Gay Weddings and Free Association

Posted: Sep 08, 2013 12:00 AM

September 8, 2013

“We reserve the right to refuse service to anyone.”

Not a sign of the times.

Oh, sure, you see the sign posted, here and there. But one is not allowed to really mean it. Contra those signs, the right to refuse service to anyone has not been retained by the people. It has been nullified by government.

Civil rights cases are on the rise again regarding gay weddings and civil union ceremonies. Businesses, in these United States, may not discriminate against people on the basis of race, religion . . . and now, in nearly half of the states, because of sexual orientation.

This came up in New Mexico, recently. Elane Photography had refused to visually record the civil union ceremonies of a gay couple. The couple sued, and a court ruled in their favor: “[A] commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the anti-discrimination provisions” of New Mexico’s Human Rights Act, and “must serve same-sex couples on the same basis that it serves opposite-sex couples.”

This ruling expresses today’s dominant and quite trendy notion of “free” association. The moment you set up a business open to the public your right to freely avoid this person or that, either by trade or mere “hanging out,” goes out the window. The modern idea forces inclusion and demonizes exclusion. Anyone who excludes someone else on racial, sexual, or religious grounds is a bad person. And bad behavior like that is not allowed in government and schools and businesses.

Soon it will not be allowed in churches, either.

The more classical idea was that governments alone were not to discriminate against this person or that, because all are owed justice. But businesses do not sell justice, and, since no one is owed a particular service, private persons and groups, including businesses, were allowed to discriminate in ways forbidden to governments.

This changed with 1964’s Civil Rights Act. Not only did it repeal the tyrannical Jim Crow era public mandates for discrimination (which were further enforced by organized private violence, i.e. the KKK), but the Act forbade private business discrimination, enforcing open access . . . leaving us with what B.K. Marcus calls “the right to say ‘I do’” but without any “right to say ‘I don’t.’”

Yes, we’ve gotten to the place where forced social inclusion is the rule, and free association something of a myth. Right now, businesses must accept all potential clients. Potential clients who feel they’ve been excluded can easily sue, if they can impute to the non-compliant business some racial or sexual agenda leading to the unlawful discrimination.

Now, it’s true that the vast majority of cases go unprosecuted, either because the excluded customer doesn’t care to sue — after all, customers usually can go elsewhere — or because the motive for lack of service is often murky and hard to prove. But the murkiness allows for a lot of lawyerly nonsense, and the whole regime of inclusionary association is perfectly set up for lawyers to get rich on, and activist customers to work themselves into an ideological lather.

The ominous end game, though, is what worries me.

It cannot be a good thing that businesses people must worry about the clients they reject. And it would be a disastrous thing to have churches forced to conform to open access requirements. Thankfully, in America, we have the First Amendment, putting a limit on the intrusion of law into the free association of religious practice.

I don’t wish to be delphic in any way, here. I support gay marriage on grounds of freedom of contract and equal protection. I’m glad to have friends and family who are gay and can be legally married. But I do not favor forcing others to associate themselves with gay couples. If your religious beliefs preclude accepting homosexuals, you should be allowed to act accordingly in your churches and even in your business.

What about race? The 1964 Civil Rights Act was a response to many decades of widespread private and public discrimination against blacks. In the South. Would the classical idea of republican freedom, which allows for private discrimination of nearly any type, allow businesses to send black customers to separate bathrooms, and seat them at separate tables?

This is not just a theoretical issue. It’s a live political one — as anyone who has followed the rise of Rand Paul knows. Rand Paul appears to be in favor of classical republican liberty, and that means he, like I, am officially tolerant (legally speaking) of even some quite ugly private discrimination.

Well, the problem in the South, prior to the Civil Rights Act, was not just one of private discrimination. Governments affirmatively mandated racial discrimination. In Mississippi, a department of state government was formed to promote segregation. It secretly funded the private and notorious White Citizens’ Council, and investigated and spied on citizens working in favor of equal rights.

Mob action and government worked together to enforce business discrimination. It seems to me that extensive anti-discrimination rules were required to break the evil alliance between government by white bigots and terror by white-robed criminals.

One of the things not often addressed in discussions of racial and other discrimination is that it costs businesses to discriminate. They lose clients and money. And they are open to further losses by non-discriminating competition. There’s a vast literature on this, and not just from economists. That’s why the South needed both law and mob to keep the system going. The market, if allowed to be free, based on the idea of free association, tends to erode such disputatious nonsense.

It’s not good for business.

Indeed, this is the old conservative and modern progressive case against markets: they erode community values.

Racism, like sexism, has long very much been a “community value.” Markets, based on free association, put a huge limit on the ubiquity and power of those values. They open up society. Make it free.

It still allows us to find our community niches — religious, racial, sexual, whatever — but it allows those who feel oppressed by community values — religious, racial, sexual, whatever — a way out.

And that’s good. That’s the classic small-government case for individual freedom.

It allows diversity, it encourages community, but within the confines of a rule of law and the basic norms of an open society.

The New Mexico case features a small business, not a large one. The photographers appear to have made their decision based on their personal beliefs, not to encourage public rejection of same-sex couples. They know it will cost them customers.

Taking pictures is also an artistic enterprise — at least, more so than running a lunch counter. Forcing the business to comply with non-discrimination rules seems a bit totalitarian. To me. Could a gay photographer be forced by law to snap pictures at an event where gays were disparaged?

This case will be appealed. “We believe that the First Amendment protects the right of people not to communicate messages that they disagree with,” say the photographers’ lawyers.

The ACLU declares this notion “frighteningly far-reaching.”

Well, yes. Justice is supposed to be that. Far-reaching.

But true freedom of association allows for the diversity that progressives say they want. They should be able to accept that. And live and let live.

And, when they come across a business that doesn’t approve of their life choices, take their business elsewhere.     [further reading]

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