David R. Henderson  

Angelo Codevilla on Freedom of Association

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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.


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CATEGORIES: Liberty




COMMENTS (19 to date)
BC writes:

Formulating the issue as one of discrimination vs. freedom of association I think has worked to the detriment of freedom of association. Most people, including many libertarians, do not want to reject the Civil Rights Act of 1964 and do not want to inadvertently condone the widespread discrimination against racial minorities during that period. The result is that freedom of association ends up getting the short shrift.

However, there is another concept called strict scrutiny when it comes to curtailing fundamental rights such as freedom of association. Fundamental rights can only be infringed to serve a *compelling* government purpose and only using the *most narrowly tailored means* to achieve that purpose. Although this might sound like a loophole that could justify all sorts of government powers, in practice this strict scrutiny standard is a very high bar for the government to clear.

Arguably, racial discrimination was so pervasive in the 60s that outlawing discrimination in public places was the only way to achieve the compelling purpose of allowing racial minorities to fully participate in society. That's a far different situation from today's issues such as those involving wedding photographers and bakers, roommates, AirBnB, etc. Because there are many photographers that will work at gay weddings, for example, simply hiring one of those photographers is a far more narrowly tailored way to achieve the interest of allowing gays to marry than forcing all photographers to participate in those weddings.

I think to protect freedom of association, we really need to distinguish today's cases from 1960s-Era discrimination. In most of today's cases, there are far more narrowly tailored means available to achieve the underlying purpose.

David R. Henderson writes:

@BC,
I think that’s a good point. It’s not my first-best solution, but it’s better than what we have. Do you see hope that some court or legislature will rein this in?
Also, given your well-taken point about racial discrimination in the 1960s, do you think that the 50 years since then has given us enough time so that more narrowly tailored means could be used there too?

Hazel Meade writes:

I don't think Gary Johnson and other libertarians are hostile to freedom of association. I think they are declining to fight a difficult battle on this particular issue.
The thing is that unless we're going to get rid of all anti-discrimination law, carving out a niche for conservative Christians on gay marriage really amounts to privileging conservative Christians, in the same way previous marriage law privileged heterosexual marriage.
Libertarianism isn't ONLY about liberty, it's also about legal equality, and as long as anti-discrimination law exists, we can't have exemptions purely for certain religious beliefs. And nobody wants to wage a battle against anti-discrimination law in general, because that would be vastly unpopular, and because many people reasonably fear that it would lead to rampant discrimination against blacks and other minorities.

Richard writes:

Many conservatives granted the point that "racism," even if it's a mild preference that one wants to exercise in one's private life, is an absolute evil that society should not accept. Once that was decided, most people are going to want to ban the most evil thing in the world. Then it was easy to extend the logic to sex and now sexual orientation. Nothing stops this from extending to looks, etc.

First they came for the racists...

Richard writes:
Libertarianism isn't ONLY about liberty, it's also about legal equality, and as long as anti-discrimination law exists, we can't have exemptions purely for certain religious beliefs.

This logic says that if govt takes away some people's freedom, it must take away everyone's.

If they take someone's property through eminent domain, they must take everyone's property.

If certain industries face cumbersome regulations, every industry must.

If we put people in jail for marijuana, we should also do the same for those who smoke cigarettes.

Libertarians don't apply this kind of logic to any other issue. If they did, there would be nothing left of libertarianism. Rather, libertarians are happy about some people having freedom, and then favor extending it. They don't consider it a difficult decision whether to take away freedom from those who have it for the sake of equality.

By the way, most people who support religious freedom would be happy to support freedom of association based on sexual orientation for everybody. They are forced to use religion as a justification, however, because the left demands non-discrimination laws.

Richard writes:
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.
Codevilla somehow missed Lawrence v. Texas, the 2003 case which overturned Bowers.
David R. Henderson writes:

@Richard,
I don’t think you realize that you’re quoting, not from Codevilla today, but from me in 2001. When I wrote that, it was true.

Richard Berger writes:

The pernicious effects of the non-discrimination laws extend beyond the harm done to liberty and extend to the protected parties themselves. They created a reward for finding discrimination and encouraged victimization. The worst thing you can do for someone who is struggling is to give them an excuse for failing. The white/straight/healthy people are the reason I can't get ahead! Even if others are treating you unfairly, due to prejudice, you can still succeed, and some of the greats of history have overcome obstacles put in their way by other people.

I think prejudice would have declined naturally in the absence of these laws. It was before their passage, and I think that many of the welfare indicators for black communities have worsened since the 1960's. It is sad that all the government help has led to stalled progress and pathologies, such as the relatively rarity of two parent households in the cities.

Richard writes:

@David

I see, my mistake. I think in 2001, someone could reasonably think that libertarians should be on the side of social liberals. But social liberals have gone so far, that social liberalism is now the anti-libertarian position.

Hazel Meade writes:

@Richard,

It depends on how you see the status quo.

If you have a law that says everyone's property is subject to eminent domain, does a libertarian favor passing a law that says ONLY Christians are not subject to eminent domain?

If the status quo has a cumbersome regulation regime on a particular industry, would a libertarian favor passing a law that says ONLY Christian-owned business are exempt from that law?

We're talking about making legal distinctions not between different industries or different substances, but between different socio-economic groups of people, which people cannot easily switch between. In theory one can easily switch religions, but reality is people have emotional commitments. Also, it would be wrong for the government to incentivize becoming a Christian by exclusively exempting from cumbersome laws.

The thing is that the law on gay marriage changed recently, and the courts have recently upheld anti-discrimination statutes, so the status quo has really shifted abruptly. And I think many libertarians are simply recognizing that there is a limited amount of political capital they want to expend fighting a rearguard action to protect exclusively Christians who dislike gays from anti-discrimination statues.

And I say this as someone who has argued passionately in defense of the bakers and photographers in question. You're absolutely right that they should be allowed to discriminate. But we're not about to repeal all anti-discrimination law and frankly, Christian conservatives who dislike gay marriage have not been hesitate to use the power of the state to privilege themselves, and Christians are really heavily privileged in today's society in all sorts of ways anyway. I don't see them as terribly victimized and in need of defenders.


Thaomas writes:

Anti discrimination laws need a "personal" and small business exemption. These laws can usefully combat the social norm of discrimination without preventing individual bigots from practicing their bigotry. I have no problem with an individual baker not wishing to bake a cake for a same sex marriage, although I do object as a Christian, to the claim that this is should be a "religious" liberty.

Mark Bahner writes:
If you have a law that says everyone's property is subject to eminent domain, does a libertarian favor passing a law that says ONLY Christians are not subject to eminent domain?

Yes, I think so.

Let me pose a counter-question: If we have laws that say all marijuana is illegal, does a libertarian favor a law that says ONLY medical marijuana is legal?

Richard writes:
If the status quo has a cumbersome regulation regime on a particular industry, would a libertarian favor passing a law that says ONLY Christian-owned business are exempt from that law?
If nobody was allowed to sell alcohol, but then the govt said only Christians can sell alcohol, I think that's clearly an advance in liberty. How could it not be?
We're talking about making legal distinctions not between different industries or different substances, but between different socio-economic groups of people, which people cannot easily switch between.

Put it this way: presumably you think it's better that certain businesses to sell pot than nobody being allowed to sell pot. However, if Colorado said only Christians could sell pot, I get you would oppose that and favor complete prohibition? The principle of non-discrimination based on certain categories but not others is one I don't understand. Thus, in the real world, I think we should worry about aggregate freedom.

Thomas Sewell writes:

There is no problem with the government not discriminating based on race, sexual preference, whatever. That's obviously the preferred outcome when it comes to government behavior, i.e. equality before the law.

The problem is when the government decides that it will not allow anyone else to discriminate because of it's ever-changing definition of a "protected class", which in practice means whichever groups those in power prefer at any given time.

There is no moral difference between government discriminating against Chinese or whites as against blacks, against the religious than against homosexuals.

Having the government itself treat everyone equally under the law is a good principle of liberty.

However, it has been devolved now into having the government force everyone to treat everyone else the way the government prefers them to. That's not liberty, that's tyranny, no matter how much you put out the excuse of a poor "suffering" rich person whose "group" somebody else did something bad to in the past.

The only position consistent with liberty is to expect the government to not limit individual freedom to discriminate and/or associate. To that end, marginally moving the bar towards less government coercion in freedom of association is a good thing, as others have noted above.

There is talk of the commerce clause, etc... but which article or amendment of the Constitution can you say with a straight face empowered the federal government to tell a baker whom they must serve, or a church how they must arrange their bathroom stalls? I can think of a big one which would cut the other way, but none authorizing that on their face, i.e. in their text.

Hazel Meade writes:

@Mark,

Not a good analogy. A law saying one MAY use marijuana medically doesn't give that privilege ONLY to a religiously defined class of people.
There might be some religions that forbid maraijuana use but that's no different than a religion that forbids alcohol.

The better analogy would be to say what if the government said that ONLY Christians may smoke marijuana. How would that not be an establishment of religion?

@Richard
If nobody was allowed to sell alcohol, but then the govt said only Christians can sell alcohol, I think that's clearly an advance in liberty. How could it not be?

That's pretty much a straightforward establishment of religion. You're creating a legal privilege that only Christians may engage in some form of commerce. Legal equality is a bedrock component of liberty.

Imagine a society in which the government declared that only members of particular classes had particular legal privileges. if the government banned private property, would a libertarian be in favor a law that said that only white males would be allowed to own property?

Mike White writes:

Agree with Richard Berger. Well said. It is 2016. If tomorrow, if we repealed all anti-discrimination laws (if I read her comment correctly, Hazel thinks that's an impossibility and would not want it), but if we did, does anyone think a person, business, corporation could survive by not allowing the best person to do the job? The victim mentality is so sad to see/deal with and it is even worse when it is being forced on a person by an enabling institution vs. that person just having a genetic victim mentality personality trait.

Hazel Meade writes:

I would love to repeal ALL anti-discrimination laws. I think many libertarians are (with some justification) afraid that would result in rampant discrimination against blacks in particular.

I'd also love to have a broad religious freedom exemption from anti-discrimination laws.

The problem is that right now, the people fighting for that are almost exclusively conservative Christians who want to continue a historical pattern of social discrimination against gays. These people would be happy to tailor an exemption that exclusively applies to themselves and their specific religious beliefs as it pertains to gay marriage. And I would NOT favor a narrowly tailored exclusive exemption that only anti-gay Christians get to enjoy.

Thomas Sewell writes:
The better analogy would be to say what if the government said that ONLY Christians may smoke marijuana. How would that not be an establishment of religion?

So, for example, if Peyote use were legal only for one church?

Broader exemptions are better (broadest being no restrictions), but I don't hear Christians or anyone else agitating very hard against Peyote use by the Native American Church.

Similar for certain facets of religious liberty for Muslims, despite their unpopularity in certain circles.

It's almost as if there is a group of people who have something specifically against Christians in the United States or something just because they are their political enemies and are also strong enough politically to make a fight of their views...

Roger McKinney writes:

Thomas Sewell has it right. Classical liberalism always said that the state should treat all citizens equally, not that all citizens had to do so. When the state forces citizens to act as if each was a state, then we have lost all freedom.

But the US got off on the wrong foot from the first. The state treated its black citizens as not quite human. Native Americans weren't citizens, but the US broke every treaty it ever signed with them and tried to wipe them out. My own state, Oklahoma, was a dumping ground for the tribes they cleansed the country east of the Mississippi from.

They treated Chinese and Latino citizens with contempt. Citizens have never cared about the state treating citizens equally until the Civil Rights movement. But by then, most citizens wanted the state to dictate everything to everyone.

To paraphrase CS Lewis, we have all become pets of the state. If the state gave us a tiny bit of freedom we would starve to death.

Freedom of association is dead and its death has promoted the "safe spaces", trigger warnings, and other restrictions of freedom of speech.

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