Jonah Goldberg

When August "Gussie" Busch, the CEO of Budweiser, bought the St. Louis Cardinals in 1953, he was vexed by the Brooklyn Dodgers' success, which was due in large part thanks to Jackie Robinson. He asked Cardinals executives how many blacks they were cultivating, and when they said "None," he was appalled. "How can it be the great American game if blacks can't play? Hell, we sell beer to everyone!" he exclaimed. The next year the Cardinals had a black first baseman, Tom Alston.

In 2000, Jonathan Rauch, a (gay) brilliant intellectual and champion of gay marriage, wrote a wonderful essay on "hidden law," which he defined as "the norms, conventions, implicit bargains, and folk wisdoms that organize social expectations, regulate everyday behavior, and manage interpersonal conflicts." Basically, hidden law is the unwritten legal and ethic code of civil society. Abortion, assisted suicide and numerous other hot-button issues were once settled by people doing right as they saw it without seeking permission from the government.

"Hidden law is exceptionally resilient," Rauch observed, "until it is dragged into politics and pummeled by legalistic reformers." That crowd believes all good things must be protected by law and all bad things must be outlawed.

As society has grown more diverse (a good thing) and social trust has eroded (a bad thing), the authority of hidden law has atrophied. Once it was understood that a kid's unlicensed lemonade stand, while technically "illegal," was just fine. Now kids are increasingly asked, "Do you have a permit for this?"

Gay activists won the battle for hidden law a long time ago. If they recognized that, the sane response would be, "You don't want my business because I'm gay? Go to hell," followed by a vicious review on Yelp. The baker would pay a steep price for a dumb decision, and we'd all be spared a lot of stupid talk about yellow stars.


Jonah Goldberg

Jonah Goldberg is editor-at-large of National Review Online,and the author of the book The Tyranny of Clichés. You can reach him via Twitter @JonahNRO.
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