Posted on 04/03/2015 12:15:07 PM PDT by Yashcheritsiy
"Freedom of association includes the freedom not to associate." – Ayn Rand
The past week has presented this nation with the spectacle of raw, unadulterated freedom-hating liberalism in action. The state of Indiana passed a law which allowed for religious freedom to be used as a defense for both individuals and businesses when facing discrimination lawsuits. Because one of the key points in the leftist cultural marxism agenda has been to create a legal environment in which businesses (and eventually churches) can be punished for refusing to participate in gay "weddings," the Left went absolutely bonkers because this law worked directly contrary to that goal. The radical Left desires nothing less than a regimen in which any wrongthink by a business owner can be penalized, and laws which place gays into "protected" categories can be used as a bludgeon to destroy the enemies of the Left.
Indeed, that is what started this whole thing to begin with – the use of the radical gay agenda to go after Christian businesses that refused to participate in gay "marriage" ceremonies. The gays would seek out these businesses, purposefully target them knowing they would refuse service, specifically so they could then hound them legally through short-sighted and wrong-headed laws on the books. Indiana's law was intended, among other things, to prevent this sort of thing from happening. It was not a proactive law that "encourages" or "allows" discrimination; rather, it was a defensive law designed to help protect religious liberty by requiring the state government to apply a strict "compelling interest" argument when considering whether to override a citizen's or a business' religious liberties. And it protected everyone, not just Christians – under it, a Jew couldn't be compelled to arrange flowers for a Neo-Nazi event, nor would a gay baker be compelled to bake a cake for Westboro Baptist church.
I think much of the discussion has been off-base on both sides of the aisle. So much sound and fury has been made about the particular issue of homosexuality and "discrimination" against gays that the greater point – that of fundamental liberty of the individual – has been lost.
Specifically, this controversy should raise in the minds of anyone who actually cared about individual liberty the question of whether we should even have public accommodation laws – the sorts of laws on the books that declare certain groups to be "protected" and disallows "discrimination" against those groups by businesses because these businesses, by virtue of operating publicly, are "public accommodations." I believe that rather than extending the reach of these laws, they should instead be stricken from the books because they are assaults on the First Amendment freedoms of association.
Let me begin by asking a question that will shock many folks, but which needs to be addressed in a rational, reasoned way that doesn't involve a bunch of emotionalism and dramatics.
"Why shouldn't individuals and businesses be allowed to discriminate against anyone they want?"
Now, the typical response to this question is something along the lines of "Derp derp derp, because they just shouldn't be!" Just because. Because it might make people feel bad. Because we want everyone in society to be equal, or something. Indeed, I have not yet seem a single argument made by anyone on the Left that actually made a logical, reasoned case for why some people should be forced to associate with or provide services to others against the provider's will. Typically, liberals fall back on to arguments about feelings and "equality."
These are wholly unsatisfying arguments, to say the least.
The fact of the matter is that there is no reasonable moral argument that can be made for using the coercive power of the state to disallow "discrimination" (in whatever form it may take) by individuals, either personally or in the businesses they own.
Let's address an important distinction that is often misunderstood or completely neglected by most people today, both on the Left and on the Right. This is the difference between "natural liberties" and "civil rights." Natural liberties are inhering, God-given freedoms that are part of every individual's possession, no matter who they are or what situation they find themselves in. Civil rights, on the other hand, are government-given privileges that only exist within the framework of a functioning political system.
To understand the difference, consider again the old picture of the "state of nature" that was often used by classical liberal theorists to picture mankind's existence prior to the institution of government. In that state of nature, every individual would remain in full possession of his or her natural liberties. If you were to completely evaporate every government in the world and return us all to this "state of nature," you and I and everyone else would still fully and completely have the natural right to say what we want, worship how we want, defend ourselves from those who would harm us, retain the ownership and use of whatever property we had as a result of our own labor and foresight, etc.
On the other hand, civil rights would NOT exist in such a situation. For example, consider the right to vote. Voting, as a concept, simply cannot exist outside of a political system, and functional voting rights (ones that actually matter, rather than being coerced rubber stamps such as in Saddam Hussein's Iraq or in the old Soviet Union) would only exist within a consensual political system. Voting rights ONLY exist when mankind forms political systems and says that we're going to be able to vote in these systems. In the state of nature, there would be no "right" to vote, because there's no system in which to vote.
Civil rights are granted by government, but natural liberties are antecedent to government and do not exist because of government. Civil rights may be withheld from some, while natural liberties cannot rightly be so. This is why a 13-year old girl is perfectly within her rights to shoot an armed intruder trying to break into her home while her parents are away – she is exercising her God-given natural liberty to self-defense – yet she has to wait five more years before society considers her mature enough to be able to participate in the collective decision-making involved in the voting franchise.
It stands to reason from this that because natural liberties are antecedent and of a more primal grounding, they are superior to and inalienable by civil rights. One cannot rightly appeal to any government-created civil right to overrule any individual's natural liberties.
Yet, that is what happens with "anti-discrimination public accommodation" laws. The government creates some arbitrary civil right to not be discriminated against, and uses it to overrule the natural liberty of any individual to choose his or her own associates (which includes who he or she does business with). In doing so, the government is also overruling the individual's rights to use his or her property as they see fit (a person's business is their property).
Indeed, as these laws are currently formulated, the legal environment resembles one that exists within fascism. If you recall, fascism – like many other big-government philosophies of the Left – severely curtails the right of the individual to their exercise of their natural liberties. While communism, and to a lesser extent socialism, deprives individuals of their property rights by simply depriving them of their property (i.e. state ownership), fascism follows a slightly different route. In fascist regimes, individuals were allowed to retain de jure ownership of their property and businesses, but the government mandated just about everything the owner did with these things. Government told businesses who to hire (or not hire), what to produce, what wages everyone (including the owner) could make, and everything else deemed important to the state. Hence, fascism essentially ends up being functionally equivalent to communism and socialism in practice.
It is this sort of fascist approach that is inherent in public accommodation laws (as well as other laws concerning businesses that I won't address at present). The government tells businesses who they are to do business with. If the radical Left gets its way, businesses will have no choice in the matter. The appeal to their being "public" is used to justify their being coerced BY the certain vocal segments of the public, through the agency of the government.
This is an unjust misuse of the police powers of the state.
So is the solution to allow individuals and businesses to discriminate, even if it means certain businesses may refuse service to certain people, even based on things like race, nationality, religion, sexual preference, and so forth?
Yes, it is. Like it or not, the freedom of association should trump the "civil right" to make others serve you even if they don't want to. Indeed, you cannot rightly say that we have a genuinely free society if we don't do this. Remember, liberties are "negative" – they involve things that other people cannot do to you. Liberty, as a concept, does not involve the positive capacity to make other people do things you want them to do. In this particular case, liberty means you get to choose who to associate with; liberty does NOT mean that other people get to coerce you into associating with them lest they be personally offended by your choice.
Does this mean that if these laws were abolished, there might be some businesses that would refuse to serve blacks, or gays, or Muslims, or Jews, or Christians, or whites, or any other demographic you choose to fill the blank with? Sure, it might mean that. Like it or not, sometimes liberty means allowing other people to do things that you, personally, don't like or agree with (which, unfortunately, is an increasingly difficult concept for most people on the Left to wrap their heads around).
But keep in mind that saying that people ought to be allowed to discriminate is not the same thing as saying that people ought to discriminate. So guess what? If a business follows a discriminatory policy that you don't like, there are other ways to deal with it besides dragging in the government to institute fascist policies. Use your pocketbook. Don't shop there. Encourage others to not shop there. Boycott the place. Use your own natural liberty to freely not associate with them. Use the power of the free market and the free marketplace of information to disassociate yourself from such a business. If it works, then be satisfied with yourself that you had an effect. If not, well, accept the fact that giving other people liberty means not always getting your own way, and get on with your own life.
Conservatives make a major mistake when they concede basic philosophical points to the Left, rather than risk the flood of name-calling & insult that are the Left's only real "arguments."
Tim has it exactly right. And forget about the word discrimination. This is about a natural right, freedom of association. The natural right trumps everything else.
The right to discriminate is the right to make choices based on one's lights & preferences; rather than be forced to abide by the Government or some one else's lights and preferences.
Let me point out something that is obvious, yet virtually overlooked in this latest example of Leftist bully tactics.
Most Conservative spokesmen today--most Conservative organizations in America today--take an approach to the battle which basically concedes what the Left has already accomplished in its assault on personal responsibility & individual liberty. Most only seek to hold a line that yields no more.
Thus only a few of us still insist that the whole fabric of legislation that forbids discrimination against various protected classifications by private individuals & private businesses is wrong; fundamentally wrong in denying people the freedom to use their own property for what were always legal purposes in the past. We after all, as free people, have always claimed the right to make our own decisions--that is to discriminate in our personal choices. It is not something aimed against any group; rather a right that all free men & women have in common.
When Conservative spokesmen concede the past campaigns' ever broadening the list of protected categories--broadening the limitations on other peoples' choices; they create a situation where the Left can only continue--successfully continue--to ever more aggressively push the envelope. Their strategy--those who supposedly speak for us--gurantees defeat. It surrenders a major part of the primary argument on our side, i.e. personal freedom in one's own choices, while allowing the foe to pick targets one at a time, while citing the previous now conceded triumphs in restricting the rest of us, as a precedent.
Can anyone imagine fighting a war, where every bit of territory previously gained by the foe, is forever conceded to the foe? How long would it be, with such a method of engagement, before the result was total conquest of the idiots employing that methodology?
Instead, please consider adopting the approach offered in the link provided in #21.
Another obvious advantage of a realistic counter-attack that concedes nothing, is that it avoids the necessity of appearing as anti-anyone--something that much of the youth has been conditioned to reject, Palovianly, without analysis.
William Flax
My parents taught me that there are certain people and certain activities that are unacceptable and I should not associate myself with them. “You are known by the company you keep” along with “Birds of a feather flock together”, were repeated many times during my journey to adulthood. I should have the right to free association and not be forced to participate in activities that are just plain wrong. Also what is the point of a religious freedom law if it doesn’t include my choice not to participate in things I have been taught were wrong?
Great article.
Excellent point, never heard that raised before in all the threads on this topic.
“It is this sort of fascist approach that is inherent in public accommodation laws (as well as other laws concerning businesses that I won’t address at present). The government tells businesses who they are to do business with. If the radical Left gets its way, businesses will have no choice in the matter. The appeal to their being “public” is used to justify their being coerced BY the certain vocal segments of the public, through the agency of the government.
“This is an unjust misuse of the police powers of the state.”
Exactly. This type of tyranny of government over private property rights is unconscionable. No one has a right to be served by a private business. If the business wants to do without my money because they don’t like me, they have the right to refuse to serve me. How do I have the right to make them serve me? A pizza parlor, bakery, or photographer is not a government protected common carrier.
Of course, the big government types don’t want anyone to “get their feelings hurt”, except possibly for white persons and Christians.
Prior to the creation of the artificial classification of “Public Accommodation”,
all property was classified as either “Private” or “Public”.
-
CIVIL RIGHTS ACT OF 1964
TITLE II: INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION
SECTION 201.
(a) All persons shall be entitled to the full and equal enjoyment of the goods, services,
facilities, and privileges, advantages, and accommodations of any place of public accommodation,
as defined in this section, without discrimination or segregation on the ground of race, color,
religion, or national origin.
(b) Each of the following establishments which serves the public is a place of public accommodation
within the meaning of this title if its operations affect commerce, or if discrimination or segregation
by it is supported by State action:
-(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests,
other than an establishment located within a building which contains not more than five rooms
for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
-(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility
principally engaged in selling food for consumption on the premises, including, but not limited to,
any such facility located on the premises of any retail establishment; or any gasoline station;
-(3) any motion picture house, theater, concert hall, sports arena, stadium or other place
of exhibition or entertainment; and
-(4) any establishment
—(A)(i) which is physically located within the premises of any establishment
otherwise covered by this subsection, or
—— (ii) within the premises of which is physically located any
such covered establishment, and
—(B) which holds itself out as serving patrons of such covered establishment.
SECTION 202.
All persons shall be entitled to be free, at any establishment or place, from discrimination or segregation
of any kind on the ground of race, color, religion, or national origin, if such discrimination or
segregation is or purports to be required by any law, statute, ordinance, regulation, rule, or order
of a State or any agency or political subdivision thereof.
SECTION 203.
No person shall
(a) withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive, any person
of any right or privilege secured by section 201 or 202, or
(b) intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person
with the purpose of interfering with any right or privilege secured by section 201 or 202, or
(c) punish or attempt to punish any person for exercising or attempting to exercise any right
or privilege secured by section 201 or 202.
The above post does make a valid legal point from a neutral point of view and that sounds fine however with a couple caveats from my viewpoint, disagree or not
1. Government nor society does not stop me from any woman I chose to date or what woman I choose to marry if I have freely chosen that female regardless of ethnic background and our families have accepted it and will make no law doing so.
2. Same as number 1, they do not tell me what my friends should be like and who I should hang around on my spare time.
3. No promoting any form of supremacy (ethnic or gender) of any sort by the powers at be.
And to be fair about all of this, in reality our society is not like back then, it is more accepting and things like Jim Crow is a thing in the past and what caused all the crap back then was government, for if it was not for that we would not be going through this mess.
Are all y’all watching the gofundme site for memoriespizza? By this time tomorrow, those people will be millionaires. Up to $780,000.
http://www.gofundme.com/MemoriesPizza
“Because when that happens, the revolution starts, and the gay people will end up worse off in the end.”
No doubt. Lets see how the MSM will spin this one.
Yes. And the world of American politics is still divided between those who understood Goldwater's objection, and those who don't have a clue, but prefer to think him a bigot anyhow.
The Civil Rights Act was entirely correct in prohibiting discrimination by government. It erred in extending the principle to private entities, especially businesses, by deeming them "public accommodations."
This was done as an ad hoc expedient to end Jim Crow segregation. Jim Crow would have withered and died once de jure discrimination was ended, but we were in a hurry, and Lord knows that Jim Crow had to go. But Congress most certainly opened Pandora's box.
Mostly we need to remember that the actual intent of public accommodation laws was legitimate, but those laws have now been perverted by the left to the point where they bear little resemblance to their original rationale. There’s nothing wrong in requiring a restaurant, gas station, or hotel that holds itself out as a service provider to the public to provide that service to ALL the public. The alternative would be to permit a group of business people to get together and starve out anybody they don’t like.
But when the rule gets stretched to apply to any business providing any service whether the prospective customer has alternatives or not, it goes too far.
I agree with your analysis of the problem, but the reason we can't address this root issue (that anti-discrimination laws are wrong in principle) is because the Media Industrial complex will go into thermonuclear overdrive heaping vituperation on anyone who dares suggest such a thing.
It is a non-starter. It really is. Therefore I predict we will never be able to solve these sorts of problems short of societal collapse.
Ping for later
Liberaltarians do like to attach their unhealthy practices to racial issues. There’s a difference between serving someone who is black and being forced by law to make a creepy weirdo product with your business name on it.
Nice analysis.
That would be the ultimate triumph for individual liberty. I think it’s an idea worth pursuing.
This is all about the use naked use of power to try and harm Christian businesses. The homos would never ask a Muslim bakery to bake them a wedding cake or a Muslim-owned pizzeria to cater a homo wedding.
Unfortunately, you are right. The "religious nuts" Goldwater railed about shortly before he died are the same people who strongly supported him during his prez run in 1964.
It certainly wasn't the effete, east coast Rockefeller Republicans who supported Goldwater. They despised the church-going, flyover country Republicans who gave Goldwater his strongest support. Too bad Barry lost his marbles in his old age.
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