Civil liberties and “civil rights”

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April 5, 2016
The Inter-Rationale    
Posted in The Inter-Rationale

In part one of this, I addressed the nationally televised debate among three contenders for the Libertarian Party’s 2016 nomination for President. Now on to the bigger issues raised by all of this . . .

The latest news about Mississippi Governor Phil Bryant signing a new law, allowing businesses in the state to refuse service to gay couples based on religious beliefs, brings home the bottom line about how ex-New Mexico Governor Gary Johnson was received in part one of the Libertarian Party Presidential “debate” on the John Stossel show last Friday night. The furor being raised over this legislation shows us how the standard libertarian answer to anti-discrimination laws (as is being perpetuated by Johnson’s detractors) might be received by the general public.

The issue came up during the first hour of that debate, and deserves some analysis. On that occasion, Johnson’s contender for the LP nomination, blogger/activist Austin Petersen, chose a somewhat-related question from moderator Stossel to spin it off into a challenge to Johnson, one seemingly intended to force him into a no-win situation: would he force a Jewish baker to bake a Nazi-themed cake? Johnson blanched, and hesitated at first, not sure why this was coming from a contender and not the moderator, as had been the case up to then in the proceedings. Then he answered in the affirmative, and all hell broke loose among the libertarian blogosphere. This “statist” response seemed to nail Johnson to the cross according to the “libertarian purists” (a group among whom I used to consider myself to be -- sheesh!).

Meanwhile, Governor Bryant is being viewed as a homophobic bigot by the general public, for constraining civil liberties, whereas Governor Johnson is seen as a “statist turncoat” by many libertarians, for saying such action might be warranted. Who is the villain here? To find out, it may actually be necessary to go back to the Civil Rights Act on 1966, celebrating (or not) its 50th anniversary this year. To do so, I’ll make use of my internet-surfing abilities and cite a couple of pretty worthy sources:

The first is a young libertarian activist from Wisconsin, Andy Craig, who recently addressed this historical context in a Google-groups discussion, taking the issue well beyond the slavery realm:

“[The concept of ] ‘public accommodations’ is a very old doctrine of common law, long predating even the United States. It is the notion (correct or not) that a business holding themselves out as open to the general public is thereby offering an implicit contract with said public. Put another way, somebody who traveled five days on foot to the only inn within miles (the situation from which this law developed) would have suffered from the equivalent of fraudulent false advertising if then turned away, because ‘we don't serve your kind here!’ There were real damages at stake in that scenario, since plans had been made and expenses incurred on the basis of an offer that proved false. (When it comes to employment discrimination, the contract isn’t even an implicit one; it’s explicit, and violating it is thereby a contractual violation properly understood.)"

Another source I’ll cite is Julian Sanchez of the Cato Institute, who puts a solid historical context on how the whole anti-discrimination legislative process developed, as well as a fresh perspective on how those coercive actions likely only resulted from a politician leaping in front of a parade already in process, as politicians so often do:

“The ‘purist’ libertarian position that condemns all anti-discrimination laws, including the 1964 Civil Rights Act, as a priori unjust violations of sacrosanct property rights, is profoundly misguided and historically blinkered. We were not starting from Year Zero in a Lockean state of nature, but dealing with the aftermath of centuries of government-enforced slavery and segregation—which had not only hopelessly tainted property distributions, but created deficits in economic and social capital, transmitted across generations to the descendants of slaves. The legacy of state-supported white supremacism, combined with the very real threat of violence against businesses that wished to integrate, created a racist structure so pervasive that unregulated 'private' discrimination would have and did effectively deprive black citizens of civic equality and a fair opportunity to participate in American public life.”

In other words, there was a distinct context, involving the institutionalization of social practices, demographic sectionalization of districts, and other power-plays (mostly by government officials), into which the Civil Rights Act was dropped. (As Mr, Sanchez also notes, and as I have come to believe to be true, there very likely were businesspeople in the South back then who would have been happy to accommodate “people of color,” but risked ending up in adjoining cells if they did so, thanks to the local political powers.) A similar set of conditions might be said to exist with regard to sexual differences today, even though no heritage of human slavery underlies that conflict.

Sanchez concludes: “We ultimately settled on rules barring race discrimination in employment, housing, and access to ‘public accommodations,’ which, although it clearly restricted the associational freedom of some racist business owners within a limited domain, was nevertheless justifiable under the circumstances: The interest in restoring civic equality was so compelling that it trumped the interest in associational choice within that sphere. But we didn’t deny the existence of that interest (appalling as the racist’s exercise of it might be), and continue to recognize it in other domains. A racist may still invite only neighbors of certain races to dinner parties, or form exclusive private associations, or (as a prospective employee) choose to consider only job offers from firms run or staffed primarily by members of their own race. This is of course partly because regulations in these domains would be difficult or impossible to enforce, and partly because the burden on associational freedom involved in requiring nondiscrimination in these realms would be unacceptably high.”

In other words, the definition of “public accommodations,” more properly confined to “public property” or other places where no “property rights” were being infringed, came to mean any place where a merchant or other property-owner had “opened the doors” to access, for vending products/services, offering housing or otherwise interacting with others for payment. As soon as money was being exchanged, apparently all right to control who might enter your premises went away. Only by declaring the place as a “membership club” could one maintain that right of . . . freedom of association. (As we have seen, not even that keeps the doors closed. Take the Boy Scouts as just one example. Even though I disagree with the viewpoint they took, I would defend their right to do so -- along with the right of others to then boycott them peacefully!)

Mr. Craig mostly concurs: “When the Civil Rights Act came along and applied this to hotels and restaurants and the like with regard to race, it was seen as part of the broader agenda of the Civil Rights era and the failed goal of Reconstruction before that: to secure to African-Americans the equal protection of the law. That included the doctrine of public accommodations, which had always been the policy as applied to white Americans under common-law precedents, going back to pre-colonial England.”

He also concedes the existence of other aspects of the conflict: “In certain cases, there are also First Amendment issues at stake, because of the arguably expressive nature of the business itself (e.g., photography), and those concerns can and do override anti-discrimination laws at times. There is also a broad exemption for religious institutions in controlling their clerical decisions and religious practices, so churches need not worry. They remain free to refuse same-sex couples, just as they have always been free to refuse interracial or divorced couples, at their own peril from those around them who might boycott their institutions."

This last point has been my main contention (whenever I make the mistake of raising this issue with my civil-libertarian yet “progressive” friends): Nowadays, there is such tremendous power in public opinion, as well as such awesome vehicles (Facebook, Twitter, etc.) with which to express and promote it, that any legislation to prevent discrimination seems irrelevant. The case of Chick Fil-A, whose CEO merely made the mistake of expressing his personal beleifs against same-sex marriage, is instructive: within hours of his statement, there were protests and picket signs at most of the franchised stores. (Note that he made no effort to ban gay people from his restaurants; they and their supporters did that with their boycotts.) The controversy continued for weeks, and the company lost countless patrons, current and likely future, as a result of this. Clearly, the situation with the Christian baker in Colorado, or similar cases involving wedding cakes and gay couples, or any other aspect of “private-sector discrimination,” could have been better handled with protests, boycotts and other non-coercive methods, rather than the State stepping in with its jackboots and heavy handed authoritah.

To sum it up, we live in a society that has for the last 50 years (and more) been operating with some fairly major legalized boundaries on the First Amendment-guaranteed right to Freedom of Association; the latest ones are only additions to the laundry-list of qualities that must be tolerated and permitted, even if not fully accepted, by all people. As noted above, most of this has grown from past governmental abuse, and the perceived need for some redress or re-balancing of the scales, usually exceeding those requirements. The trouble now is, turning this entire system around all at once, without harming a lot of people in the process, is just not an option.

Andy Craig also has an interesting conclusion, as well as some advice for libertarians: “My ultimate point is this: Even if in hypothetical Libertarian utopia such laws would not exist. this is not the hill to fight and die on. It’s one major reason why Barry Goldwater lost in a landslide, winning only the Deep-South segregationists he was disgusted by. It’s what they hit Rand Paul with, literally the day after he won his Senate primary in 2010. Re-legalizing invidious discrimination, in businesses open to the public, is about as purely unpopular and toxic a position as a Libertarian could take. This is particularly true, since unlike the GOP we don’t and won’t single out gays and lesbians for special objection, and whatever our policy is must apply across the board, including to race, gender, religion, etc.

“When we have never-ending wars, a mounting pile of debt, a criminal justice system run amok, and horrific levels of crony-corruption to worry about, this isn't an issue that even belongs on the radar. It’s a distraction, and the actual reality of it is more complicated and nuanced than the black-and-white oversimplification that gets presented. There are things about these laws I don’t like, and things I would change or repeal, but in terms of priorities it belongs somewhere between privatizing residential streets and ending municipal monopolies on garbage pickup.”

What’s my point in all of this? If we want to stand as the defender of “civil liberties” in all manifestations, we must also be willing to deal with the realities around us. We live in a world where the non-aggressive expression of one’s personal tastes, preferences, persuasions and other aspects of life (notwithstanding whether they are by choice or inherent in one’s being) is no longer limited by government (at least in this arena of sexual categorization). However, in the process the overreach of statist bodies has concurrently made it illegal for anyone to refuse to do business with someone, solely on the basis that such tastes might be “offensive” to one’s personal creed. [I’m working on an essay on another way to approach this question; stay tuned to this space. . . .]

The issue has been made far more complex than the simple “libertarian-or-statist” categories some people try to stick it into. Gary Johnson tried to address all of this in his response to Austin Petersen’s “ambush.” He had 30 seconds. I just spent almost 2000 words, with two lengthy citations, trying to address the question, and I’ve barely scratched the surface.

I welcome your responses to this deliberation. (I also plan to comment on Part Two of the Stossel show debate, once I get to watch it on Friday.)  
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