non-obvious. For instance, nutritional information is largely just informative. There may be an ideological reason for including it, but the information itself is largely neutral. Or warnings on cigarettes. The surgeon generals warning is pretty neutral, while a recent link from Will had warnings that included graphic photos of mouth & throat cancer is decidedly not.

                Or take abortion – some clinics manage to offer up useful information in neutral ways, while others are clearly working for a specific effect. Presentation matters.

                As for whether the government should or should not be able to require labeling is a non-serious position, unless the person holding the position is a caveat emptor absolutist. Since that is a pretty minority position, taking such labeling questions apart is pretty straightforward.Report

          • Avatar Chip Daniels in reply to DensityDuck
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            says:

            let’s make a society where people who act that way lose all their money and go out of business.

            I think its safe to say that a solid majority of Americans would like that outcome.
            The political question is how to make that come about.

            Should we rig the rules and laws so that they are tilted towards that outcome, so that when they go bankrupt, it just sort of looks like impersonal and impartial market forces, when in fact it was our intention all along?

            Or maybe own our decision and flat out just make the outcome happen, i.e., just confiscate their business through legislation or litigation?

            Or exhort the populace to experience a spiritual awakening so that racists are shunned and marginalized, both personally and economically?

            Or some other mechanism?

            What I find interesting is that the proposed outcome (make a society where people who act that way lose all their money and go out of business) assumes things which are controversial in some quarters, that is, that it assumes there is such a thing as a “we” that can legitimately and effectively act to make a moral norm like anti-racism mandatory without producing injustice as a byproduct.
            It assumes that “society” is a constructed edifice, malleable and subject to our design.Report

            • Avatar DensityDuck in reply to Chip Daniels
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              says:

              Rosa Parks got arrested because it was illegal for her to sit at the front of the bus, not just against custom.

              If there were fewer instances of social custom being given the force of law, we’d see those social customs change.Report

              • Avatar greginak in reply to DensityDuck
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                says:

                So if the law hadn’t been changed, then social custom would have just magically changed??? Am i missing something there? Laws can certainly drive social change, doesn’t’ mean everybody likes it, but laws against discrimination certainly enabled more minorities to move up and break down those social customs. Without the laws being changed there would have been no change.Report

              • Avatar DensityDuck in reply to greginak
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                says:

                I…what? You words agree with me but your tone suggests that you think you aren’t.Report

              • Avatar Chip Daniels in reply to DensityDuck
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                says:

                If there were fewer instances of social custom being given the force of law…

                I’m trying to imagine some law that isn’t traceable back to some sort of moral norm or revelation.

                I’m hitting a familiar chord here, that there is no such thing as a purely neutral and objective legal framework, free of moral and cultural bias.

                I’m not trying to legitimize theocracy here, but merely asserting that the search for a neutral ground is dangerous by postulating one particular moral framework as uncontestably legitimate, while all others are mere opinion.Report

              • Avatar Mike Schilling in reply to DensityDuck
                Ignored
                says:

                Right. If the bus driver had just screamed at her and refused to drive the bus until she moved, while all the other passengers glared at her, all would have been well.Report

              • Avatar DavidTC in reply to Mike Schilling
                Ignored
                says:

                Well, *technically*, you could argue that the bus driver, being a public employee, was required to drive the route even if someone wasn’t following proper custom, and he would have gotten fired if he didn’t.

                Let us *also* pretend that violations of the social norm never, ever, ever result in illegal retribution, especially against minorities. It’s not like we have any sort of history of illegal *capital punishment* of minorities of violating the social norm by ‘speaking to white women’ or anything.

                So, pretending two things that are certainly not true, pretending that government employees will ignore people breaking social norms, *and* that minorities breaking social norms are never subject to extralegal punishment…here is what would have theoretically happened:

                Rosa Parks would have sat at the front of the bus and everyone would have glared at her. The bus would have continued onward, with her sitting at the front.

                When she got off the bus, a white passenger would have followed her into her place of work, and located her employer. That passenger would have demanded she be fired, and she would have been.

                …so, hell, even with those two huge assumptions, that *still* didn’t work, did it?Report

              • Avatar Mike Schilling in reply to DavidTC
                Ignored
                says:

                Fortunately her job would have been safe, since she worked for the NAACP.Report

              • Avatar DavidTC in reply to Mike Schilling
                Ignored
                says:

                Did she live in NAACP housing, too? 😉 Because that’s at the *other* end of the bus trip…Report

              • Avatar DensityDuck in reply to DavidTC
                Ignored
                says:

                “Let us *also* pretend that violations of the social norm never, ever, ever result in illegal retribution, especially against minorities.”

                um.

                illegal retribution is by definition illegal…I’m not sure what passing extra laws about it would achieve…Report

              • Avatar DavidTC in reply to DensityDuck
                Ignored
                says:

                …are you serious?

                You do realize I’m talking about lynching, right? Something that was always, as far as I am aware, outright illegal. And yet happened anyway.

                And we *did* pass more laws against it, this time at the national level, and managed to crack down on the terrorist organization (The KKK) that was behind a lot of it.

                And while I’m not aware of the US needing additional laws to stop people from extra-judicially dealing with bus riders, we *did* need to call out the national guard to integrate a few *schools*.

                Pretending that there is one level of ‘illegal’ is nonsense. There is ‘lynching’ illegal, aka, technically the worse felony there is, first-degree murder, but not actually illegal because no one enforces the law, and there is ‘Federal authorities are standing right there and will ticket you if you refuse to let that black person sit at your lunch counter and order food’ illegal, aka, technically a misdemeanor or even a civil offense but actually illegal because you really will end up in court…and everywhere in between.

                Now, perhaps your point is that, with black people sitting in the front of the bus, they weren’t in any sort of extra-legal danger, and if they were, a *law* would not change that. And I agree, mainly because actual bus riders did not care. I suspect there probably were a few minor incidents, maybe a couple of black people got attacked after they started sitting there, I dunno, but the law didn’t have much to do with it.

                Of course, my point *was not based on that*. My point was that there were plenty of *entirely legal* retributions available to hurt second-class citizens that strayed from their place, even if ‘their place’ was entirely based in ‘custom’ and not law.Report

              • Avatar DensityDuck in reply to DavidTC
                Ignored
                says:

                “There is ‘lynching’ illegal, aka, technically the worse felony there is, first-degree murder, but not actually illegal because no one enforces the law”

                there would seem to be an obvious solution that doesn’t involve passing any new laws at all.Report

              • Avatar Mike Schilling in reply to DensityDuck
                Ignored
                says:

                Yes, if people would only become kind, generous, and good-hearted, we wouldn’t need any laws at all.Report

  11. Avatar greginak
    Ignored
    says:

    If only those darn minorities and women had stayed in their places then those men wouldn’t have been so oppressed and forced seek help from such a law.

    But really, of course in 1959 they couldn’t conceive that the most privileged group, just going by color and gender, would find people so in a snit they would use non-discrimination laws to protect themselves. Does anybody believe those men sincerely felt discriminated against? Or was is just a cynical prank on those darn women.Report

    • Avatar notme in reply to greginak
      Ignored
      says:

      You can try and spin this. Either liberals really care about non-discrimination or they don’t. This is a great chance for them to show us all what they really care about.Report

      • Avatar Kazzy in reply to notme
        Ignored
        says:

        You assume that your definition of “discrimination” is shared by all. As I note below, that is far from a fair assumption.Report

        • Avatar notme in reply to Kazzy
          Ignored
          says:

          Either discrimination is okay or it isn’t. Only liberals seem to want a situation where discrimination is okay for some but not for others. Only the “right” group can use this law, wink wink.Report

          • Avatar LTL FTC in reply to notme
            Ignored
            says:

            What Kazzy is saying is that you have to make an argument about the applicability of the law using the new definitions.

            It’s all “privilege plus power” now, which exculpates bad behavior if it was done by someone higher up on the hierarchy of oppression to someone considered less oppressed.Report

          • Avatar Kazzy in reply to notme
            Ignored
            says:

            Not at all, @notme . My argument is that not every instance of saying, “This is only for certain people,” amounts to discrimination.Report

            • Avatar notme in reply to Kazzy
              Ignored
              says:

              Not at all, . My argument is that not every instance of saying, “This is only for certain people,” amounts to discrimination.

              Sorry that isn’t what the CA law says. You may wish it were otherwise but until you have a law that says only women can sue for discrimination you are stuck treating everyone equally. I know it hurts.Report

              • Avatar Kazzy in reply to notme
                Ignored
                says:

                Fair enough. While we’re working on rewording the law, can we go ahead and confiscate the guns of every individual who isn’t part of a “well-regulated militia”?Report

              • Avatar Stillwater in reply to Kazzy
                Ignored
                says:

                I’m not sure I see you’re grievance here, Kazzy. The law still applies to actions discriminating against (deep inhale) gayswomenblacksphysicallymentallydisabledsjewschristians-muslimsetcs. It apparently also protects (less deep inhale) straightwhiterichmen from acts of discrimination.

                Why’s that a problem? I mean, the Chic CEO suit was silly on every level (just like the one against the Oakland Athletics) except that an attorney has figured out a way to make money from it. If the statute needs any rewording, I’d think it would be to include a threshold of actual harm or interest sufficient to prevent frivolous suits. And even that might be difficult.Report

              • Avatar notme in reply to Stillwater
                Ignored
                says:

                Why is this suit any sillier than the folks that sued the bakery?Report

              • Avatar Stillwater in reply to notme
                Ignored
                says:

                It’s silly for the same reason Burt outlined in his response to one of your comments. The “why” matters. I agree the law was correctly applied in this case but the motivation for the suit didn’t result from any personal harm and – perversely – was used to inflict harm on others.Report

              • Avatar Stillwater in reply to Stillwater
                Ignored
                says:

                In fact, as I think about that some more, I wouldn’t be surprised if the plaintiffs and the lawyer hadn’t communicated in advance and had the thing all worked out.Report

              • Avatar Oscar Gordon in reply to Stillwater
                Ignored
                says:

                I concur with Stillwater here. The idea behind law is fine, it’s the practically non-existent bar to supporting a claim that is the issue. If the low bar is important, then we have to accept that some people will use the law in unpleasant ways.Report

              • Avatar Kazzy in reply to Stillwater
                Ignored
                says:

                @stillwater

                I think you do get my grievance.

                I concede the law is poorly worded. I do not concede that it necessarily supports @notme ‘s interpretation. That is one possible interpretation. There are others.

                The law says, in part, “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations…”

                So what does “full and equal accommodations” mean? Does it mean everything exactly the same for all? Based on the examples I’ve offered… the answer is no. It has not been interpreted that way. So why start now?

                The law doesn’t explicitly say what notme says it says.Report

              • Avatar notme in reply to Kazzy
                Ignored
                says:

                The law as written supports my interpenetration since it says that all people deserve to be treated equally not just the classes favored by liberals. I’d really like to see a law written so that only minorities and women could sue, it’s nice fantasy.Report

              • Avatar Kazzy in reply to notme
                Ignored
                says:

                It doesn’t say “treated equally”. That is the problem.Report

              • Avatar Stillwater in reply to Kazzy
                Ignored
                says:

                It has not been interpreted that way. So why start now?

                The law doesn’t explicitly say what notme says it says.

                I think the disconnect is that you concede that the law is “interpreted” in such a way that it doesn’t “explicitly” say what notme claims it does. But that could only be the case if the law explicitly says something different than what you view as the functional interpretation of it.

                So it seems to me that you agree that the law explicitly does say what notme claims, but disagree that it should be expanded to that meaning in practice.

                I think you do get my grievance.

                Actually, I don’t. It seems you want to prevent men from gender discrimination protections fully generally, irrespective of the merits of the Chic CEO case. Which I don’t quite get.Report

              • Avatar Kazzy in reply to Stillwater
                Ignored
                says:

                “I think the disconnect is that you concede that the law is “interpreted” in such a way that it doesn’t “explicitly” say what notme claims it does. But that could only be the case if the law explicitly says something different than what you view as the functional interpretation of it.

                So it seems to me that you agree that the law explicitly does say what notme claims, but disagree that it should be expanded to that meaning in practice.”

                Not at all. I concede that the law is unclear. NotMe’s interpretation is a reasonable one. But not the only reasonable one. And I’m pointing to existing applications of the law that indicate his interpretation is not the one that has traditionally been applied.

                Above NotMe claims that the law guarantees everyone is “treated equally”. Only it doesn’t say that. Not once. It says “entitled to free and equal accommodation”. The first dictionary definition of “accommodation” is “something supplied for convenience or to satisfy a need”. Now, if people have differing needs, than “full and equal accommodation” might mean “non-identical” somethings.

                NotMe has contended that the law claims all forms of discrimination anywhere for any reason are illegal. But neither the wording of the law itself — nor how it has been applied historically — directly supports that argument.

                My grievance is that the law and conversation around it are poorly framed with many definitional issues and insisting to be in possession of “one true interpretation” is fallacious.Report

              • Avatar notme in reply to Kazzy
                Ignored
                says:

                Sure my interpretation is reasonable and apparently it is the same interpretation held by the CA courts. I guess “all people” means “all people”. Oh, snap!Report

              • Avatar Kazzy in reply to notme
                Ignored
                says:

                “Oh, snap!”

                And you reveal yourself — yet again — to be exactly the sort of participant we’ve all known you to be for so long. Excuse me while I return to the grown up table.Report

              • Avatar notme in reply to Kazzy
                Ignored
                says:

                I guess that will have to satisfy you since you can’t refute my point.Report

              • Avatar Zac in reply to Kazzy
                Ignored
                says:

                This is why we don’t feed the troll. Attention only makes him come back for more.Report

              • Avatar notme in reply to Zac
                Ignored
                says:

                Don’t be too hard on Kazzy. This is how he operates, he can’t refute my argument so he leaves in a huff and calls me immature or a trollReport

              • Avatar Zac in reply to notme
                Ignored
                says:

                I know you think you’re oh so clever, but you know everyone else here thinks you’re just an ass, right?

                No, of course you don’t. Now go do your solipsistic little victory dance.Report

              • Avatar notme in reply to Zac
                Ignored
                says:

                So says the man that claims to speak for everyone here. Actually, what I find most amusing is that the conservative here, me, is the one arguing hardest for true non discrimination and equal treatment.Report

              • Avatar Joe Sal in reply to notme
                Ignored
                says:

                “is the one arguing hardest for true non discrimination and equal treatment.”

                How far are you willing to take that?Report

              • Avatar notme in reply to Joe Sal
                Ignored
                says:

                Have you read all my posts in this thread? If not, please do so and then tell me if im wrong.Report

              • Avatar Kazzy in reply to notme
                Ignored
                says:

                [Reads posts]

                You’re wrong.Report

              • Avatar notme in reply to Kazzy
                Ignored
                says:

                Are you still here? I thought you left in a huff and went back to the grown ups table?Report

              • Avatar Joe Sal in reply to notme
                Ignored
                says:

                Well, whether your wrong or right it’s making a stand on a California law. How long until that puppy is changed to reflect the wishes of those you have been making a stand?

                As the man says, the law is a human institution, both in legislative creation and enforcement. That pulls in the moral agency of those groups involved.

                Now Zac has at least acknowledged this and appears willing to disassemble the institutions that create these discriminating, non-equal treatments. Would you be willing to go that far to conserve equality?

                (yes I read your stuff)Report

              • Avatar notme in reply to Joe Sal
                Ignored
                says:

                Joe:

                Is this your oblique way of saying that my posts back up my claim?

                Which institutions is Zach referring to?Report

              • Avatar Joe Sal in reply to notme
                Ignored
                says:

                Within the context of your argument you are right. However, in the context of ‘spirit’ of law, or the ‘why’ context, they are right.

                I really wish you would stop jousting with toothpicks and get a inclination to the bigger picture. The law is what the collective says it is, so even if you are correct in your context today, there is nothing to stop the law being changed rikki tikki.Report

              • Avatar notme in reply to Joe Sal
                Ignored
                says:

                jousting with toothpicks?

                Is that the best you’ve got. I don’t consider the belief that all persons can be discriminated against or that all persons should be able to fight discrimination to be jousting with toothpicks.

                I guess Kazzy and zach should start lobbying the CA legislature rikki tikki.Report

              • Avatar Joe Sal in reply to notme
                Ignored
                says:

                “belief that all persons can be discriminated against or that all persons should be able to fight discrimination to be jousting with toothpicks.”

                If your belief in that belief can be squashed like a grape, then yeah, toothpicks.

                Zac and Kazzy probably don’t need to lobby in CA, I’m sure that one will lobby itself.Report

              • Avatar notme in reply to Joe Sal
                Ignored
                says:

                The California Supreme Court also decided that the act outlaws sex-based prices at bars (ladies’ nights): offering women a discount on drinks, but not offering the same discount to males. In Koire v Metro Car Wash (1985) 40 Cal 3d 24, 219 Cal Rptr 133, the court held that such discounts constituted sex stereotyping prohibited by this Act

                No changes since this 1985 case, yes get back to me when this groundswell of change occurs.Report

              • Avatar Joe Sal in reply to notme
                Ignored
                says:

                Hows enforcement on that working out?Report

              • Avatar notme in reply to Joe Sal
                Ignored
                says:

                If the CEO Chic case is an example, it’s going well.Report

              • Avatar Joe Sal in reply to notme
                Ignored
                says:

                fair enough, for nowReport

              • Avatar Damon in reply to Joe Sal
                Ignored
                says:

                “The law is what the collective says it is”

                That goes right along with “the constitution is just a scrap of paper”. Law has no meaning if it’s “reinterpreted” to what the majority/minority wants. Change the damn law. No, it’s much easier (and much more dangerous to just change the meaning) One day advocates of such will find themselves at the wrong end of a sharp stick and wonder how they got there.Report

              • Avatar Joe Sal in reply to Damon
                Ignored
                says:

                I completely agree. The reality of the situation is that the constitution doesn’t really matter. Federalist precedent creep will eventually undermine any foundation of the constitution or rule of law. It just becomes this game of choose the precedent.

                We both know this leads to sharp sticks. Stillwater wondered why I wasn’t a ‘rights’ guy. My observation of what is happening to individual civil rights is they will deteriorate down to only what the individual is capable/willing to defend outright. Everything else the collective will take.Report

              • Avatar Joe Sal in reply to Joe Sal
                Ignored
                says:

                Repeatedly the federalists have shown they will crush a constitutional republic to have a liberal democracy. Thing is, it’s not really liberal, and it’s not really democracy.Report

              • Avatar Zac in reply to Joe Sal
                Ignored
                says:

                To clarify, the institutions I’m primarily referring to are the informal, sociocultural and socioeconomic ones that perpetuate the large gaps in the material conditions of the various racial/gender/etc groups in this country. There are formal ones remaining, but those have thankfully largely been disassembled.Report

              • Avatar Joe Sal in reply to Zac
                Ignored
                says:

                Thanks for clarifying, we’re on the same page there. And the point I was hinting at above was that to disassemble those to conserve equality and unleverage discrimination makes you more conservative than notme IMO.

                I assumed notme would be a clinger to those ‘socio’ institutions. That was also part of my original challenge: ‘how far are you willing to take that’

                My suspicion is/was that notme would be unwilling to let go of them, which is cool cause every one has differing preferences.Report

              • Avatar Zac in reply to notme
                Ignored
                says:

                Try not to break an arm jerkin’ yourself off there, pal.Report

              • Avatar Stillwater in reply to Kazzy
                Ignored
                says:

                Fair enough. All I can say is that, to me, the language of the statute is crystal clear and there’s nothing in it which precludes gender discrimination protections from applying to men.Report

              • Avatar Kazzy in reply to Stillwater
                Ignored
                says:

                I wouldn’t argue that they can’t be applied to men. But I would argue that their application to men would not be identical to their application to women. Ideally, we’d evaluate the merits of each case and seek to determine the harm, if any, done by the practice and weigh that against the harm it corrects for.Report

              • Avatar Stillwater in reply to Kazzy
                Ignored
                says:

                Ideally, we’d evaluate the merits of each case and seek to determine the harm, if any, done by the practice and weigh that against the harm it corrects for

                Damn, dude. I said that a dozen comments ago…. (Oscar said it longer ago than that.)Report

              • Avatar Kazzy in reply to Stillwater
                Ignored
                says:

                I’m not sure I ever said otherwise, though I probably took a rather meandering path to get there.

                My contention from the get go has been that we need to define what we mean by “discrimination” before we can start to determine what is or is not discrimination.Report

              • Avatar notme in reply to Kazzy
                Ignored
                says:

                Fortunately, the state of CA has relieved you of that heavy intellectual burdenReport

              • Avatar notme in reply to Kazzy
                Ignored
                says:

                So we apply a law in different ways based on a person’s sex or race? That would fail a court challenge based on the equal protection clause.Report

              • Avatar Stillwater in reply to notme
                Ignored
                says:

                No, you couldn’t do anything like that. But it seems to me that if these types of suits become common the leg. could include a clause regarding frivolous suits and such.Report

              • Avatar notme in reply to Stillwater
                Ignored
                says:

                Ok, but who makes the determination if it’s frivolous? That’s a subjective standard. When it comes down to it, where the lesbians that didn’t get their wedding cake really “harmed?”Report

              • Avatar Stillwater in reply to notme
                Ignored
                says:

                Judges.Report

              • Avatar Stillwater in reply to Kazzy
                Ignored
                says:

                Btw, you keep calling it “notme’s interpretation” as if it’s somehow privately or uniquely held. I (obvs) share notme’s view of it, as do several other commenters on the thread.Report

              • Avatar Kazzy in reply to Stillwater
                Ignored
                says:

                Well, I was engaging with him which is why I referred to it as “his” interpretation. If you’d rather I call it “one commonly held interpretation”, so be it. But then we’d have to look at “my” interpretation and also label it “one commonly held interpretation” because a number of others also hold it (here and elsewhere).

                So now we have two commonly head interpretations of the law and inconsistent application and judgements from the courts.Report

              • Avatar Stillwater in reply to Kazzy
                Ignored
                says:

                Yeah, that’d be better, I think. A veeerrry long time (in internet terms) folks put forward the view of the statute that you’re referring to as “notme’s”. For example, Vikram, in the OP. Other people have agreed with that view as well.

                You may think I’m being disingenuous here, but I really don’t understand your argument here regarding the statute. It’s crystal clear, and as written it applies to gender discrimination against men. Now, you might think that the Ca AD law doesn’t apply to the dudes filing suit against Chic CEO, but – and here’s the disagreement! – according to the letter of the law IT DOES! (Not that it should, but that it does.)

                Which is why some folks have been saying that insofar as the AD law is good policy, the wording of the statute ought to be changed or tightened to include a threshold of harm sufficient for the law to kick in.

                You in fact agree with that view. notme has indicated that he doesn’t agree but that’s sorta irrelevant to the larger point, which is whether the law as written includes discrimination protections for men. (Not whether it ought to! (And personally I think it should.))

                As much as I’d like to get you to clearly articulate where you disagree with my view of this so we could resolve the disagreement, I don’t think that’s gonna happen. Your argument is that in practice the law shouldn’t apply to the Chic CEO case even tho there’s nothing written in the law to justify doing so. I disagree. So we’re at an impasse.Report

              • Avatar Kazzy in reply to Stillwater
                Ignored
                says:

                @stillwater

                “…are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

                I disagree that the ONLY way to read that part of the law — which seems to be the crucial part — is the way you, notme, Vikram, and others read it. I concede that yours is a reasonable reading of it and that it is not necessarily wrong. But I contend that there are other, reasonable readings as well. Because the law is worded poorly. I contend that “full” accommodation etc. might necessitate “unequal” accommodation and that “equal” accommodation might prevent “full” accommodation.

                So the idea of something like Chic CEO is to give women “full” (or, really, fuller) access to jobs they have traditionally been excluded from… first formally and now informally. Chic CEO is aimed at providing “full” and, eventually, “equal” accommodation.

                I don’t think you have to agree with my reading. But I’m curious to see how it is an invalid and illegitimate reading of the law.Report

              • Avatar notme in reply to Kazzy
                Ignored
                says:

                But you are part of the militia according to 10 USC 311

                https://www.law.cornell.edu/uscode/text/10/311

                (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

                (b) The classes of the militia are—
                (1) the organized militia, which consists of the National Guard and the Naval Militia; and

                (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.Report

              • Avatar rexknobus in reply to notme
                Ignored
                says:

                @notme So, over 44 we all have to turn in our guns (unless you are a vet, then over 64). And under 17, no guns for you.

                I’m surprised at you. But I’m for it. It’s a start at least. (Full disclosure — I’m a 65-year old Marine vet. If I had any guns, I’d be turning them in tomorrow. Thanks for the heads-up.)Report

              • Avatar notme in reply to rexknobus
                Ignored
                says:

                That’s not what the code or the second amendment says. It doesn’t says that my rights are dependent on the militia being well regulated. The first part is merely an clause explaining why my rights shall not be infringed.Report

              • Avatar Mike Schilling in reply to notme
                Ignored
                says:

                Right, it’s exactly like the prefaces to the other nine amendments.Report

              • Avatar notme in reply to Mike Schilling
                Ignored
                says:

                Does your sarcasm have an intelligent point behind it?Report

              • Avatar Mike Schilling in reply to notme
                Ignored
                says:

                Yes, but only intelligent people can see it.Report

              • Avatar notme in reply to Mike Schilling
                Ignored
                says:

                Wow, it took you two days to think up a comeback. I hope you didn’t strain yourself.Report

              • Avatar Mike Schilling in reply to notme
                Ignored
                says:

                I thought I’d let you shiver for a while.Report

              • Avatar rexknobus in reply to notme
                Ignored
                says:

                @notme Hey, you brought up codes concerning militias and supplied the handy definitions that I actually read. The language of the 2nd is debatable and/or confusing at best. It sounded to me as if you were trying say that we all get the guns we want because we are all part of the “militia.” And those militia codes that you so kindly supplied contradicted you.

                FWIW – My personal feeling is that the authors of the amendment were really smart folks (not perfect, but smart) and if they had wanted to say: “anybody gets any weapon they want, no restrictions” they would have simply said it. They said something else and, thus to me, meant something else.Report

              • Avatar Oscar Gordon in reply to Kazzy
                Ignored
                says:

                Re-wording the language of a state statute is a far cry from rewording part of the Bill of Rights.Report

            • Avatar notme in reply to Kazzy
              Ignored
              says:

              How do you suggest that CA re write the law so that only minorities and women can use it?Report

          • Avatar Burt Likko in reply to notme
            Ignored
            says:

            The “why” matters.

            “Discrimination,” meaning selecting or preferring one over another, is generally fine. Unless the basis for that discrimination falls within certain categories.

            You can discriminate in a housing decision based on one prospective tenant being more creditworthy than the other.

            You can’t discriminate on the basis that one prospective tenant has a skin color like your own and the other doesn’t.

            I don’t think this is too hard a concept to grasp, even for a skeptic of anti-discrimination laws. But your critique as written here, @notme , looks like you wish to portray anti-discrimination law as effectively rendering all public accommodations beyond any sort of proprietor selectivity for any reason whatsoever. ‘Tis not so, and your claim would gain in strength were it to be refined to reflect this.Report

            • Avatar DensityDuck in reply to Burt Likko
              Ignored
              says:

              “You can’t discriminate on the basis that one prospective tenant has a skin color like your own and the other doesn’t.”

              Just like you can’t discriminate on the basis that one prospective conference attendee is of a gender like your own and the other isn’t? (bah-DOOMP.)Report

              • Avatar Kazzy in reply to DensityDuck
                Ignored
                says:

                Urinals and tampon machines in EVERY bathroom!Report

              • Avatar Kazzy in reply to Kazzy
                Ignored
                says:

                Oh… and OB-GYNs need to treat men. And insurance plans have to cover colonoscopies. And Viagra prescriptions for women. And regular mammograms for men.

                See how quickly we realize that there are justifiable times to treat men and women differently? And that pretending otherwise is silly?Report

              • Avatar Maribou in reply to Kazzy
                Ignored
                says:

                I hope in your enthusiasm, @kazzy, you are remaining aware that some of these things would be good for everyone.

                1) Trans men can be suddenly in need of a tampon just like anyone else who might need one. Or a mammogram. Or even an ob-gyn. This seems like a no-brainer but it actually isn’t. As the legal status of trans folks shifts, this might become more of an issue.

                2) Why wouldn’t colonoscopies be covered for everyone? As far as I know, both men and women can need them.Report

              • Avatar Kazzy in reply to Maribou
                Ignored
                says:

                I should have specified that my comments were specific to cis men and women. Yes, I agree that all folks should have access to the medical care they require.

                And I conflated colonoscopy with prostate exam. I meant the latter.Report

              • Avatar Jaybird in reply to Kazzy
                Ignored
                says:

                In reading this exchange, I’m noticing how difficult it is to write something that is actually “fair” and how easy it is to roll one’s eyes and say “YOU KNOW WHAT I MEAN AND YOU SHOULD HAVE PAID ATTENTION TO *THAT*”.Report

              • Avatar Kazzy in reply to Jaybird
                Ignored
                says:

                It is definitely hard to do. Undoubtedly. Though I’m not sure I understand your second point. Who here seems to be saying, “YOU KNOW WHAT I MEANT”? Are you saying I’m saying that? If so, please point out where.Report

              • Avatar Jaybird in reply to Kazzy
                Ignored
                says:

                I also didn’t see you so I couldn’t have known that you were rolling your eyes.Report

              • Avatar Kazzy in reply to Jaybird
                Ignored
                says:

                That doesn’t really answer the question. Did I say — or seem to be saying — that people should have known what I meant by something? It is a simple yes or no question.Report

              • Avatar Jaybird in reply to Kazzy
                Ignored
                says:

                Did you say it? No. No you did not.

                Did you seem to be saying? Ah, the question of seem. It seemed to me that you were irritated at the picking of nits. So did you seem to be saying it? Yeah. Kinda.

                Does it seem to you that it should not have seemed to me that you were irritated at the picking of nits?Report

              • Avatar Kazzy in reply to Jaybird
                Ignored
                says:

                Quite the opposite. I actually tried to write that comment three times and probably got less gracious with each passing attempt (on account of mounting meat-world frustrations). Maribou was correct to point out the hole in my statement and I was attempting to communicate that I should have spoken more clearly to avoid that hole.

                My apologies to @maribou if I came off otherwise. I appreciated (and always appreciate) you holding folks accountable and encouraging being mindful of all folks.Report

              • Avatar Jaybird in reply to Kazzy
                Ignored
                says:

                Ah, well then. Fair enough.

                Though I would add that making sure that women’s rooms have urinals because some women have penises is probably an inefficient use of resources.Report

              • Avatar notme in reply to Jaybird
                Ignored
                says:

                I thought that the women with the dongles wanted to use the men’s room?Report

              • Avatar Maribou in reply to Kazzy
                Ignored
                says:

                @kazzy No worries, you didn’t come off otherwise (if you had I would’ve said so myself rather than having Jaybird complain for me). I would add, though, that it’s not just about not leaving a hole – those examples really are relevant to the debate at hand, especially considering the conflicts between certain old-school feminists and some trans women. (CF Michigan Womyn’s festival.) One aspect of a broadly rather than narrowly construed discrimination law is that it will always be applied in ways that the makers have not considered, and even in ways which those makers may not find acceptable. This applies as much to people of not-yet-identified-as-vulnerable-at-the-time-the-law-was-written groups as it does to people of not-actually-disadvantaged groups. It’s a double-edged sword.Report

              • Avatar Mike Schilling in reply to Kazzy
                Ignored
                says:

                And insurance plans have to cover colonoscopies

                Umm, who do you think doesn’t have a colon?Report

              • Avatar greginak in reply to Mike Schilling
                Ignored
                says:

                You mean it isn’t just Bartolo?Report

              • Avatar Chris in reply to Mike Schilling
                Ignored
                says:

                Umm, who do you think doesn’t have a colon?

                A disturbingly high percentage of undergraduates in their papers.Report

    • Avatar Oscar Gordon in reply to greginak
      Ignored
      says:

      It doesn’t matter. The law does not require showing a harm, only that discrimination occurred. I can appreciate why it was written that way, but that does not remove the reality that writing it that way exposes it to be used in a fashion unintended by its authors.Report

      • Avatar greginak in reply to Oscar Gordon
        Ignored
        says:

        Well yeah i said that. The people writing laws against discrimination could never have imagined white dudes in the 21 st century claiming to be discriminated against in such a cynical manner. Unintended consequences happen to every bodies plans. But this just seems more like a pissy attack on laws which have helped people who were shat on for years by guys PO’d about said laws. I’m not sure why it should be dressed up in any other way or to ignore what seems pretty darn obvious.Report

        • Avatar Oscar Gordon in reply to greginak
          Ignored
          says:

          Frankly, I’m amazed it took 50 years for someone to try this. So in that regard, the law has held together pretty well.

          Although perhaps it hasn’t. Perhaps some marginalized groups have used the letter of the law in a manner similar to the lawsuit shopping that the CA ADA fails to discourage, and this is a response to that?Report

          • Avatar Stillwater in reply to Oscar Gordon
            Ignored
            says:

            Frankly, I’m amazed it took 50 years for someone to try this. So in that regard, the law has held together pretty well.

            Yeah. Which strikes me as evidence that the types of discrimination the law was designed to address were widely agreed upon over that time frame to the point of near unanimity. In the Chic CEO case, the formal application of this law was totes legit. Substantively, tho, the purpose seemed like an exercise in collecting attorney’s fees and damages. Which says very little about social/cultural dynamics and quite a bit about opportunism.Report

          • Avatar greginak in reply to Oscar Gordon
            Ignored
            says:

            I prefer to get my lawsuits in bulk from costco. I don’t’ see how these guys are waging a righteous fight against law suit shopping though. But, unlike me, they are crafting them selves a fine artisnal lawsuit.Report

            • Avatar Oscar Gordon in reply to greginak
              Ignored
              says:

              @greginak

              I was asking an honest question there. I haven’t heard of any such lawsuits in CA using the law in question, but I don’t live there.

              Still, aside from the novelty of the approach, I don’t get the anger.

              Breaking News: Assholes use law to inflict assholery on sympathetic figures. Also, the sun rose in the east this morning.

              As I said above, using the law in ways that violate the spirit of it in order to destroy people who haven’t caused any real harm is a favorite past time of DAs everywhere.Report

              • Avatar greginak in reply to Oscar Gordon
                Ignored
                says:

                If there is anger you struck the nail with the whammer in the last para. These dudes are violating the spirit of the law and seem in no way actually discriminated against. They are poking a stick in the eye of laws that have worked to help many formally F’d over people in the name of protecting people who aren’t being hurt. They are pranking and tacitly attacking efforts to stop discrimination.Report

              • Avatar Oscar Gordon in reply to greginak
                Ignored
                says:

                They are pranking and tacitly attacking efforts to stop discrimination.

                With a single lawsuit? Hardly. At best, they are exposing a weakness in the law that everyone has missed for the last 50 years. They are hacking the CA legal system, and instead of acknowledging the weakness and moving to fix it, people are getting pissed that it’s been exposed.Report

              • Avatar greginak in reply to Oscar Gordon
                Ignored
                says:

                Hacking??? I like the EFF but i think missed the link between that link and the dudes fighting discrimination.Report

              • Avatar Oscar Gordon in reply to greginak
                Ignored
                says:

                It isn’t about fighting discrimination, its about exposing a weakness. The fact that the people exposing the weakness have motivations that are not agreeable does nothing to change the fact that a weakness has been exposed & exploited.

                And stop belly aching about intent or showing some kind of harm for the white dudes. The law does not require it (I’m assuming the law argues that the act of discrimination is a harm unto itself). Either this is a necessary component of the law in order for it to be effective (thus it will be necessary to tolerate such cases), or the law needs to be changed such that a showing of harm is required.Report

              • Avatar Oscar Gordon in reply to greginak
                Ignored
                says:

                And again, I have a hard time feeling anger for this when it’s a favorite tactic of government lawyers, and people ignore it because the targets of those lawyers are unsympathetic.Report

              • Avatar greginak in reply to Oscar Gordon
                Ignored
                says:

                It seems like talking about gov lawyers is a non sequitur.Report

              • Avatar Oscar Gordon in reply to greginak
                Ignored
                says:

                Not really, since government lawyers doing it is one way the troublesome precedent gets set.Report

      • Avatar Mike Schilling in reply to Oscar Gordon
        Ignored
        says:

        If only there were a theory of law that relied on what one meant at the time it was passed.Report

      • Avatar Will H. in reply to Oscar Gordon
        Ignored
        says:

        Unintended fashions are seldom voted on by legislatures.Report

    • Avatar Kim in reply to greginak
      Ignored
      says:

      greg,
      if a woman gets pissed that she can’t get a barber’s haircut for $10, but instead has to pay $50 for a “trim”, then yeah, I can totally see a guy getting pissed that he has to go to a freakin’ spa for “medical or beauty treatments” when he might could get the same out of a salon for a lot cheaper.Report

  12. Avatar aaron david
    Ignored
    says:

    Law of unintended consequences in action.

    At some point, people are going to have to figure out wether they want equality or redress…Report

    • Avatar Zac in reply to aaron david
      Ignored
      says:

      aaron david: At some point, people are going to have to figure out whether they want equality or redress…

      Are the two mutually exclusive? Arguably you can’t have the former without the latter happening first.Report

      • Avatar aaron david in reply to Zac
        Ignored
        says:

        Is that true though?

        I don’t thinks so anymore. I think they are mutally exclusive, for they take you down different paths. The Mary Sue is showing us how those paths diverge, with anger at the chance that someone of the “wrong” group is using the weapons created for use only by the “right” group. In the spirit of redress, only the agrieved is allowed the use of the tools that the gov’t created; while with true equality, all side get the same protections.Report

        • Avatar Zac in reply to aaron david
          Ignored
          says:

          But “true” equality means you have not just formal, legal equality but also informal, societal equality (to use the distinction Kazzy makes below). As the legal mechanisms are being used to address both sides of the inequality, no, everyone should not get those same protections…until everyone really has been made equal, in both senses. Once the grievances have been redressed, universal protection will be necessarily reasonable to extend.Report

          • Avatar aaron david in reply to Zac
            Ignored
            says:

            How should we determine if a group is still in need of redress? Or how much is necessary? How do we enter new agrieved groups onto this list? Who determines this?

            Should you be the final determiner? How about Clarence Thomas? Ann Coulter?What seemed obviouse 50-60 years ago is not so obvious now.Report

            • Avatar Zac in reply to aaron david
              Ignored
              says:

              aaron david:
              How should we determine if a group is still in need of redress?Or how much is necessary? How do we enter new aggrieved groups onto this list?Who determines this?

              The same way we do with everything else? Through the three branches of government along with society messily working it out as they go?

              aaron david:
              Should you be the final determiner? How about Clarence Thomas? Ann Coulter?What seemed obvious 50-60 years ago is not so obvious now.

              Well, I’m flattered you’d consider me worthy, but no, obviously, it should not be left to one person. Has anyone proposed that?

              This weird shtick you’re doing where you act like neither of us ever took a civics class in high school is a bit undignified, dude. You’re smarter than that.Report

              • Avatar aaron david in reply to Zac
                Ignored
                says:

                My civics class taught me that everyone is equal under the law.

                This is no schtick, but real questions I ask of you. For as you say “Through the three branches of government along with society messily working it out as they go?” is what we are currently doing. And it seems to be leaving us with lawsuits such as this. Which, again, leads me back to the questions I asked you above. No, no one is proposing a single person determines this. That was a retorical device on my part. But it shows how this is percieved by many when the law is not applicable to all equally. As was said above, the law wouldn’t have passed if it was written for specific, named groups. Hence, this is what it looks like when all three branches of gov’t weigh in on the issue. Leaving one new group to feel agreived under the law.

                Maybe I am not smarter than that.Report

              • Avatar notme in reply to aaron david
                Ignored
                says:

                No you’ve got it. Discrimination is bad unless our side can use the levers of gov’t to enshrine it into law for the use of the “right” groups. If the wrong groups use the law, then its cynical and trolling.Report

              • Avatar greginak in reply to aaron david
                Ignored
                says:

                But how are those white dudes aggrieved? The laws against discrimination were written to correct wrongs since everybody wasn’t’ equal under the law. Those laws were an attempt to make people equal since that, you know, wasn’t the way things had been. Is anybody going to deny white guys were favored before the anti-discrimination laws and they were written to that POC’s and women could start to get a toehold in areas dominated by white guys.Report

              • Avatar notme in reply to greginak
                Ignored
                says:

                Those dudes were not allowed to participate in the event based solely on their gender and therefore lost out on networking opportunities they might otherwise have had but for the gender discrimination Easy to see even for a liberal. Either discrimination based on gender is wrong or it isn’t but not sometimes, for some folks.Report

              • Avatar greginak in reply to notme
                Ignored
                says:

                Ah I do see. People were not allowed to attend an event based on gender depriving them of important opportunities. So therefore you are for anti-discrimination laws. So you are unambiguously for anti-D laws..right? You just want white men to count ….have i got that right? You are for Anti-D laws.Report

              • Avatar notme in reply to greginak
                Ignored
                says:

                Either discrimination laws protect all or they are a mockery of the ideals to which they aspire.Report

              • Avatar Kazzy in reply to notme
                Ignored
                says:

                As Burt, myself, and others have pointed out, you need to define discrimination. You haven’t done that.Report

              • Avatar notme in reply to Kazzy
                Ignored
                says:

                Discrimination against folks based on their color, sex, blah blah blahReport

              • Avatar Tod Kelly in reply to notme
                Ignored
                says:

                How do you measure it?Report

              • Avatar notme in reply to Tod Kelly
                Ignored
                says:

                An event that is for women only is fairly obvious. I’ve never been a big fan of the of the desperate impact arguments.Report

              • Avatar Tod Kelly in reply to notme
                Ignored
                says:

                That was an answer, but not to the question I asked.Report

              • Avatar notme in reply to Tod Kelly
                Ignored
                says:

                Sorry, you’ll need to be more specific, then.Report

              • Avatar Stillwater in reply to Tod Kelly
                Ignored
                says:

                I’m with notme here, Tod. What are you referring to by “measuring”? If you’re referring to acts of discrimination then notme answered the question since the act of preventing men from entry to a women-only function constitutes the only “measure” by which the law is correctly applied.Report

              • Avatar Mike Schilling in reply to notme
                Ignored
                says:

                desperate impact

                Disparate Housewives.Report

              • Avatar Kazzy in reply to notme
                Ignored
                says:

                “What do you mean by ‘discrimination’?”
                “Discrimination.”

                Is the lack of urinals in a women’s restroom discrimination?
                What about the presence of a diaper genie in a 2-year-old’s classroom but not a 3rd grade room?
                What about laws that mandate lower student-teacher ratios for younger children than older children?
                What about handicapped parking spots?

                Are those examples of discrimination? Why or why not?Report

              • Avatar Stillwater in reply to Kazzy
                Ignored
                says:

                Kazzy,

                notme is talking about the formal properties and application of anti-discrimination laws, not the types of practices people engage in.

                Adding: In other words, he’s arguing that if AD laws are justified, then they must apply fully generally.Report

              • Avatar Kazzy in reply to Stillwater
                Ignored
                says:

                But that still requires him to define “discrimination”. Just like anti-theft laws must define what theft is. A guy who is shop lifting can’t point at someone who purchased items and say, “But he walked out of the store with bread, too!”Report

              • Avatar Stillwater in reply to Kazzy
                Ignored
                says:

                I don’t think he does, actually. notme’s argument goes thru simply by assuming the definition(s) explicitly stated or implied in existing legislation – like, for example, the California statute that Vik wrote this post about.Report

              • Avatar notme in reply to Stillwater
                Ignored
                says:

                Exactly, the discrimination I’m referring to is whatever discrimination the law was trying to combat, gender, color, blah blah blah.

                In this case, it is the California’s Unruh Civil Rights Act.Report

              • Avatar Kazzy in reply to Stillwater
                Ignored
                says:

                “…full and equal…”

                What does equal mean? What does full mean?

                And how do you rectify the examples I offered with @notme ‘s definition? All of them would seem to violate it. Hell, denying cis men access to a women’s locker room is discrimination.Report

              • Avatar notme in reply to Kazzy
                Ignored
                says:

                Why do you expect me to divine the intent of the act’s drafters?Report

              • Avatar Stillwater in reply to Kazzy
                Ignored
                says:

                And how do you rectify the examples I offered with ‘s definition?

                The rectificaton proceeds like this: notme is arguing a conditional – that if AD laws are justified they must apply fully generally – so IF certain types of actions covered by the legislation appear to be either a) not enforced as discriminatory or b) appear to be reductio’s on the legislation, then you a’) apply the law consistently or b’) scrap it.Report

              • Avatar Kazzy in reply to Stillwater
                Ignored
                says:

                “…that if AD laws are justified they must apply fully generally…”

                @stillwater

                And I disagree with that argument because it is not my belief that differential treatment is inherently discriminatory as was defined by these laws and any common sense understanding of what these laws sought to eliminate.

                So NotMe can look at two white guys being excluded from Chic CEO and say “Discrimination!” and I can look at two white guys being excluded from Chic CEO and say, “Not discrimination!” and we don’t get anywhere because we aren’t defining what discrimination is.

                I’ve asked him to define it. He has opted not to.Report

              • Avatar Stillwater in reply to Kazzy
                Ignored
                says:

                it is not my belief that differential treatment is inherently discriminatory as was defined by these laws

                Differential treatment which allows women to exclude men is discriminatory as defined by the laws. Rather, it’s the intent behind the laws that you’re appealing to, yes?Report

              • Avatar notme in reply to Stillwater
                Ignored
                says:

                I think this is the disconnect. If we have these laws against gender discrimination you can’t say that men can’t use them b/c they are men and therefore are not the group the law was originally supposed to protect.Report

              • Avatar Kim in reply to notme
                Ignored
                says:

                notme,
                Of course not. But you gotta be hella macho to show up in court and say you couldn’t get your nails done like all the purty ladies could.
                And that amuses me greatly.Report

              • Avatar notme in reply to Kim
                Ignored
                says:

                Sometimes the principle is enough and if not some folks (and myself) can endue a lot of embarrassment if the money is right.Report

              • Avatar Stillwater in reply to aaron david
                Ignored
                says:

                My civics class taught me that everyone is equal under the law.

                Well, a law that denies gays the right to marry fills that requirement quite nicely: it applies equally to all parties. Eg., for any person X, X can legally enter into a hetero marriage but not a homo marriage. Equality under the law! (I’ve actually heard intelligent people argue this, btw.)Report

              • Avatar Zac in reply to aaron david
                Ignored
                says:

                aaron david:
                My civics class taught me that everyone is equal under the law.

                “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
                – Anatole France

                Look, do I really need to go through the whole laundry list? When racial/sexual minorities are materially on the same plane as the rest of the country (IOW can have the same expectations of economic opportunities and application of the law), then it will make sense for protections to be applied universally. Until that day comes, what you’re proposing is just pretending that reality isn’t real, that everything is already equal and the folks that have always gotten the short end of the stick should quit whining about it just because it’s not as bad as it used to be.Report

              • Avatar aaron david in reply to Zac
                Ignored
                says:

                So, to fight Jim Crow, we need Jim Crow?

                “Until that day comes, what you’re proposing is just pretending that reality isn’t real, that everything is already equal and the folks that have always gotten the short end of the stick should quit whining about it just because it’s not as bad as it used to be.”

                No, what I am saying is that if we want to attain equality, we can’t further bigotry. It has to be a two way street. Applying a legal solution to a cultural problem isn’t going to change anyones minds. Especially if people precieve the injustice is simply being moved from one person to another.Report

              • Avatar greginak in reply to aaron david
                Ignored
                says:

                Anti discrimination laws = Jim Crow is a weak argument. Laws preventing JC are the same as bigotry and discrimination doesn’t make a lick of sense.Report

              • Avatar Zac in reply to aaron david
                Ignored
                says:

                aaron david:
                So, to fight Jim Crow, we need Jim Crow?

                Wow, talk about reductio ad absurdum. Do you really, honestly think that things like affirmative action or women forming exclusive professional organizations constitute a reversed version of Jim Crow? I hope that’s just a rhetorical ploy, because the alternative is a lot more disturbing.Report

              • Avatar aaron david in reply to Zac
                Ignored
                says:

                I think disparate impact based on sex, gender or race is a form or Jim Crow.Report

              • Avatar aaron david in reply to aaron david
                Ignored
                says:

                Let me add, laws that are designed to bring everyone UP to the same level are good. Laws that bring one up at anothers expense are bad.Report

              • Avatar Oscar Gordon in reply to aaron david
                Ignored
                says:

                This is where structural privilege makes everything so damn hard.Report

              • Avatar Zac in reply to aaron david
                Ignored
                says:

                So by that logic, the Thirteenth Amendment was a bad law because it raised up the slaves at the expense of the slave-owners. Likewise, the Nineteenth Amendment was a bad law because it gave women the right to vote and thus diluted the political power of men. The point being, of course, that it’s fairly easy to construe one group being brought up to everyone else’s level as being at the expense of the formerly dominant group. So color me unconvinced.Report

              • Avatar Oscar Gordon in reply to Zac
                Ignored
                says:

                In other words, structural privilegeReport

              • Avatar Zac in reply to Oscar Gordon
                Ignored
                says:

                Yes. And in order to raise everyone to equality, it will necessarily mean the disassembly of those structures. I would argue that ultimately this is better for everyone, in the long run, and that history has repeatedly proven this.Report

              • Avatar Zac in reply to aaron david
                Ignored
                says:

                We already live in a world where people are disparately impacted based on all of those things. So by your logic, Jim Crow never ended. Ok, fine, I grant your premise. How do you propose we end it?Report

              • Avatar aaron david in reply to Zac
                Ignored
                says:

                Take the long road. It is going to suck, and suck hard for a long time. But just passing a law isn’t going to change anyones minds. Hold everyone to be equal, don’t let anyone off the hook for being on the right team. Like Rahm Emanual.

                Build solid foundations like good primary education systems that are for everyone. Remove from peoples minds that the only way that someone got a job or education is from Affirmative Action. Target spending funds to achieve real noticeable effects ensuring what is already promised gets taken care of

                Never let de facto segregation stand. Were it me, I would start in the inner city schools, helping those who want to get out, while knowing you wont help everyone.

                That is all I got. But I do think that ensuring that everyone is treated equally under the law will help to get everyone, male female, black white, etc. to feel like they are getting a fair shake.Report

              • Avatar Don Zeko in reply to aaron david
                Ignored
                says:

                Why can’t we chew gum and walk at the same time? To my mind, all of these other things you recommend have jack all to do with whether or not we allow certain forms of mild reverse discrimination. Is your argument that we’re going to convince white dudes to want to spend money on fixing inner cities by allowing them to join what are now black-only or woman-only clubs and such?Report

              • Avatar Jesse Ewiak in reply to aaron david
                Ignored
                says:

                “Hey black people, continue having a crappier life than white people for generations until white people get comfortable with you. Based on current trends, that’ll be this side of never.

                But hey, some of you will escape horrible poverty ridden eras totally on merit, since as we all know, no white person ever gets a job or college placement based on something beside their SAT score.”Report

              • Avatar notme in reply to Jesse Ewiak
                Ignored
                says:

                Thanks for once again showing that liberals don’t believe in real non discrimination. You guys talk a good game but in the end it’s just talk.Report

              • Avatar Zac in reply to aaron david
                Ignored
                says:

                I was going to respond to this in detail, but it seems that Don and Jesse have already said more or less exactly what I was going to say, so I’ll defer to their fine posts.Report

              • Avatar Joe Sal in reply to Zac
                Ignored
                says:

                “And in order to raise everyone to equality, it will necessarily mean the disassembly of those structures. I would argue that ultimately this is better for everyone, in the long run, and that history has repeatedly proven this.”

                This works better than trying to ‘ban discrimination’. To start protecting factions by written law is to formally create factions. The law is the structure, if it cuts one way it will eventually cut the other.

                There is no realistic way to force everyones moral agency to align, you can only deny any given faction supremacy. To do so is to deny formal faction outright. The repeated self proclamation of law as supremacy will not work to align moral agents, if anything it makes a bitter contest of it.Report

              • Avatar Joe Sal in reply to Joe Sal
                Ignored
                says:

                That is/was an awesome comment.Report

              • Avatar Zac in reply to Joe Sal
                Ignored
                says:

                Is this just misthreaded, or are you actually saying this about your own comment?Report

              • Avatar Joe Sal in reply to Zac
                Ignored
                says:

                It was in reference to your comment I quoted. I replied it to the bottom of mine bc i never know where these things will land. HaReport

              • Avatar Zac in reply to Joe Sal
                Ignored
                says:

                Oh, ok, that makes way more sense. I thought you were basically doing the equivalent of giving yourself a high five. 😉Report

    • Avatar greginak in reply to aaron david
      Ignored
      says:

      What are the intended consequences of people who fought against anti-discrimination laws in the 50’s and 60s and people who against them now?Report

    • Avatar notme in reply to aaron david
      Ignored
      says:

      At some point, people are going to have to figure out whether they want equality or redress…

      Don’t you mean equality or favoritism?Report

  13. Avatar Kazzy
    Ignored
    says:

    I think we need to think long and hard about what we mean when we say “discriminate”.

    Google offers two definitions:

    1.
    recognize a distinction; differentiate.
    “babies can discriminate between different facial expressions of emotion”
    synonyms: differentiate, distinguish, draw a distinction, tell the difference, tell apart; More
    2.
    make an unjust or prejudicial distinction in the treatment of different categories of people or things, especially on the grounds of race, sex, or age.
    “existing employment policies discriminate against women”
    synonyms: be biased against, be prejudiced against; More

    If we use the second definition, which is the one more closely aligned with the (supposed) intent of these laws, it would call into question whether events like the Chic CEO thing (which I have never heard of until now so I cannot comment… I ask these questions genuinely…) is “unjust”. That is a difficult knot to disentangle and it seems that the courts have largely punted and instead substitute in the first definition and then conclude that anything that fits the first definition is by definition unjust. That feels lazy. And inaccurate. And, well, unjust.

    I don’t know what language would be better, though.Report

  14. Avatar Kazzy
    Ignored
    says:

    Another thing occurs to me…

    Discrimination against women, people of color, and other historically marginalized groups often happens informally. We’ve more or less done away with the formal structures. But the informal ones exist. And they are imbedded in power systems and dynamics. In an attempt to offset them, formal counters have been implemented. This is because it is really hard to undo the informal ones, especially through the court systems. But these formal counters have the problem of being, well, formal. And therefore very easily identified and attacked via a lawsuit.

    Who do women sue to upset the glass ceiling? They can’t, really. So they develop programs like Chic CEO. Which are rife for lawsuits. At least as we currently construe and interpret anti-discrimination laws.

    It remains a rigged game.Report

    • Avatar Mike Schilling in reply to Kazzy
      Ignored
      says:

      The 13th Amendment is suspect because of the disparate impact it had on different racial groups.Report

    • Avatar Chip Daniels in reply to Kazzy
      Ignored
      says:

      I think its interesting that its white people now who are becoming aware of structural injustice, even when they don’t use the term.

      The Bundy gang was saying that essentially, that even though the law said the Federal government owned the land, the law was structured unjustly and demanded an extra-legal response.

      The idea of an entire unjust societal structure also underlies the “War On Christmas” stuff, where Christians talk about being on the wrong end of discrimination (Its the wrong end, because it points at them). Their endless expose’s on liberal professors, campus oppression of free speech, having to dial 1 for English, being forced to bake a cake for lesbians, all carry the same message.Report

    • Avatar Murali in reply to Kazzy
      Ignored
      says:

      It may be rigged, but there may be nothing (formal) we can do if we wish to respect the rule of law. We can, of course always try moral suasion, but that is admittedly a limited tool. i.e. We ought not to do anything formal to achieve more substantive gender equality (at least in so far as formal equality has been achieved). This is, I think an important point that a lot of progressives miss: While it is true that formal equality cannot guarantee substantive equality, and even granting that formal and substantive equality is more desirable than purely formal equality, sacrificing formal equality to achieve substantive equality is incoherent. When you use formal inequality to achieve substantive equality, you lose the public moral basis that would justify the legislation. Part of this owes to the way public discourse works. Part of this owes to the way the law is a blunt tool. Substantive equality thus becomes a private moral agenda of some people in society, not something that everyone in society has reason to endorse. That’s why it loses legitimacy and this is what we’re seeing here.Report

  15. Avatar DensityDuck
    Ignored
    says:

    Given that as late as 1993 the US government was still passing viewpoint-neutral anti-discrimination legislation, I doubt that there was some long-game plot by Unruh to imagine a time in the far future when men would need to twist legalities to mess with women.Report

  16. Avatar Kazzy
    Ignored
    says:

    Maybe instead of anti-discrimination laws, we need anti-oppression laws. Though, we know certain empowered and privileged people have no qualms claiming they are the truly oppressed.Report

    • Avatar Jesse Ewiak in reply to Kazzy
      Ignored
      says:

      +1Report

    • Avatar Will H. in reply to Kazzy
      Ignored
      says:

      I find it odd that denying the humanity of a person to fit an individual into a group is the apparent solution to denying the humanity of persons to fit hem into groups.

      Similarly, some blacks own more property and have more savings than other blacks.
      Is the economic oppression of blacks by blacks to be considered superior to oppression of blacks by whites?

      If we train the black man to live in the big house and run the plantation like it should be run, would that then be equality?Report

      • Avatar Chip Daniels in reply to Will H.
        Ignored
        says:

        This would be a paradox, if we were monochromatic and 2 dimensional.

        But don’t we all have complex multidimensional aspects, where in some ways we long to be unique and individual while simultaneously in full undivided communion with the group?Report

        • Avatar Will H. in reply to Chip Daniels
          Ignored
          says:

          True that.
          The problem is one of separating the constituents of an interdependent relationship while preserving the both.
          That is, if A is a member of Z, influences the character and conduct of Group Z by participation in it, what then is A removed from Z? What is Z with A removed?
          Neither are the same.

          The underlying issue is one of defining members of the group by the group characteristics.

          On the one hand, can we say that a strong presumption of oppression attaches due to membership of a certain group historically oppressed, absent any visible oppression of that individual member of the group?
          Does Barack Obama really need affirmative action at this point?

          Similarly, does membership in a group which is not historically oppressed (say, Shriners) indicate on its own that no member of that group could be oppressed?

          If rights mean anything at all, it is at the individual level.

          Group membership can serve as a predictor only, and not as a determinant.Report

          • Avatar j r in reply to Will H.
            Ignored
            says:

            Group membership can serve as a predictor only, and not as a determinant.

            This is the linchpin. One of my problems with the current version of anti-racism/identity politics is that it operates on the same set of assumptions that racism/white supremacy does, that we are all inextricably linked to our demography in some deep and fundamental way that can never be altered or moved beyond.

            And that is only half right.Report

  17. Avatar Doctor Jay
    Ignored
    says:

    It’s because of things like this that I describe myself as a left conservative. I endorse a system of law that bans discrimination. As far a redress goes, I’m in favor of looking into reparations. And yes, this is conservative, I won’t run away from that label.

    AND, as a personal ethical stance, I’m deeply suspicious of color-blindness. Color-blindness is a license to plunder while thinking oneself fair. There’s no way that I could grow up as a white person in this culture and be color blind, so I’m going to be personally quite suspicious of it.

    But my personal ethical stance is not at all the same as law, which I want to be color blind. The 14th Amendment’s “equal protection under the law” seems pretty valuable to me. It has made a unique contribution to the legal culture of the world. I’m not really willing to toss it out.

    As some marginalized groups progress and grow, if not equal in power, more powerful, they will gain the ability to exclude and discriminate against groups that are traditionally dominant. If given full rein to do this, they will simply swap places between master and slave. I can see why, perhaps, some might want that, but I can’t endorse it.Report

    • Avatar DensityDuck in reply to Doctor Jay
      Ignored
      says:

      It’s rather unfortunate that people have so thoroughly redefined “color-blind” as “total fucking racist but I lie about it”. Because now there’s no actual way to say “I really don’t give a shit about your race”.

      Unless the argument is that all white people are all total fucking racists and there’s no way for them ever not to be.Report

  18. Avatar Kolohe
    Ignored
    says:

    Wrong thread sorryReport

  19. Avatar InMD
    Ignored
    says:

    I think the title of this post is slightly off. What the real question should be, is can an anti-discrimination law protect racial minorities or women if they aren’t broad enough to protect everyone from discrimination based on the underlying immutable characteristics in play?

    I would argue no. Constitutional concerns aside, there’s simply no principled way to write adequate legislation and any attempt to do so would be inherently arbitrary and biased by the sensibilities of the authors. It’s also a path towards endless identitarian acrimony as everyone fights for the state to provide them with special protection. This is not a sensible approach to running a large, multicultural country. Further, I have the feeling that those who believe we should enshrine special causes of action for certain groups would not be thrilled with how that political battle played out in practice.

    The outrage over the lawsuit has a similar smell to the illiberal liberalism flourishing in certain corners. It also fails to acknowledge the great good that broad laws of this nature has done for the marginalized. If the price of advancement is for the ladies at this gathering to have had to roll their eyes and let a couple of dudes into an event where women were still in full control of the operation and agenda then it seems like a bargain to me.Report

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