Do civil rights require the State to impose private obligations?

Note new location: Espresso Roma on Hopkins is a 12-minute walk from the North Berkeley BART station.

In 2014, Americans marked the 50-year anniversary of the passage of the federal Civil Rights Act of 1964. One of the most important bills passed by Congress during Lyndon Johnson's presidency, this landmark piece of legislation outlawed unequal application of voter registration requirements; prohibited state and municipal governments from denying access to public facilities on grounds of race, color, religion or national origin; and banned racial segregation in public schools. In our liberal democratic society today, it is uncontroversial that governments should not have different rules for different citizens based on their race, color, religion or national origin.

But there were two other parts of the Civil Rights Act of 1964 that applied not to governments but to private individuals and businesses:

• Title II prohibited discrimination because of race, color, religion, or national origin in certain places of public accommodation, such as hotels, restaurants, and places of entertainment.

• Title VII prohibited employment discrimination based on race, color, religion, sex, or national origin.

Senator Barry Goldwater of Arizona, the 1964 Republican nominee for President, had supported previous civil rights bills, but came out against the 1964 Civil Rights Act because of Title II and Title VII. Goldwater argued that these two parts of the bill violated the U.S. constitution and also the more basic principle that, in his words, "You can't legislate morality."

Most of the Congressmen opposing the Civil Rights Act of 1964 were from Southern states that had laws enforcing racial segregation. But here in California, in that same year of 1964, voters were embroiled in contentious debate over Proposition 14, an initiative to repeal the Rumford Fair Housing Act passed by the California legislature the previous year. The Fair Housing Act banned discrimination on the basis of race, color, religion, national origin and ancestry, when renting or selling property. In response, the California Real Estate Association sponsored Prop 14, which would amend the state constitution to include the words:

• Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.

Prop 14 was passed by 65% of California voters, though it was later ruled unconstitutional by the California Supreme Court.

Do civil rights include the right not to be discriminated against, not only by governments, but by other individuals, on the basis of your race, ethnicity, religion, or national origin? Or, for that matter, on your gender, sexual orientation, age, or marital status? Go to any dating website, and you'll find that almost all profiles of members are quite specific about excluding potential partners on the basis of at least some of these criteria. What if it's not an individual but a private business? There are specialized dating websites that will accept only members of a particular religion, ethnicity, sexual orientation, age, or even level of physical attractiveness (http://www.beautifulpeople.com).

There was a good reason why the U.S. Congress, the California legislature, and other states and cities passed laws prohibiting racial/ethnic/religious/etc. discrimination by private individuals and businesses in housing, employment, and public accommodations: African-Americans in particular were being systematically excluded by European-Americans who were not only the majority population in every state, but kept almost all of the wealth and power to themselves. But the question remains: How far should governments go in forcing private entities to offer employment, housing, or hospitality services to people they simply don't want to do business with?

READINGS:

• On public accommodations:
"Civil Rights - A Challenge", by Robert Bork, The New Republic, August 31, 1963, with a reply from the editors
http://khs.kearnyschools.com/download.axd?file=27a684c3-945c-4420-bd23-b41fe0da3234&dnldType=Resource

• On housing:
California ballot handbook from 1964 with arguments for and against Proposition 14
http://librarysource.uchastings.edu/ballot_pdf/1964g.pdf
See pages 18 - 20, which are pages 19 - 21 in the PDF file.

• On employment:
San Francisco State Prof. Martin Carcieri's excerpts from Richard Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws (1992), and from U.S. Supreme Court decision United Steelworkers v. Weber (1979)
http://files.meetup.com/299745/SFSU1.pdf

As a reminder, this is a reading group, and we expect everyone who comes to the meetup to have done the readings. We will begin by going around the table giving each person a chance to talk for a couple of minutes about what they thought of the readings and also what other insights they might want to share on the general issue. (If you don't want to speak, you don't have to, but everyone gets a chance!) After this, we have a group discussion.