 Libertarians take a dark view at anti-discrimination laws and public accommodation laws that say if you open your business to the public you've got to serve everybody. Does this case fundamentally challenge or engage that kind of issue? Well it brushes past it and I'll say by way of background that exactly half the states currently have public accommodation laws in which sexual orientation or gender identity are one of the protective categories. So by that definition half of America was already a hellscape. I'll go along with your term for gay people or else you may not notice it because in fact in those other 25 states it's very hard to find any actual instances in which other than with wedding services and a couple of very narrowly defined controversies very difficult to find any difference in in treatment. Libertarians you're right you're absolutely right have a I think justified suspicion of the attempt to use public accommodation laws to override the independent judgment of businesses of how to serve and I say brushed against it because both the majority and the minority in the 303 creative case did turn to history. There were questions which may shed light on whether public accommodation laws were a fairly rare and exceptional thing or were something that were completely accepted even in the grand old libertarian classical liberal period. It was certainly accepted that some businesses like inns to stay the night in a country when you might freeze to death if they wouldn't take you in were under a public accommodation obligation. We do know that about Anglo-American history and some others closely related in the hospitality business. What about someone who would fix your shoes? What about someone who would bake you a kick? Well the majority brushes by theory that if you look at old instances where classical liberal society has accepted the public accommodation idea the idea that businesses undertook a particular accommodation that aside from the hospitality on the road cases they were very often monopoly cases. If you're going to give a company a monopoly over something you darn well are going to give them an obligation to serve every single customer and then the dissent by Sotomayor said oh no no no by the time she was done talking about it you would really would think that every single person who ever offered any services or products was under a public accommodation's obligation which I think is not actually true if you go back to the old law books. So they both found it worth engaging and yet on one level it what they said does not change the sweep of these laws it does leave me the opportunity to say as a libertarian the stakes of social division go down if you don't define every single florist and calligrapher as a public accommodation if you take a reasonable view that you know some things are big and public enough like theaters that there is some sort of public stigma in not being allowed but if you try to extend it to every little one person in business you are going to have more social division you just are. Can I ask Wally as a gay man who I believe is married correct? Well Steve thinks so. Okay good job. Maybe married in multiple states I don't know it's like but you know when you read about somebody who is like you know what like I'll make you a website but like I'll be damned if I'm gonna you know write you know you know here's our gift registry for a wedding or you can buy a cake I baked but I'll be damned if I'm gonna write you know best wishes you know etc. I mean like how do you respond to that on an individual level? Well I there's a great line from Zora Neale Hurston about being discriminated against you I can't imagine she said why people would want to deprive themselves of the delight of my company Now that is a confident person's response to being discriminated against obviously she lived in bad circumstances in the South and she knew perfectly well that there was more and worse to be had from discrimination but I love the attitude because especially when the discrimination is just symbolic and is not actually causing you to not be able to get the job or the home or whatever you just brush it off as people who haven't learned what they need to know about the world it's um and and here we get to the series of cases involving masterpiece cake shop and the flowers case and now the website case which is it's very hard to find any of those cases in which gay people getting married or these date back to the point where you couldn't get married and it was just uh solemnizing a relationship very hard to find any of these instances in which the people didn't have lots of other good choices of people who would gladly observe their business and uh so again it gets me thinking about Zora Neale Hurston uh are you just trying to see in order to make a point? Yeah uh Zora Neale Hurston is somebody who we can all do we can all benefit from uh you know thinking about a lot more and looking at her life as certainly her literary output but but there's a real sense of tragedy there and Coleman I know that you're familiar with Zora Neale Hurston who you know was uh also a uh Columbia student uh back in the day and studied with Franz Boas and the anthropology department and suffered real massive indignities is that uh you know on the account of both her gender and her race but I mean is it that we are in a stage now and it's always you know uh uh it you know we're always declaring victory way too soon in all kinds of wars right but like is it the world that she lived in and that level of anger and hate and contempt for sexual minorities for racial minorities for ethnic minorities is that mostly behind us and is that something that we need to incorporate into our contemporary discussions of things? It's interesting I'm of two minds on this on the one hand I think we have made massive progress in people's attitudes towards minorities racial minorities sexual minorities etc on the other hand I don't think that these bigger trees will ever be gone fully and permanently I think I think human nature has a bigoted element to it that is reducible but not eradicable and and uh at some level we're going to be living with some amount of racism some amount of homophobia until the end of time and we should while combating it we should understand that. Yeah um Wally can I ask from uh you know and again this is going back into the you know kind of libertarian subculture people like Milton Freedman talked about this as well as a wide variety of other people whose motivations may not have been as clear or as pure I think as Freedman's but um you know there is an argument and I guess Gary Becker also made this another Nobel Prize-winning economist saying you know that businesses that discriminate in a stupid and foolish way or in you know will actually be punished by markets operating um so you know that that 303 creative you know probably uh isn't that good a website anyway or or will lose enough business uh you know that uh companies that refuse to hire women or blacks or you know Latinos who were good workers um you know end up paying more higher wages for shittier workers and things like that is it is it more than theoretical to say that you know markets relatively free markets actually punish discriminatory behavior it's a big topic Nick and I can offer particular examples that back up uh Milton Freedman's suggestions uh it's well known I think that in the south during Jim Crow uh railroads and others who needed a lot of skilled labor uh were uh constantly seeing if they could undermine Jim Crow because it was denying them access to a lot of workers who would have done very well and the it gets complicated because as Coleman said sometimes you've got a background of real social prejudice in that has not been eradicated and markets can sometimes transmit that in that if big customers won't visit your restaurant or whatever so I don't want to make sweeping assertions I think that um courts by and large uh decide and should decide the cases on other bases where these things come in again is every one of those stayed in local anti-dissumination and public accommodations laws was passed um through a legislative process in which people could waive some of these things and I urge people again as someone who not not just from my libertarian standpoint but as someone who doesn't want to see social divisiveness um you know that's the time to go in and say uh are you legislating just to demonstrate your virtue or is there really some social uh problem that is solved by extending it from um old style public accommodations to every single little one person operation but you would agree that public accommodation laws which do restrict the right of businesses to operate however they see fit are actually beneficial in certain cases or well I would say from a libertarian standpoint um I'd follow I think this is the Richard Epstein analysis I'd like to uh confine them to the cases where there is a practical monopoly uh ironically uh inns to stay for the night which were effectively uh a practical if not a a royally granted monopoly um centuries ago you know with Airbnb uh it you know not not at all but you know I don't mind for utilities and I can see at least their point of if someone is going to freeze the death of saying the in is uh freighted with a special public interest but I would make it as um I would make it a demanding test that wouldn't result in very many public accommodations laws that was an excerpt from our recent live stream with Walter Olson of the Cato Institute and Coleman Hughes talking about recent court decisions dealing with affirmative action and whether or not website operators had to serve gay couples if you want to see another excerpt go here if you want to see the full thing and you should go here