In a very pessimistic essay about America's future, my former Hoover colleague Angelo Codevilla writes:
What goes by the name "constitutional law" has been eclipsing the U.S. Constitution for a long time. But when the 1964 Civil Rights Act substituted a wholly open-ended mandate to oppose "discrimination" for any and all fundamental rights, it became the little law that ate the Constitution. Now, because the Act pretended that the commerce clause trumps the freedom of persons to associate or not with whomever they wish, and is being taken to mean that it trumps the free exercise of religion as well, bakers and photographers are forced to take part in homosexual weddings. A commission in the Commonwealth of Massachusetts reported that even a church may be forced to operate its bathrooms according to gender self-identification because it "could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public." California came very close to mandating that Catholic schools admit homosexual and transgender students or close down. The Justice Department is studying how to prosecute on-line transactions such as vacation home rental site Airbnb, Inc., that fall afoul of its evolving anti-discrimination standards.
If I had to name one of my main disappointments about libertarians, it would be the failure of some of them to defend, and even the outright hostility they show towards, freedom of association. I have written here and here, for example, about Mike Munger's and Gary Johnson's rejection of freedom of association.
Here are some excerpts on freedom of association from my book The Joy of Freedom: An Economist's Odyssey, published in 2001.
On freedom to choose a roommate:
Imagine that you're a homosexual and would like to live with a homosexual roommate. Or imagine that you're a heterosexual and would like to live with a heterosexual roommate. Guess what? Some governments in the United States claim that you don't have the right to make such a choice. In Madison, Wisconsin, recently, the government fined a woman for refusing to accept a lesbian roommate. The woman took her case all the way up to the U.S. Supreme Court, which, in May 1997, refused to hear the case. By doing so, the Supreme Court upheld this extreme intrusion on the freedom of association. Is freedom to choose your friends the next area that, with the Supreme Court's blessing, governments in the United States will assault?
On sexual freedom and romantic freedom:
Freedom of association also applies to dating and sex. People are free to say no to those who ask them out on dates or who ask them for sex. In fact, everyone knows the word for the violation of another's freedom to say no to sex. We call it rape. My impression is that governments in the United States completely respect half of the freedom of association in sex, the freedom to say no. It was not always so. In the nineteenth century and before, when a man raped his slave, the courts did not step in and punish him. Back then, judges, and indeed most people, believed that rape did not violate a slave's freedom of association because they didn't consider slaves human beings with rights.
Governments still, however, don't consistently respect the other half of freedom of association in sex, the freedom to say yes and to act on it. In some states, certain forms of sex are illegal. Georgia's government, for example, says that a "person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another." If you find this language distasteful, welcome to the club, but don't blame me. Instead, put the blame where it properly falls, on the Georgia state legislators who felt the need to define sodomy so they could ban it, and backed their definition with a prison sentence of up to 20 years. And, remember, we're talking about consensual, not forced, sex. In 1986, incidentally, the U.S. Supreme Court, in Bowers v. Hardwick, upheld Georgia's sodomy law by a 5-4 vote. So even in such an intimate area as sex, we have a long way to go to get to complete freedom of association.
I would like to say that freedom to choose our marriage partner is just as accepted and understood as freedom to choose our friends. I would like to, but I can't. It took until 1967, hardly ancient history, for the Supreme Court, in Loving v. Virginia, to strike down a state law that banned interracial marriage. And as I write this, in the fall of 1998, serious people with political power advocate that a man not be allowed to marry the man of his choice and that a woman not be allowed to marry a woman. So, even though freedom of association in our friendships, in our sexual relations, and in our choice of marriage partners is respected, it is by no means completely respected. I hope this changes, but we're not there yet.