The recent ruling by the Supreme Court that affirms gay marriage nationwide has been met with jubilation by many and trepidation by many others. Amid many of the latter’s reasons (some of which are slippery-slope fallacies, some of which are laments about tradition and traditional families, and some of which are simply rooted in the feeling that gay sex is “icky”) are legitimate concerns about religious freedom and freedom of association. The latter came to the fore of the news when a bakery in Oregon that refused to make a wedding cake for a gay couple was fined $135,000. While some call their refusal discrimination (it is), others call their refusal an exercise of religious freedom (it is). The incident and issue serve as an illumination of a long-standing conflict between liberty and what’s called “public accommodation.”
A public accommodation is an entity used by the public. This includes, among many other things, retail locations that sell goods or services. There are many laws that regulate public accommodations, laws that include anti-discrimination and accessibility rules. The two major governing statutes are of relatively recent vintage i.e. the Civil Rights Act of 1964 and the Americans With Disabilities Act of 1990. Congress did pass a Civil Rights Act in 1875, but it was found to be unconstitutional 8 years later. The matter was subsequently left to the states, and the Jim Crow era emerged. The intent of the Civil Rights Act was to undo the systemic, pervasive and institutionalized discrimination against blacks embodied by the Jim Crow laws. While, from a libertarian perspective, laws that force association are an overt violation of individual rights, so are laws that debar association. While a truly libertarian approach to the problem of segregation would focus exclusively on the repeal of the Jim Crow laws, this would have been a monumental challenge, given that they were at the state and local level and that repeal would involve court challenges in the face of entrenched political opposition. An all-encompassing act at the federal level that trumped all those laws was more practical, more practicable, more expedient and more quickly effected. It remains, however, that anti-discrimination laws are infringements on individual liberty.
The concept of public accommodation itself is a massive barrier between economic liberty and the other liberties. It walls off speech, association and religious freedom from economic activity, and substantially undermines our right to do business with whom we please. The nation’s sordid history up through the 1960s led to the concept’s normalization, and looking back, it was the best and most expedient solution to a difficult and substantial problem.
Unfortunately, the law is oftentimes a blunt instrument, and can be wielded in fashions that stray from original intent or goals. Thus, today, a concept intended to cure a systemic problem is used to coerce association when problems are far from systemic. While anti-gay discrimination is real and offensive, is it so pervasive that it needs to be addressed by the overbalancing in the other direction that is the essence of the forced coercion of anti-discrimination laws?
To answer that, we should consider whether the discrimination faced cannot be addressed simply by repealing discriminatory laws and letting market forces sort out the rest. In the case of Jim Crow laws, repeal alone would have been inadequate, given the pervasiveness and social institutionalization of segregation. But, in the case of a baker refusing to bake a cake, is the party whose request was refused broadly denied access to that service? Are there other bakers, easily accessible, who would happily bake a cake of similar quality? If the answer is “yes,” then there’s an argument that discrimination should be addressed by market forces rather than coercion. And, especially in an era with instant and ubiquitous social media, market forces can come into play VERY quickly. Just as a baker should have the right to bake only what and for whom he wishes, individuals have the right to take their business elsewhere if they find the baker’s stance objectionable, and to make the reason for doing so publicly known. A retailer’s discriminatory practices can quickly cost him real money if those practices are deemed objectionable enough by the public.
If we view this situation through the lens of liberty, freedom of association in and of itself should be sufficient to analyze the situation and determine how “the law” should respond. Given, however, that this is far from a libertarian society, it is not. Not, at least, at this point in time. Simple freedom of association is not a principle that the courts are likely to uphold in support of those who wish to challenge public accommodation. A better option is the concept of religious liberty. The recent Hobby Lobby court ruling established the idea that religious beliefs can be used to defend against mandated behaviors. While Hobby Lobby was not about public accommodation, it does put forth the concept that religiously rooted principles mean something, so, for example, a wedding officiant whose religious beliefs stand contrary to gay marriage should be able to object to being forced to perform a wedding for a gay couple. Similarly, a gay couple shouldn’t be forced to have their wedding performed by someone who objected to their marriage.
How to get from A to B is an aspect of the pursuit of liberty that many tend to ignore. It is, however, just as important as is determining the nature of B. Gay rights have improved and anti-gay discrimination has ebbed over the decades because society evolved as much as or more than through forcible application of law, but people still look to the law to force an outcome rather than understanding that things are moving in the right direction anyway. Younger people are more accepting of gays than previous generations, and this isn’t a trend that’s going to about-face any time soon. Unfortunately, those who’d rather try to move things along faster by infringing on others’ liberties don’t factor in the possibility that such force may work against their cause. Many who’d be openly accepting of gay marriage choose to remain vocally opposed because they fear that support for gay marriage will be conflated with support for coerced association. Debate and discussion have devolved, with the two camps on the ends of the spectrum drowning out those who’d stand up for gay rights but who’d also stand up for religious objectors.
Despite its obvious antithesis to economic liberty and thus to the American Way, public accommodation is a tough genie to put back in the bottle. People have been inculcated with the belief that they have a right to patronize a particular business, even if there are plenty of other businesses around that provide the same goods or services, and the liberal press and politicians have, with you didn’t build that rhetoric, fed that sense of entitlement. “Rights” have been sliced up hierarchically, with consumers having more of them than producers, and favored identity groups having more of them than unfavored ones. Still, it’s a crucial fight to fight, because without economic liberty, the others become far less useful.
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