The Founders Missed One

Editor’s Note: Originally published at The Roots of Liberty April 2015.

Buried within the hyperventilating about Indiana’s recently enacted religious freedom law – a law that says (per USA Today):

the government cannot “substantially burden” a person’s ability to follow their religious beliefs, unless it can prove a compelling interest in imposing that burden or do so in the least restrictive way

is a fundamental question about the nature of liberty in our society. That question regards freedom of association, a right that seems rather obvious, yet isn’t explicitly protected within the Bill of Rights. While, the courts have deemed that the First Amendment’s protection of the right to assemble implicitly protects freedom of association, that protection has been and is subordinated to a plethora of laws that trump one’s right to associate (and by extension, not associate) with others of their choosing.

Freedom of association is inextricably linked with the right to discriminate, and no matter what protestations to the contrary may arise, we as individuals DO have a right to choose with whom we interact. We cannot be forced to associate with particular individuals and we cannot be prosecuted or sued for not associating with particular individuals. We are not obligated to provide reasons for our choices to anyone, even if some look at our associations and non-associations and decide there’s something discriminatory about them.

By contrast, we, as a society, have decided that government is not allowed to exercise this sort of freedom of association, and this makes sense, given that the purpose of our constitution is to protect individual rights and restrict the coercive entity that is government from infringing upon those rights. Government cannot engage in any sort of discriminatory actions under the aegis of freedom of association, because in doing so it would infringe upon the rights of the individuals over whom it holds sway.

The trouble and controversy starts at the intersection of government and individuals, especially in the economic segment of society. A robust protection of an individual’s right of association would ensure that someone running a business could choose who he wished to employ and with whom he wished to do business. This is obviously not the case – there’s a plethora of laws and regulations on the books that prohibit discriminatory hiring practices and discriminatory customer policies. These laws and regulations are considered crucial to the functioning of society by some and a gross violation of liberty by others. The divide, and the reason for the divide, is rooted in the nation’s long and terrible history of slavery and discrimination.

Many will argue that society needs anti-discrimination laws in order to protect individuals who belong to classes or demographics that have historically been discriminated against and/or who face systemic bigotry from others in society. What’s not commonly mentioned in those arguments is that the worst culprit of all is government. Discriminatory practices have long been codified into, protected by and even mandated by law. Slavery was the law of the land. After slavery was abolished, the South passed the Black Codes, which infringed on the liberties of blacks even as they were liberated from overt slavery. The dreadful Plessy v Ferguson Supreme Court decision validated the concept of “separate but equal,” further undermining the principle of free association. Freedom of association was actively prohibited in many ways by the government for almost a century after emancipation. Segregation was coerced by government, which violated our fundamental freedom of association.

It makes sense, at that time, to look to government to undo government’s past infringements of liberty, and in the 50s and 60s, we got just that. Brown v Board of Education was the first big break, and that was followed by the Civil Rights Act and the Voting Rights Act. Unraveling a giant knot of discriminatory laws on the books isn’t a simple task, and lawmakers are usually more inclined to write new laws rather than tracking down and repealing old ones, so it’s no surprise that the bigotry written into the law was attacked with the passage of more laws. Broad-brush laws at the federal level also serve to trump state and local coercions and infringements. Unfortunately, the job was done, some might say, “too well.” Landmark acts of Congress are now used to coerce behaviors instead of removing the obstacles to liberty laid down by past legislatures. So, instead of simply removing old laws mandating bigotry and restoring liberty, modern law is used to infringe upon liberty in order to remove the outward appearance of bigotry. For some, that’s enough, but does anyone really think that by forcing associations on people, those who’d choose discriminatory behavior are going to be appreciative and see the error of their ways?

If one’s priorities run a certain way, the last doesn’t matter. Some believe that the right of bigots to be bigoted doesn’t deserve protection, and that it is good and proper to coerce associations when such associations would benefit an aggrieved class. However, the proper use of law would be to ensure that those who wished to association were not interfered with, that a black man welcomed in by a white storeowner would not be harassed or intimidated or harmed by third parties who disliked the free exercise of the right of association. In other words, the law should vigorously protect and defend individuals’ rights, not infringe upon them in order to force a desired outcome.

This approach may have taken longer to achieve the desired effect, to ensure that the rights of the long-aggrieved were restored, but it would not have produced the overreach and resulting backlash that we see today, where small business owners are forced (in some cases) to do things they don’t wish to. Frankly, I don’t like the views of a baker who won’t bake a wedding cake for a gay couple, and I wouldn’t patronize that baker, but I can’t imagine it does anyone any good to force that baker to bake that cake. He’s not going to be happy about it or have an epiphany, and I can’t imagine that he’d put as quality an effort into it as someone who was genuinely happy to do something that would make the couple happy. The gay couple might believe they’re doing a social good, but coercion is a bad thing no matter who’s doing it. Far better, in my opinion, to peacefully and without interference let others know about the baker’s beliefs and see if persuasion or if others exercising their right of association might give the baker something to think about.

Some might not care about the coercion part, and an argument often made is that a business benefits from the existence of the order and structure created by society so it is obligated to obey the strictures of that society. This argument is the “public accommodation” concept, it is rooted in the subordination of individual rights to the collective will, and at its core conflicts with the fundamental principle of our system of government and the Bill of Rights i.e. the protection of liberty. An Internet meme bouncing around nowadays poses this question: Would those who’d force a baker who believed homosexuality was a sin to bake a wedding cake for a gay couple also force a Jewish baker to bake a cake with a swastika on it? Or is the law to be more selective, and grant coercive “positive” rights to some but not to others? The latter is the path to tyranny-of-the-majority, wherein rights are no longer protected at the individual level but only protected for certain groups, classes and beliefs. If that is what you desire, you should at least be honest about it and declare that some rights aren’t protected. But, when some of what you believe ends up on the wrong side of the protection divide, realize that you won’t have a basis for complaint or an avenue for redress.

The nation has a long and ugly history of institutional discrimination, and taking action to undo it and restore individual liberty to all citizens was and is appropriate. However, when that action ends up being used to coerce individuals into associating against their will, society needs to take a step back and ask whether it has overreached. Had the Founding Fathers written an explicit protection for an individual’s freedom of association, the nation’s history of bigotry and discrimination might have taken a very different path. Sure, the Supreme Court could have diluted that protection the way it watered down the 14th Amendment with the Slaughterhouse decision, especially since what government does is often a (lagging) reflection of what a majority believes and wants. But, if written into plain language, it might not have been as easy for the Court to decide Dred Scott or Plessy the way they were, and the history of the nation might have taken a better path.

The question that each of us needs to answer is whether we believe in the primacy of individual liberty, with its infinite variations and occasionally objectionable outcomes, or whether that liberty is to be subordinated to a coercive rule set that reflects the current majority position. If the latter, the obvious next question is – what happens if the majority decides to embrace something you find objectionable? As you sow, so shall you reap.