Tuesday, May 17, 2016

There is No Parallel Between the Private Right to Discriminate Against Gays and Jim Crow Laws

Many people misinterpret the causes of the arrival of marriage equality for gays and mischaracterize and confuse the issues underlying the progress.

A good example of this is illustrated by New Jersey Star-Ledger guest columnist Robert Checchio. Here are some excerpts from Checchio’s column To understand anti-gay bias, we can learn from Civil Rights Movement:

The recently-introduced First Amendment Defense Act, co-sponsored by over 100 members of Congress, shares its origins with the same mentality that created Jim Crow laws following the Civil War as well as the less formal but still violent anti-black discrimination that was so pervasive before and after the Civil War.

[The act is an] attempt . . . to legitimize anti-gay discrimination through legislation. If passed, the act would allow some people to proclaim themselves superior by denying other people rights and privileges taken for granted by "normal" people – the right to marry, the right to visit a loved one in a hospital, the right to buy a cake.

I left these comments, edited and expanded for clarity:

Maybe the “mentality” is the same—or maybe not. But the similarities end there. There is a horrible equivocation implied in this statement and this article.

Jim Crow laws imposed discrimination and segregation by law, and the associated violence was covertly supported by law. The issue today is people non-coercively choosing not to do business in a way that violates their conscience. There is no legal imposition of segregation or discrimination advocated. The difference is as stark as the opposite sides of the moon: It’s the difference between coercive aggression and simply being left alone.

While I do not support so-called religious freedom restoration laws like the First Amendment Defense Act, I do support the First Amendment and the rights that it enumerates, including the right to freedom of association. This is what the champions of FADA are essentially fighting for, even though they frame it—wrongly, in my view—in religious freedom terms.

Defending the right to freedom of association is not the same as defending or legislatively legitimizing discrimination, as Checchio’s simple-minded view supposes. Would we equate defending a communist’s or a Nazi’s free speech right to advocate their ideas a defense or legitimization of communism or Nazism? The basic issue there is Voltaire’s “I don’t agree with what you say, but I’ll defend to the death your right to say it.” The same principle applies to Christian bakers refusing to serve a gay wedding. In the case of the baker, it’s a matter of freedom of contract, which derives from freedom of association. The issue is, “I disapprove of your discriminatory business practice, but I’ll defend to the death your right to practice it.”

Rights are not permissions to act only in ways the government approves of. Nor are rights an automatic claim on products or services that others must be forced to provide. Rights are inalienable guarantees to freedom of action, so long as one’s actions don’t violate the same rights of others. Rights don’t guarantee that everyone will act rationally or morally: That would require a police state set up to enforce government-approved personal morals. Rights simply sanction the freedom to act. There is a right to marry. There is no “right to buy a cake.”

Jim Crow laws and associated KKK violence violated the rights of blacks. A Christian baker refusing to make a cake for a gay wedding may be offensive: It offends me. But it violates no one’s rights. The baker refusing the gay couple’s business neither initiates force against the gay couple nor forbids a rival baker from serving the cake: A gay couple turned away from a Christian baker can simply take their business elsewhere. The freedom to associate includes the freedom of private individuals not to associate, for whatever reason—and that includes the freedom to engage in or not to engage in voluntary economic contracts. The baker is simply exercising his non-coercive rights of association, which is a far cry from coercive Jim Crow or the KKK. (The question of whether the baker is acting on irrational religious conviction or bigotry is beside the point.)

The truth is the opposite. A law mandating that baker to make that cake based on an alleged “right to buy a cake” violates the baker’s rights, effectively making the baker a slave of the buyer. Such laws are just as bad as laws banning gay marriage. Anti-black discrimination and anti-gay discrimination may or may not spring from “the exact same mentality.” But the role of government then and as advocated by gay rights activists now spring from opposite political philosophies. Under Jim Crow, the government legally imposed discrimination. Today the government is being called upon only to protect the private right to discriminate as conscientious objectors. The first violates rights. The second protects rights. The first is statism, the second is constitutional republicanism.

Marriage equality advocates should celebrate. I do. But there we part company. Gay marriage advocates who now celebrate their victory by supporting laws forcing that baker into coercive contracts are hypocritical and just as wrong as Christians who backed laws banning gay marriage.

Checchio has it terribly wrong. The Religious Freedom Restoration Act and Jim Crow are opposites, not analogous. Anti-private discrimination laws spring from the same political philosophy as Jim Crow; the belief that it is OK to impose one’s values on others by law. By trying to legally force coercive contracts on unwilling bakers or other private businesses, the gay “rights” advocates are simply demonstrating that they don’t understand individual rights at all, or the associated responsibility to respect the rights of others even if they disagree with them. Live and let live? Not for these gay “rights” advocates.


Cultural change comes before political change, which comes before legal change. In today’s America, anti-gay bigotry has been steadily receding because it is just as irrational as anti-black bigotry. That cultural shift paved the way for the legalization of same-sex marriage. There is no practical need for, and no philosophical or moral justification for, laws trampling on private individuals’ right to act on their conscientious beliefs, however irrational those beliefs may be. Let the religious zealots exercise their bigotry openly, where it can be fought openly on the battleground of reasoned debate, rather than drive it underground and allow it to fester.

The “bottom line” is that individual rights are individual rights. Eroding the inalienable fundamental rights enshrined in the First Amendment in the name of fighting discrimination is a grotesque perversion of the moral concept of rights. The equivocation of Jim Crow laws with First Amendment rights is as fundamental an attack on America’s Founding principles as one can imagine.


Furthermore, anti-gay bigotry activists who push for anti-private discrimination laws are acknowledging that they have no rational defense against such bigotry, and cannot defeat it on the battleground of ideas and First Amendment rights-based social activism. The anti-black bigots turned to Jim Crow laws because they were losing the cultural battle. After the Civil War, blacks were steadily being assimilated into American society, so the bigots turned to coercive means, both legal and quasi-legal. The official legal imposition of Jim Crow segregation and the unofficial legal sanction of the KKK violence were evidence of the anti-black bigots’ intellectual and social impotence. So they turned to legalized force. But as the Supreme Court observed in overturning one of the bigots’ legal weapons, “separate but equal” under Plessy v. Ferguson, “The impact [of discrimination] is greater when it has the sanction of the law.”

I would argue much greater. Eliminating the bigots’ legal weapon is a game changer. Handing that weapon over to the enemies of the First Amendment guarantee of freedom of association is one wrong replacing another.

Irrationality cannot win in a fully free society, where rational people have all sorts of weapons to marginalize and defeat bigotry, such as free speech, boycotts and other types of social activism, economic competition, and simply ignoring the bigots. A bigot striopped of the ability to enforce his irrationality by law or by covertly sanctioned violence is not a threat to anyone. A gay couple turned away from a Christian baker can simply take their business elsewhere.

Related Reading:

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


Steve Jackson said...

When it comes to homosexuality, I don't think it's bigoted to oppose it. Many people just have a normal revulsion to it (particularly what men do to each other). Ayn Rand said it was "disgusting and immoral." It's kind of like adult consensual incest. There aren't necessarily rational reasons to oppose it (with the exception of inbreeding depression).

I don't know that much about Jim Crow laws. Some of it was no doubt state enforced segregation, which I would oppose. On the other hand, with freedom of association and restrictive covenants, society would inevitably segregate blacks and whites. When one considers the black IQ is 85* (which means very few bright blacks) and blacks commit crime at the rate of seven times that of whites, segregation is in fact a desirable thing. I wouldn't live in a black area or send my children to a school with large numbers of blacks.


*This means that the average white person is more intelligent than 83% of blacks.

Michael A. LaFerrara said...

I’m not sure what you mean by “restrictive covenants.” While freedom of association may sometimes lead to predominantly black or white or Hispanic neighborhoods or schools, that is not the work of “society.” Nor is it segregation (centrally planned groupings). It would be the result of free individuals choosing freely without outside coercion. I totally disagree that average racial group IQ’s are relevant to judging any particular individual, as no individual is an “average.” I also disagree that people would gravitate toward others according to race. In a fully free—that is, individualistic—society, people are much more likely to congregate based on shared interests, values, and even economic status, or some other category of voluntary choices.

Steve Jackson said...

Restrictive Covenants are covenants placed on the land records by owners preventing the sale to certain people (generally non-whites or blacks). The enforcement of restrictive covenants was declared unconstitutional by the Supreme Court in Shelly v. Kramer in 1948. It was the beginning of the end of freedom of association.

Of course we should evaluate individuals as individuals. But if one group has an IQ of 100 and another 85 then it is a perfectly reasonable heruistic to assume that the next person you meet of group A is smart and group B not so smart. Statiscally the possibility of a group with an IQ of 85 creating a peaceful town or area of town is extremely low.

I work near an area of town that is largely black and hispanic. I go out to lunch or dinner at the hangouts from time to time. I would never go to a late night event because this would almost certainly be dangerous.

You say no one is "average." Well imagine an airplane manufacturer saying it wouldn't evaluate the safety of its planes based on the average weight of its passengers. It would be negligence.

Shared interests and values have a likely genetic basis. My first introduction to racial differences was years ago walking around with an attractive black female in New Jersey and hearing black men say crude things to her. She laughed it off apparently because she knew that black men had different values.