What Would Rand Paul Do About A Discriminatory Indiana Pizza Shop?

U.S. Sen. Rand Paul, R-Ky., speaks to students during a discussion on criminal justice reform at Bowie State University, in B
U.S. Sen. Rand Paul, R-Ky., speaks to students during a discussion on criminal justice reform at Bowie State University, in Bowie, Md., Friday, March 13, 2015. (AP Photo/Jose Luis Magana)

What's the public to do, in a world where the state allows a private business owner to discriminate against the LGBT community? In the minds of those who create and support such laws, the public is probably just supposed to sit back and endure the poke in the eye.

But what if the overarching sentiment of the public leads rather in the direction of a vigilante form of consumerism, which can drive bad business practitioners perilously close to the brink of going out of business? Well, they'll have the support of at least one Kentucky senator and presidential aspirant, based on what we know of his views.

On Wednesday, the ongoing controversy over Indiana's new take on the Religious Freedom Restoration Act veered suddenly into territory that seemed tailor-made for April Fools' Day, when the proprietors of Memories Pizza, a Walkerton, Indiana, pizza shop, publicly announced to a reporter (for reasons that elude understanding) that while anyone is welcome to eat in their restaurant, they "would have to say no" to a gay couple seeking their catering services for a same-sex wedding. (It's important to note that, at the moment, there's no evidence that Memories has actually acted on this position.)

The mere existence of this news story raises some fascinating questions. For instance, what was the reporter's plan here? Just walk door to door asking people whether they'd service gay weddings until they found someone who said they wouldn't, and then make that single instance of theoretical pizza-denial the story of the day?

Also, why didn't anyone learn more about the genuinely strange tenets of these pizza-makers' theology, which seems to hold that all manner of sinner -- the liar, the philanderer, the criminal, the pedophile -- could receive wedding catering services, as long as they are not part of a gay couple planning a same-sex wedding? I could have spent all day learning about the underpinnings of this pizzeria's curious moral code.

Alas, these are topics for a slower news day. Instead, we got a story about a single business publicly proclaiming its discriminatory business practices. As noted elsewhere on these pages, the main problem with publicly proclaimed discriminatory business practices is that -- as a natural consequence of that proclamation -- those practitioners lose a competitive edge in the marketplace. This is something that the state of Indiana is discovering, as benefactors who once made wide practice of spending their money in the Hoosier State are now looking to take their business elsewhere.

For Memories Pizza, these natural consequences were similarly and swiftly felt, as the community reacted harshly to its public declaration. In many instances, those protesting the pizza shop didn't exactly cover themselves in glory -- the proprietors reported that the adverse reaction included "threatening phone calls and disturbing social media messages" that included inane death threats. (One thing that should not be at stake here is any human being's continued survival.) All of this led to a backlash-to-the-backlash, summed up by Fox News' Megyn Kelly, who declared that the story had "set off a new debate about which side is intolerant."

Perhaps in the short term this is true, and the hasty and stupid have contended to see who can make their hasty and stupid versions of public protest ring out the loudest. But once all the inglorious rage has burned off, we return to a larger debate as to whether the public at large has any recourse against a business that openly proclaims itself to have discriminatory business practices. It also raises a secondary debate over how the public, acting in legitimate protest against a business that mistreats consumers, should be viewed when it mounts a campaign against such a business. This is a thought exercise in which I've already engaged:

But memory leads to a past controversy involving Kentucky Sen. Rand Paul and his views on the Civil Rights Act.

As you may recall, Paul got famously bogged down a while back in a sticky controversy of his own when, during an appearance on "The Rachel Maddow Show," he asserted that private business owners have the right to run their businesses as they see fit -- an abstract idea that conflicts in practical terms with the Civil Rights Act. Paul expressed no fellowship with racist lunch-counter operators, and he lauded the Civil Rights Act's beneficial effect on ending discrimination in public accommodations, but he stuck to his absolutist take on private property ownership: If a private business owner wants to discriminate against people, that's their right.

But that's not to say that the public at large had to sit back and accept it. Indeed, Paul did assert that consumers had a recourse available to them and a role to play in these situations -- and it resembles a more civilized version of what the public has already meted out to Memories Pizza. Paul laid all of this out in precise detail in an interview conducted by the editorial board of the Louisville Courier-Journal (emphasis mine throughout):

PAUL: I like the Civil Rights Act in the sense that it ended discrimination in all public domains, and I’m all in favor of that.


PAUL: You had to ask me the "but." I don't like the idea of telling private business owners -- I abhor racism. I think it's a bad business decision to exclude anybody from your restaurant -- but, at the same time, I do believe in private ownership. But I absolutely think there should be no discrimination in anything that gets any public funding, and that's most of what I think the Civil Rights Act was about, in my mind.


INTERVIEWER: But under your philosophy, it would be okay for Dr. King not to be served at the counter at Woolworth's?

PAUL: I would not go to that Woolworth's, and I would stand up in my community and say that it is abhorrent, um, but the hard part -- and this is the hard part about believing in freedom -- is, if you believe in the First Amendment, for example -- you have to, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things and, uh, we're here at the bastion of newspaperdom, I'm sure you believe in the First Amendment so you understand that people can say bad things. It's the same way with other behaviors. In a free society, we will tolerate boorish people who have abhorrent behavior, but if we're civilized people, we publicly criticize that, and don't belong to those groups, or don't associate with those people.

A lot of things that have already happened in the case of Memories Pizza that Paul, rightly, would not sanction. But in this interview Paul clearly recommends that the public should stand up in their community, publicly criticize those with "abhorrent" business practices, and convince others to end their association with those businesses.

In other words, let the market decide. This was the natural theoretical position of many defenders of Indiana's RFRA. Surely a gay couple seeking a wedding cake could go to another baker. Surely some businesses would benefit, as public sentiment attached itself to more inclusive consumer alternatives. Surely, in some strange way, this law actually creates entrepreneurial opportunities for gay business owners!

That's the pretty story you tell yourself if you support the rights of private business owners to discriminate against significant swathes of the community. The problem, which supporters of the law may not have foreseen, is that in our modern, social media-engaged world, a wronged customer can do a lot more than tell a few close friends about the shabby treatment they've received somewhere. They can potentially mobilize a sizable portion of not only the local community, but a national audience, and if their claims are credible, push those businesses to the brink of going out of business.

Is that intolerance? Is that bullying? Nah, son, that's just capitalism in its most Hobbesian form! This is why it's probably preferable to have a law that deters discriminatory business practices: It protects customers and proprietors from each other, and from themselves.

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