Marriage Equality vs. Anti-Discrimination Law: Freedom of Contract Works Both Ways

A New Jersey court rightfully overturned the state's ban on gay marriage. Now the legislature is considering codifying the right to gay marriage in law, so no future court can overrule that judicial decision. The bill, crafted by State Sen. Ray Lesniak (D-Union) and Sen. Loretta Weinberg (D-Bergen), would, among other things, ban all private establishments open to the general public from discriminating against gay couples. A previous Civil Union law had exempted any "group affiliated with a religion — such as the Knights of Columbus," from the anti-discrimination mandate even if its doors were open to the public.
The NJ Star-Ledger, a supporter of the judge's ruling, editorialized in support of the new law.

I left this rebuttal:

As a passionate defender of individual rights, I have been a strong advocate for marriage equality for years, and I applauded New Jersey's legalization of gay marriage. But when you turn to law to ban private voluntary discrimination, you've lost me.

The right to freedom of contract is derived from the inalienable, fundamental right to freedom of association. Marriage is essentially about freedom of contract—and so is any commercial transaction. Society has no more right to force the Knights of Columbus to host gay weddings as society has to ban gays from marrying.

Of course, the law should not sanction discrimination. It was right, for example, for the Supreme Court to overturn Plessey in its Brown decision [which ended school segregation]. But the law should otherwise be neutral in regard to private voluntary associations, regardless of moral intent.

Irrational forms of discrimination should be fought through peaceful means. Freedom of speech, social ostracism, boycotts, economic competition, and just plain individual courage are the way that free people battle the evil of bigotry. They are powerful tools. And they work. Look at what Rosa Parks set in motion. Look at what Branch Rickie and Jackie Robinson accomplished, without government help. Woolworth's would have opened its doors to African-Americans without the coercion of laws. Social pressure would have done it. And social pressure, after all, is what led to laws like the 1964 Civil Rights Act (most of which is good). Politics, after all, never leads. It is merely a reflection of popular will.

And if Woolworth's persisted, customers could simply go elsewhere in the meantime. Woolworth's evil behavior was certainly offensive, but it nonetheless violated no one's rights. Neither does the Knights of Columbus in refusing to host gay weddings.

Freedom of contract works both ways. Those who would force contracts with gays on private establishments are just as wrong as those who would legally ban gay marriage contracts. They both violate rights to freedom of association, and institutionalize a more pernicious evil; putting government in charge of dictating private morals.

Related Reading:

Are "Diversity Maps" a Precursor to Forced Neighborhood Integration?

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