David R. Henderson  

Is Support for Freedom of Association Fanatical?

A Man Called Ove... The sad paradox of free market...

In an article in which he makes a number of good points, on net defending a baker's decision not to bake a cake for a celebration that the baker objects to on religious grounds, Andrew Sullivan writes:

And it is a hard case constitutionally. It pits religious and artistic freedom against civil equality and nondiscrimination. Anyone on either side who claims this is an easy call are [sic] fanatics of one kind or other.

I think laws against discrimination are wrong, based on my belief in freedom of association. I've written about that many times on EconLog and so I won't repeat the arguments here. I'll simply cite a post in which I took on Michael Munger's opposition to freedom of association.

So Sullivan would call me a fanatic. Oh, well.

Comments and Sharing


COMMENTS (24 to date)
Mark writes:

I’m not sure I’d even take that as criticism (though I know that’s how he meant it). Perhaps we should all aspire to be fanatical in our defense of individual freedom.

Chris writes:

I feel like you fit the quote perfectly then, if you see no grey in discrimination laws. Should businesses be allowed to exclude those with handicaps by not providing access? Should police officers be allowed to not help a black man because they are racist? Should hospitals be allowed not to serve Muslims because they are Christian institutions, and what if they are the only hospital in the area? Should Comcast be allowed to not provide access to those with a criminal background, even though that would mean thousands would have no way to connect to the internet without moving long distances?

I understand your point in principle, but this case is about way more than baking a cake for a wedding; there are many situations where discrimination of this type would lead to significant hardship for a large number of people based solely on who they are or what they believe. I can’t imagine you think we should have absolutely no limits on discrimination, especially when our constitution is built on equal protections.

I honestly have trouble reconciling my desire not to be forced to work for someone I strongly dislike (neo-nazis for instance) with my belief that people shouldn’t be discriminated against for who they are. We have laws defending both sides of this dichotomy and they exist for really good reasons. As the article you quoted notes, this isn’t a cut and dry case and there are huge implications with whatever is decided.

Have you ever noticed how many people change their views on a subject solely based on whether money exchanges hands or not? Most people would defend freedom of association if no money changes hands, but we are supposed to believe that business is somehow different.

If a gay person asks someone to bake them a wedding cake, and the other person refuses, there would be little uproar. But if the gay person offered money in exchange for baking a wedding cake, then suddenly the other person supposedly has no right to refuse.

Of course I don't believe this. I believe that we have the right to refuse to do business with anyone at any time for any reason whatsoever. The reason doesn't even have to be a good one.

But then again, I'm "fanatical" about freedom of association. :-)

Hazel Meade writes:

I also think the issue is much more complex than it seems at first glance. Absent anti-discrimination laws, we might need to rely on social coercion to prevent many minority groups from being subjected to widespread discrimination. It's a bit wishful thinking to believe that society would settle into a socially tolerant equilibrium or that the market would necessarily force it to that state. It might end up being a horribly stratified racial caste society, or an oppressive religious cult.

We get into this murky area where one must exercise freedom of association to suppress racist or bigoted beliefs, to prevent them from becoming normative, but the social coercion involved in that is itself regarded as oppressive. In order to have a society that isn't oppressive of gays, how much oppression of religious conservatives is justified?

Cake-baking aside, does social tolerance demand that we let anti-gay Christians go around being rude to gays, and not say anything? Or, if social tolerance demands that we can and should say something about it, at what point does that become too intolerant of the anti-gay Christian?
Can you boycott a baker because he won't bake a cake for a gay wedding, or is that too much? Can you boycott him because he won't serve gay couples at all? Exactly what amount of prejudice are we required to put up with without effectively tacitly permitting the oppression of outgroups? Who are the outgroups anyway?

And so on ...

Ak Mike writes:

Hazel - I know that the subject of discrimination gets a lot of libertarians (such as you) wrapped around the axle. But I think that the answer to your questions arises from the fact that this country is fundamentally a democracy.

Therefore, the fact that we have a comprehensive set of anti-discrimination laws is a consequence of the fact that most people are against discrimination. Therefore, we would not have widespread discrimination if those laws went away.

In the 1930s, we had widespread discrimination because most people thought that was just fine and dandy. The laws only came in when most people turned against it after WWII.

Yes, there would be local and sporadic discrimination. Even now we allow rudeness, and boycotting.

So I respectfully disagree with your opening comment that the issue is complex.

Chris writes:


I think David's saying that we should put up with any amount of oppression, as long as it's not by the government and doesn't actively interfere with someone's rights. If you want to refuse service to Latino's, for instance, you should be able to, knowing that a group of people may in turn refuse service to you in retaliation.

I still argue that this is a terrible system that would realistically remove many individuals from a variety of necessary markets. Again, without anti-discrimination laws, nobody would build housing that is wheelchair accessible, because it comes at a premium; many businesses wouldn't hire women in their 20s because they may have children; and telecom companies would cut off access to large portions of America because the density or wealth bracket doesn't make them profitable enough. Our society is largely based on some level of fair access to markets and that society would be extremely negatively impacted if we had extremely unequal access to markets based on our personal characteristics.

Again, I get the basis of the argument against discrimination laws in theory, but to not also address the huge ethical and market practicality implications of discrimination is doing a disservice to the discussion.

How do we protect the right of association while also protecting the right to receive access to markets for all? Why is one of those rights held to be more important than the other?

Weir writes:

A horribly stratified racial caste society is incompatible with a growing economy, so I think even the wealthiest progressives in San Francisco in Seattle would eventually reach a point when they say, "Our zoning laws are really, really effective at grinding the noses of the poor already, right this minute, as it is."

You'd have to be really pessimistic to think that there is literally no chance that wealthy progressives will never one day say, "We've done enough already with licensing laws and the tax code and the minimum wage to really hurt blacks and to make them suffer, and we don't need to go any further towards creating an even more horribly stratified racial caste society. The horribly stratified racial caste society that we've created thus far is perfectly stratified for anyone, now, so let's stop here." Right?

Plus, there's very little likelihood of wealthy racist progressives not loudly saying, all the time, that anti-gay Christians must not go around being rude to gays. Enforcing hugely destructive racist policies and also saying, very loudly, that other people are intolerant and cruel people is what we call "a package deal." The first is bundled up with the second.

Exactly what amount of prejudice are we required to put up with? Well that depends on whether you're Brandon Eich or Barack Obama. They were both prejudiced, but they weren't both fired for it, so the villagers with pitchforks have been treating it as a case by case thing.

Chris writes:

@Ak Mike

Yes, there would be local and sporadic discrimination.

Our discrimination laws came about to solve specific, real issues. There is no reason to believe that discrimination would be local or sporadic when large portions of the population have strong biases against some population or other and when, without the laws, there are often strong financial incentives to discriminate. Many of our discrimination laws have come much more recently than the 30s. The Americans with Disabilities Act, for instance, was developed in the 90s to address real issues regarding people with disabilities receiving access to markets.

Also, in practice your "local" discrimination may mean that someone doesn't have access to a hospital, for instance, unless they move hundreds of miles away. That feels like a pretty big burden to place upon someone in the name of free association. It also means that there are entire towns and counties that African Americans, Muslims and homosexuals would have trouble living in because there would be enough bigotry to prevent them from accessing services.

While this may be a principled argument for you, for many the removal or watering down of anti-discrimination laws would directly lead to a significant detriment.

Hazel Meade writes:

I think when I have Ak Mike and Chris coming at me from opposite directions, I might have hit a sweet spot which prove the point that the issue is pretty complex.

I'm inclined to agree with Chris that there WOULD be lots of discrimination, some of it which might be justifiable (does every restaurant really need to be wheelchair accessible? Really?), some very much not and which would demand a significant social response to counteract. Personally, I suspect that there are probably many places where open racism against blacks, as well as hispanics, would return if people tolerated it.

Personally, I wouldn't boycott a cake baker just because he didn't want to serve gay weddings, but I probably would if he refused to serve gays generally, or any other minority. I don't think that would be intolerant of me. Indeed, it would be necessary to creating a tolerant society in my view. In the end, in the absence of laws, we're all just going to have to try to enforce the social norms that support the sort of society we want. May the best social norms win.

Hazel Meade writes:

Good comment. I agree that tolerating widespread discrimination would lead to all sorts of unjust outcomes. I don't want to live in a society where people don't have an equal chance in life, just based on their race or religion or sexual orientation. I think people should treat each other as social equals as much as possible. I think the only point of contention with everything you posted as that I'm not convinced it's necessary to have the government enforce that equal treatment. It could be enforced via social rules that demand people treat one another as equals, which forbid discrimination on any basis other than merit.

Chris writes:


I'm not sure I see how "social rules" could possibly be enforced, or if they even would be enforceable in areas where a large portion, if not majority, of people hold the discriminatory viewpoint. It seems like in many areas the "social rules" would do the opposite: enforce discrimination (businesses in the south not serving homosexuals due to public pressure, for example).

Generally, if you're using the terms "enforce" or "forbid" you require a body that has the power to perform those two roles. That's one of the primary reasons why we have governments; we give authority to a body (the government) to enforce specific rules that serve the greater good at the expense of the individual. Without this authoritative body, you have no power to enforce any rule, unless you personally, or as part of a group, have enough might (economic or physical) to provide that enforcement.

Show me any society or large group that functions without a governing body with authority and I will start taking "social rules" seriously.

Mark writes:

I recall Reason's article on the Daily Show's segment where, in order to make fun of North Carolina's lack of anti-discrimination laws for gay people, they had to send their own food truck down there to mockingly discriminate against gays because they couldn't find anyone who was doing it already.

IOW, contrary to their (and Chris's) opinion regarding the region, absent appropriate government coercion, commercial anti-gay discrimination was not only not widespread: it was nonexistent.

And anti-gay or gay marriage attitudes are far more socially acceptable than racism. Even racists will still generally serve people of the race they don't like for financial reasons. I expect discrimination resulting from eliminating public accommodation would be negligible (except maybe when it comes to handicap accessibility).

I think the issue of freedom of association is quite simple; as simple as free speech. Its suppression surely would save some people hurt feelings and some inconvenience, but that doesn't remotely justify it.

Anyway, Chris, you said:

"That's one of the primary reasons why we have governments; we give authority to a body (the government) to enforce specific rules that serve the greater good at the expense of the individual. Without this authoritative body, you have no power to enforce any rule, unless you personally, or as part of a group, have enough might (economic or physical) to provide that enforcement.

Show me any society or large group that functions without a governing body with authority and I will start taking "social rules" seriously."

I guess I'll have to strongly disagree with you. I don't want to live in a society where the benefit of (some politician's definition of) the 'greater good' is sufficient to justify abrogation of an individual's rights. That leads to a lot of terrible places.

I have to ask though, if people generally will be as immoral as the state will let them be, why do you trust the people in government and the people who vote for them to dictate what the rules are and enforce them?

Chris writes:


Legitimately, show me a group that functions without developing an authority. I don’t think it exists. It’s not so much that I trust a government, but that they will essentially come into existing in any society or group of a large enough size. Typically they enforce the will of the powerful, but in a democracy they theoretically enforce the will of the people. There is no time in history where you could have existed outside the power of a government of some sort, whether you would like to or not.

Our specific government is largely guided and limited by a document that enshrines specific rights, but in protecting some rights, it also limits other rights. For instance, you have the right to free speech, but do not have the right to yell fire in a crowded theater because doing so would infringe upon the safety of others. There are similar shades of grey for almost any other right. The grey area between freedom of association and freedom from discrimination is largely what is being decided in this case. When does my right not to serve another unduly burden the right to equality of another?

Also, you chose one of many of my examples to pick on, and I wasn’t describing a specific location. There have historically been legitimate issues with blacks not being served, gays not being served, the handicap not being served, the poor not being served, etc. and it took government action to push back against this discrimination in each case to avoid a large number of people from being excluded from markets and equal access to essential services. It’s easy for you to point to one specific example and say discrimination isn’t a big deal, but that is cherry picking. There are plenty of recent historical examples and plenty of research showing systematic discrimination taking place against various groups in various areas each with significant and demonstrable hardships for those groups. Blacks were kept out of the housing market by redlining, homosexuals weren’t able to claim the same tax benefits as other couples until marriage equality, wheelchair bound people were significantly limited in the businesses they could access, limiting their access to many essential services and forcing them to make significant compromises on housing locations in order or pay substantial additional costs to upgrade housing they may not even own. None of this discrimination is ancient history, it was all addressed in the last 50 years and while progressive attitudes in some areas meant it wasn’t problem everywhere, conservative attitudes in many areas meant it was still a problem for a huge number of people.

Bedarz Iliachi writes:

Is Freedom of Association even pertinent here?
Nobody is refusing to associate with or do business with gays. But surely it is not obligatory for a business to offer all services a customer might desire. A baker might not simply offer same-sex wedding cake. Why is it necessary for a baker to offer this particular cake?

Mark writes:


You're moving the goalposts by miles. Eliminating public accommodation laws doesn't equal anarchism. I happen to agree that government is inevitable, but that doesn't in anyway justify it's unending enlargement; rather, imo, it means it should be kept only as large as is necessary to keep it from being supplanted by another, worse, government.

You're also incorrect about there never having existed a time or place outside the reach of governments. I'd refer you to the works of James Scott; but beyond that, even in most of the West, particularly rural areas, for most of history, most of the population had relatively little interaction with the state. There was some taxation (which many didn't pay) and virtually 0 public services.

"When does my right not to serve another unduly burden the right to equality of another?"
No one has a right to be treated equally by others. Let's establish that first. People have a right to be treated equally under the law, but that's it. If someone wants to treat a particular group of people differently in friendship, in how they greet them, in whether they let them into their home, you don't have the right to punish them for doing so or force them to do otherwise. I just happen to think the same applies to commercial transactions. All rights, imo, are negative in nature; they mean a right not to be forced to do something against their will. Forcing someone to serve someone they don't want to is a violation of their right; you are coercing them. Them denying someone service isn't analogous; they aren't forcing the person their denying service anything other than *their own property.* And no matter how bad the reason is, they have the right to distribute their property however they please; otherwise, it's not really their property.

And the fire in a 'crowded theater example' doesn't apply here because refusing to bake someone a cake is not a threat to their physical well-being. I know some people want to go down the road where hurt feelings are regarded as qualitatively similar to physical harm, but I don't. Ironically, the 'fire in a crowded theater' analogy was first used by Justice Holmes to rationalize upholding the prosecution of an anti-war (WW1) socialist pamphleteer. It wasn't even valid in its original use.

Lastly, that was the example you gave, so that was the one I responded to. I would argue that in most cases, laws follow rather than precede cultural norms; and today, by the time such laws are broadly supported, they no longer seem necessary.

I also question the net utility of government attempts to suppress private discrimination. Many progressives before the housing crisis complained a great deal about black applicants being less likely to get mortgage loans, and were generally deaf to people pointing out that there were confounding variables associated with race and inability to repay one's mortgage (or the fact that black women had higher acceptance rates than men, even though most bankers are white men, contradicting the 'privilege' explanation for mortgage discrimination); we ended up with regulations that effectively imposed quotas on banks to artificially inflate minority loans. Then, after the crisis, what happened? Minorities were disproportionately the victims of foreclosures, and the same people demanding more minority loans were now calling banks racist for having to foreclose disproportionately on minority homes, missing the irony of the fact that the former helped cause the latter.

Now, I don't doubt that some mortgage originators were discriminatory. But all in all, even ethnic minorities likely would've been better off had the intervention ostensibly in their favor, not taken place, and that the cost of many loans that likely shouldn't have been originated ending in foreclosure likely outweighed whatever actual discrimination was actually prevented.

The overarching point illustrated by that example being, efforts to stamp out 'systemic racism' from markets by the state, especially given the tendency of racial activist to ignore confounding variables or to use questionable indices of racism (e.g., implicit bias response), often cause distortions that ultimately cause more harm than good, even to those they're designed to help.

Lastly, if conservative attitudes are so threatening to, say, black people, I have to wonder why there is significant net migration of blacks from the north to the south today? Now, maybe you would say that it's purely for economic reasons and that it doesn't suggest the south isn't less hospitable to blacks than the north, but it does seem to be a nice example of economic interests trumping personal attitudes in economic interactions. It would seem, if we accept your view of the south, that more blacks are willing to leave a heavily regulated, hospitable, progressive state with fewer jobs to a less regulated, racist, conservative state with better employment opportunities than vice versa.

Michae Byrnes writes:

Hazel wrote:

I think when I have Ak Mike and Chris coming at me from opposite directions, I might have hit a sweet spot which prove the point that the issue is pretty complex.

I think you have. I don't think anyone walks away from this with a clean win - this case seems like one of those that may lead to bad law whichever way it goes.

Chris writes:


First, thank you for the detailed discussion, you make well thought out points and This has been a good debate.

The American West you use as your example was defined by the government action of military action removing s population from the land and maintaining a military force to ensure they stayed off. When my great great grandparents claimed land out west, they did so because a military protected them from Native Americans and they registered their land claim at the local government outpost so that they maintained a claim on that land if anyone else tried to take it by force. Later, the west would be bailed out by the government when crop prices crashed and the federal government paid farmers to burn crops. In the dust bowls, farmers would leave the west and partake in a government taking of land by living in Hoover towns.

Honestly, I don’t disagree with your second statement, which is why a case like this is so interesting. I believe people should be able to serve who they like, but I also believe that right shouldn’t force people out of a market or be caused substantial hardship because of who they are. While one couple and a cake seems inconsequential in the big scheme, an example like the bank redlining I gave previously caused actual harm because it was widespread enough to significantly push a group out of a market.

Concerning the details of redlining, I don’t disagree that it’s always more complicated than a simple cause and reaction situation, but the bank redlining practice did have huge consequences for African Americans. Additionally, I believe you are conflating the restrictive mortgage practices of the 60s and 70s with the lose lending practices and predatory lending practices of the 90s and 00s. The economic impact of redlining did influence the number of African Americans that were financially unstable in the 90s and were then more likely to take on dangerous mortgages or fall prey to the predatory lending practices that specifically targeted minorities in the 90s.

I both disagree with your examples that you say show the negative impact of regulating anti-discrimination and disagree with you in principle. Your argument against anti-discrimination laws seems similar to those regarding Jim Crow laws and in favor of segregation in general. Essentially, “leave it alone; they could just move elsewhere or wait until social conditions change”.

Lastly, again, I didn’t name a specific location so the assumption that I think the whole of the south is racist/bigoted isn’t correct. There are areas where racism continues to be prevalent enough that a typical minority will encounter it frequently in their interactions. That doesn’t mean the entire south is a no-go zone for minorities.

robc writes:


I wouldn't worry about it. I think the famous Goldwater quotation covers this situation exactly.

Okay, so now in addition to being a fanatic, I am calling you an extremist.

Me too.

Hazel Meade writes:


Absolutely, I don't think there is any guarentee that we will wind up with social norms that enforce anti-discrimination. I don't quite think that justifies having government enforced anti-discrimination laws though. It just takes constant work to push that sort of social progress forward. If there's enough prejudice around that you would wind up with social norms that enforce discrimination, a democratic government probably wouldn't be able to enforce anti-discrimination law anyway.

Also, I think there are some cases where socially enforced discrimination might be a good idea - like against extremist religious cults or very sexist or cultural practices. i.e. maybe you should have the right to not rent to a fundamentalist Muslim if they are going to force their daughters to wear veils. If you just have laws which ban anyone from discriminating for any reason, there's no room for society to organically evolve, no flexibility. And I don't think we can trust the government to know which rules ought to prevail - it has to be worked out organically. We just have to work so that those social rules which we think are morally just prevail organically, via persuasion rather than force, even if that means we have to take the risk that they might now. It enhances our moral obligation to speak out against injustices in everyday life.

Seth writes:

The baker, in this case, claims decorating a cake would show his support for something.

Sullivan makes a similar claim:
"...he is refusing to endorse a particular activity that violates his faith."

I don't find these compelling.

Getting paid to do your job does not mean you endorse anything.

When TV stations air political ads, nobody assumes those ads reflect the views of owners, managers or employees of the station. I'm sure there are lots of ads -- political and non-political -- they get paid to air that they disagree with.

Should we assume that the makers of chairs used by the Church of Scientology shows that the chair maker supports or endorses the CoS? I don't think so.

David -- Have you ever taught anything that you didn't agree with? Did you teaching it show that you endorsed it?

robc writes:


TV stations do reject some ads.

Thaomas writes:

I agree that freedom of association is a good thing. I also see how a large enough number of people freely deciding NOT to associate with a minority can be bad. So the Civil Rights Acts were helpful in moving us to a new "non-discriminatory" equilibrium.

But the good of preventing harm to the minority need not require that no member of the majority ever refuse to associate in any circumstance. An exception for individuals and individual proprietorships to refuse service in many kinds of commercial relations should be permitted.

I do not think that the exception should turn on whether the refusal to serve is based on a "religious" view or not.

Mark writes:


"Your argument against anti-discrimination laws seems similar to those regarding Jim Crow laws and in favor of segregation in general."
How so? I see my position is precisely the opposite. The Jim Crow laws mandated discrimination, and were therefore a clear violation of freedom of association.

"Essentially, “leave it alone; they could just move elsewhere or wait until social conditions change”."
I don't think there's any region in the country where life would be so intolerable for any given ethnic minority even absent anti-discrimination laws; even in the deepest parts of Alabama, I am confidant the vast majority of businesses would remain open, and sell at the same prices, to people regardless of race, religion, etc.. If we're talking about being exposed to ambivalent attitudes or derogatory words and ideas, just how socially hospitable does a city or neighborhood legally *have* to be? And how far does this principle extend? There are neighborhoods in Portland and San Francisco that are rather unfriendly to Christians. There are certainly plenty of neighborhoods in Midwestern cities where one gets a lot of negative attention for being white. Certainly, there are many Asian and hispanic exclaves where non-Asians or non-hispanics who live there are almost invariably treated as outsiders; or imagine being a non-Mormon in certain parts of Utah.

These places, however, are generally but a small portion of the country. The state has an obligation to protect people from violence, but does it have an obligation to make sure that every county in the country is comfortable, in more of a social or cultural sense, to live in? I would say no.

Back to the issue though, I actually somewhat agree with what Thaomas just said.

If, say, no one in your state is willing to sell food or basic necessities to people of your ethnicity, then I think taxing/fining businesses denying service to subsidize anyone willing to provide services (which I think is greatly preferable to outright shutting businesses down).

But if it's .01% of bakers or florists refusing to provide a rather peripheral service, then I don't think intervention is remotely warranted. There are hypothetical conditions in which public accommodation laws exist (and a handful of particular services, like emergency room care, where the principle may apply generally); but for the vast majority of markets, in the US today, I don't think such conditions are any where near being met.

Mark writes:

Hazel, on the non-coercive enforcement of social norms, though it may have potential, this seems like a difficult thing to do without a very broad consensus, and I could see it spiraling out of control if eventually becoming an adversarial practice.

Suppose you have Big City and Small Town. Initially, City and Town share a measure of consensus. Both communities overwhelmingly refuse to rent to people who overtly discriminate based on race in their professions. Eventually, though, some people in the City decide to ostracize churches that refuse to ordain women or perform same sex weddings while many in the Town ostracize people who publicly engage in what they regard as blasphemy. Traditional Christians increasingly leave the City for the Town, and non-religious Towners increasingly move to the city, a change in composition that shifts social norms in both. Each views the other's latest ostrazization as a bridge to far, and responds: the City ostracizes male-only clubs as misogynist; the Town ostracizes female only clubs as misandrist. The City cracks down what it believes to be racist price discriminating businesses, which (some racist, but many not, and just caught in the broad net) move to the Town, and a similar thing happens when the Town cracks down on what it perceives (sometimes correctly, but also sometimes not) to be 'reverse racism' by local colleges, whose students and professors move to the city.

The increasing homogeneity of the two communities ultimately leads to two increasingly distinct, perhaps barely overlapping, Overton Windows, and each gets increasingly narrower the more homogeneous the community gets. This may not be inherently bad; but I could see why someone might think it undesirable. To some extent this is already what's happening with the urban/rural divide in the US.

Personally, I like living in big northern cities, and would never want to live in the countryside. I have a strong vested interest in keeping it as socially acceptable as possible to be a pro-free market, anti-feminist, agnostic libertarian in my city. I don't want to have to move out to the boondocks to not be a pariah, though I may be one there as well. So while boycotts can often be a great substitute for regulation, I'm inclined to keep a close eye on movements that seek to narrow the Overton Window in general, since, quite frankly, preventing bad people from being able to live or do business in my city matters less to me than maintaining my own ability to live and do business in my city.

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