The Lesson from Indiana...
Publisher's note: As many of my regular readers know, Tim Dunkin appears in these pages with some regularity. Once again, Tim has spelled out one of the most critical issues facing our basic freedoms these days. It's a bit long, but well worth the read.
Tim Dunkin: The Lesson from Indiana is that We Need to Repeal Public Accommodation Laws.
"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.