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Liberty, Prudence, and the Freedom of Association

A recent blog post by Thomas Fleming cut to the heart of a current issue—as Fleming usually does. I have learned a lot from Mr. Fleming over the years. The issue: should business owners have the freedom and liberty to refuse service to homosexuals. 

Almost weekly Americans learn of some situation where a business owner is getting into trouble because he would rather not use his business and skills to support the homosexual lifestyle. A photographer declines to do the wedding shoot for a “gay wedding”. A baker simply does not want to bake a cake for a “gay wedding”. Someone trying to make some extra money by renting out an extra bedroom refuse to rent the room to a gay “couple”. Watch the news—examples abound, and undoubtedly will continue to do so.

The political discourse on this particular issue can often be particularly uninspiring.  Mr. Fleming’s piece laments the fact that conservatives—generally—do not understand the issues, and really have no place from which to say something meaningful. I think Mr. Fleming is on the whole correct, but I wonder if he misfires a bit at one point.

Mr. Fleming, summarizing the thinking of some conservatives, writes: “Why, Jim Crow laws were designed to force people apart, while this Kansas law would permit Christians to mind their business.”  Fleming comments on such thinking: “If you can be persuaded by this sophistry, then you should give up the right to vote."

Fleming is right that "conservatives" have embraced the revolutionary mindset, do not understand the constitution, and do not understand principled liberty.

However, might one argue: Most people do not grasp that Jim Crow laws—in general—mandated or required segregation as a legal principle. The federal government action—particularly in the Civil Rights of 1964, mandated or required forced integration. This was, for those who have eyes to see, a revolutionary development. And “revolutionary” is not too strong a word. For better or for ill, the charter document of the United States—our Constitution, lays out structure of political polity (at the federal), and outlines the relationship between the various states and the federal government. While conservatives have grown tired (or timid) about stating the obvious, it is necessary to face the facts: The Civil Rights of 1964 was a massive overreach of power, and was a violation of the law of the land—the U.S. Constitution.

So what do you do when you are living in revolutionary times? You can either go along, and make a go at joining the revolution or you can articulate the principled position: “Hey you all. This is not right. Should not we rethink the entire thing?”

What is often missed in looking at our past is that there was a road not followed.  This neglected road would have been: (1) to let the states handle their own affairs, and (2) for states to simply allow people to associate with whom they like—in essence, to enjoy the freedom of association.

Now, since conservatives have spent almost fifty years singing the revolutionary song (i.e., affirming with full gusto the necessity and moral virtues of the Civil Rights Act), they no longer believe in the freedom of association, or liberty, so their efforts to defend the bakers, photographers, bed and breakfast owners, etc. (which I applaud) ring hollow at the principled level.

When people say: "Then do you think people should be able to discriminate against blacks?", I simply reply as follows. First, you choose your problems. I would rather have the problems associated with liberty and the freedom of association, than the problems associated with massive centralized political power. Second, at least in the U.S. the federal government does not have the proper legal authority to interfere with the states on such matters (ideally!).  

Conservatives have made a grave strategic and principled error in jumping on the bandwagon of calling "discrimination" evil in each and every circumstance. We have given up the option of arguing for freedom of association (now in relation to homosexuality) because we have been condemning it in the name of civil rights for 50 years. Our arguments on behalf of liberty and the freedom of association ring hollow, (1) because  we have been making the case for revolutionary action which ignores the U.S. Constitution and principled liberty, and (2) because we have been arguing against the importance of the freedom of association. We cannot have it both ways. Time to pay the piper.

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