When did healthy communities become illegal?, Charles Tuttle asks:
The scene is Upper Monarch Lake, ten thousand feet up in the mountains of the Sequoia National Park in California. If you got here, you climbed thousands of feet in elevation through the wilderness, carrying your tent, sleeping bag, and all your supplies on your back. There is not a single graffito or piece of trash to be seen. If you should happen to have neighbors in a nearby tent for the night, you will not worry a bit about whether they will steal your gear or harm you in the night, even though they are strangers. More likely, they’ll invite you to share some of their bourbon.
Why do backpackers feel safe sleeping outside in public at 10,000 feet but not in their own city parks? It is the steep barrier to entry that creates this microcosm of community that so naturally emerges: anyone who has made it here has the physical, material, social, and informational resources to pass this natural test of good character.
The same is true, to a lesser extent, of Burning Man – the travel and resource outlay required to get to the desert festival forms a barrier high enough to allow for the formation of a temporary community, one in which participants feel safer interacting with strangers than they might in their own hometowns.
Natural human intuition about character has served people well in forming and pruning communities for thousands of years. Specific legal interventions in the United States, however, have limited the ability of individuals to act on their local social intuition and traditions, substituting a legal notion of radical inclusion. Legislation removed barriers to entry that people had erected for their communities, acting in turn on four core areas of social cohesion. While communities at first adapted to the new restrictions and evolved around them, eventually they became so warped that they began to fail to perform their most basic functions: providing members with social belonging, usefulness to others, a sense of meaning, and safety.
The first of the big four areas of life to be threatened by legislation was business – especially the kind of business that might have been called an inn or public house in another time, that is, public accommodations and restaurants. The Civil Rights Act of 1964 made discrimination on the basis of race, color, religion, or national origin illegal for businesses of this kind. Federal and state laws have since expanded this anti-discrimination provision significantly; almost half of all states also prohibit discrimination against gay people by businesses, and Colorado recently forced a religious baker to either bake cakes for gay weddings, against his religious principles, or go out of business.
No longer does the restaurateur, publican, or even baker have the privilege to exclude anyone he chooses from his premises and service, for any reason or no reason. Some argue that the publican is better off; with more potential customers, his market is larger now. But is money the only imaginable motivation for owning a small business of this sort, the kind that underpins communities? A barrier to entry for customers at the pub has been removed. The only barrier that is still legal – as we will see in later sections – is money. Rather than having an exclusive pub with its clientele weeded by a kingly proprietor, the patrons must pay high prices as a substitute barrier to entry. Another solution is to arrange businesses so that customers need not interact with strangers, a small-scale version of modern city planning.
This is not a defense of the practice of racial discrimination. But outlawing bad discrimination has chilled the expression of good discrimination – of intuitive, personal discrimination, which sometimes but not always takes things like race or sexual orientation into account. (The race of neighbors at Upper Monarch Lake would scarcely make a difference.) Discrimination – the selection of some and exclusion of others for social interaction – had acquired the characteristic of a slur, but it is a necessary faculty for humans and groups. Peaceful people can hardly remain so if they can’t exclude destructive people. Discrimination, like speech, needs to be free from the chilling effects of lawsuits.
The right of a business proprietor to kick out anyone he likes seems a minuscule freedom in comparison to decades of legal oppression of a race of people descended from legal slaves. But black communities have served as a mascot for legislation rather than actually benefitting from it.