The Right To Discriminate
The Third Rail Of Law?
Lately, there have been several high profile instances of Christians being attacked for discriminating against vices such as homosexuality and abortion. There was the baker who refused to make a cake for a gay wedding. And of course, there was Hobby Lobby’s opposition to paying for abortion-inducing birth control.
In both of these instances, as well as others, the common defense by conservatives has been based on religious freedom grounds. And while these cases do involve the infringement of religious conscience, there is a more correct and comprehensive reason why these Christians should not be compelled against their will. I am talking about the freedom of assembly, or the freedom of association, whichever you prefer.
No baker should be forced to bake a wedding cake for an occasion they disagree with it. There may or not be religious objections involved. But we should not even be getting to the point of discussing the religious freedom defense, for in a free society people should be allowed to do what they please as long as they do not directly infringe on another person’s rights.
Freedom of assembly, as guaranteed by the First Amendment, cuts both ways. People can agree to come together, just as they can agree to part ways. Implicit and necessary to this right is the freedom to discriminate. In our daily lives, we discriminate constantly. It is the basis of social interaction.
Of course, it goes without saying that some forms of discrimination are wrong, if not downright immoral, and they should be condemned.
But Constitutional rights are protected because they allow people to do things which others may strongly disagree with. If everyone agreed with each others’ right to do various things, then there would be no need to codify our rights in the first place.
Free societies use incentives in remarkable ways to indicates society’s approval or disapproval of actions visible to the public. For example, if a business decides that no Mexicans are allowed to enter, people can boycott that business and in turn enact an economic incentive to not discriminate on the basis of race. There are reputations at stake as well. People want to be liked. People who choose to openly offend society are in a small minority.
Unfortunately, anti-discrimination laws have largely taken away the ability of the public to identify and ostracize offending businesses and individuals. As a result, bad forms of discrimination and bigoted views largely remain in the shadows. And while undeniably anti-discrimination laws did some good at changing society to be more open to racial minorities (to what extent, we will never know, since as a region the south went from mandated discrimination to outlawed discrimination, with no opportunity to test the power of a free society), they were not consistent with the principles of a free society, and they are now leading to more regulation of private thoughts and action that go far beyond race into the sphere of political correctness. We are watching George Orwell’s “thought crimes” become a reality in our time.
We need to re-recognize the right to freedom of association and at the same time recognize that there is no right to not be offended. When the doctrine of political correctness fully replaces the values of liberty, it will be a sad day for America.