Thursday, August 19, 2021

The Right to Not Associate


       A couple years ago, ZMan had a thoughtful post concerning discrimination and the right of association entitled "Free To Not Be Around You." He observes that:
       Freedom of association is not just forbidden. You’re not even allowed to talk about it anymore. Imagine what would happen if someone went on TV and said they don’t want to live next to Koreans or Somalis. They would have their life ruined. It’s why all those principled conservatives we keep hearing about were nowhere to be found when the queers started attacking bakers. Even libertarians sprint from the room when the topic of free association is raised. It’s the result of conceding the moral high ground to the Left. 
       It’s why the so-called Right is in a panic over Trump’s immigration talk. If it is acceptable for Americans to say “no” to Muslims on the grounds that we don’t want any more Muslims, then we’re back to discussing the limits, if there are any, to the freedom of association. Put another way, if we don’t need a reason to say “no” to Mohamed, then we don’t need to ask for permission in order to say “no” to diversity. That’s not a fight, or even a discussion, the so-called conservatives want to have with the Left. 
       It’s also why the hand-wringing over free speech on campus is a pointless distraction. You cannot have free speech without freedom of association. That’s the obvious lesson from the confines of the academy. Put a bunch of people in close quarters and you have to police what they say and where they go. Otherwise, you have violence. The same is true of all other rights. All natural rights are premised on freedom of people to live apart from those they do not wish to associate. Self-segregation requires little policing.
Jerry Pournelle wrote about discrimination and freedom of association in 2015, and observed that "[a] free country would not be concerned with these matters." That is, whom one sells to or buys from, who one employs, and so forth, is not and should not be the business of government.

       I view it as an issue of both morality and tyranny. Anti-discrimination laws are, at essence, the government using naked force to require you to provide a service or employment or a residence to someone you do not want to, and without compensation for doing so. (Sure, you may have the compensation from the sale or lease, but not the additional compensation for the violation of your well being or values). This should be called what it is: tyranny and slavery.

       It seemed so harmless back in the 1950s and 1960s when the government only interfered as to gender (there being only two at the time) or race/national origin (which was sold as merely giving a leg up to compensate for past wrongs). And, of course, no one complained when it was extended to the handicapped. But government being government, there was a creeping metastasis, and now we are faced with an avalanche of all sorts of victim groups demanding their "rights." And it is weighing us down both socially and economically.

      Although the focus currently is on whether to admit aliens from those nations, religion, and cultures with a pre-disposition to blow things up or cut off someone's head, it was not so long ago that the fight was over extending special rights to homosexuals, including allowing gay marriage. Of course, taking a step back, the issue was never that of accommodating homosexuals as much as it was pressing down a bit harder on the neck of the American public--especially Christians.

       I'm reminded of an article from 2012 concerning a Kansas town that was considering adding homosexuals as a protected class under its anti-discrimination ordinances--ordinance that extended to churches. The article reported:
       The Rev. Michael Herring, of First Presbyterian Church in Hutchinson, told before the vote that he was divided on the ordinance, saying he believes that individuals should not be discriminated against, but worried the local government was overstepping its bounds. 
       “For the city or the state or anyone to say, ‘We’re going to force this upon you,’ then I think this becomes a bigger issue,” Herring said. “My question is where does this stop?”
The answer is, "it doesn't." As Matt Walsh noted several years ago:
       We force chapels to marry gays and bakers to bake cakes for gay weddings because we find Christianity abhorrent and detest the very thought of anyone attempting to live by its tenets. 
       That’s all. That’s it. That’s what everything comes down to. Nothing more, nothing less. 
        If we have banned people from practicing their faith in their private lives because we disagree with it, why wouldn’t we try and eradicate the hive itself? 
       If Christians are barred from running their private businesses according to their religious convictions, then haven’t we made a statement about those convictions? They’re unwelcome. Illegitimate. There’s no place in a civilized society for them.
       Tyranny and economic decline go hand-in-hand, and often come about hand-in-hand. This is the general script: a relatively free nation (whatever its form of government) generally represents a balance between rule by the majority and protection of a minority. At some point, the nation will face a threat (real or imagined) whereby the majority of people will support giving power to a central authority. The people may imagine that the power will only be held temporarily, or that the person(s) holding the power will act benevolently. This may be true at first, but eventually there will arise demagogues that will attempt to manipulate either the existing laws to gain more power, or manipulate the people into granting them additional power, or both. And whether suddenly or slowly, the nation will slip into tyranny under a minority (such as a political and economic elite).

        In the United States, the founding fathers attempted to craft a government that would provide a balance between the rule of the majority and the rights of the minority. Not only did the Constitution provide a balance between different branches of government, but created a balance between the federal government and the states. The latter was ensured through three mechanisms: (1) the federal government was only granted authority over limited, narrowly defined areas; (2) the upper house of the Congress (the Senate) was comprised of members selected by each state legislature; and (3) each state maintained its own military force (the state militias). There was a lot of suspicion about a central government, so in order for the Constitution to be approved, the states also adopted the Bill of Rights which placed further constraints on federal power by prohibiting Congress from enacting certain types of laws (such as those regulating speech or possession of weapons) or requiring certain safeguards (such as requiring warrants or the right to legal counsel). Every one of these safeguards have been compromised, most since the Civil War.

      Prior to the Civil War, the federal government had a small standing army. However, the Civil War crushed the distinct and separate nature of the state armies. The size of the state militias rapidly fell, and were eventually replaced with the National Guard system which is merely a reserve for the federal forces. The third element maintaining the balance between the states and the federal government was effectively gone. Today, for all intents and purposes, the states lack any military force to counteract the federal government.

       In 1913, the Seventeenth Amendment was passed, allowing the direct election of Senators. Thus, instead of representing the States, senators now represented the people of the various states. So, the second protection to maintaining the balance between the states and the federal government was lost.

        The final and most significant loss was the idea of a government of limited powers. After the Civil War, through various civil rights laws (including the 14th Amendment), the federal government took an active role in the internal operation and politics of not only the southern states, but also the newly formed western states and territories. Because of various economic crises in the late 19th and early 20th Centuries, the federal government also began to exercise increasing control over the money supply, eventually leading to the establishment of the federal reserve banks.

       In World War I, the federal government assumed emergency powers over the economy, and limiting important Constitutional rights and protections. Under Franklin D. Roosevelt in the 1930's and 40's, the federal government permanently altered the balance of power by a radical reinterpretation of the "commerce clause" allowing Congress to enact laws that far exceeded the limits envisioned by our founders. During the same period, Congress ceded its lawmaking authority to the executive branch through the process of enacting vague laws that would be clarified through rule making by the various federal agencies. The result is that now, the federal government routinely enacts laws involving the "police powers" (i.e., public health and safety) that were once limited to the states. In fact, the states pretty much only hold power at the sufferance of the federal government.

       The foregoing was mirrored by a similar incursion into the private realm. By the expansion of the federal government over the economy and expanded police powers, the federal government has become more involved in our personal lives, choices, and beliefs.

       So, you may be asking what all of this has to do with the title of this post. Turning to ant-discrimination laws, I don't think that most people would deny that, in the beginning, these types of laws are designed to address terrible social wrongs. The problem is, these laws address the wrongs through other wrongs. They attack the basic freedom of association. They create government agencies to enforce and oversee the laws. The laws expand to include larger and larger numbers of people within a protected class. They make it easier to find people or entities to be in violation by either reducing the burden of proof (e.g., moving from an adverse action being "because of" discriminatory animus, to being "motivated by" a discriminatory animus) and incentivizing lawsuits (e.g., allowing private causes of action; providing for attorney's fees only to plaintiffs, not defendants; allowing the recovery of full attorney's fees even if the plaintiff only recovers $1 in damages; allowing "associations" to make a business of suing and recovering "damages" even if their only purpose is to try and trick people into violating the law). They lead to absurdities, such as the right for a person to bring a dog or other "comfort" animal into a no-pet apartment complex, a store, even an emergency room, but not allowing the proprietor or landlord to even question them as to the legitimacy of the need for such an animal.

       So, faced with a legal minefield, businesses are forced to only fire members of a protected class for cause (and maybe not even then) although the majority of its employees are employed "at will." Minorities will have preferences in hiring or admission, perhaps even quotas. And, while it's against the law to discriminate against the minority, it often is okay to discriminate against the majority. (If you don't believe me, see how many college scholarships are specifically targeted for minorities, and compare that to the number specifically targeted for white males).

       The courts will be of no help, but, instead, serve the role of the velvet glove covering the iron fist. The Supreme Court has previously said that "[i]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech." NAACP v. Alabama, 357 U.S. 449, 460 (1958). As late as 2000, in Boy Scouts of America v. Dale, 530 U.S. 640 (2000)--a case concerning whether the Boy Scouts could be forced to allow gay men as leaders--the majority opinion noted that the Court's decisions in prior cases holding that "freedom of association" did not protect against discrimination had only been applied where admission or inclusion of the person would have no impact on the expressive aims and purposes of the organization. Id. at 658-59. That is, "[t]he forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints." Id. at 648. In that case, the court upheld the Boy Scout's right to exclude homosexual leaders because it was inconsistent with the purpose of the Boy Scouts.

       Laudable words, but the Constitution is a fickle thing in the hands of nine men and women. In Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), the court chose to severely curtail the freedom of association, holding it did not apply to the Jaycees (which restricted full membership to only men, thus running afoul of state anti-discrimination laws) because the group was not small and selective. The court reasoned:
The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family—marriage, e.g., Zablocki v. Redhail, supra; childbirth, e.g., Carey v. Population Services International, supra; the raising and education of children, e.g., Smith v. Organization of Foster Families, supra; and cohabitation with one's relatives, e.g., Moore v. East Cleveland, supra. Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association lacking these qualities—such as a large business enterprise—seems remote from the concerns giving rise to this constitutional protection. Accordingly, the Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's fellow employees. Compare Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967), with Railway Mail Assn. v. Corsi, 326 U.S. 88, 93–94, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945).
Roberts v. U.S. Jaycees, 468 U.S. at 619-20. The court decided that there may be small groups, somewhere between a family and a large enterprise deserving of associative freedom, but it refused to draw a line, merely indicating that "We need not mark the potentially significant points on this terrain with any precision. We note only that factors that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent." Id. However, that same year, the court held that freedom of association did not extend to the hiring practices of a small business. Hishon v. King & Spaulding, 467 U.S. 69, 78 (1984). The court further noted: "Moreover, as we have held in another context, '[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections.'” Id. (quoting Norwood v. Harrison, 413 U.S. 455, 470 (1973)). In not so many words, the court views the freedom of association as a limited extension of the right to free speech, such that there is no freedom of association unless it pertains to advocating certain viewpoints and only involves a relatively small group.

      But, and this is where I would refer you back to Matt Walsh's comments earlier, aren't our very lives and how we live them an expression of our beliefs and tastes? And if your answer to that is "yes," then it necessarily follows that limits on our freedom to associate (or not associate) are to control and mold our beliefs and tastes.


  1. The Civil Rights Act of 1965 is the New Constitution. Sigh. I liked the old one.

    1. Yup. Last year, there was a review published by the Claremont Review of Books, “The Law That Ate The Constitution”, that delves into that very topic.


A New Defensive Pistolcraft Post ...

  ... from Jon Low . There is a lot of good stuff in this post, and Jon seems (at least to me) to have included much more of his own comment...