Thursday, December 07, 2017

Freedom of association

Phillips is not discriminating against anyone because of their sexual orientation. He is not refusing service to gay couples because they are gay. In fact, he serves gay customers all the time. He is perfectly happy and willing to serve gay customers in his shop.

I'm not criticizing the legal strategy of his counsel. The best chance of winning in court is to play by the rules of the status quo. But it concerns me when Christian pundits frame the issue this way. It seems to concede that if he were refusing to serve gay customers because they were gay, then that gives government the right to drive him out of business.

This needs to be relentlessly challenged. Freedom of association is a Constitutional right. But when the issue is framed this way, it turns a Constitutional right on its head. This means there's a standing presumption against freedom of association, and the onus is on a litigant to seek an exemption. 

Moreover, the litigant must demonstrate to the satisfaction of a court that his request is well-intentioned.

But that's a travesty of Constitutional rights. The prerogative to exercise your Constitutional rights shouldn't hinge on your motives. What kind of right is that?

Moreover, a Constitutional right should mean there's an overwhelming presumption in favor of having the prerogative to exercise that right, which can only be overcome in extreme cases. To deny the prerogative to exercise one's Constitutional rights should be the exception, not the other way around.

The whole point of the Bill of Rights was to remove some issues from the discretion and purview of the state. Now we've turned this into the opposite, where citizens must periodically justify their Constitutional rights to the satisfaction of a judgment. And I don't just mean freedom of association. Secular progressives apply the same inverted standard to freedom of speech, religion, and the right to bear arms (among other things). 

The immediate source of the problem is the tension between freedom of association and public accommodations, where the latter overrides the former. And that's used as a wedge tactic.

This goes back to the civil rights era, when Jim Crow laws mandated racial discrimination. However, the proper solution wasn't to replace one coercive policy with a coercive policy in the opposite direction. Jim Crow laws prohibited white businessmen from serving black customers. Jim Crow laws denied white businessmen the freedom to treat black and white customers equally. The alternative is not to replace that with a different prohibition, but to restore freedom. To expand freedom. To uphold Constitutional rights, including the 1st and 14th Amendments.  

To my knowledge, the 13-14th amendments were designed to overrule black codes. The Jim Crow laws were an effort to circumvent the 13-14 amendments and reinstitute black codes. In that case, courts were entirely within their prerogative to strike down Jim Crow laws, as unconstitutional. 

That, however, is different from the principle of public accommodations. Secular progressives use that as a false premise to build on. They decree increasingly expansive interpretations of that principle.

This needs to be resisted and overturned. For one thing, even if that was the settlement of the LBJ era, past generations lack the authority to ipso facto impose their will on future generations. The next generation has the right to reopen past settlements. The dead don't have the right to make decisions for the living.

Now, in some cases, policies by past generations have irreversible consequences. Moreover, some policies by past generations are good policies, which ought to be continued. 

But just because a former generation put a policy into place doesn't make that binding on all future generations. Their moral and intellectual judgment doesn't automatically outrank the next generation.

It's a paternalistic mindset, like parents who imagine they have a lifelong prerogative to dictate how their grown children should live their lives. But past generations aren't inherently wiser than future generations. They're not entitled to reach out from the grave (as it were) and exert postmortem control over the decisions of future generations. Each generation has its own responsibilities. Each generation has a duty to assess the status quo. 


  1. Very perceptive, Steve. Thanks for your exhortation.

  2. Fighting evil is good. Fighting evil improperly sets bad precedent and will come back and bite us.