Anti-discrimination laws aimed at the private sector are immoral because they violate basic individual rights to freely act on one's own judgement regarding one's contractual associations with others. I have made this point often.
True, some forms of discrimination are unforgivably irrational, unjust, and bigoted. But rights don't guarantee that every actor will be rational or fair. Rights, to be rights, must be absolute within a certain context: They must protect all related actions that do not violate the rights of others; meaning, that do not involve the initiation of force or fraud against others. In a free society, rights are not conditional on what government considers "rational" or "fair." Consequently, laws like Title 2 of the Civil Rights Act of 1964, which forbids private "places of public accommodation" from discriminating against persons based on race, color, religion, or national origin, should be repealed because they violate rights.
So, without such laws, how does one overcome such irrational or bigoted behavior as racial discrimination in a free society? By exercising one's individual rights. Economic boycotts and competition, non-disruptive peaceful protests, freedom of speech and press, and social pressure and ostracization are all powerful weapons in the hands of free people living under a consistently right-protecting government. Should those fail to alter the bigot's behavior, one can simply ignore the discriminator, agree to disagree, and go one's separate way. In a free society where government protects everyone's rights equally and at all times, private discrimination violates no one's rights and threatens no one.
Keep in mind that, historically, discrimination drew its power to do harm from legal sanctions and/or mandates, such as Jim Crow laws and the separate-but-equal doctrine, which legally enforced racial segregation at all levels of government, especially at the state and local level in the South.
This is not to say that the fight is easy. It isn't and wasn't. Racism and bigotry were socially entrenched in many quarters of American society. But violating rights in the name of justice is a contradiction in terms and of reality.
When people are free, irrationality can not long stand up against morally certain rationality, reason, and logic. Irrationality is fundamentally impotent, because to be irrational is to contradict the facts of reality. If a businessman refuses to serve a certain racial segment of the population, he is reducing his customer base, hurting his business and thus his livelihood. There could also be many harmful secondary consequences. Other potential customers, revolted by the businessman's bigotry, may refuse to patronize his business, further shrinking his customer base. He may also lose out on quality employees, for the same reason. Finally, his irrationality invites competition from someone eager to scoop up his lost customers. And this is to say nothing about public protests and/or organized boycotts highlighting his ignorant behavior. How many people would walk past demonstrators carrying signs highlighting the business owner's discriminatory policies? In short, irrational discrimination is thoroughly unselfish because it is economically harmful to the discriminator himself.
It is often assumed that political acts like the 1964 Civil Rights Act and the 1965 Voting Rights Act were instrumental in turning the tide against racial discrimination and segregation. But this assumption is backwards, reversing cause and effect. In fact, it was social pressure that turned the cultural tide, which then turned the political tide. Those Acts could not have happened in a vacuum, because politics does not move in a social vacuum. Politics, in fact, is a reflection, or consequence, not a driver, of social trends. Politics never leads. It follows. The 1964 Civil Rights Act—much of which was good—passed congress with more than 80% Republican and around 2/3 Democrat support. That kind of overwhelming political consensus could not have happened without overwhelming public support.
In other words, the country was already moving strongly against the segregationists and discriminationists. Indeed, significant victories had already been scored against these evils long before the unfortunate Title 2 passed into law. Let's take a look at a couple of prominent examples of this trend, and how social activism and the exercise of individual rights played a role—before the politics of 1960s civil rights legislation.
Jackie Robinson and the Dodger organization broke the color barrier without threatening our freedom - i.e., without governmental coercion such as anti-discrimination laws - and we’re all better off for his heroism. Segregation was soon swept away throughout baseball, even though bigotry lingered in the hearts of many baseball professionals long after the color barrier was broken. That is the way free people fight private injustice. Attacking the rights to hold and live by one’s own ideas, freedom of association and disassociation, and property rights is the road to tyranny. Those rights must be protected for all people, or all lose them.
Robinson, and later Larry Doby—as hard as it was for them—at least didn't have to face laws specifically forcing segregation on Major League baseball. Now let's take a look at another heroic American who did have to confront enforced segregation laws—and won anyway.
Rosa Parks challenged segregation sanctioned and enforced by law in Montgomery, Alabama, in 1955. After she refused to heed an order to vacate her seat for a white person issued by the driver of the bus she was a passenger on, "The bus driver then proceeded to call the police, who subsequently arrested Rosa."
It is also important to note that the city of Montgomery had only one bus line - the city-owned one. No other bus lines were permitted. In other words, there was no chance for economic competition by non-segregated lines. It is also important to note that the city-owned monopoly was contractually operated by a private bus company that had already eliminated segregation on its own in response to public pressure (a boycott by blacks and their sympathizers). The Associated Press, via The Montgomery Advertiser, said in reporting on the ensuing court challenge seeking "an injunction to stop the city and state from enforcing ... anti-race mixing laws":
Montgomery City Lines, Inc., a privately owned carrier which operates the city's only bus service, has already abandoned segregation for its part. Its drivers have been ordered to refrain from separating white and Negro passengers.
The City of Montgomery has asked Circuit Judge Walter B. Jones in circuit court for an injunction to compel the bus company to rescind the integration order.
So here we have a private company - whether on principle, economic necessity, or both - taking voluntary action to end an injustice, and the government whose constitutionally mandated job it is to protect its right to do so acting to legally force it to act against its own rational judgement.
Parks private protest touched off the Montgomery Bus Boycott, which was very successful, "severely damaging the bus transit company's finances, until the city repealed its law requiring segregation on public buses following the US Supreme Court ruling in Browder v. Gayle that it was unconstitutional."
Here is proof that public pressure and non-violent, non-rights violating private action can score significant victories, even when the law is stacked against them in the form of legally-enforced segregation and legally enforced monopoly. This is further proof of how injustice is essentially powerless against concerted moral action, until and unless it is backed by force, i.e., law. To top it off, we further see here that private cultural trends against segregation and racism drives legal changes, not the other way around. Remember that we are dealing here with the seminal private action that ignited the mid twentieth century civil rights movement - a movement that led to the enactment of the 1964 Civil Rights Act.
Some would argue that anti-discrimination laws aimed at the private sector helped to accelerate the end of overt discrimination. This may be true, but at a heavy cost to the innocent: E.g., the Title IX assault on men's college sports; the destruction of lending standards as a leading genesis of the housing bubble, financial meltdown, and Great Recession (Sowell, pp 101–121); the reliance of statistics, which rank just below "damned lies," to "prove" discrimination, which spawned predatory lawsuits and the blatantly racist "Affirmative Action" quotas; and the current controversy over gay marriage vs. religious freedom.
The use of statistics to "prove" discrimination is particularly pernicious. Few people today practice overt discrimination. Bigots rarely openly admit, let alone advertise, their bigotry, with good reason; it's embarrassing and socially self-destructive. So in the absence of signs announcing, "No Irish allowed" or "No blacks allowed," where are the crusaders against discrimination to turn? After all, no one can read another person's mind. While overt discrimination, at least the racial or gender kind, is rarely if ever practiced today, there is no doubt that bigotry still lurks in the hearts of some people. Enter statistical analysis.
But, stats tell you nothing about a person's or an institution's intentions. Stats tell you nothing about what factors lead to a particular statistical breakdown. Are fewer blacks than whites approved for home mortgages because of discrimination against blacks? Or is it simply that fewer blacks have the required down payment or income levels? These questions don't stop the crusaders. They use statistics to "paint with a broad brush," and seek remedies to fix discrimination, whether or not it actually exists. This injustice would not be a significant problem if not for anti-private discrimination laws, which do not specify what actually constitutes discrimination. The result; innocent victims galore.
The bottom line is that laws violating freedom of association and contract must go.
To those who favor laws banning private discrimination, I say: Stop violating the rights of others. You only undercut your own moral legitimacy. Ignorance and bigotry do not deserve the exalted social status that Title 2, Title IX, and similar laws grant them. Ignorance and bigotry can not stand the light of reason in a free, rights-protecting society. Instead, uphold the basic principle of equal protection of individual rights under the law, and then use your rights to fight back legitimately against private injustice, in the public arena of activism and rational persuasion. You'll be surprised how effective that is.
Does rescinding laws banning private discrimination make a moral statement in support of bigotry?