I don’t agree with everything in this article below but I found many of Dan’s comments very provocative!!!
Liberty, Morality, and Discrimination
April 1, 2015 by Dan Mitchell
When describing their view of government and public policy, libertarians and constitutional conservatives sometimes use a variation of this phrase: “Not everything that’s illegal is immoral, and not everything that’s immoral should be illegal.”
To put this in tangible terms, consider the fact that the EPA has penalized people who build ponds on their own property. Yet the property owners obviously haven’t engaged in any behavior that’s wrong. Indeed, it would be far more accurate to accuse the bureaucrats of behaving immorally. And Walter Williams, among others, has argued that “decent people should not obey immoral laws.”
By contrast, there are many things that we should consider immoral, such as cheating on a significant other by patronizing a prostitute, but we would argue that it’s not a proper role for government to criminalize caddish actions or victimless behavior.
This distinction between immoral and illegal is appropriate as we consider the nationwide controversy about what’s happened in Indiana.
Joining the federal government and many other states, politicians in Indiana recently passed a “Religious Freedom Restoration Act” that’s based on the notion that there should be some limits to government actions that hinder the free exercise of religion.
But “some limits” is not the same as “no limits.” These laws all allow government to interfere if there is a “compelling state interest.” To cite an obvious example, a crazy environmentalist couple couldn’t sacrifice their child to appease Gaia.
Since all this sounds very reasonable, why has the adoption of the Indiana law turned into a huge kerfuffle?
The answer is simple. The Hoosier statute has become a proxy for the fight over freedom of association, which also implies a right to engage in private discrimination.
Here’s some of what my colleague Roger Pilon wrote on the topic.
We find those principles in the nation’s founding document, the Declaration of Independence…: freedom and equality. Rightly understood, they hold that we’re all born free, with equal rights to remain free. That means—to cut to the chase—that we may associate with anyone who wishes to associate with us; but we are equally free to decline to associate with others, for any reason, good or bad, or no reason at all. That right to discriminate is the very essence of freedom.
He then points out that the CEO of Apple, Tim Cook, errs in a Washington Post column by seeking to use coercion to criminalize private immorality.
Cook turns those principles on their head. He says religious freedom bills “rationalize injustice” by, for example, allowing a baker to decline to bake a cake for a same-sex wedding. He would compel the baker to accept that request, by force of law. That’s the very opposite of the freedom of association—the right to be left alone—that the nation was founded on. …I’m as offended as Cook is by that kind of discrimination. But I’m even more offended by the belief that we can force people to conform to our values when they’re asking simply to be left alone to enjoy their right to pursue their values. And precisely there is the source of Cook’s confusion, his conflation of rights and values, two very different moral notions.
Roger’s key point is that some types of discrimination are wrong, in some cases grossly immoral, but that doesn’t justify intervention by the state.
Which means a baker or florist who doesn’t want to cater a gay wedding should have the freedom to reject that business. That business owner may be doing something immoral and intolerant, just as a bigot who doesn’t want to do business with minorities is behaving reprehensibly, but people making their own decision with their own property shouldn’t be forced to adhere to other people’s values.
Writing for National Review, Deroy Murdock asks whether there are any limits to government coercion of private behavior.
The only identifiable victim of Indiana’s new Religious Freedom Restoration Act is the First Amendment’s Freedom of Association clause. Like Joan of Arc, it has been burned at the stake. …What if you are an atheist who really objects to gay marriage? Must you still bake cakes for gay weddings, or will pro-shariah Muslim bakers be the only ones who can walk into court and ask to be excused from doing so? …Do we respect the Junior League’s right to choose to remain a female-only group, as it has been since 1901, or must they now accept male members? … Do we respect a gay baker’s right to choose not to bake a cake for the Westboro Baptist Church with icing that reads God Hates Fags? …Do we respect a black jazz band’s choice not to perform at a Ku Klux Klan chapter’s “Negro Minstrel Show”?
Deroy poses these questions, because there are big implications depending on how people answer.
…it is crucial to remember that behind each of these scenarios lies something deadly serious: a gun. Government equals force. Its ultimate authority stems from its ability to use coercion or blunt force to deprive lawbreakers of their freedom. …So, the real question in each of these cases is: Do you support the government’s use of coercive police power — up to and including fines, arrest by armed police officers, and imprisonment — because you reject a woman’s right to choose not to bake a cake for a gay couple?
Here’s his bottom line.
In the public sector, the government must administer equal justice under the law and treat all Americans equally. …The private sector, such as it is, is something different. Private individuals on private property should be free to associate with whom and without whom they wish. Just because someone runs a business or is part of a private group or organization does not mean that she surrenders her rights or becomes a mere appendage of government. At least that’s what the First Amendment says — such as it is. Freed of most restraints against government action and populated by citizens increasingly oblivious to this nation’s founding principles, America is slouching into tyranny. Little by little. Day by day. This is incredibly depressing. And to see gay people lead this charge into bondage may be the saddest sight of all.
What’s both ironic and confusing about this issue is that government generally has been the source of discrimination and oppression against disfavored groups.
For a long time, government criminalized gay relationships. Heck, such laws are still on the books in some places, though thankfully they’re no longer enforced (though the thugs in Iran and similar places obviously haven’t taken this step in societal evolution).
And don’t forget that the infamous Jim Crow laws were government-imposed mandates, as Nick Gillespie explains for Reason.
From a libertarian perspective, belief in the freedom of association generally trumps belief in anti-discrimination actions by the state. …it’s typically the state (whether at the local, state, or federal) that historically was doing most of the discriminating. Jim Crow was ushered in by the Supreme Court’s vile “separate but equal” decision in Plessy v. Ferguson, which upheld a Louisiana state law barring railroad companies from selling first-class tickets to black customers. When businesses in the segregated South attempted to treat customers equally (often a good business strategy), they were typically hemmed in by specific laws preventing such things or by de facto laws enforced through brute force by various “citizen’s councils” and terror groups such as the Ku Klux Klan (which often included politicians and law enforcement). It was government at all levels, not local businesses, that disenfranchised blacks for decades.
Tim Carney of the Washington Examiner addresses the issue, pointing out that the cultural left now wants to coerce the traditional right.
On one side is the CEO of the world’s largest company, the president of the United States and a growing chunk of the Fortune 500. On the other side is a solo wedding photographer in New Mexico, a 70-year-old grandma florist in Washington and a few bakers. One side wants the state to conscript the religious businesswomen and men into participating in ceremonies that violate their beliefs. The other side wants to make it possible for religious people to live their own lives according to their consciences. …an emboldened and litigious cultural Left, unsated by its recent culture war victories, [is] trying now to conscript the defeated soldiers at gunpoint. …Tolerance isn’t the goal. Religious conservatives must atone for their heretical views with acts of contrition: Bake me a cake, photograph my wedding, pay for my abortion and my contraception. In Georgia, a Catholic school employed a gay teacher. When he announced he was marrying a man, the school said this violated the expectations of public behavior they demand of their teachers. They fired him. Now the Obama administration is coming after the school.
All of this is very frustrating for principled libertarians.
There are many gay libertarians, but they don’t want to coerce others into baking cakes or taking photos. 
They just want to live freely without excessive government coercion.
And there also are many libertarians who are traditional Christians, but they have no desire to oppress other people or to obtain coerced approval. They just want to live freely without excessive government coercion.
Unfortunately, libertarians are the exception. There are lots of other people in the world who think they should be able to impose their values on others. Oh, well, I never claimed it was easy to be libertarian.
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AWESOME commentary!! Thank you!
[…] By Dan Mitchell […]
The freedom to associate with, work with, deal with is the most fundamental rights. Let folks sort it all out on their own. If somebody doesn’t want to be bothered with me, that’s fine. It’s happened and it’s perfectly ok.
[…] WordPress Blogger Dan Morris writes this in his blog entitled, “Liberty, Morality and Discrimination.” […]
One of your better posts Mr. Dan.
I am curious about one thing, though. What do these RFRA laws accomplish that the First Amendment hasn’t already covered?
@Richards, signifies the State’s interest in pursuing the right rather than awaiting the inefficient, political warped, misguided action of the corrupt Fed.gov. Dismiss the adjectives if you must, but truth outlives all sheep. ©2015
“compelling state interest” is a judicial fraud on the Constitution and The People; clearly the limited rights of government found in the Constitution did not grant such fabrication. The concept arose out of a politically charged case in which the government could not get its way (the government always steals rights when the asses in charge can’t get their way), so the not-so-supreme court was pressured into a non-existent, unsupportable, bogus concept that an inanimate object had some intelligence (something those running government lack as is evidenced every day) that granted consciousness to extent of conceiving and having “an interest”, an otherwise entirely human emotion/concept. The judge was (and still is if you can understand the founding documents) of poor intellect, and politically weak, to pass this bullshit off as law. The only conception government has is the will of The People; all others are without constitutional ground and no validity–and should be ardently rejected by The People in strong Jeffersonian style. ©2015
PS. “Shays’ Rebellion — a sometimes-violent uprising of farmers angry over conditions in Massachusetts in 1786 — prompted Thomas Jefferson to express the view that “a little rebellion now and then is a good thing” for America. Unlike other leaders of The Republic, Jefferson felt that the people had a right to express their grievances against the government, even if those grievances might take the form of violent action.” Every morning as the proletariat awakes the first thing on their mind should be rebellion against government, all of them and completely. That makes for a great America. (And leads to smaller government and a working republic.)
This is the best single article I have seen on this subject. Very thoughtful and appreciated the links. Strongly agree with Murdock’s contention that RFRA doesn’t go far enough – nobody should ever have to do or produce anything that is against their scruples, whatever the source of their conscience. As many of the articles described, the targeting of wedding vendors who obviously could believe that a wedding is a sacred ceremony, feel they play a significant role in the event, and take pride in their work while at the same time believing a homosexual wedding ceremony is a profanation of something they hold holy was probably the impetus for the state RFRA laws. The government coercion to participate is the abhorrent value.
I hope Mr. Cook is understanding of my choice to associate with android but not Apple.
If we abandon the traditional core principles of morality rooted in Christian philosophy and natural law, then what determines an act or belief to be “immoral” and how do we distinguish it from being “unpopular” or “politically incorrect.”
I am a Roman catholic. Do I have a right to embrace our catechism teachings developed over many centuries, or do I have to kowtow to the prevailing elites and say I am personally offended by those who refuse to sell their goods and services for use at gay weddings? Do I have a right to maintain that marriage is a solemn and holy union between a man and a woman, and dissent with those who toss centuries of Christian philosophy aside to impose their enlightened view?
Similarly, may I continue to maintain that life is not only precious, it is more precious and profound than we can ever know, even though the enlightened elites insist I defer to the moral development of those with wombs, or those who administer death row justice, or those who allocate funds for medicare purposes and thus hold life and death power over their supplicants?
This new tactic of imposed orthodoxy in the name of tolerance is not about moral formation (or tolerance), it’s about fascist control. “Immoral” is becoming the label associated with those who resist the Regime’s dictates in some way. It is so intellectually shallow, but the prevailing dearth of critical thinking in the electorate not only makes it possible, it allows the fascism to thrive.
I had not quite realized what a sexist bigot I am.
Just think about it. When it came to the most important relationship in my life I did not even consider for a minute marrying a man. I squarely and resolutely discriminated based on gender by being dead set on marrying a woman.
Perhaps some day people will see the light and pass laws for gender neutrality in marriage. Mr Cook will be happy. Nothing too coercive. Just subsidies and perhaps some modest penalties, like excise taxes, to encourage transition to a balanced society with 25% male-male marriages, 50% male-female and 25% female-female. Or should it be 33%,33%,33% ? Tell you what. Let’s vote and whoever wins gets to impose their quota. Yes we can!
Reblogged this on Brian By Experience.
Good post and good comments.
[…] « Liberty, Morality, and Discrimination […]
Mark,
Great questions.
I for one believe you have every right to hold all those beliefs.
I would challenge you on the question of abortion, however, on the grounds of voluntary association, specifically whether or not force is justified to prevent it (not whether or not the act is immoral).
Voluntary association imposes a limit on contracts, namely that one may enter into contracts with others, but only to the extent the contract does not infringe upon the principle of voluntary association. For instance, one may enter into a contract to be another’s slave, but if the slave at any point decides to stop being a slave, he or she cannot be bound by the contract, because the enforcement of the contract violates the principle of voluntary association.
This principle does not, however excuse the debtor who decides to stop paying his or her creditor. The difference between these two being that in the case of the slave breaking his or her contract, the individual is simply assuming his or her own natural right to self ownership; no property of the former slave “owner” has been stolen, since his or her ownership claim on the slave was illegitimate or unenforceable. In the case of the debtor, theft has clearly occurred due to the exchange of legitimate property (loaned funds) by the creditor to the debtor. The debtor unwilling to pay back his or her debt has committed theft, whereas the unwilling slave has not.
In the case of abortion, the pregnant mother and the baby basically have an unwritten contract in which the mother will allow the unborn baby to survive inside her parasitically until the baby is ready to be born, at which point the mother risks her own death in the act of childbirth. If at some point during the pregnancy, the mother decides to end the “contract,” all she is really doing is breaking her unborn baby’s illegitimate ownership claim over her life. The mother cannot be forced to be a slave to her children, born or unborn, or conversely, the child has no right to receive life giving nourishment from his or her mother.
This is all based on the theory of natural rights, which states that no right is legitimate if it requires the services of another to exercise that right. Parents should not be forced to take care of their kids. It needs to be a moral choice.
All life is precious, but so is self ownership. Abortion is undoubtedly not something to be celebrated, and almost all believe it to be immoral. It is a terribly unfortunate situation when a parent decides to neglect a child, especially to the point of death, but the failure to act is not an enforceable crime.
Rothbard’s “Ethics of Liberty” delves into more detail if you are interested in this line of reasoning.
“Freed of most restraints against government action and populated by citizens increasingly oblivious to this nation’s founding principles, America is slouching into tyranny. Little by little. Day by day. ”
none of this is about morality… or equality… it’s about creeping fascism… political advantage… and ultimately nullifying the constitution… the objective is to create the American Reich… every detail of American life controlled by the political and bureaucratic elite… the nature of religious affiliations… business practices… personal finance… education and socialization…. all the privy of the ideologically insane…
“bye-bye miss American pie…”
Reblogged this on a political idealist..
“Indiana Pizzeria Owners Go into Hiding”
by
Rick Moran
“The online threats haven’t stopped since Crystal O’Connor told a South Bend TV station that she wouldn’t cater a gay wedding. In fact, the ugliness has gotten so bad, that the family has gone into hiding.”
the same tactics were in use Europe in the 30s… in those days they called themselves the “Pretorian Guard…”
http://pjmedia.com/tatler/2015/04/04/indiana-pizzeria-owners-go-into-hiding/
Reblogged this on Beware the Fury of a Patient Man.
What seems to be missing from these arguments is the fact that people are discriminating against a behavior, not a person. Societies discriminate against deviant behaviors and relationships all the time. This is different from civil rights cases where a superficial quality was the basis for judgement, i.e. skin color. You can’t tell a gay person from a straight person if they walk through your door. They have to tell you they engage in a specific behavior.
I’d like to know why more people don’t consider homosexual behavior as a moral hazard. Their behavior puts themselves and others at risk with the costs being mitigated by society. Look up the STD infections among gay men compared to the general population. Although not always illegal, we don’t encourage or reward moral hazard behaviors.
The starting point for so many of these arguments is that homosexuals are just another disenfranchised group like blacks or women but there is a natural reason why this group makes up such a small percentage of the population. Being black or female is not a defective condition. Homosexual relationships are a biological dead end. They have zero potential for producing offspring. One way of defining marriage is a social constraint on the two people who have the potential to produce children. The mother and father are known quantities who assume responsibilities for the child they created. A gay couple do not meet this criteria therefore has no need to marry. Why redefine marriage in order to include a non-normal population subset? Why give this group a special set of rights when no other non-normal sexual relationship has them. How can one say discriminating against an immoral behavior is also immoral?