Private business and "public accommodation"

Found here.

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The idea of "public accommodation" is ensconced in federal anti-discrimination statutes, one of which is 42 U.S.C. §2000a. While we agree that discrimination is repugnant, and people should not discriminate, the idea that the law should prevent people from voluntary associations is repugnant to us as well. And that's what these laws do.

Here is the statute:

42 U.S.C. §2000a 

(a)All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin.

(b) Each of the following establishments is a place of public accommodation within this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action: 

1. any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence. 
2. any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment, or any gasoline station;
3. any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and (4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment and (B) which holds itself out as serving patrons of any such covered establishment.

Why does this violate our rights? The First Amendment reads

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We have a right to peaceably assemble, which means our assembly is voluntary. We choose those with whom we wish to assemble. We assemble for an agreed purpose, with agreed persons, at the times and places of our choosing. The government violates this right by forcing people to assemble.

Such laws also violate the Fourth Amendment:  

The right of the People to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...

That is, to enforce the statute government gains access to our persons, houses, papers, and effects for the purpose of a search to obtain compliance information. Business owners surrender their right to be secure in subservience to an unconstitutional law.

A business is not a place of public accommodation. Those people who might enter a business are there for a specific purpose, and that is to potentially purchase a product. Thus, they must have money. They must wear shoes and shirts. They must conduct themselves with civility. They must consent to the terms of the transaction. They must leave the premises when it closes. Their presence is conditional.

Those who enter a business only do so with the permission of the owner. The owner does not accommodate the public, he accommodates his customers as the parties engage in private, consensual, legal transactions. The is no "public" action occurring at all. Therefore the government has no authority to intervene in the private affairs of its citizens.

But wait. Doesn't the government have a compelling reason to ensure that discrimination does not take place? No. Government is constrained by the Constitution from violating the rights of its citizens, and those rights enumerated in the Bill of Rights are noteworthy by their presence in the Constitution. Congress shall make no law..., and, ...shall not be violated... are definitive. 

But what about the problem of discrimination? We readily concede that discrimination is damaging, hurtful, and immoral. But that does not grant permission to government to violate the Constitution. The Constitution is the highest law of the land. Its provisions are sacrosanct. 

So what is the solution? The free market. Those who believe they are being treated poorly by a business owner can take their business elsewhere and freely associate with someone else. Once word gets around and enough people do the same, the business owner will either close his business or change his behavior. In order to continue operating his business, the business owner will change his parameters regarding whom he chooses to associate.

The problem is that government is being used as a tool to change societal outcomes. Discrimination is a societal outcome that should be changed, but government is not the method. Government should not involve itself in whether or not someone bakes a cake for someone else. Government should not involve itself in what color of skin employees have. Government should not involve itself in the gender identity make up of a person's business.

The market will take care of it.