Before anyone mentions it, I know arguing in favor of the right to be racism or sexist or bigoted in any of a thousand possible ways is not a winning formula. It is probably one of the reasons Goldwater never won the presidency. It certainly would not be my opening gambit were I running for political office. But on the other hand, how we treat the most detestable is a measure of our commitment to our political principles. When the authoritarians want to expand government power, they don't do so by attacking popular exercises of our rights, they attack the most despicable, but allowable, actions. They attack the bigots, the drug addicts, pornographers and others¹. So how we treat those who hold unpopular views or engage in unpopular acts is crucial².

So, as I am not running for office, and I am not writing a manifesto for some political party, allow me to explain why, much as it may offend our sensibilities, bigots have every right to be as bigoted as they wish, and why, more significantly, failing to defend that right sets us down a dangerous course.

The basic argument is obvious. The first amendment gives us an unlimited right to freedom of association. We can choose with whom we associate, and the criteria we apply is not open to scrutiny. The right is not "freedom to PC association" or "freedom of association provided the racial percentages are right", it is an absolute right, like speech. And the reason is obvious. A government which dictates your social interactions is clearly incompatible with individual freedom³.

And even those who support antidiscrimination laws would rankle at applying such laws to private life. They would not accept a government which looked at a dinner party and said "not enough Hispanics, you must invite three more", or which told you you must marry an Asian or black, as the marriage percentages are off for your race. We accept that in private life there is no requirement that you justify with whom you associate. You do not need to explain to the state how you chose your friends, your spouse, who you invited to your parties and events, or anything else. Even if you are clearly discriminating on race, religion, sex, sexual orientation and so on, we accept that you have that right in private⁴.

But, say the supporters of forced integration, that applies only to private life, once you start providing a public accommodation, you must not discriminate. And it is this distinction, the distinction between private right of association and public accommodations which allows the antidiscrimination laws to get around the first amendment⁵. (There is also an argument to be made form property rights, that one has the right to discriminate on one's property regardless of whether it has a public or private use, but the courts have eviscerated property rights even more than the first amendment, so I will not try that approach. In any case, most seem unsympathetic to property rights arguments, so I assume a first amendment argument will get a more sympathetic hearing⁶.)⁷

One big problem here is that there is no clear line between public and private⁸. Let us start with obvious ones. Your dinner with your family is private. And a restaurant where you serve absolute strangers is public. But what about a dinner party? What if you invite friends outside your family? How about if you ask them to help pay for the drinks? What if they bring with them people you don't know? What if you ask your guests to bring people you don't know? At what point does your private party become public?

It is not as arcane a legal point as some would suggest. For example, when I lived in Baltimore the bars were required to shut at 2 AM. A friend of mine got around this by having "private parties" at his house, from 2 AM until sunrise. He had converted the ground floor into a public area, and every night he would buy several cases of beer and charge his "guests" $5 a head for all they could drink. And, apparently, this was good enough for the City of Baltimore, which never prosecuted him for serving liquor without a license or staying open past 2 AM. Similar schemes have been used i cities which have onerous liquor laws. I know in the early 1990's when I visited Charleston, South Carolina there were numerous "private clubs" which were effectively bars, excepting that first time customers had to pay a token amount to "join". The purpose was not to restrict membership, but to get around restrictive liquor licensing laws, which apparently were worse for public bars than for private clubs.

Nor is this only a dodge used for liquor laws. As I mentioned in a footnote, there exist cooperative organic buying associations which are not subject to laws regulating retail food sellers, though, in the case I cite at least, the state is contesting that. Or perhaps the most famous example, the private club at Augusta, which the NYT thought public enough to need to admit women. In fact,t hat may be the best example of all for the difficulty in distinguishing private and public. Augusta, for all the attention it gets on the golf circuit is still nothing but a private club. So, does the fact that it accepts members make it a "public accommodation"? If so, then how does it differ from your dinner party?

Which brings me to the second problem. Just as it is difficult to tell where the line is drawn between public accommodation and private association, there is also no way to keep that line form moving. As I argued in "Inescapable Logic",  once you start down a path the logic of those first arguments there is no stopping, the logic of the arguments carry you along.

Think of the way cigarettes were banned, first from airplanes where "you can't avoid smoke", then moved to smoking rooms, then removed form buildings entirely, now cities are attempting to ban it outdoors. Once the first argument is admitted, the logic carries one along. And that is the course antidiscrimination laws will go as well. In fact the way they have gone. First applying only to government and government contractors, then to all public accommodations, and then to private clubs that one can argue are public. Areas which once would have been excluded, such as religious organizations, now find themselves facing suits as well. Clearly the "line drawing" between public and private does not stand for long.

Of course I do not think antidiscrimination laws will be taken to their logic extreme, but simply because no one wants to invade another's dinner parties. However it does seem likely they will be used in two other areas. First, to discourage the existence of groups which displease various activists. If the clubs which admit strangers are considered "public" enough to require desegregation, it would be trivial to break up private associations with the threat of constant antidiscrimination suits. Second, antidiscrimination laws will be used, as they have already been used, to undermine property rights. They have already been used as a justification to pass the similar ADA, which has imposed massive costs on private businesses, and created its own special cottage industry of ADA nuisance lawsuits in California⁹. Nor is that all. As the antidiscrimination laws are generally seen by the public as a good thing, they provide the easiest way to erode rights. Once you admit that the antidiscrimination laws apply to this venture or that, it makes easier the imposition of other burdens, opening the way to erode private property rights in yet another area.

I already can hear the response from critics, provided they have read this far. "So, you want there to be no jobs for minorities at all?" But that is absurd. As I argued in "Fairness and the Free Market", the much maligned human desire for material self-improvement, often called "greed", will inspire businesses to hire minorities if they are left on the labor market. And if such a scheme proves profitable, others would surely follow suit. In the end, the only people still practicing any form of discrimination would be those, black, white or other, who really believed that discrimination was right. And it would cost them. Most likely the losses and disadvantage would drive them from business, but that is not certain. So, yes, under my plan, certain small backwaters of the economy may practice discrimination. Likely very few, but they would exist. So I cannot claim perfection on that front. On the other hand, my proposal would protect individual rights, which the current does not.

And I suppose that is the choice we have. Do you want to be sure that no business anywhere ever practices discrimination¹⁰? Or do you want to protect individual rights, even if it means a few businesses may be able to openly discriminate? You cannot have both.

-----------------------------------------------------------------------------------------

1. I am not here to argue for decriminalizing drugs, I did that in "Drug Legalization" and elsewhere. Nor am I going to argue in favor of pornography or an unlimited right to speech. That is an upcoming post. Here I am only discussing our right to association and the meaningless public/private distinction that has been used to undermine it.

2. As I am not writing about all the possible limitations placed on our rights and their inevitable expansion into other areas, I would suggest readers also check out "Smaller Government , Fair Weather Friends and Special Cases" and "Inescapable Logic", as they give a good general argument for the proposition that even a minor violation of our rights inevitably expands to encompass all our rights.

3. Some clever person may ask about the laws which prohibit those on parole form associating with other felons. However, that is not inconsistent. The requirement is part of their parole, not a general legal disability. They could choose instead to serve their full sentence and then associate with whomever they want. They accept the restriction in order to shorten their jail term, and so it is a voluntary disability, not a general restriction. In any event, as convicted criminals they lack certain legal protections. As we can limit their freedom, their free speech, their right to vote and other rights due to their conviction, we can also limit their right to associate.

4. Nor is this just a frivolous right. The right to free speech, for example, exists because unpopular speech, despite the majority holding it wrong, might prove to be right. So we defend the right of people to say unpopular things. Likewise, we uphold their right to act as their beliefs dictate, provide they do not deprive another of life, liberty or property. And that is also a reason to defend an unlimited right to association. For, while we moderns may think religious or racial discrimination may be wrong, or we may frown on sexual segregation, we could be wrong. So we must, as a matter of principle, allow others to live according to their beliefs, no matter how wrong we think they are, as we cannot be 100% certain we are right in all things. So long as individual rights are protected, there is no excuse for denying another the right to live by his beliefs.

5. What is most ironic about this is the distinction between private and public was also the basis of Jim Crow. One could legally allow any mixing of blacks and whites (excluding in matters sexual and matrimonial under miscegenation laws), but public accommodations required segregation. Of course those passing the law thought social pressures and traditions would ensure private affairs would remain segregated, and so they needed only prevent any public integration. And so, strangely, the distinction allowing the anti-discrimination laws to get around the right to associate and property rights is the same distinction that allowed the laws requiring discrimination to get around property rights and the right to association.

6. It is a sad commentary that one of the triad of the most basic rights, life, liberty and property, receives less support than a secondary right such as speech. Without property rights, no other rights are possible, while a regime which limits speech could still remain mostly free (though it would inevitably degenerate into tyranny). However, we daily accept massive restrictions on property rights while accepting only minimal restrictions on speech. I admit lately, with McCain-Feingold and similar laws, we have accepted more restrictions, and we have always been unsympathetic to "commercial speech", but we still accept many more abuses of property rights than speech rights. Of course that is consistent with our absurd elevation of "thinkers" above "mere businessmen", which ignores the fact that without the surplus produced by "mere businessmen" we would never have the luxury of employing men exclusively as artists, clergy, writers, philosophers, teachers and other thinkers.

7. There is also a freedom of religion argument here. Would antidiscrimination laws require that Catholics ordain women? Or orthodox synagogues desegregate seating? Would Mormons who still stand by their old belief need to admit black members? We have so far not forced this on religions themselves, though courts have been taking on groups funded by religious groups, such as social services provided by churches. However, logically, if "public accommodations" must be desegregated, there is little logic to exempting religions. After all, if we can force integration in violation of an individual's other beliefs, why do religious beliefs deserve exemption? Either we have freedom of conscience or not, no matter how unpopular that belief may be. Just calling it a religion should not give some groups freedom while excluding others others.

8. This whole post was inspired, at least in part, by a happy coincidence. I was arguing a few days ago with Caday5 that such a distinction is impossible (see the comments here). Last night, while checking out new posts on various sites, I stumbled across this article. Though in this case I disagree with Quackwatch's interpretation (as I do on most regulatory rather than scientific matters -- though scientifically I also don't accept much of their thinking on psychology as a science), it fit so perfectly that it inspired me to write a formal post, rather than limit myself to a few comments in response to Caday5.

9. Admittedly, these suits are filed under the more onerous California version of the ADA, but does anyone doubt that eventually the CA laws will become nationwide? Just as the burdensome CA clean air standards and related fuel compositions spread, first to liberal states, then tot he nation, so too will the more liberal ADA requirements. California and Minnesota serve as bellwether states for liberal agendas. As those states go so go liberal policies nationwide.

10. Actually, to be truthful, even under our current system discrimination is not ended. Our affirmative action schemes actually encourage discrimination in favor of minorities. In addition, it is still possible to discriminate covertly. So what we really achieve by sacrificing property and association rights is nothing but the end of open discrimination by the majority. Seems a small victory for such a sacrifice.

--------------------------------------------------------------

POSTSCRIPT

This is likely my only post today. I was in pain yesterday and hoped it would pass, but it did not turn out that way, and my arms are both now in excruciating pain. I made myself finish this, but I am not going to be typing more until my arms recover. So I apologize if I don't respond to comments as swiftly as usual. (On the positive side I have a trial for new pain control next month, and have found another doctor who may assist with this problem, so maybe I can stop writing these whiny little addenda sometime in the future. My readers have been very sympathetic about my incapacity, but I can't help but feel a bit embarrassed whining about it. So I will be glad once I can stop complaining and just get on with writing.)

POSTSCRIPT II

One thing I did not cover, as it seems obvious, is the government. The government is the one area where antidiscrimination laws are legitimate. As the state must be blind to any irrelevant differences, laws preventing them from recognizing race, sex, religion and so on, except in contexts where these are valid distinctions, are required for a good government. Oddly, thanks to both formal affirmative action policies, and informal "pushes" to "increase representation", our government, under both Democrats and Republicans, has been more discriminatory than any private venture. Admittedly discriminatory in favor of "victims", but discriminatory nonetheless. (Some discussion of the problems arising from "pro-minority" discrimination read "Sotomayor and Empathy" and ""Empathy" Threatens not "Justice" but Predictability".)

POSTSCRIPT III

Last bit, as I really have to stop typing. I would recommend reading "Private Versus Public Racism" for a good examination of public versus private racism. Also, I recommend "Eurocentrism? Racism? Liberal Traits All" for a good list of links on racial issues. "In A Nutshell" and "Cognitive Dissonance Part 2" both provides a good list of links describing the harm done when the government intervenes based upon the idea that man needs to be protected from himself. As  antidiscrimination laws fall largely in this category, it is a useful post as well.