Epstein's Law

Legal scholar Richard Epstein that is. We welcome his support for our earlier post. Which we take from this 20 minute podcast from the Hoover Institution. Or this column at Hoover's DEFINING IDEAS, titled; The Problem With Antidiscrimination Laws. In the latter he addresses; the combustible mixture of the antidiscrimination norm and religious liberty as it applies to ordinary businesses that do ordinary things like taking photographs and baking wedding cakes.

Combustible, because it pits citizen against citizen, where there is no evidence there is even much of a societal problem in the first place. Unlike the problem in the Jim Crow South up until the 1960s. There, there was a problem, first with laws that violated the 14th Amendment's equal protection clause--by mandating racial discrimination by private citizens who operated lunch counters and movie theaters. Second, private citizens who might have wanted to capitalize on an under served niche market, by providing goods and services to it, were often dissuaded by;

...the combined threats of a segregationist establishment backed by private violence, which made entry of new businesses into the market to serve disfavored groups a near impossibility.

Epstein seems satisfied that that situation did require making a federal case out of it. But he then investigated, to see if there is a similar problem with the homosexual and the marketplace;

Marriage markets are of course different, because now the identity of the parties really matters along the lines of race and sex, which are the primary targets of antidiscrimination laws in public markets. It is well known that there is an active market that competes vigorously for same-sex-marriage couples in explicit and unmistakable terms. A quick Google search for “same sex wedding venues” revealed about 369,000 entries in that niche. For example, GayDestinationWeddings is “created expressly to serve the needs and exceed the expectations of the LGBTQ community.”

Pretty clear evidence that there is no shortage of providers. And Epstein notes the irony;

From the website, it appears that it discriminates against traditional heterosexual couples. This reads like a flat-out violation of the new civil rights laws, but who cares?

Well, politicized lawyers and advocacy groups, that's who.  But Epstein isn't intimidated by them;

I am willing to bear indignant cries from anyone who objects to my effort to limit the nondiscrimination principle of Title II to common carriers and public utilities, where they blunt the risks of monopoly power in the provision of standardized services. To be sure, as a matter of political economy, it is unwise to mount a legal revolution to attack on principle a widely supported statute whose basic application causes no harm. But by the same token, the uncritical acceptance of the view that these public accommodation laws are so important that they should sweep everything else aside has produced serious dislocations where there is a horrible fit between the legal command and the social practice.

 Where, as we said, the social practice is nicer, too.