About Service To All

Political polarization is a now common phenomenon. Whereas people in the past believed their children should not marry someone of a different race or religion, it now seems that a growing number of people believe their children should not marry someone of a different political party. (See this.) Perhaps this switch is understandable.

Humans tend to be tribal (see Greene) and as the tribal connections based on race, religion, and even ethnicity, have grown weaker, it may be that bonds based on political affiliation have become more important. In any case, we have seen instances where store owners want to refuse service to those who reject their ideological commitments—perhaps only one (mask wearing requirements vs mask wearing prohibitions) and we may see more (Democrat vs Republican). Should store owners be legally permitted to refuse service to those they disagree with on some ideological ground? This is not a new question; it’s an old question simply focused on a new sort of difference.

In the past, we’ve asked whether white store owners should be able to refuse service to people of color, whether heterosexual store owners should be able to refuse service to homosexuals, whether Christian store owners should be able to refuse service to non-Christians. My answer here is the same as my answer to all of those: yes, with a caveat. (NOTE: I am not asking if someone from one group should refuse service to anyone outside their group; I am asking if they should be legally allowed to. In my view, it is frequently the case that people ought to be legally allowed to do things they ought not do.)

My basic view is that in denying a person service, the store owner is not essentially doing anything to the individual and so cannot be said to be harming them. I won’t press that point though. It is sufficient that if it is harming them, it does so without violating their rights or otherwise wronging them (it may be stupid or misguided; I suspect that for many refusing service to someone of a particular group, it is less about those others and more about their desire to live their own life as they think they should).

Absent wrongful harm I do not think interference—e.g., to require the store owner provide the service—is permissible. Putting this differently, my basic view is that one needs an argument to show that a business-owner’s refusing to serve a particular customer wrongfully harms that customer if one wants to override the presumption of liberty that the store owner has to run her store as she wishes. While I suspect such weighty arguments are rare, I do think they can be made in certain instances. For example, if all of the grocery stores in a given area refused to sell to someone, it would likely be a clear and wrongful harm to that individual (especially if, as in the relevant historical case, those being denied service had no recourse). A single store doing so, by contrast, is unlikely to hurt the person (or at least not in anything but a de minimis way).

I imagine that some would suggest that there is always a wrongful harm here in the form of a dignatarian harm—i.e., a harm to the individual’s dignity—perhaps especially if the refusal is based on the individual’s race, religion, or ideology. Pointing to a dignatarian harm, of course, does not suggest there are no other harms (causing someone to starve by refusing them service, for example, is an obvious harm; plausibly causing them to have to travel a great distance for service would as well). Here, though, I am assuming there are no other harms at issue—if there are (and they are not de minimis), interference may well be warranted. I am skeptical, though, of the likelihood of dignatarian harms being caused by a store owner refusing service to someone—at least absent structural issues. If 99 of 100 stores of the relevant type are willing to serve the individual, why would a single outlier cause a harm to the person’s dignity? Where I live, there are (I think) six chain grocery stores. It’s hard to believe that the owners or employees of the four I never enter have their dignity harmed by my withholding my utilizing of their businesses. If you think this is only because they are corporate owned, I will add that a bit further away there are several family owned grocery stores and none of them seem to have their dignity harmed by my choice either.

Some might suggest there is a difference between store owners and customers that is somehow relevant. Perhaps so. The only difference I can think of (actually, I didn’t think of it myself!) is that the customer is (or might be) engaging in the transaction to get something needed, while the storeowner is only getting money. The customer is thus supposedly at the mercy of the storeowner in a way that the reverse is not true. I do not think this difference is real. After all, the store owner is looking to get money from the transaction so that they can pay for the things they need. If all stores refuse to serve a particular person, that person will suffer; if everyone refuses to buy from a particular store, that store owner will suffer. Again, so long as the customer can go elsewhere for what they need, I think there is little cause for concern. (Again, if there are no competing storeowners willing or able to do business with the customer, the situation may be different.)

I am not sure what other relevant difference there might be between store owners and customers. Surely, if I intentionally and loudly boycott a particular store, broadcasting my complaints about the store—perhaps truthfully talking about the incompetent owner and workers—the store owner could plausibly have their dignity harmed. If, though, I merely refuse to buy from them without broadcasting my claims (perhaps add that my claims would be neither defamatory nor otherwise tortious), it is hard to believe my refusal to buy from them wrongly causes them a harm. (Indeed, it’s hard to take seriously the claim that I have done anything to them at all.). Merely refusing to sell to someone seems to be the same. No harm to dignity seems plausible. (Again, mass or universal refusal or legal inability to sell to members of a group—and mass or universal refusal or legal inability to buy from members of a group—may be different.)

I’ll end by being clear that I do not see any reason to deny that there are real dignatarian harms. In a theocratic society where women are denied the rights to vote, to own property, to work outside the home, etc, it seems entirely reasonable to think there is a wrongful setback to their interest in their own personal dignity. Such harms would plausibly be independent of physical, financial, or even psychological harms. These would be harms even to women who were happy in the society, well treated, and financially, physically, and psychologically secure. Similarly, as already indicated, if all storeowners were united—or forced—to withhold service to some group of individuals there would be plausible dignatarian harm. But if we are talking of an individual store owner refusing service to such a group, it seems implausible.

Thanks to Payden Alder for getting me thinking about this stuff again and to Jim Taggart, Connor Kianpour, and Andrew I. Cohen for comments on a draft. (Connor gave the possible objection about a difference between storeowners and customers.)

2 thoughts on “About Service To All”

  1. Have you witnessed a black person being denied service in a business because of their race? Have you seen the face of that person, or her child, in that store? The harm may be minimal in that the person can still chose another store – but the dignity (which is actually the feeling of shame) is not minimal. There are lasting consequences, including, but not limited to: the child’s perception of herself in the world, the child’s view of the world and her place in the world, the parent’s worry for the child, etc. Given that no one can measure or know the extent to which these consequences will influence the future of the individuals involved, or the impact these emotions will have on the child’s development or self-perception, self-image, etc., it is either naive or closed- minded to believe that any harm done is minimal.
    I can take this to a personal level and say, not that I equate my personal experience with the experience of anyone who isn’t a white male, that it was experiences such as these that brought about my decision to leave one country and move to another – where I was not in the minority. (Both to protect myself and any future children from this experience. But what if I didn’t have that possibility of another place to live? How would I have coped? What would I have turned to? Would I have been able to accomplish, succeed, etc.)
    Anyway, just my perspective on the legalities of any kind of discrimination, which are very different of yours. (Not to say that I believe you are any more or less bigoted, just to say that I believe that emotional harm does need to be a factor here, especially when there may be children involved.)
    Thank you.


  2. Fortunately, I haven’t witnessed things like you describe. If I did, I’d like to think I would speak up against the behavior, take my business elsewhere, and encourage everyone else to do the same. That, at least where I live, would pretty much mean the end of the store in question; with no customers, they’d close. No legal interference would be needed to attain the right result. Of course, in other areas, such a store would likely be able to survive. Perhaps in such areas, you’d have competing stores, each only serving some portion of the local population. In that case, though, you wouldn’t get the scenario you envision either—no one would go to the store they know wouldn’t serve them. But part of the discussion has to be: what will make the sort of terrible things you worry about happen least? We have some good evidence that trading with others—both like and unlike us—results in our being better people (behaving better toward others). Unfortunately, I don’t know of any evidence that splits that into trading with others with a legal requirement to do so and without. My guess, though, is that as time passes, the bad discriminatory practices would disappear as store owners want to sell their goods and limiting their customer base is simply bad business. I also suspect—this is a separate matter—that absent legal intervention, more people would likely realize this (partly because they would have less cause to focus on what they are legally required to do).

    You get this, but I want to note that we agree about the morality of the store owner’s actions in the scenario you present. We disagree only about what the law should do. There are many things that are, I think, immoral but should not be subject to legal interference. Telling an innocent person who merely asked for directions, eg, to “F off.” Getting stoned every day, for another example. Using the law to to force morality on everyone is, I believe, a sure recipe for disaster.


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