What would you think if you saw a “whites only” sign in a store shop? Or an advertisement for a health class for “whites only”? You’d be shocked. The news media would run outraged stories about the scandal. Protesters would picket the place. Law suits and government actions quickly would shut down the store or class unless it ended the discrimination.
Especially given America’s history of extreme racial oppression, first with slavery and continuing with Jim Crow laws, lynchings, criminal justice abuses, and property confiscations, almost everyone today recognizes discrimination against members of historically oppressed minorities as profoundly evil. The only ones who don’t recognize that are racist, horrible people.
We can find some bright lines regarding discrimination, and a “whites only” sign clearly is on the wrong side of the line. I don’t want us to lose sight of that. But I do want to suggest that other cases of discrimination are not always so clear-cut, and I think it’s worth thinking through the complexities.
We’re all agreed that a “whites only” yoga class would be horrible. But would you be equally appalled to find a yoga class in Denver for “people of color only”? In fact, I recently ran across an advertisement for such a class. I didn’t see a single outraged media report about this, nor a single protester, nor a single lawsuit, nor a single action by the Colorado Civil Rights Commission, which mercilessly hounded Masterpiece Cakeshop for declining to make cakes for gay weddings. Maybe I missed something, but no one I’ve heard from cares if a yoga class discriminates against white people. And I’m not sure they should care, even though it’s technically just as illegal as a “whites only” class.
What’s the difference? Obviously historical context matters. In North America since the time of European settlement, slavery, almost exclusively of Black people by white people, has existed for longer than it has been abolished. Other forms of racial oppression, such as legally enforced segregation, existed during the lifetimes of people around today. My grandfather, who would be a century old this Fall, grew up in segregated towns in Missouri and Arkansas.
One thing I learned when researching Joseph H. Stuart, the Black attorney elected to the Colorado legislature in 1894, is that Colorado’s anti-discrimination laws extend to that era. (In the 1920s the Klan tried to repeal those laws.) At least sometimes people openly flouted the law. I ran across a newspaper article of November 16, 1895, from the Aspen Weekly Times that relates: “John O’Riley, proprietor of the Delmonico restaurant, was placed on trial in Justice Leahy’s court . . . for having refused to permit a [Black person] to enjoy equal advantages with white men at his boarding house. The case was heard before a jury, which, although the defendant acknowledged by his own testimony that the charges were true, returned a verdict of not guilty after half an hour’s deliberation.”
O’Riley had refused to serve lunch to an R. A. Murray at the regular lunch counter, insisting that he go to the kitchen or to another establishment. Notably, several potential members of the jury “were excused because of prejudice against the colored race.” The article continues: “Assistant Prosecuting Attorney John R. Wiley addressed the jury on the law passed by the last legislature, guaranteeing to all men equal rights in all public resorts without regard to race or color.” The defense attorney muddied the waters by (baselessly) questioning Murray’s citizenship. (Incidentally, if anyone has seen a good history of discrimination law in Colorado, please send me the information. That history might make a good research project for some budding historian.)
The point here is that “whites only” signs and practices once were common, and they were used to oppress Black people and exclude them from mainstream society.
The motivations for the “people of color only” yoga class were quite different; the idea was to provide “support” and “healing” for “people of color.” It’s not like any white person was inconvenienced by this or excluded from taking a yoga class. As far as I’m aware, no white person has claimed to be offended. I’m tempted to say, “No harm, no foul.” It’s still illegal though!
Let’s switch examples for a moment. If you Google “ladies’ night” for Westword, you’ll pull up several entries for “Best Ladies’ Night.” Obviously offering special deals to ladies is a form a gender discrimination. But is this a form of discrimination that hurts anyone or that most people care about? I don’t think so. Yet eight spots down in my Google search pops up the following article by Patricia Calhoun from 2015: “Steve Horner’s Complaint Against Brewski’s Ladies’ Night Falls Flat.” So at least one guy claimed to be bothered by “ladies’ nights.” The Colorado Civil Rights Division didn’t care. I certainly don’t care.
If we want to get personal, almost everyone discriminates on the basis of gender when selecting a romantic partner. This is true of homosexuals and heterosexuals. Of course some people are bisexual or “gender fluid.” There’s nothing morally wrong with such discrimination, and hardly anyone claims there is. Certainly I have not heard anyone claim that gender discrimination in the selection of a romantic partner should be illegal. That would be crazy.
I have left a lot of issues unresolved here. Is there, as some libertarians continue to think, a case against anti-discrimination laws as applied to private parties, despite the obvious immorality of certain forms of discrimination? (Libertarians agree government should not be allowed to discriminate.) Is social pressure sufficient to eventually weed out racist discrimination, provided government protects people from violence? By showing leniency toward seemingly benign forms of discrimination, do we open the door to more-damaging forms? If we legally allow certain forms of discrimination but not others, how do we maintain consistency and equal protection of the laws?
My aim here has been modest. I want to first emphasize that racist discrimination, such as manifest by “whites only” signs, clearly is morally evil. That we have reached widespread agreement about that as a society is a major moral achievement. Then I want to gently suggest that, once we move away from the obvious cases, matters of discrimination can become trickier. I don’t have pat conclusions. I have only the advice that we should not assume that such issues always have easy answers. Learning the lessons of history can help.