Saturday, January 11, 2014

Gay Marriage Rights vs. Anti-Discrimination Laws

When Superior Court Judge Mary Jacobson legalized gay marriage in New Jersey last year, an opponent raised this objection:

But John Tomicki, president of the New Jersey Coalition to Preserve and Protect Marriage, said the institution should be kept to "one man and one woman" and that the ruling puts "freedom of religion and freedom of conscience at great risk."
"If a member of a religious denomination says that within their faith beliefs, they do not support same-gender marriage, will it be an act of discrimination if they refuse to officiate at such marriage?" Tomicki said. "Those are cases that are going on now across the country."

Tomicki is confused. If "a member of a religious denomination says that within their faith beliefs, they do not support same-gender marriage, [and thus] refuse to officiate at such marriage," it most certainly is "an act of discrimination." And it is that religious member's inalienable right to do so. But freedom of religion and freedom of conscience are not at great risk because two people of the same gender choose to marry. Freedom of conscience is put at risk because of anti-discrimination laws that facilitate such lawsuits.

Relating to this subject, the NJ Star-Ledger chimed in with Why should NJ sanctify religious discrimination against gays? Referring to legislative proposals to write religious exemptions to anti-discrimination laws, the editors objected to provisions that protect. . .

religious groups against lawsuits based on a broad range of discrimination against gay couples. A religious group that owns a banquet hall, for example, would be free to deny its space to gay couples, even when it makes that space available to the general public. Why should New Jersey sanctify that type of discrimination? If a religious group denied that same space to an African-American couple based on race, or a Jewish couple based on religion, that would violate laws against discrimination. 

I left these comments:

NJ law should not "sanctify religious discrimination against gays"—or sanctify any type of discrimination. But neither does the state have any right to forbid it. 

Private individuals have a fundamental, inalienable right to freely associate, or refrain from associating, with whom they please, for whatever reason, religious or non-religious, business or personal, rational or irrational, so long as they don't violate others' rights. From a legal perspective, marriage is strictly a matter of voluntary contract. Voluntary contract is based on the inalienable right to freedom of association. Thus, gay marriage is an inalienable right, based on freedom of contract and association. But if a banquet business refuses to host a gay wedding, they are not violating the gay couple's rights in any way. Same-sex individuals have an inalienable right to voluntarily contract, but not to coercive "contract."

Anti-discrimination statutes relating to governmental functions and hiring, such as the MVC,  are appropriate and necessary. Anti-discrimination laws levied against private citizens and their businesses are fundamentally unjust, because they violate the basic principles of liberty; the inalienable rights to life, liberty—including liberty of conscience—and pursuit of happiness. This editorial proves it.

Rather than twist themselves into pretzels trying to incorporate special exemptions from such laws for select special interests, such as religions or "religious leaders", legislators should be repealing such laws. Removing such laws don't "sanctify that type of discrimination"—or any type of discrimination. They protect liberty for everyone. Jim Crow laws, separate-but-equal laws, anti-sodomy laws, etc., are the kinds of laws that sanction discrimination. Laws that forbid private discrimination sanction economic aggression [in the form of predatory lawsuits, or the fear of such suits], rights-violations, and the principles of liberty. 

Those who support marriage contract rights for gays but then turn around and claim that gay couple may legally force business contracts on unwilling others against their convictions and choice are being blatantly hypocritical. In the name of anti-discrimination, they are discriminating against people that they disagree with by denying them their rights to freedom of contractual choice.

Related, another correspondent took issue, reminding me of what the law states:

WRONG. Businesses that allow the public access to their facilities are considered places of public accommodation, even if they are owned by religious organizations. As long as a church opens up a banquet hall to the public for rental, it cannot discriminate in who is allowed to rent the hall. If the church were to make the hall available only to members of its congregation, that would be a different story.

My reply:

Morally, it should not discriminate. But it should not be legally barred from doing so. "Public accommodation" and "public access" do not justify violating rights to liberty of contract. Proper laws do not protect "the public." They protect individual rights. I support liberty of contract fully and consistently, which is why I support gay marriage rights and the rights not to be forced into "contracts." Forced "contracts" are not contracts at all, but a form of tyranny of some men over others. Just as anti-gay bigots have no right to force their marital ideology on others, so pro-gay zealots have no right to force their views on others. We need peaceful coexistence, not force.
Related Reading:

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


Mike Kevitt said...

You said that, legally, marriage is strictly a matter of voluntary contract. If that's true in all 50 states, then legislation nowhere dictates, neither wholly nor in part, the contents of any marriage contract. In that case, I've been wrong in my assumption that sometimes contents are legislated.

You mention anti-discrimination statutes relating to gvt. functions and hiring being appropriate. This must also apply to freedom of speech relating to the same. But, still, I contend the BATF may fire an employee for publishing a book incriminating the BATF after it told him not to. In such a context, any employer, whether private or gvt., may do so, and it violates nobody's free speech. The only way free speech is violated is when gvt. fines and/or jails you for it.

Michael A. LaFerrara said...

In fact, the federal government does, rightly or wrongly, legislate marriage terms—over 1000 of them—

As to your second point, there is a major difference. Free speech is a matter of personal choice. Race is not. So, at a glance, what I said does not apply to free speech in the same way. But I’d have to give it some thought to be more definitive.

For the record, I meant every legitimate employer has a right set its own terms. The fact that so many of the government’s functions are illegitimate greatly complicates the matter.