Via Reason: Libertarians, Gay Marriage, and Freedom of Association. It’s subtitled, “How the same right allows for both same-sex marriage recognition and refusing to sell gay couples wedding cakes.”
Progressives and conservatives won’t get it.
Gay Marriage and Freedom of Association
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23 Comments for “Gay Marriage and Freedom of Association”
posted by Tom Scharbach on
It isn’t hard to get. If you have the freedom to operate a business “according to your beliefs,” then it is logically impossible to limit that freedom to same-sex marriage and same-sex marriage alone.
As Shackford put it: “Should a Baker Be Able to Refuse to Sell a Wedding Cake to an Interracial Couple? Many libertarians would say yes (including myself—so much for public office). Or as I put it, exemptions from public accommodations laws, if and to the extent that we permit such exemptions, should be religion-neutral, issue-neutral and class-neutral.
Or to put it another way: Libertarian principles cannot abide special exemptions for religious belief, and that alone, allowing discrimination against gays and lesbians, and gays and lesbians alone.
So the question is not whether I get it, Stephen, but whether you do.
posted by Jorge on
“You shouldn’t need a license from the government to express or commemorate your rights.”
Progressives and conservatives won’t get it.
Which is most people, and that’s why we’re stuck with a situation in which people’s mental health depends on whether their state recognizes same sex marriage.
Although, I think that article’s quote misses the point, too. We already don’t need a government license to express or commemorate the right to be married. The obstacle isn’t law, it’s people’s mindsets. I really don’t think legal recognition of same sex marriage is first and foremost about freedom of association at all. The overturning of anti-sodomy laws, most definitely. But not marriage laws. That’s mostly about privilege and social engineering.
Where same sex marriage is most about free association is with rights like hospital visitation, the right not to testify against your own spouse, and so on. The free association plus, the extra rights of privacy, co-autonomy, and intimacy you get even when interacting with other social spheres. These are the very rights that depend most on government regulation. How are you to prove that you are intimate association worthy of such great deference? How are you to be sure you’ll be protected if you don’t want some odd family member or fling to be given such access? Sometimes the right to be left alone can only be protected by the government.
But I don’t imagine the libertarian movement would care about the social disorder eliminating marriage’s free association rights would cause.
posted by Lori Heine on
I still don’t see the huge, looming threat. Merchants who get too picky-choosy about who they will serve and who they won’t will go out of business. Period. The government has no business dictating to merchants whom they have to be neutral toward and whom they don’t.
In Arizona, where SB1062 went down in flames, an interesting phenomenon can be seen. Merchants who bought signs saying “We Proudly Serve Everyone” — in anticipation of the bill’s passage — are STILL DISPLAYING THOSE SIGNS. They don’t need to, because the bill didn’t pass. Yet they are–because it gives them a competitive advantage in business.
LGBT people do not face a Selma-in-the-Sixties type of situation. Jerks who make huge issues about refusing to serve us–regardless of their “religious convictions” — will not stay in business for very long outside of certain redneck enclaves that shrink smaller every year. Their competitors will gleefully seize upon their bigotry–and drive them out of business.
posted by Tom Scharbach on
Merchants who bought signs saying “We Proudly Serve Everyone” — in anticipation of the bill’s passage — are STILL DISPLAYING THOSE SIGNS. They don’t need to, because the bill didn’t pass. Yet they are–because it gives them a competitive advantage in business.
Which is exactly why the religious conservatives in Mississippi went nuts over a similar window sticker campaign in that state.
LGBT people do not face a Selma-in-the-Sixties type of situation. Jerks who make huge issues about refusing to serve us–regardless of their “religious convictions” — will not stay in business for very long outside of certain redneck enclaves that shrink smaller every year.
Religious exemptions to public accommodations laws are not a real-world issue in the “redneck enclaves” because none of the states in question have public accommodations laws covering gays and lesbians.
Take SB1062. National news. An uproar. Apple and other national corporations entering the fray. Business intersts wringing their hands. Stephen and other members of the conservative commentariat carrying on about “liberty”. The blogosphere jangling. The country as a whole sticking its nose in.
And for what? Arizona allows discrimination against gays and lesbians in employment, public accommodations, housing, hospital visitation, and education. SB1062 was a law to create an exemption to a law that didn’t exist.
SB1062 was all political theater on the part of the Republican Party, nothing more, nothing less.
What is true of SB1062 is true of the so-called “religious freedom” laws in general. The “religious exemption” issue is concocted and contrived. It is not a real issue. It is a sop to the anti-gay religious conservatives that form an important part of the base of the Republican Party, now that the party is trying to wiggle its way out from under the “traditional marriage” issue it concocted a decade ago to get them to the polls.
posted by Doug on
I’m sorry but unless you are applying the ‘religious exemption’ to race, religion etc. then I’m not going along with it. Religious exemption for everything group or no group. The LGBT community should not be the sole group allowed to be discriminated against.
posted by Houndentenor on
That being the case that should have been the deal brokered in 2000. Marriage equality nationwide and you won’t have to bake us any cakes. I can’t imagine that the vast majority of gay people wouldn’t have jumped at that deal. No such proposal was offered. Instead the people who don’t want to bake us cakes also don’t want to allow us to get married. It’s a little odd to equate the two. I’d still take the deal, btw, but I don’t see anyone offering it from the right.
posted by Don on
Amen, Hound. Only after they have lost everything else do they come crying mercy and compromise to salvage THEIR freedoms. It is really, really hard for me to remain understanding and gracious under those circumstances. As everyone else notes: because the only freedom they want to save is the right to discriminate against us.
posted by Tom Scharbach on
I’d still take the deal, btw, but I don’t see anyone offering it from the right.
I sure as hell wouldn’t, not now. It violates everything I believe about “equal means equal” and there is no need for it.
What is strange about the “libertarian” position as it has been playing out in practice (and that includes the Shackford article, taken as a whole) is that it is not symmetrical.
On marriage, the predominant “libertarian” position is that the government should get out of the business of civil marriage, but, since that is not possible, “[m]arried gay couples should be treated the same under the law as heterosexual couples“.
While “treated the same” might not be the only “libertarian” response (per Shackford, “… other libertarians, however, are holding the line …and would rather force the government to surrender its authority to determine who can and cannot be married entirely …“), “treated the same” is the position taken by the Libertarian Party’s 2012 platform.
On the so-called “religious freedom” exemption to public accommodations laws, on the other hand, the supposed “libertarian” response turns “[m]arried gay couples should be treated the same under the law as heterosexual couples” on its head, instead proposing that “libertarian” principles demand that we enact “religious freedom” exemptions permitting government-sanctioned discrimination against gay/lesbian marriages but not heterosexual marriages.
The theorists defending this asymmetry rely on false distinctions (e.g. the historic/political situation of gays and lesbians is not similar to 1960’s segregation), or dismiss the problem as too minimal to worry about (only a handful of misguided business owners will want to discriminate), or argue that the free market will eliminate the problem by putting the handful out of business.
That all may be true, but it does not resolve the problem. The theoretical position is nonetheless asymmetrical, and essentially incoherent.
What is carefully unsaid (if acknowledged by Shackford when he notes that he just shot himself in the foot for any public position of responsibility) is that anyone who proposed symmetry — that is, granting a “religious freedom” exemption applicable to interracial marriages or remarriage after divorce, and so on — knows that such a law would be impossible to get enacted. A symmetrical solution is not politically possible.
Which leads to an observation: The only reason that the supposed “libertarian” solution is possible is that it remains acceptable to propose special discrimination against gays and lesbians in this country. That’s the heart of the matter. It has nothing to do with high-flown principles.
I think that the people who are invoking “libertarian” principles to support the asymmetry — the offense to the principle that all Americans should be treated equally under the law — should acknowledge the asymmetry and own up to the fact that they are proposing to perpetuate discrimination against gays and lesbians, and gays and lesbians alone, in violation of “[m]arried gay couples should be treated the same under the law as heterosexual couples” solely because such discrimination is politically acceptable.
posted by JohnInCA on
Look, libertarians who think I don’t “get it”…
It’s this simple. When you support a law that carves out a special right to discriminate for a particular group against a particular group, I’m going to think you’re not being very principled.
It’s that simple.
So until the “religious exemptions” you support allow me as much right to discriminate against a religious baker as they allow the religious baker the right to discriminate against me, I’m calling B.S.. Because that is the very definition of government-intrusion, telling one group they have to tolerate the abuse and do it with a smile while telling the other group they’re free to piss and spit on the other all they like.
So you can say you support both the right to marry and the right to discriminate, but until you allow me the same right to discriminate you allow the other guy you’re not being libertarian, you’re just being opportunistic.
posted by Lori Heine on
Again this lie is being mindlessly parroted here as if it were fact.
Other people most certainly COULD discriminate against different groups under “religious freedom” laws. If I didn’t like homophobic bigots, I could refuse to serve them. If they cried about it, I could hide behind the exact same law they would dive for cover behind if they wanted to refuse me service.
People here simply don’t like the particular people who would be making use of the law. Therefore, like children, they are claiming it is unfair–unless A, B, C D or E.
“So you can say you support both the right to marry and the right to discriminate, but until you allow me the same right to discriminate you allow the other guy you’re not being libertarian, you’re just being opportunistic.”
Well, John in CA, since I DO happen to support both, and you’re telling an untruth by claiming that I don’t (and putting words in my mouth to that effect), an entirely different “L” word could rightly be applied to you.
posted by JohnInCA on
… Lori, I don’t want to be insulting here, but do you have trouble with Boolean logic?
Because I structured my statements very clearly.
I addressed the entire post to a sub-set of libertarians. Specifically, libertarians that think I do not “get it”. Therefore, for *anything* in my post to be talking about you, first you have to think that I don’t “get it”.
My next three paragraphs all contained structures of the “if X, then Y” vein, though the precise words varied. They were all conditional statements. You claim that X does not apply to you in any of the three paragraphs. Well, good for you. In that case, I am not calling you unprincipled, full of BS, or opportunistic. Because when you don’t meet the critera for the “if” part, the “then” part does not apply.
So why, pray-tell, are you getting upset? If I’m not talking to you or about you, why do you feel the need to get defensive? Because I’m suggesting that some libertarians do fit the critera for X?
Well Lori, if that’s your problem, that’s not my problem. Because as much as it pains you, there certainly ARE libertarians who think that non-discrimination ordinances should give special religious rights to discriminate while not allowing those affected to turn-about. Miller and Shackford are two such. If it offends you that there are other libertarians who don’t share your principled views, then don’t shoot the messenger.
posted by Lori Heine on
Perhaps, sir, you might descend from your mountaintop of presumed superiority long enough to clarify exactly when Mr. Miller expressed such an opinion. When did he ever flat-out state that anti-gay merchants opposed to same sex-marriage are the only people who may avail themselves of “religious freedom” legislation?
Claims such as these are repeated by commenters here, over and over, with no substantiation whatsoever to back them up.
Were these laws to be enacted around the country, the proposition that they could be applied so narrowly would certainly be tested–and soon. Probably within days of their becoming law.
The claim is that (A) anti-gay religious people want these laws for a specific purpose, therefore (B) it must be thus and so–just because that’s the way they want it. That is utterly absurd. It’s too silly to be credible even to a relatively-intelligent child.
Of course these people intend those laws to discriminate–with laser precision–to same-sex couples alone. And of course that hasn’t a snowball’s chance in Hell of coming to pass.
The American people are growing increasingly tired of being told that because of the statist fantasies of one team, they “must” support the statist fantasies of the other. Say what you will about libertarians. They can’t possibly be as full of it as you are.
posted by JohnInCA on
Libertarians aren’t a hive mind Lori. Some Libertarians disagree with you on the validity of throwing gays under the bus on this topic. If you find that upsetting, take it up with them.
As to the legal matter… sorry, but not one of the proposed religious-right-to-discriminate laws does a thing about the Civil Rights Act (1964). So despite your assertations, I will not get the right to say “fuck off Christians”, as that would still be a protected class above and beyond any local or state statute.
Further, regardless of what the law actually *is*, I am critiquing people’s proposed policies and acceptable tradeoffs while analyzing whether I view them as being principled in their beliefs of opportunistic assholes. And quite frankly I’m not going to say “well, you tried to screw me over, but you failed, so I’m gonna give you an ol’ thumbs up”. Incompetence in execution does not excuse malevolence of intent.
So once again… if you do not support religious-right-to-discriminate laws that carve out a special right to discriminate with no sense of fair play, then I am not talking to you. But you should not be so blind as to think that just because *you* have a particular view that all Libertarians share your nuance. Libertarians are not a hive mind after all. Some disagree with you.
posted by JohnInCA on
Further, what the fuck Lori? I just double checked, and yeah. You were completely against the AZ law. Why the sudden turn-about?
posted by Lori Heine on
John, for someone who likes to come off like Mister Peabody at the chalkboard, you certainly evidence some simplistic reasoning.
Because I think vastly-expanded “public accommodations” laws are rubbish in no way indicates that I supported Arizona SB 1062. As a matter of fact, I oppose both forms of heavy-handed legislation.
You are confusing intent with probable result. Yes, the religious conservatives who propose “freedom of religion” laws have ill intent, and yes, it is specifically directed against LGBT’s. But like many statists, you assume that any law is going to accomplish exactly what its proponents set out to do.
There is simply no way for any “religious freedom” law, however narrowly it might be defined (and the Arizona bill wasn’t), to hit its target with precision. It will explode like a grenade, scattering shrapnel everywhere.
Within six months, had the bill been passed, its fondest advocates would have been backing away from it, holding their noses and shrieking.
You think like a statist, and I do not. Therefore you make assumptions about the views I express that are not consistent with my thinking. Rather than getting frustrated and dropping F-bombs, simply say you aren’t sure what I meant. You may not like my explanation, but I will give one.
posted by JohnInCA on
… you know what Lori, I’ll play your game.
I don’t understand you.
I say
“I am critiquing people’s proposed policies and acceptable tradeoffs while analyzing whether I view them as being principled in their beliefs or opportunistic assholes.”
You respond with
“You are confusing intent with probable result.”
Please. I don’t understand. How the hell is that relevant? When I am judging someone’s moral and ethical character, their efficacy or incompetence in evil is irrelevant.
posted by tom Jefferson 3rd on
Oddly enough the, “freedom of association” is not written in the U.S Constitution. Strict constructionist had little problem when the court read it into the Constitution.
Again, I am not 100% opposed to making exemptions to such laws. If the various proposals were written better and not tainted by hypocrisy and special privileges, I could see them as a good idea.
However, thus far every single proposal to come out of the “cake question” have been poorly written, dripping in hypocrisy and primary interested in giving out special privileges to certain denominations or faiths with the “right” political connections.
posted by tom Jefferson 3rd on
Heck, political parties and internet groups are also left out of the Constitution.
What the court – not all of it I like – said about freedom of association and the right to create different types of associations, largely came about a rather liberal reading of the First Amendment.
posted by tom Jefferson 3rd on
When the owner of Chick-fil-a views on marriage became public, they couldn’t surprised to anyone who knew what the company’s mission statement island the like, I didn’t really care what his views were.
Granted, I never been really into “fast food” to begin with, but what concerned me the most was how it impacted the gay Chick-fil-a employees.
The Huffington post – to its credit – actually published an article featuring some gay employees.
Most everyone else who supported and opposed the boycott/protests couldn’t be bothered to think too much about the Chick-fil-a employees.
Yeah, it’s easy to say “pick a gay friendly boss”, but that not always a practical option.
If you live in a community with a Chick-fil-a or another Christian based restaurant, it may be your only option, if you want to pay rent, utilities, and maybe eat occasionally.
Pizza Ranch also has as its mission the promotion of Christianity, which is probably the more “conservative” brand. Garanted, this pizza chain – big in the rural Midwest – has largely kept off the hot button media rader.
posted by Lori Heine on
Well, John, who are you? The government should use force against people you don’t like because the people you don’t like are bad people. That’s essentially the argument of a five-year-old.
I don’t like those people, either. So let’s use government aggression against them, so they can cite that as justification for coming back and using it against us, and on and on.
That worked out so well for cave-dwellers, and it makes toddlers such marvelous citizens. By all means, let’s do whatever’s necessary to drag civilization back to the stage where the biggest guns settled every dispute. That may be a world you want to live in, but many people wouldn’t.
posted by JohnInCA on
No, Lori. My own moral and ethical character is not the subject.
The subject is why you insist I’m confusing intent with effect when I specifically said I was criticizing the former on it’s own merit.
What I do or do not believe is irrelevant to whether or not someone else is a hypocritical opportunistic asshole.
posted by Lori Heine on
John, your own opinion and mine, on these people’s character and ethics, probably differs very little.
There’s a saying about what opinions are like. I won’t quote it here, but I’m sure we’re both familiar with it.
I am referring specifically to the subject at hand in the post, which is gay marriage and freedom of association. Probably pertaining to the proposed expansion of public accommodations laws. In that context, what we’re dealing with are two opposed sides, neither of which thinks very highly of the other–and both willing to use the law as a club against the other.
You are certainly entitled to think those who want to discriminate against us are jerks. Again, I think the same. But I disagree that personal animus must translate into a use of heavy-handed legislation.
You think one thing, and I think another. We’ll simply have to leave it there.
posted by Mike in Houston on
Delivering the mail is a personal expression of the mail carrier. Requiring him to deliver mail to a gay couple is requiring him to affirm their marriage, and therefore violates his religious liberty. That argument totally makes sense, right?
http://www.advocate.com/arts-entertainment/people/2014/08/27/watch-men-claim-mailman-wont-deliver-because-theyre-gay