Freedom of Association…Denied!!

One of the undesirable side-effects of the drive toward marriage equality under law (which I support) is that it has given new momentum to the enforcement of anti-discrimination laws.  All states have them, and they prohibit businesses, charitable groups and civic organizations from discriminating on the basis of certain specified characteristics; twenty-one states include sexual orientation in the list.  As argued below, all of these laws are inconsistent with basic notions of individual liberty.  

The latest high-profile case involves a New Mexico commercial photographer who refused to memorialize the commitment ceremony of a same sex couple (marriage being currently unavailable to them in this state), because such relationships clashed with her sincerely held religious convictions. The NM Supreme Court held that the law applied to her, and that she may therefore be coerced into compliance by fines. See Thus, dissenters from the “official” moral stance taken by New Mexico may be put to a choice between adhering to their beliefs and earning a livelihood.

The decision of New Mexico Supreme Court may be correct as a matter of statutory interpretation, but the law itself should horrify us. Perhaps the easiest way to see this is by means of a thought experiment, which hinges not on sincere religious beliefs, but on something much less sympathetic, outright bigotry.

Imagine that the state takes it upon itself to stamp out this blight. Accordingly, it passes legislation that makes it illegal to discriminate in our personal relationships on the basis of race, ethnicity, sexual orientation, religion, etc. Anyone who suspects that another person has refused to associate or befriend him for suspect reasons can sue for substantial money damages, and a jury will decide the matter.  I hope that such a law would seem to you to constitute a terrible infringement of our rights, and not just due to its practical problems of enforcement.

The reason we instinctively reject such a proposal is that it is inconsistent with basic notions of personal autonomy, i.e. our freedom to act as we see fit, provided that we do not harm others. Irrational prejudice is a bad thing, but bigots are moral agents, and their choice of associates is a part of their character, even if an unseemly one. To suppress it by force is to rob them of a portion of their personhood.  It is to treat them as children, whose choices in life must be corrected by their parents. To express the same idea in more overtly Kantian terms, because they are (by hypothesis) not harming others by physical violence, theft, fraud, and so on, the coercion of bigots onto the path of virtue impermissibly treats them as a mere means of achieving what the majority regards as a noble goal.

It might be objected at this point that my premise is wrong, i.e. that bigotry in our personal associations seriously harms its victims by the psychological pain and humiliation it inflicts. But this is not just a lame argument, but a dangerous one, in that if accepted it would destroy freedom generally.

For example, the free expression of  ideas may cause anguish in those whose cherished preconceptions are shaken. Indeed, much of what is written or said is intended to mock, annoy, insult or anger the audience. Should we then repeal the First Amendment, or limit it to officially approved speech?

Further, my purchase of a fancy new sports car may cause intense (and unpleasant) feelings of envy on the part of my neighbor, who cannot “keep up with the Joneses.” Should we then restrict what people may purchase, lest it provoke envy in others?  I don’t see how, in principle, Joe’s decision not to associate with Bill, despite his many fine qualities, is any different. The only relevant question is whether the agent making a particular decision has the right to do so.

If we accept this analysis, then we must ask, “what changes merely because those subjected to anti-discrimination laws happen to own businesses open to the public?” I think that the correct answer is, “nothing.”  What is it about opening a business that causes the owner to forfeit her rights, and where does this end? Can the government force the owner to hang a sign in her storefront window supporting its pet projects? I don’t think so.

Having said this, a think there are a narrow range of circumstances where anti-discrimination laws are justified. If the state has previously enacted discriminatory laws or enforced the laws unevenly, then the victimized community will have been placed in a position where they cannot effectively fend for themselves, even after the official discrimination has ceased. In such cases, as in the Jim Crow South, the state may rectify the effect of the harm it has inflicted by requiring private parties not to discriminate against minorities in such vital areas as public accommodation, employment, education, lending, and so on, until the disfavored community is able to compete on fair terms.

Also, discrimination by an institution with monopoly power, such as the sole local hospital in an isolated area, may be so damaging to the welfare of the victims, that anti-discrimination laws may be justified on the grounds of preventing a moral catastrophe. But this is not the case under discussion, nor in fact the way anti-discrimination laws are used.

By far the most common scenario is precisely the one encountered in our New Mexico example, e.g. small business owners offering widely available services. As in this case, their refusal to deal with certain parties imposes no cognizable harm. Surely, there were other commercial photographers somewhere in the vicinity looking for work, and in an absolutely worst case scenario, a friend could certainly do the job.  If, as I claim, business owners have a natural right of free association, this right is stringent enough to outweigh a few hurt feelings. We should all be deeply troubled when the state arrogantly claims the right to punish people for their decisions to associate (or not) with others, including choices that we regard as irrational or even bigoted.  


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2 Responses to Freedom of Association…Denied!!

  1. Simon says:

    Mark – in the last para, you state that “…their refusal to deal with certain parties, causes no cognizable harm”. The dictionary defines cognizable as (1) perceptible or clearly identifiable and (2) within the jurisdiction of a court. I guess you want to use the word in terms of the first meaning. But it seems to me that the couple could claim a perceptible harm. It is not particularly pleasant to be denied a service because of an innate characteristic and it might seem to suggest something inferior about the couple, compared with others. And this seems to be correct – the photographer was behaving in an obnoxious manner and deserves to be told so. The question is whether or not his/her behavior should be illegal. Personally, I think claims to be harmed or not are not helpful in such cases. Clearly the entry of a competitor into the market can be said to harm other suppliers, but we hardly think this is wrong. I think the argument is best confined to rights talk. One then needs to take into account the rights that are being infringed. The photographer would have his/her right to free association infringed by being legally obliged to provide a service. The couple might claim that their freedom from discrimination is being infringed. Personally, I agree with a Nozickian negative rights approach. But this approach is bound to encounter strong worries – particularly apparent when we get into the racial discrimination area. One line of argument often employed against the negative rights approach in this context, is to the effect that, by choosing to enter the public or commercial spheres, one agrees to forego some freedom of association rights. I agree that this seems ad hoc. But interestingly, a Rawlsian might defend this by an emphasis on freedom flowing via the institutions of society, which we would hypothetically choose to accept.

    • Mark Friedman says:

      Hi Simon:
      Always a pleasure to hear from you. As a libertarian, of course I agree with you that we must analyze this issue from a rights-perspective. This is why I say, in comparing freedom of association to the freedoms of speech and contract, “The only relevant question is whether the agent making a particular decision has the right to do so.” But, strictly speaking this is not true, as most libertarians will uphold rights only up to the point where doing so will inflict grave harm on innocent others.

      This is why I discuss the nature of the harm done those who are discriminated against. By “cognizable” I meant (perhaps somewhat imprecisely) something like “serious enough for courts to adjudicate.” Absent the sort of special circumstances I describe, I think such harm will rarely if ever rise to the level where it would override the right of free association. Thanks for the comment.

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