The Indiana RFRA (Religious Freedom Restoration Act) is old news by now, lawsuit fines are all the rage now. Also, apparently That’s So Raven is not only still a thing but part of America’s leading intellectual elite. Turns out the LGBTQ(RSTUVWXY and Z!) crowd has quite the sweet tooth craving and only Christian bakers have the recipe for what ails them. In both controversies people seem to have troubles parsing out which rights and whose right is right. Is it the Christian baker’s right of property over his business to do with as he pleases, or the rights of others to have a fabulous wedding? Is the Christian’s freedom of religion not to violate their conscience, or is the homosexual’s right not to be discriminated against. Today in ‘Merica we have so much darn freedom and so many rights we don’t know what to do with ourselves. A right to healthcare, a right to $15/hr, a right to not be offended, a right to whatever sounds appealing to me right now.
In our day there is a controversy over whether or not one party in a voluntary transactional contract does not wish to participate ought to forced against their will to work for the other person. Denny Burk has not exactly been silent on his distaste for libertarians, but recently he has written a flurry of posts about bakers, florists, photographers, and others right to discriminate. Yet not 5 years he was saying libertarians were worse than rank liberals for saying that though we disagree we would allow (private) business owners for discriminating for whatever reasons they see fit. This seeming inconsistency caused me to comment on Denny’s piece (comment below). Of course Burk may be better off checking out Walter Williams on the freedom to discriminate or his books The State Against Blacks and Race and Economics, for an African-American libertarians perspective. Burk finds it abominable that we recognize that a free society would come with some undesirable consequences. He thinks it is an untenable position to say you personally disapprove of an act but still think others should be allowed to do it if it does not aggress against another’s person or property. With free speech people are going to say some horrible, racist, offensive things, with freedom of religion people are going to believe some wild things, and with freedom of association people may associate with people we don’t like (KKK, Neo-Nazi’s,etc.) and people may not associate with people we think they should (eg. a racist business owner refusing service to blacks). So when push comes to shove conservatives have folded on the property rights issue and allowed waves of anti-discrimination laws to be passed.
It seems then that libertarians actually believe we have less rights than people think, and yet we believe they are absolute. We don’t believe in positive rights at all, only in the negative right to be secure in your person and property. That is, you don’t have rights in which you are obliged to have something, but simply a right not be aggressed against. Property rights are a broader more expansive (and limiting) category than any other freedom, including freedom of religion! Freedom of religion ends where someone else’s property rights or right to life (the ownership of their body) begin. Freedom of religion does not enable child sacrifice, beheading of infidels, and imposition of theonomy (Christian or sharia). It doesn’t matter if someone really really believes super hard that infidels should be beheading or we should all be forced seventh day adventist. Freedom of speech is not abstract free floating right. It is only applicable on your own property or whoever allows you to speak on theirs, but if they don’t like what you say in their house, business, or website your “freedom of speech” ends. Your freedom of association is the freedom to peaceably use your property and person as you see fit. For this reason I felt the need to comment over at Denny Blog and tell him yes, the Black Panthers do have a right to discriminate against white people. Gay construction workers do have the right to refuse business from the Westboro baptist. An African-American should not have to do the electrical work for a Klu Klux Klan meeting house. Yes, Christians by no means should have to bake a cake, arrange flowers, or photograph a wedding. Beyond this we take our principles to the extreme and hold that property owners can discriminate for any reason they see fit no matter how arbitrary. If the local butcher thinks redheads are the spawn of the Satan, or that left-handed people aren’t worthy of ground beef that his prerogative to take and his income and business to lose. Regardless one would think if the white-supremacist photographer hates your guts you don’t want him at your wedding. Do you really want to give your business to someone who has to be forced by the police to serve you when you could down the street to someone perfectly willing to serve you?
“Denny, your stance seems slightly inconsistent to me, but not for the reason the LGBTQ crowd says. Years ago you wrote Why I Can’t Stand Libertarianism and said Libertarianism “is worse than rank liberalism” because they would not use the state to force private (not public) business owners not to discriminate, now you’re very upset that people are trying use the government to force bakers to violate their conscience. One problem here is probably that I look at this through the lenses of property rights while you focus on religious freedom, which is really much more tricky. You say it is different however because Christian bakers are willing to serve gay people just not at gay weddings, same goes for florists/photographers. But what if their interpretation of scripture (albeit false) says they cannot serve openly unrepentant gay people at all? is it ok then? Wouldn’t it be a violation of their freedom of religion to force them to? Or in the reverse case, should gay bakers be allowed to refuse service to openly anti-homosexual Christians? It seems it may violate their conscience but if it is not their religious belief do they lose the right peacefully withdraw service according to their conscience? If you want freedom of association for yourself you are going to have to give it to others, and you may not like what they do. Shouldn’t African-American business be able to reject business from members of the KKK, or Jewish businessmen turn away neo-nazi’s? It seems you have already given power over to government to decide what is and what is not discrimination, frankly neither you or the LGBT seem interested in property rights and freedom of association for business owners. You mock and ridicule libertarians for saying that they personally disagree with discrimination but are not willing to force business owners not to and now you are upset that the LBTQ personally disagree with your discrimination (or baker’s) and are willing to use force to against them.
Property rights is a better category to argue from than religious freedom. There are obviously limits to freedom of religion, namely one’s freedom of religion stops where it harms someone property or life. ISIS can not come here and claim freedom of religion and chop heads off. Thus property rights and freedom of peaceable association, that is to act in a way you see fit with your body (including thoughts and speech) and property that does not impugn on others rights to life and property, is a more expansive
(even primary) category than freedom of religion. Same goes for freedom of speech, I do not have freedom of speech in someone’s else’s house (or website) I am only allowed to speak if they let me, my freedom of speech is limited by others right to the peaceable use of their property. The same should be applied to entrepreneurs who are the owner of their business, even if they chose to do something we disapprove of. You loose credibility and the ability to argue from principle if you abandon that. As definitions of discrimination continue to inflate like a balloon business owners will be forced to work against their will in much more trivial and absurd ways, beyond being against the 1st amendment it is against the 13th amendment which prohibits involuntary servitude except in the case of punishment for a crime. We either have to say yes people can discriminate, and for many strange and bizarre reasons they think of, or we will lose all principle to argue why we suddenly should be allowed to.”