Hmm. I think it would be incorrect to see the business as generally in a position of power over the consumer, at least in a free market. In fact, it might be true that the business is generally more dependant on the consumer than the consumer the business, and probably true that businesses often take risks in order to facilitate exchange, risks that the consumer needn't worry with.
All potentially true. But a single business has a lot of power to damage a single employee or customer through discrimination, while a single customer generally lacks a similar power against a business. Consumers or employees generally have to mount organized campaigns and convince many of their fellows to join with them in order to adversely affect a business via a strike or boycott.
I note that anti-discrimination laws (for hiring and renting at least) tend to apply to businesses only after they reach a certain size. In Utah, for example, landlords are subject to anti-discrimination laws only after they have more than 4 units (I think is the number) they are renting. Businesses are subject to anti-discrimination employment laws only after they have more than (I think the number is) 15 employees.
In other words, while a business is truly a small, individual/family affair, the owner retains his full status as an individual. Once the business grows to a certain size, it is no longer a strictly personal/family affair, but is fairly viewed as an entity unto itself.
We might look at it another way and ask if you'd find it an unfair trade to require compliance with anti-discrimination laws (employment or providing services) as a condition of doing business any of the limited-liability legal entities that are created under modern law (corporation, LLC, etc)?
Additionally I would have to ask, let's say for the sake of argument that we can legitimately prohibit a business from discriminating against certain types of consumers, for the reason that we must prevent consumers from being denied essential goods or services, why wouldn't the justification be limited to only apply to businesses actually providing essential goods and services?
Frankly, I think that when it comes to services, they should be.
Or, put another way, at least not applied to non-essential services that could reasonably be construed as promoting a cause or message to which the owner objects. I'm reminded of Jefferson's quote about the unjustness of forcing a man to support the promulgation of a message to which he objects.
As an example if I had my way:
A baker or restaurant could not refuse to provide service to man simply because he was Mormon, Democrat, black, homosexual, or carries a gun. If an individual wants a birthday cake or a sandwich at the lunch counter, the owner should be obliged to provide service without regard to any of those characteristics.
However, if a prospective customer wants 1000 cupcakes to support his Mormon church proselyting activity, or his campaign for legislature, or a wedding cake, or he wants to host an OC event to promote the carrying of firearms, or he wants catering for his Black Liberation Theology congregation, the owner should be free to decline services on the grounds that all of these events are intended to send a message and promote a social agenda.
Businesses should provide general services without regard to the various individual characteristics of the customers. But business owners should not required to provide services to promote a message or social/political/religious agenda to which they object.
I would also have to add that I believe that viewing the business abstractly while not the consumer may be problematic. Likely we should look abstractly or not, viewing each piece in their relative abstractions or none of them in abstractions. The "businesses" are comprised of individuals. The "consumers" are comprised of individuals. And again, they're two sides to the same transaction coin, mutually dependent on each other, unless government intervention forces an individual to participate as one side of the coin without their consent or desire. Perhaps government intervention actually works to unbalance the power, disrupting the mutual dependence, and contributes to the very problem that the politician would prescribe intervention to remedy?
In theory perhaps. But in practice?
Notably, we had no government intervention originally and the equation was decidedly unbalanced. Employers too often treated employees as disposable resources. Miners and factory workers had no workers compensation, no workplace safety protection, no limits on hours worked without overtime, and so on. Robber Barons had sufficient power in the market to force railroads to charge all oil and meat shippers as if they were shipping from the same location the barons shipped from.
In certain cases, industrialists were crony capitalists who used government power to exert control over the market place. But in many instances, their immoral practices that stifled competition and treated consumers unjustly were without government coercion, but were legal.
In other words, the government didn't just decide to exercise power where no problem existed. Government actions were demanded by the public due to the excesses of large and powerful businesses.
As I wrote above, a single business has a lot more power in most cases than does a single consumer or single employee. Employees must unionize and consumers organize to boycott to have anywhere close to the effect on business that a large business can have on individuals.
While any law can be taken to excess, I think the opposite is also true sometimes. We can look at a few excesses and decide the solution is excess the other way: elimination of laws.
I think society is materially better, with all members of society better able to make their full contribution, if businesses are subject to some anti-discrimination laws in terms of hiring and providing services.
We simply haven't seen the problems with individual consumers or employees taking their business elsewhere for bigoted reasons as we saw with businesses engaging in discriminatory practices. So we should be pleased that laws have not be extended to individuals just to satisfy some principle. Rather, legal mandates have remained somewhat constrained--though still too over-reaching for my taste in some cases--to the area where actual problems were documented.
I think this is an important principle to remember. Principles and theories are important. But addressing actual problems while not addressing merely theoretical problems is probably a pretty good practice to maintain.
Charles