In March 2015, a controversy roiled in Indiana over passage of the state's Religious Freedom Restoration Act. That divisive controversy is
the latest fruit of a terrible legal precedent established during the Civil
Rights era -- which was in turn based on terrible confusion and
misunderstanding of the nature of "rights."
Protestors of the Indiana law (which in fact mirrors the federal RFRA law and similar laws in 30 states) claim that, by protecting the rights of (say) Christian business owners not to serve or deal with (say) gays, the RFRA violates the "right" of the latter to be served by these private businesses, without discrimination.
But does any such "right" exist? Let me attempt to untangle this mess.
Our individual rights have a moral basis: They are based on the moral premise that every individual is an end in himself -- not a means to the ends of others. Rights are moral principles established to institutionalize that premise as the basis for peaceful social relationships. Individual rights prohibit one person from living at the expense of someone else by means of force, fraud, or coercion.
Which brings us to the role of government. The Declaration of Independence states that the purpose of government is "to secure these rights" to life, liberty, and the pursuit of happiness. Government is established to protect these rights of individuals from acts of force, fraud, and coercion by others. And to enforce those protections of rights, government may use force and coercion only in retaliation against those who violate the rights of others.
In other words: Since government is an agency meant to protect the rights of all, and because it is funded by all, it therefore must afford equal legal protection to all. As an impartial umpire and protector, it cannot "play favorites" in its actions without operating unjustly.
To this end, the Civil Rights Act of 1964 did some very good things. In the Act, the Titles (or sections) numbered I, III-VI, VIII, and IX were aimed at ending discrimination on the basis of race, sex, and similar traits by government bodies, officials, and laws. For many decades before passage of the Act, various government bodies did operate unfairly and prejudicially, especially against blacks. Such officially sanctioned bigotry and bias was a moral and legal outrage, and it needed to be put to an end. So, these particular sections of the Civil Rights Act are rightly celebrated as a boon for the cause of individual rights.
However, Titles II and VII of the Civil Rights Act took matters a step too far. They banned owners of private property from exercising their own individual rights of freedom of association on and with that property. In other words, those sections violated an individual's right to choose his own associations, and on his own property, for whatever reasons (rational or irrational).
To repeat: The basic premise underlying and justifying government and law is that each individual is an end in himself, not a means to the ends of others. But that very premise -- which demands that government act neutrally and impartially toward all -- also protects the right of individuals in the private sector to associate freely with whomever they wish, for whatever reason they wish. Those reasons don't have to be admirable. Let me be clear: I think that discrimination based solely on race or sexual orientation is disgraceful and stupid. However, it is an individual right to be a fool and a bigot.
To compel, by law, some legally specified people to associate with other legally specified people means that...
(1) the first group are not being treated as ends in themselves, but are being forced into the role of being the servants of others;
(2) the government -- which is supposed to be impartial -- is favoring the second designated group at the expense of the first; and
(3) the rights of individuals to peacefully use their private property as they see fit are to be subordinated to collective social purposes.
Ironically, (1) imposes "involuntary servitude" -- exactly what the 13h Amendment made illegal. From Wikipedia: "Involuntary servitude is a United States legal and constitutional term for a person laboring against that person's will to benefit another, under some form of coercion other than the worker's financial needs." To compel a business owner to serve someone not of his free choosing meets the very definition of "involuntary servitude." That may include compelling (say) a Christian baker, who does not believe in "gay marriage," to provide pastries at a gay wedding reception. If you think that is okay, then what would you say if a white racist or -- even worse!!! -- a RICH CONSERVATIVE CHRISTIAN REPUBLICAN (say, Rick Santorum or Sarah Palin) demanded, under the same "non-discrimination" laws, that a liberal, Democratic, gay, female, African-American baker provide pastries for his or her daughter's wedding?
Ironically too, in the name of "non-discrimination," (2) lets the government coercively discriminate on behalf of some people over others in what otherwise would be private, voluntary relationships.
And (3) represents a de facto nationalization of private businesses. Ownership, by definition, means the right to freely and peacefully use and dispose of property as the property holder sees fit. But under those two titles of the Civil Rights Act, property is no longer to serve the individual ends determined by its owner; instead, it is now to serve the collective ends of his customers, by governmental decree. The businessperson's private property rights are thus subordinated to collective ends, just as the businessperson himself or herself is subjected to involuntary servitude on behalf of customers.
I said above that "individual rights prohibit one person from living at the expense of someone else by means of force, fraud, or coercion." To use force and coercion in order to compel the owners of private property to deal with or serve you, is a direct violation of the owner's individual rights.
The fact that these violations of rights are rationalized because they are "for a good cause" is irrelevant. Just as the First Amendment protects the free speech of individuals, even if we despise what they say, so too does the rest of the Bill of Rights protect the freedom of business owners to hire or serve whomever they wish, even if we despise their specific hiring choices or service policies. The way to deal with bigots, in either case, is through boycott and ridicule -- which is perfectly within the rights of any protester.
But now, the law has been stood on its head: It has become a tool to discriminate against and violate the individual rights of people whom we don't like . . . perversely, in the name of "protecting rights" and "non-discrimination."
As I write, Republicans such Governor Mike Pence of Indiana are back-pedaling frantically, trying to rewrite Religious Freedom Restoration Acts so as to prohibit private acts of "discrimination." But in doing so, they are caving in to those who are using such demands to destroy what little is left of individual and property rights. And they are thus joining the mobs that treat individuals as nationalized means to social ends, and no longer as moral ends in themselves.
Protestors of the Indiana law (which in fact mirrors the federal RFRA law and similar laws in 30 states) claim that, by protecting the rights of (say) Christian business owners not to serve or deal with (say) gays, the RFRA violates the "right" of the latter to be served by these private businesses, without discrimination.
But does any such "right" exist? Let me attempt to untangle this mess.
Our individual rights have a moral basis: They are based on the moral premise that every individual is an end in himself -- not a means to the ends of others. Rights are moral principles established to institutionalize that premise as the basis for peaceful social relationships. Individual rights prohibit one person from living at the expense of someone else by means of force, fraud, or coercion.
Which brings us to the role of government. The Declaration of Independence states that the purpose of government is "to secure these rights" to life, liberty, and the pursuit of happiness. Government is established to protect these rights of individuals from acts of force, fraud, and coercion by others. And to enforce those protections of rights, government may use force and coercion only in retaliation against those who violate the rights of others.
In other words: Since government is an agency meant to protect the rights of all, and because it is funded by all, it therefore must afford equal legal protection to all. As an impartial umpire and protector, it cannot "play favorites" in its actions without operating unjustly.
To this end, the Civil Rights Act of 1964 did some very good things. In the Act, the Titles (or sections) numbered I, III-VI, VIII, and IX were aimed at ending discrimination on the basis of race, sex, and similar traits by government bodies, officials, and laws. For many decades before passage of the Act, various government bodies did operate unfairly and prejudicially, especially against blacks. Such officially sanctioned bigotry and bias was a moral and legal outrage, and it needed to be put to an end. So, these particular sections of the Civil Rights Act are rightly celebrated as a boon for the cause of individual rights.
However, Titles II and VII of the Civil Rights Act took matters a step too far. They banned owners of private property from exercising their own individual rights of freedom of association on and with that property. In other words, those sections violated an individual's right to choose his own associations, and on his own property, for whatever reasons (rational or irrational).
To repeat: The basic premise underlying and justifying government and law is that each individual is an end in himself, not a means to the ends of others. But that very premise -- which demands that government act neutrally and impartially toward all -- also protects the right of individuals in the private sector to associate freely with whomever they wish, for whatever reason they wish. Those reasons don't have to be admirable. Let me be clear: I think that discrimination based solely on race or sexual orientation is disgraceful and stupid. However, it is an individual right to be a fool and a bigot.
To compel, by law, some legally specified people to associate with other legally specified people means that...
(1) the first group are not being treated as ends in themselves, but are being forced into the role of being the servants of others;
(2) the government -- which is supposed to be impartial -- is favoring the second designated group at the expense of the first; and
(3) the rights of individuals to peacefully use their private property as they see fit are to be subordinated to collective social purposes.
Ironically, (1) imposes "involuntary servitude" -- exactly what the 13h Amendment made illegal. From Wikipedia: "Involuntary servitude is a United States legal and constitutional term for a person laboring against that person's will to benefit another, under some form of coercion other than the worker's financial needs." To compel a business owner to serve someone not of his free choosing meets the very definition of "involuntary servitude." That may include compelling (say) a Christian baker, who does not believe in "gay marriage," to provide pastries at a gay wedding reception. If you think that is okay, then what would you say if a white racist or -- even worse!!! -- a RICH CONSERVATIVE CHRISTIAN REPUBLICAN (say, Rick Santorum or Sarah Palin) demanded, under the same "non-discrimination" laws, that a liberal, Democratic, gay, female, African-American baker provide pastries for his or her daughter's wedding?
Ironically too, in the name of "non-discrimination," (2) lets the government coercively discriminate on behalf of some people over others in what otherwise would be private, voluntary relationships.
And (3) represents a de facto nationalization of private businesses. Ownership, by definition, means the right to freely and peacefully use and dispose of property as the property holder sees fit. But under those two titles of the Civil Rights Act, property is no longer to serve the individual ends determined by its owner; instead, it is now to serve the collective ends of his customers, by governmental decree. The businessperson's private property rights are thus subordinated to collective ends, just as the businessperson himself or herself is subjected to involuntary servitude on behalf of customers.
I said above that "individual rights prohibit one person from living at the expense of someone else by means of force, fraud, or coercion." To use force and coercion in order to compel the owners of private property to deal with or serve you, is a direct violation of the owner's individual rights.
The fact that these violations of rights are rationalized because they are "for a good cause" is irrelevant. Just as the First Amendment protects the free speech of individuals, even if we despise what they say, so too does the rest of the Bill of Rights protect the freedom of business owners to hire or serve whomever they wish, even if we despise their specific hiring choices or service policies. The way to deal with bigots, in either case, is through boycott and ridicule -- which is perfectly within the rights of any protester.
But now, the law has been stood on its head: It has become a tool to discriminate against and violate the individual rights of people whom we don't like . . . perversely, in the name of "protecting rights" and "non-discrimination."
As I write, Republicans such Governor Mike Pence of Indiana are back-pedaling frantically, trying to rewrite Religious Freedom Restoration Acts so as to prohibit private acts of "discrimination." But in doing so, they are caving in to those who are using such demands to destroy what little is left of individual and property rights. And they are thus joining the mobs that treat individuals as nationalized means to social ends, and no longer as moral ends in themselves.
