The right to deal

Posted: Sep 24, 2003 12:00 AM

Suppose you want to deal with me but I don't want to deal with you. Should I be forced to?

You might ask, "What are you talking about?"

Here's a short list. Suppose you want to marry me, but I don't want to marry you. Or, suppose you want to play tennis with me, but I don't want to play with you. Or, suppose you want to be in my club, but neither my fellow club members nor I want you. The question is, how much do we Americans value freedom of association? Keep in mind that freedom of association is a two-way street -- it also implies freedom not to associate.

Suppose a beautiful woman wants to date me, but I don't want to date her. It might be for a good reason, bad reason or no reason at all. Should I be free not to deal with her? Similarly, you might want to come to my party or enroll your children in my private school, but I don't want to deal with you. My refusal might be for any arbitrary reason, including your race, sex or religion, or because I don't like your looks. Should the government force us to associate with those we wish not to associate? Alternatively, should government forbid us from associating with those with whom we wanted to associate?

Let's look at a couple of historical examples. H. L. Mencken, writing in the Dec. 9, 1948, Baltimore Sun, tells of a local ordinance that prohibited interracial tennis games on public courts. More recently, there was the Loving vs. Virginia (1967) case, where the U.S. Supreme Court overturned the conviction of a white man and a black woman who married in violation of Virginia's anti-miscegenation laws. Today, most Americans would be offended by any law that banned blacks and whites from playing tennis together or marrying one another. Wouldn't it be just as offensive were there a law requiring blacks and whites to play tennis together or marry one another?

Isn't there a general principle here? Namely, that if one cherishes freedom of association, is there a logically consistent argument for permitting it in some areas of our lives and not in others? Should employers be forced to hire those they prefer not, or landlords forced to rent to persons they prefer not, or Boy Scouts to admit homosexuals when they prefer not?

One might be tempted to answer by asserting that arbitrary discriminatory association choices in marriage don't have the important socioeconomic effects that other discriminatory choices have. That's dead wrong. Race and income are highly correlated. Whites have higher income than blacks. Only about 5 percent of all marriages are interracial. That means whites marrying other whites makes the income and education distribution more skewed than it would be if there were more interracial marriages. I imagine that most of us would be horrified by the suggestion of mandated marriage diversity.

If an activity is publicly financed, then arbitrary discriminatory association should be prohibited. That would apply to, among other things, public libraries, schools and universities. Private libraries, schools and universities should have complete freedom of association, whether it's discrimination for or against a particular race, sex, religion or any other trait upon which it chooses to associate. Interestingly, Americans who support racial preferences should be the strongest supporters of privatization, but they're not.

The bottom line is that the true test of one's commitment to freedom of association doesn't come when he allows people to associate in ways he deems acceptable. The true test comes when he's willing to permit others to associate in ways he deems grossly offensive.