Wednesday, March 30, 2016

Gay Marriage, Freedom of Association, and Equal Protection of the Law

Two New Jersey congressmen, Reps. Chris Smith and Scott Garrett, touched a nerve by proposing a law protecting the rights of business owners to refuse to serve gay customers based on their religious beliefs. When the NJ Star-Ledger attacked Smith and Garrett and their First Amendment Defense Act in an editorial, I left these comments in answer to this Star-Ledger passage:

Granted, the government has no business passing judgement on anyone's religious convictions. But when those views are used to impinge on the rights of others, then government has a critical role.

I couldn’t agree more. But what rights do people who refuse to associate or contract with gays—by, for example, refusing to serve a gay wedding cake or host a gay wedding—violate? No one’s. There is no right to force an association on others. Voluntary contract is a form of freedom of association, and freedom of association—a fundamental inalienable right—should be protected equally for everyone. That’s what equal protection of the law means. That is the government’s critical role.

Every individual has a right to live by his own moral standards, even irrational ones, so long as his actions don’t violate the rights of others. This issue is not primarily about freedom of religion and conscience; rather, it is about freedom of association and contract. Marriage, in a legal context, is strictly an issue of contract, and same-sex couples have a right to marry based on their freedom of contract.

But private business owners, based on the same principle, have the right to choose their associations and to contract with customers on voluntary, mutually agreed terms. Freedom of contract means not only the right to voluntarily contract with others, but also to refrain from doing so for whatever reason or even no reason. A religious business owner’s refusal to host gay wedding ceremonies is certainly discriminatory, but it does not violate the rights of gays, who are free to take their business elsewhere.

Laws banning private discrimination contradict the proper purpose of government, which is to protect individual rights—including contract rights, marriage and business transactions alike—equally and at all times. Bigotry is never acceptable, whether against gays or blacks. But forced integration laws are just as wrong as the forced segregation laws enacted under Plessy v. Ferguson's “separate but equal” doctrine. The proper way to fight bigotry is through economic boycotts and competition, non-disruptive peaceful protests, freedom of speech and press, social pressure and ostracization, and other voluntary non-rights violating public and private activism, not laws. The government’s proper role is not to dictate private morals, but to enforce the terms of voluntary contracts and to mediate contractual disputes or remedy breaches of contract. It has no legitimate role forcing anyone into contractual arrangements against his will, regardless of artificial distinctions such as “public” vs. private accommodations. We shouldn’t enact laws like Garrett’s and Smith’s carving out special exemptions from anti-discrimination laws for religious people. We should repeal all laws banning private discrimination.
To fully and consistently uphold the rights to freedom of contract and association based on equal protection of the law is for government to enforce both the rights of gays to marry and the rights of business owners to serve or not serve, and hire and not hire, whom they choose. Being for freedom of association based on equal protection of the law does not make one “anti-gay”—or pro-discrimination—any more than supporting a Nazi’s or communist’s right to espouse their evil views based on freedom of speech makes one pro-Nazi or pro-communist. It makes one true to the principle that people have a right to their religious and moral convictions, so long as those views are not used to impinge on the rights of others—and that government’s critical role is to protect those individual rights equally, for everyone, at all times.


A reply to my comments indicates the confusion between legally protecting the right to discriminate in one’s private associations and laws legally imposing segregation. Apparently responding to my statement that “But private business owners, based on the same principle, have the right to choose their associations and to contract with customers on voluntary, mutually agreed terms,” the correspondent replied:

Mutually agreed terms? Do gays today or did blacks during the Jim Crow years "agree" with the laws that allowed businesses to discriminate against them? Or did they have to adjust because there was no where else to go? If your customers uses public supported facilities to access your business then you do not have the right to deny them.

Here is my answer:

There were no laws "allowing" discrimination against blacks. There were laws forbidding businesses not to discriminate. There is a huge difference between leaving people free to discriminate, and legally enforced segregation.

"Public supported" facilities like roads should not be used by government to violate rights. The government should always be neutral regarding private associations, so long as no rights-violating actions are evident. "Public supported" facilities are supported by all members of the public, not only members with viewpoints approved by government officials.

Related Reading;

Gay Marriage: The Right to Voluntary Contract, Not to Coercive “Contract

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