Faith organizations and individuals who view homosexuality as sinful and refuse to provide services to gay people are losing a growing number of legal battles that they say are costing them their religious freedom.

The lawsuits have resulted from states and communities that have banned discrimination based on sexual orientation. Those laws have created a clash between the right to be free from discrimination and the right to freedom of religion, religious groups said, with faith losing. They point to what they say are ominous recent examples:

– A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney's costs after she refused to photograph a gay couple's commitment ceremony.

– A psychologist in Georgia was fired after she declined for religious reasons to counsel a lesbian about her relationship.

– Christian fertility doctors in California who refused to artificially inseminate a lesbian patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.

– A Christian student group was not recognized at a University of California law school because it denies membership to anyone practicing sex outside of traditional marriage.
…
"People seem to say that if you enter the world of commerce, you lose all your First Amendment rights" to free exercise of religion, said Jordan Lorence, senior counsel at the Alliance Defense Fund, a Christian legal organization that has represented several businesses. "They … have become nothing more than vending machines, and the government can dictate the conditions under which they dispense their goods and services."

This is, of course, a decidedly libertarian argument. In Libertopia, all interactions, or at least all those involving competent adults, are strictly voluntary. There would be what the law calls "economic substantive due process," in the same way (and for the same reasons) that there is "privacy substantive due process" (e.g., Roe v. Wade, Lawrence v. Texas).

This is where libertarians tend to get into trouble. When confronted by non-libertarians with charges such as, "you oppose the Civil Rights Act" or "you believe in the right to be a racist business owner," we basically have to plead "guilty."

Of course, we also have the affirmative defense of asymptotic irrelevance. In Libertopia, there wouldn't be a Civil Rights Act because there wouldn't need to be a Civil Rights Act. Recall that Libertopia would be a capitalist society — and capitalism is always the first best weapon against bigotry. If you're a "greedy" businessperson, then you'll gladly buy from blacks, sell to Jews and hire gays. And if you don't, then you will suffer the punitive damages of competition — which far exceed those that could be imposed by any court of law.

So yes, on a strictly superficial level, libertarians would generally agree with the aforementioned laments by the bigots and theocrats. Point conceded.

But consider: What if the aforementioned litany of horribles had not been exclusively about gays?

– A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney's costs after she refused to photograph an interracial couple's commitment ceremony.

– A psychologist in Georgia was fired after she declined for religious reasons to counsel a Jew about her relationship.

– Christian fertility doctors in California who refused to artificially inseminate a disabled patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.

– A Christian student group was not recognized at a University of California law school because it denies membership to foreign students.

Most hard-core libertarians would be unfazed in their support of economic substantive due process and its requisite toleration of such private discrimination in most of these scenarios. In fact, I would wager that libertarians as a group would be more likely to defend all the bigots than the bigots themselves would be ("Blacks are Christians; our problem is with Jews." "Jews are white; our problem is with blacks." Etc.)

The "victimized" Christian bigots are of course not making a thorough, comprehensive (i.e., truly libertarian) demand for full entrepreneurial freedom of contract — and its reciprocal "right to refuse service to anyone." All they want to do is discriminate against gays. Not "anyone and everyone." Just gays.

Which is precisely why they should not be allowed to do so. As I have blogged previously: Whether or not you approve of bans on private discrimination is not the point — we are not debating the creation of Libertopia.

The point is instead whether, given that we already have such laws, are we going to craft and apply those laws consistently, logically and equitably — or are we going to short-circuit the entire raison d'être of such laws by allowing the majoritarian mob to fashion carve-outs for the very same insular minorities who are most in need of such laws?

If the religious bigots really want to invoke libertarian arguments to legitimize their bigotry, then they better be prepared to be judged by real libertarians about the entire spectrum of libertarian issues — including separation of church and state.

Think they'll go for it?

Previously:
–On the ENDA-T Conundrum
–eHarmony, eCommerce and eBigotry
–Separation of Ice Cream Parlor and State?

GEORGE: When did you leave the message?

GEORGE: Will that be cash, or check?

–Seinfeld, "The Kiss Hello"

More absurd blather from one of my favorite recurring Kip's Law exemplars, New York Times' "Ethicist" Randy Cohen:

Q: A few hours before a dentist appointment, I had to cancel because my baby sitter was ill. The dentist charged me $25 for canceling within 24 hours. Days later, just two hours before my rescheduled appointment, the dentist’s office called: because of an emergency, my appointment had to be rescheduled. This is hypocrisy on their part, but should I accept that "policy is policy" or demand "an eye for an eye?"
…
A: For a precept to be fair, it must apply no matter who transgresses. Here this means that whether dentist or patient cancels at the last moment, the same penalty should apply.

This is, of course, utter nonsense.

Cohen's argument collapses after just three words. "Precept" is an insolent gobbledygook term that drops all context entirely — which Cohen must of course do in order for his strained conclusion to appear viable.

It is entirely correct (and entirely libertarian) to say that, "for a law to be fair, it must apply no matter who transgresses." But Cohen can't use the word "law," because no law is at issue. The scenario is simply a mundane contract — an entirely voluntary agreement between two competent consenting adults.

Cohen, realizing the inherent ludicrousness of his argument, decides to proceed anyway and embrace the absurdity:

That you could, of course, find a different dentist does not justify an asymmetrical, and hence unjust, rule.

But of course, the voluntary nature of the contract most definitely does justify the asymmetrical "rule" (another gobbledygook term meant to overstate the issue — contracts don't have "rules," they have terms). But Cohen's argument would lose its luster and drama if he tried to blast an "unjust term," which is of course an oxymoron in the context of a voluntary contract anyway.

One more time: Any voluntary contract among competent consenting adults is, by definition, "fair." This is true for the simple reason that the only legitimate context by which "fair" can be measured is the subjective evaluation of the parties to the contract.

Just as all tastes and preferences are subjective, so too are all standards of contractual fairness. The fact that a third party might consider the contract "unfair" is utterly irrelevant beyond the choice not to enter the contract herself.

That rule applies — or in a sane society ought to apply — not only to a single third party observer (such as you, me, or Randy Cohen), but also to any number of third parties, no matter how large, as well as to the legislators whom they elect.

Democracy should be more than two wolves and a sheep voting on whether a dentist is being "asymmetrically unjust."

Kip's Law: Every advocate of central planning always — always — envisions himself as the central planner.

—

As an aside, Cohen appends an economic efficiency argument to try to defend his preposterous assertion that all asymmetrical contracts are inherently "unjust" —

To cancel precipitously can harm, or at least inconvenience, another person. If you do it, the dentist might miss an opportunity to treat another patient. If the dentist does it, you can lose the baby sitter’s fee or the chance to make other plans. The $25 charge both compensates for and, even more, deters the unwanted conduct.

This is a common fallacy often invoked to rail against adhesion contracts. In fact, such contracts — asymmetrical or otherwise — are highly efficient and reduce transaction costs for all who enter into them.

How much more expensive would a cruise or airline flight be if the carrier had to draft separate contracts with each passenger? Would sophisticated software ever be developed if each EULA had to be individually negotiated? And would a trip to the dentist be more or less expensive if the dentist had to hire a full-time "contract drafter" to accommodate each patient's notions of "asymmetrical injustice"?

The single best way to achieve economic efficiency is simply to leave people alone to pursue it themselves.

Previously:
–We Killed Off Lochner for This?
–On Narcissistic Altruism

Under federal law, an array of civil rights statutes are available to protect individuals from discrimination. This report provides a brief summary of selected federal civil rights statutes, including the Civil Rights Act, the Equal Pay Act, the Voting Rights Act, the Age Discrimination in Employment Act, the Fair Housing Act, Title IX of the Education Amendments of 1972, the Rehabilitation Act, the Equal Credit Opportunity Act, the Equal Educational Opportunities Act, the Age Discrimination Act, the Civil Service Reform Act, the Immigration and Nationality Act, the Americans with Disabilities Act, the Congressional Accountability Act, and the Reconstruction Statutes.

The 12-page report is a quick and easy read and a good reference piece.

As the debate over the Employment Non-Discrimination Act (either with or without transgenderism as a protected status) returns to Congress (and the blogosphere), libertarians will again face the conundrum they have not always negotiated well in the gay marriage debate.

To pine for a freedom-drenched utopia where government intervention regarding invidious discrimination in private affairs is neither authorized nor needed (e.g., where there would be a "right to be a racist" but with few or no racists seeking to invoke such a right) misses the reality-based point: We don't have such a utopia now, nor will we achieve it any time soon. These various civil rights laws exist, including the ones that infringe upon property rights and freedom of contract (the ones that prohibit discrimination by the government itself are, all libertarians should agree, not only legitimate but also desirable).

The question for libertarians therefore becomes: Taking these laws as a fact, as an external constraint that we may disagree with, do we then embrace the quest to make these laws as sensible, consistent and reflective of other desirable principles (i.e., equal protection) as possible (i.e., by adding sexual orientation to the list of protected classes)? Or do we close our eyes, put our hands over our ears and chant loudly, "Not a state actor! Not a state actor!"?

If you're going to have a law, even a law you'd rather not have, then you might as well craft it right.

Previous CRS Recommendations:
The South Ossetia Conflict
Congress and the States
Political Activity by Tax-Exempt Institutions
The Law of Church and State
Constitutional Limits on Hate Crime Legislation
Same-Sex Marriage — Legal Issues
Saudi Arabia
The National Debt
Restricting Video Game Sales to Minors
Warrantless Wiretapping
Foreign Holdings of Public Debt
China's Internet Censorship
Summary of Rumsfeld v. FAIR

Under terms of the settlement between Eric McKinley, a gay match-seeker from New Jersey, and eHarmony, Inc., the relationship Web site agrees to provide a new service for match-seekers identifying themselves as "male seeking a male" or "female seeking a female" by March 31, 2009.

The company also agrees to ensure that same-sex users are matched via the same or equivalent technology as that used for heterosexual match-seekers, agrees to charge same-sex users the same fees, and agrees to offer the same service quality and terms of service as heterosexuals.

I was not aware of the New Jersey litigation, but was fully expecting a similar outcome in a similar lawsuit filed in California under that state's extremist "Unruh Act." I blogged about that lawsuit back in June 2007:

—

In February 2007, I wrote the following regarding eHarmony's bigoted policy excluding gays:

Of course, private businesses do (or at least should) have the right to discriminate as they see fit. It is, after all, a "free" market.

Now that eHarmony is being sued for sexual orientation discrimination, like-minded folk are saying pretty much the same thing. And that's fine.

Just one pesky detail: The lawsuit was filed in California, apparently under that state's over-reaching Unruh Civil Rights Act:

51.5. No business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of any characteristic listed or defined[.]

California's Civil Rights Act of 2005 added sexual orientation to the list of protected classes.

So, as I tried to explain in this post about another widely lambasted Unruh lawsuit, it is all-important to distinguish between insisting that the eHarmony litigation is "silly," "misguided," "petty" or any similar word (which may well be the case), and claiming that it is "frivolous" (which is simply not the case). Under the plain language of California law, this is obviously not a frivolous lawsuit. If anything, it is the Unruh Act that is frivolous.

That's the first part of the analysis; here's the second part:

Whoever denies, aids or incites a denial, or makes any discrimination or distinction … is liable for each and every offense for the actual damages … up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars[.]

Under normal circumstances, a gay excluded from eHarmony would, at best, be entitled to actual damages — which would be what exactly? A pat on the back and some Kleenex?

But this is California, which has announced to the whole world: "Come to California, find any incident of discrimination, no matter how minuscule or inconsequential, and you win at least $4,000!"

With that kind of incentive system, of course men are going to sue bars for having (discriminatory) "Ladies Nights" — $4,000 of ka-ching! (per plaintiff!). Of course someone is going to sue the California Angels for a (discriminatory) Mother's Day giveaway — $4,000 of ka-ching! (per plaintiff!). And of course some inventive gay is going to figure out that eHarmony can be sued under Unruh — $4,000 of ka-ching! I'm mad that I didn't think of it myself! (Note also that the eHarmony lawsuit is seeking class action status — $4,000 x how-many + punitives = mega-ching!

Incidentally:

…four thousand dollars, and any attorney's fees that may be determined by the court in addition thereto…

Is it any wonder that there are California law firms that specialize exclusively in representing Unruh plaintiffs?

It's quite simple really: When the government subsidizes something, you get more of it. The State of California has enabled and actively encourages people to sue for the smallest incidents of discrimination, even when there are no real damages.

Be indignant over the eHarmony lawsuit all you want. But don't be surprised by it, and don't damn the plaintiff for doing exactly what the State of California has relentlessly encouraged her to do.

—

Note that nothing in this post should be construed as revising my position regarding adding sexual orientation to already existing anti-discrimination laws such as ENDA and the federal hate crimes law. I continue to posit that it is perfectly consistent with libertarian principles to insist that, if you are going to have, as a fait accompli, protected classes such as race, gender and disability, then that list of protected classes should be rationally and fairly compiled — and that requires that sexual orientation be included. Even if "one level of protection for all" is the asymptotic libertarian ideal, it is nevertheless also a libertarian ideal to support going from three levels of protection to two (i.e., by adding gays to the protected class). That is not a step backwards.

—

The case is McKinley v. eHarmony.com (PDF – 4 pages). The relevant portion of New Jersey's "Law Against Discrimination" here.

Previously:
–eHarmony, eCommerce and eBigotry

A state appeals court ruled Wednesday that a western Pennsylvania township violated constitutional protections in forcing a sexually oriented business to close on minor holidays such as Flag Day.
…
The video and book store, Adultland XXX, faced the prospect of being shut down for a year because it conducted sales on Flag Day 2006. It previously was cited for opening on Columbus Day 2005.

The township has invoked an 1893 state banking law to determine which holidays require the business to be shuttered, but the 19th century law is not specifically mentioned in the ordinance.
…
[The store's] attorney Joseph T. Moran said the ordinance's vagueness violated state and federal constitutional due-process rights.

You take whatever victories you can get, I suppose. And I'm a big fan of the void for vagueness doctrine as a general check on excessive government infringement on liberty.

Still, wouldn't it have been nice if the case had been argued and decided on the (one would hope rhetorical) question of whether competent consenting adults have, or ought to have, an unfettered liberty interest in entering into private commercial transactions of whatever kind suits their fancy — including buying and selling naughty videos?

Alternatively, how about asking whether it is a legitimate function of government to single out one politically unpopular business for what is obviously a persucative restriction. Stated differently, is vindictive spite ever a rational basis, let alone a compelling one, for nullifying equal protection under the law? (Note: California gay couples need not answer that question.)

But if "void for vagueness" is the best we can get, we'll take it — until the obnoxious nanny-statist prudes of Pulaski Township, Pennsylvania, rewrite the law in a way that inactivist judges find acceptable.

The case is Boron v. Pulaski Township, No. 1555 C.D. 2007 (Commonwealth Ct. Pa., November 19, 2008) (PDF – 17 pages).

Previously:
–Fifth Circuit Says Lawrence Extends to Commercial Transactions

Through sheer coincidence, two entirely unrelated stories hit my aggregator on the same day, neither of which will be good news for fans of Nudge or of the notion of "libertarian paternalism."

ITEM: The flagship anecdote in Nudge is automatic enrollment of employees in an employer's 401(k) plan (i.e., requiring a reluctant employee to actively opt out of enrollment rather than requiring her to actively opt in). This proposal is of course not really "libertarian paternalism" in that it is not truly a "libertarian" issue one way or the other — an employer should be able to structure its compensation arrangements as it sees fit, and employees should be free to accept them or seek work elsewhere. Only government-imposed automatic enrollment would raise libertarian concerns, "paternalistic" or otherwise.

In any case, how's opt-in working out?

People who previously did not pay much attention to those automatic 401(k) investments may now take notice when they see the losses. … According to the Wall Street Journal, target funds for people expected to retire in 2010 varied from a loss of 32% to a loss of 14% through Oct. 30th.
…
Worse, people who did pay attention and made deliberate choices to tailor their 401(k) to their liking did not necessarily succeed in that goal. Employers can move all participants' savings into the default fund, on the ground that the investments were not appropriately diversified. Again, employees can opt out, but they don't always notice and take action.

The whole "libertarian paternalism" house of cards is built on the foundational premise that the paternalist actually knows what he's doing. How realistic is that premise turning out to be?

—

ITEM: Another key anecdote in Nudge is the concept of "presumed consent" in organ donation: the notion that most people are in fact perfectly willing to donate their organs, but for whatever reason don't bother to opt-in to such programs. So, libertarian paternalism apparently tells us, why not require people to opt out instead of opt in?

Maybe because people don't like the idea of their bodies being "presumed" to belong to the government?

Gordon Brown favours a change in the existing law which would see everyone in the UK considered a donor unless they ask to be removed from the donor register.

But the UK Organ Donation Taskforce, set up by the Government, opposes the move because it says there is no evidence the change would significantly increase the number of organs available.

Actually, the Taskforce says much more than that (PDF – 40 pages):

Running as a leitmotif throughout the Taskforce's discussions has been the issue of trust: in government, in the NHS and, to a lesser extent, in doctors and other clinical staff. The public have become less trusting and more questioning of authority over recent years. … Trust, however, is key to the success of the organ donation system in the UK. If public trust is shaken, organ donor numbers are likely to fall rapidly and could take many years to recover. The need to maintain the confidence of the public has been a key consideration in the Taskforce's deliberations.

Both these anecdotes reflect the same problem with "libertarian paternalism." Whatever flaws and foibles one ascribes to the public generally must also be applied to the paternalists: Are they really better at managing our retirement decisions or at ensuring that our wishes after death are actually respected? What does history tell us? (Previous post on the U.K. presumed consent proposal here.)

As a sidebar regarding organ donation: True libertarians (as opposed to "libertarian paternalists) recognize that the best way to eliminate organ shortages is to end the absurd, and lethal, proscription on open markets for organs. On that front, a major development has arisen, in the form of Singapore crafting a pilot program allowing for the payment of compensation (but apparently not profit) to donors of kidneys and eggs. This is huge and welcome news that will, hopefully, spread to other jurisdictions. Stay tuned. (Via Marginal Revolution.) One of several previous posts on organ markets here.

Companies in two Chinese provinces, Shandong and Hubei, have been told they must seek official consent if they want to lay off more than 40 people. The order highlights the Chinese authorities' concern over mounting job losses.
…
The Chinese authorities are keen to avoid social instability, seen as a source of labour and political unrest. The human resources controls imposed in Shandong and Hubei are an attempt to put bureaucratic obstacles in the way of mass layoffs.

While it is somewhat difficult, in the wake of TARP, to insist that we ourselves are any less socialist (see also, "Directive 10-289"), at least we haven't quite gotten to the point where employers are enslaved to their employees (wasn't the concern the other way around under original theories of socialism?). But give it time: if Paulson or his successor suddenly decide that forbidding layoffs is the next idea to try, they'll try it. Just you wait…

I own a busy cafe-delicatessen with 25 employees. All the workers except two enjoy listening to background music from the radio while they work, as do I; those two say it irritates them, gives them headaches and makes it hard to talk to the customers. I turned off the music, but most of my workers say I'm unfair. Should I heed the majority or respect the wishes of those two employees?
–H.D., NEW YORK

"Heed the majority"? In a private business owned by a private individual? Since when is a business subject to the mob rule of "democracy"?

Not to cede any ground in the battle to restore economic substantive due process, but let's keep at least some perspective here. We are not talking about minimum wage laws, workplace safety regulation, bans on bigoted discrimination or even second-hand smoke. It's a radio. Radios are not toxic, music is not a workplace hazard and anti-noise malcontents are not a suspect class.

So does our self-declared "Ethicist" tell the proprietor to tell his two dissenters to take a flying leap? That a reasonable work environment is, um, reasonable and that, even under the most oppressive anti-business labor laws, there is no such thing as a right to an unreasonable accommodation?

I admire both your concern for working conditions and your nod to workplace democracy. And while the minority should be protected from the tyranny of the majority — or else we would all be assailed by the Top 40 — here you have a supermajority, 24 out of 26, more than what's needed to break a filibuster or override a presidential veto, a near-consensus worth heeding. Are there situations when majorities are too slight to set some policies? Yes. Is this one? No.

Forgive me for being a bit sensitive to notions of "the tyranny of the majority" this week, but how dare this idiot debase the noble notion of protecting political minorities in the public arena, by applying it to a private setting where it has no legitimate applicability.

Forget the "tyranny of the majority" — what about the tyranny of the property owner? The decision should be his to make, according to whatever considerations he values most — maximizing the productivity of his work force as a whole; maximizing revenue by drawing in more customers, or just playing whatever music he enjoys most, regardless of profits.

Instead, the "Ethicist" nitpicks what constitutes a "supermajority," as if he were James Madison working on an early draft of Article I, Section 7. Good grief.

Is there no aspect of private enterprise left where an employer can simply say to his employees, "This is how it is; if you don't like it then quit"? Is there no sphere left, public or private, where feeding the rabid beast of majoritarianism is not deemed the highest possible virtue?

Previously:
–On Narcissistic Altruism

—

Elsewhere:

The Billboard Liberation Front has partnered with Wachovia to release a daring advertising campaign that celebrates Wachovia's new money management strategy. This campaign emphasizes the silver lining in the economic storm front now threatening to swamp our economy as well as our individual fiscal inner tubes.
…
The BLF has been improving outdoor advertising since 1977. Prior campaigns have included work for Exxon, R.J. Reynolds, and Apple Computers.

In case you can't decipher what these cretins are talking about:

It's quite simple really: Maliciously destroying other people's private property is not only a crime. It is not only a tort. It is evil. Pure, unconditional, uncondonable evil.

And pretending that it is not evil, but rather "cute" or "clever" or "artistic" is also evil.

(Via Boing Boing — where there is plenty of evil in the comments.)

Previously:
–Sign of the the Times (Square)

"There should be a moratorium on bonuses," Frank, a Massachusetts Democrat, told reporters yesterday in Washington. "They have a negative incentive effect because they are the ones that say if you take a risk and it pays off you get a big bonus," and if it causes losses "you don't lose anything."

Of course, that same "negative incentive effect" applies just as well — far better, in fact — to politicians. Play dice with the economy, with geopolitics, and of course with the Constitution. "And if it causes losses, you don't lose anything." Pot-kettle-black, anyone?

Incidentally:

The moratorium "ought to be for all firms" and not just for those eligible for the Treasury financial-rescue program, Frank said.

A gay man baselessly stereotyping and demonizing an entire group of people, while disregarding notions of "fair and equal treatment"? Behold the undisputed hero-in-chief of contemporary gay politics.

Just goes to show: Even gays can be corrupted by politics and end up as power-mad assholes. Megalomania knows no sexual orientation, and moral defective politicians — gay, straight or "undecided" — will use their power to (metaphorically) rape anyone, regardless of the politicians' or the victims' genders. People like Frank succumb to a different kind of degenerate lust: the lust to control other people's lives and livelihoods.

(Via Dealbreaker.)

Kip's Law: Every advocate of central planning always — always — envisions himself as the central planner.

Benny was the affable, mildly retarded mailroom clerk in everyone's favorite dysfunctional law firm, McKenzie Brackman. Although Benny, brilliantly played by Larry Drake, was a secondary character, his disability was a productive font of story lines across many seasons of L.A. Law.

In one episode, Benny arrives at work wearing a turban. When asked why, Benny informs the lawyers that his "new friends" wear them — the friends being some two-bit cult to whom Benny donated a large sum of money.

Benny's lawyer-employers promptly drag Benny and the "friends" into court to rescind the donation, on the grounds that Benny is legally incompetent. The judge, however, is annoyed, because these same lawyers had previously sued to secure Benny's right to vote (i.e., that he was not incompetent). And before that they had sought to suppress a confession Benny had made in a (wrongful) criminal prosecution. The grounds? Benny was incompetent and did not understand his Miranda rights.

"Your client is either competent or he's not — which is it?" The judge brusquely demands of the lawyers.

That scene crossed my mind when I read not one but two op-ed pieces in Saturday's New York Times.

First we have Bob Herbert providing an anecdote of yet another "victim" of alleged "predatory lenders" —

If you believe Ms. Richardson's account, and I do, she was fast-talked into a mortgage that would have been impossible to pay off with her fixed income. Foreclosure would have seemed inevitable. But Ms. Richardson and her current lawyer, Carlene McNulty of Raleigh, N.C., said the figures that would have made it obvious to Ms. Richardson that she couldn't afford the mortgage were deliberately concealed.
…
Prudent and skeptical, she tried to find out if there were any economic bombs hidden in the confusing mass of paperwork that she was confronted with.

"I had all these stacks of papers at the closing," she told me, "and they were just passing papers back and forth to me, back and forth, telling me to sign. And I kept saying, 'Wait a minute. Wait a minute.'"

So the unfortunate borrower is perfectly competent ("prudent and skeptical," we are told) — except when she isn't (i.e., when someone with a policy agenda would prefer that she not be). She's only incompetent when it's convenient (from the anti-capitalist perspective) for her to be incompetent. Just like Benny's lawyers insisted: competent, except when she's not.

Further down the aggregator, we have an editorial on a perennial favorite of the anti-capitalists: the "hapless" college student:

A half-dozen states have placed restrictions on how credit cards can be marketed at public colleges. Congress is considering sensible bills that would restrict the amount of credit and the number of cards that students could be offered. Lawmakers should also focus on the lucrative and often secret deals that universities and their alumni associations regularly cut with credit card companies.

Those deals — which resemble the now outlawed student loan kickback deals — often grant companies the exclusive right to market to a college's students. In some cases, the colleges get a cut of what the students spend, which makes the school a partner in the plundering of young peoples' meager assets.

Of course, if a college chooses to suckle at the teat of government funding, then it does so in full knowledge that strings will be attached — and capriciously added at the whim of activist legislators (cf., this post on Rumsfeld v. FAIR).

That's not the point. The point is the presumption that young adults — emphasis on "adults" — are perfectly competent to decide, e.g., which college to attend, but not whether to take out a credit card under one or another set of interest rates, fees, etc. Again, just like Benny's lawyers tried to argue: competent when it pays to be competent, then suddenly incompetent whenever — and only whenever — a decision is subsequently regretted.

Note in both instances how no (real) argument of (bona fide) fraud is being alleged: no forged signatures, no lost documents, no clandestine typographical or computational "errors." The only real grievance, the root of all the indignation, is that the customer is incompetent.

But only selectively incompetent: competent to buy and maintain a home, but not competent to finance it. Competent to choose, apply to, enroll in, borrow for and graduate from a college (in some cases quite selective colleges), but not competent to read and understand a credit card application.

To argue that our (already existing) "truth-in-___" disclosure laws are somehow inadequate is all well and good. But those who would put all the burden for situations such as our two case studies solely on "plundering" businesses should have the intellectual honesty to say what they mean and mean what they say: that there are simply too many incompetent people who cannot be trusted to manage their own affairs in the presence of The Plunderers™. And that they, The New Incompetents™, are the real problem.

Of course, Benny always preferred being deemed competent — he was competent enough to recognize that being considered incompetent was a terrible stigma. And no doubt those going through foreclosure or credit card defaults feel likewise. Hence the repackaging of the situations as "victimization."

But part of being considered competent is taking the bitter with the sweet and acknowledging one's errors.