Freedom of Association and “Civil Rights” Laws
by David Sims
THE PEOPLE who are saying that an impartial application of the civil rights laws would not require a gay baker to bake a “God Hates Gays” cake are wrong. Gays don’t get to set limits on the rights of other people to hold religious beliefs. They think that they do. But they do not.
It can be a religious belief for someone to think that God hates gays. The people who attend the Westboro Baptist Church probably do hold this particular belief. If a religious group with that religious belief asks a gay baker to bake a “God Hates Gays” cake, and the baker refuses because he holds contrary beliefs, then he is just as much liable to a legal action for redress, under the civil rights laws, as is a Christian baker who refuses to bake a cake saying “God Loves Gays.”
The gays who say otherwise are spouting arrogant, politically motivated nonsense. If homosexuals can sue Christians for refusing to bake a cake that violates the Christians’ beliefs, then so may Christians sue homosexuals for refusing to bake a cake that violates the homosexuals’ beliefs. To interpret the civil rights laws in any other way would be to give one group more protection of the laws than the other group gets, and that would violate the “equal protection” clause in the 14th Amendment.
HOWEVER. There remains the question of whether the civil rights laws are bad laws in a general sense.
American government, as it was intended to work, is a government of limited powers, and one of the limitations is the First Amendment. That being so, the authority of our government to prevent discrimination is limited to the policies and practices of the government itself, to ensure that all citizens are equals before the law. The citizens themselves may discriminate all they want to, and the government has no constitutional authority to dictate contrarily. The government may not require that any person must treat all others equally. For that reason alone, the civil rights laws were laws made in error — namely, the error of a government exceeding its constitutional authority by making laws beyond the scope of that authority.
But there’s more to be said along those lines of thinking. Not only does the government have no right to require or to forbid associations among citizens in disregard of their preferences, neither may it (constitutionally) lend its coercive powers to the predatory use of unscrupulous citizens who would abridge the freedom of association of their fellow citizens.
Let us suppose that I want to have sex with you, but you don’t want to have sex with me. You have, or ought to have, the right to refuse. It doesn’t matter what your reasons are. You don’t have to tell me why not. You don’t have to “explain yourself” to anybody at all. You are not liable to a legal action for redress on account of your choice to avoid the association that I wanted to have with you. If I do sue you, then the jury should laugh at me, and the judge should dismiss my lawsuit with prejudice and maybe fine me for filing a frivolous legal action.
Does the principle change when the association involves a business proposition instead of a sexual one? No. Why should your opening a business, i.e., initiating a relationship with other people so that you can gain money, differ in principle with initiating an intimate relationship with other people so that you can gain in another way? As well as I can judge, it doesn’t.
If I want to hire you, but you don’t want to work for me, then you can say no, and I must accept your choice whether I like it or not. Your reasons for not wanting to work for me don’t matter. They may not be questioned. It is sufficient that you have made your choice of your own free will.
If I want to work for you (as your employee), then I may ask you for a job. I may submit an application. But I can’t force you to hire me. You can refuse. It does not matter what your reasons are: they don’t depend on anyone else’s approval. It is sufficient that you have made your choice of your own free will.
The freedom abrogated by the anti-discrimination parts of the civil rights laws is the freedom of association, by which no contract can exist without the free consent all the parties to it. The freedom of association is the same right whether its application is a business relationship or an intimate one. The establishment of either sort of relationship morally requires the free consent of all parties to it. No one may be coerced, whether by force, or by the fear of harm, or by the threat of legal penalty, into an unwanted relationship. If the law requires you to have sex with someone, it’s still rape even though it has the color of law. If the law requires you to trade with someone, it’s still extortion (or slavery) even though it has the color of law.
Remember that slavery was once legal. The reason it isn’t legal now is that the law began to recognize the freedom of association for blacks.
And that is a further reason for why the civil rights laws are laws made in error: they violate the fundamental political rights of man.
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