Friday, January 10, 2014

Are Anti-Discrimination Laws Moral?

The Daily Kos is exalting over what he perceives to be the inevitable march to victory of Liberal Progressive doctrines, including this:
There are married gay people in UTAH! Their innermost stronghold has been breached, and even though the Supreme Court stayed that decision, 17 states now allow unfettered love and commitment, and more will soon follow suit. And what's more, if the courts were to strike down marriage bans, Americans would approve!
Even absent direct suits against churches to perform gay weddings (although that is a possibility), there is the issue of forcing private citizens to participate, directly or indirectly, in these ceremonies.

In a December 10, 2013, post, Matt Walsh questioned the application of anti-discrimination laws to businesses which, based on religious grounds, refused to provide services that would be in support of "gay" rights.
If a man has the right to choose who he marries, a business owner surely must have the right to choose who he serves. You can not argue for the first while actively attempting to undermine the second. Well, you can, but you’re a fraud, and I will call you a fraud. If the “gay rights” campaign is simply about winning the culture; if it’s really, as many of us suspect, about defeating the Old Way, the way of Natural Law and Judeo-Christian values, then these tactics are understandable. Even necessary. But you claim that such talk is nothing but hysterical, bigoted nonsense. You claim gay rights are about freedom.

Well, freedom is a two way street. Freedom can’t be contained in your convenient little box. You can not achieve freedom for yourself by taking it away from your neighbor. You can not find freedom through tyranny.

Try to appreciate the irony. A gay wedding is, supposedly, a victory for freedom of association. Yet gay activists see no problem with forcing Christians to associate with it. The gays who pull these stunts are nothing but spiteful bullies. I wasn’t in charge of finding someone to make our cake for our wedding, but if I had been, and if I had accidentally ventured into a store owned by a Catholic-hating baker, and if that baker told me that he did not want to be a part of a Catholic ceremony, do you know what I’d do?

I’d find another baker.

I’d go out and use my freedom of speech to tell my Catholic friends that Jim’s Bakery down the street doesn’t want their business. I might write a scathing blog post about them. But I wouldn’t attempt to take their freedom away. And I DEFINITELY wouldn’t attempt to FORCE the man to bake a cake for me.

Because that’s just insane.
One of the commentators to his post responded with the somewhat standard argument that Welch wouldn't be saying this if the issue had to do with race, gender, national origin, or disability--i.e., the core of the anti-discrimination laws. (Religion is supposedly protected under anti-discrimination laws, but it is, in truth, the red-headed child of discrimination laws--an afterthought that is rarely upheld by courts).

In past posts I've argued that the flaw with this argument is that freedom of religion is a clearly recognized Constitutional right. The error of the courts is that they have elevated statutory law above the Constitution.  However, as I've also noted, the Supreme Court has taken a very narrow view of the freedom of religion in the past, holding that the First Amendment only protects our beliefs vis-a-vis a creator; but that worship and all other practice of our belief is subordinate to the law.

So if not freedom of religion, what about the freedom of association as argued by Walsh? The Supreme Court has previously said that "[i]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech." NAACP v. Alabama, 357 U.S. 449, 460 (1958). In that same case, the court discussed that the freedom of association implicated various practices, including religion, even when those associations advocated unpopular beliefs. However, while such rights may have protected a large, diverse civil rights organization in the South, it has far more limited application in other circumstances. In Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), the court again chose to severely curtail the freedom of association, holding it did not apply to the Jaycees (which restricted full membership to only men, thus running afoul of state anti-discrimination laws) because the group was not small and selective. The court reasoned:
The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family—marriage, e.g., Zablocki v. Redhail, supra; childbirth, e.g., Carey v. Population Services International, supra; the raising and education of children, e.g., Smith v. Organization of Foster Families, supra; and cohabitation with one's relatives, e.g., Moore v. East Cleveland, supra. Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association lacking these qualities—such as a large business enterprise—seems remote from the concerns giving rise to this constitutional protection. Accordingly, the Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's fellow employees. Compare Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967), with Railway Mail Assn. v. Corsi, 326 U.S. 88, 93–94, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945).
Roberts v. U.S. Jaycees, 468 U.S. at 619-20. (Notably, under these standards, the NAACP should not have been entitled to its freedom of association claim). The court decided that there may be small groups, somewhere between a family and a large enterprise deserving of associative freedom, but it refused to draw a line, merely indicating that "We need not mark the potentially significant points on this terrain with any precision. We note only that factors that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent." Id. However, that same year, the court held that freedom of association did not extend to the hiring practices of a small business. Hishon v. King & Spaulding, 467 U.S. 69, 78 (1984). The court further noted: "Moreover, as we have held in another context, '[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections.'” Id. (quoting Norwood v. Harrison, 413 U.S. 455, 470 (1973)). In other words, when it comes to discrimination, the court will discriminate when it comes to enforcing the right of association.

It is true that the court blunted its position somewhat in Boy Scouts of America v. Dale, 530 U.S. 640 (2000)--one would hope recognizing the inconsistency of the holdings vis-a-vis the NAACP versus those holdings pertaining to groups that wanted to discriminate. The majority opinion in Dale noted that its decisions in prior cases holding that "freedom of association" did not protect against discrimination had only been applied where admission or inclusion of the person would have no impact on the expressive aims and purposes of the organization. Id. at 658-59. That is, "[t]he forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints." Id. at 648. In that case, the court upheld the Boy Scout's right to exclude homosexual leaders because it was inconsistent with the purpose of the Boy Scouts. But it is notable that the dissenting opinion quoted the portion of Norwood set out above.

The point here is that under current law, most businesses do not exist to advance expression. The "right of association," as the courts currently apply it, would not prohibit enforcement of anti-discrimination laws to a business because of religious beliefs of the owner--even as to gay weddings. Persons who operated businesses cannot look to current law to assist them.

On the other hand, the Liberal's argument for gay marriage is often premised on violation of a right to equality under the law. The basic premise of equality under the law is that everyone is treated the same when applying the law. That is, a law is not enforced (or excused) in an arbitrary and capricious manner. Liberals (and many courts) have taken to interpreting this principle as not discriminating against groups under the law--that is, that laws should not be passed in an arbitrary manner. Of course, this is an absurd argument because most laws are arbitrary to one extent or another. For instance, laws restricting drinking ages to 21 are arbitrary in selecting 21 years. Why exclude 20 year olds? Or why not make the drinking age 22? The response I would expect is that "equality" means that the law shouldn't discriminate against certain groups. But what groups deserve protection? Again, the list is arbitrary--whatever group that has the social and political clout. It is (or should be), therefore, be a political or social question, not a legal question for the courts.

But Walsh wasn't making so much a legal argument as a moral argument. And, note well, he does not argue that discrimination on the basis of race, gender, etc., is moral. His question is, instead, the different issue: is it moral to force someone to provide a service, or a good, or a job to someone they don't want to? Is it moral to force someone to conform to a societal norm? Because that is what anti-discrimination laws do. They represent force--the possibility of financial ruin, prison, or death if you resist. So, are anti-discrimination laws moral?

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