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In the struggle over whether the Boy Scouts should be forced to accept gay activists as Scout leaders, proponents of free association are denounced as bigots. The charge is absurd, and dangerous. Excluding someone from a private association is not an act of hatred, any more than excluding someone from a dinner party implies you want him to starve. The freedom to associate includes the freedom not to associate, and no free society worthy of the name can compromise that principle.
But 36 years ago, such a compromise was made in the form of the 1964 Civil Rights Act, and American freedoms have suffered gravely ever since. Through anti-discrimination law, a peculiar form of servitude is being imposed on us, turning formerly private areas of life into coercively integrated public spaces. That is true of businesses, schools, and even our living spaces. The central government now determines what associations are and are not permitted, and does so on grounds driven by the basest form of special-interest politics.
All this is unconstitutional. The 13th Amendment says “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Similarly, the 5th Amendment states that “nor shall private property be taken for public use, without just compensation.”
Today, however, involuntary servitude has been enshrined as a matter of law, as schools are forced to serve students they would otherwise not admit, restaurants are forced to serve customers they would otherwise not allow in the door, and the Boy Scouts are told they must bow to the wishes of a would-be Scoutmaster even though he rejects the moral code of the organization. In every case, private property is being seized by the government without compensation, and the innocent organization or merchant is being treated as a criminal, bound by the government to obey the dictate of another simply because that person and the government demand it.
The gay lobby likes to compare its struggle with that of the blacks in the 1960s. And the lawyers representing the Boy Scouts will surely find some way to show that this is a legal fallacy. The organization is not a “public accommodation” and is therefore free to discriminate. Or they may try to show that the Boy Scouts are not discriminating based on intrinsic traits but rather on the basis of behaviors and creeds and therefore should be allowed to exclude gays.
But that type of argument only raises other questions, such as whether homosexuality is a free choice or hard-wired into a person’s genetic makeup, and whether the Boy Scouts’ use of public facilities means that it is obligated to obey statutes that apply to public institutions. Ultimately, these are trivial points that have nothing to do with the real issue of whether the government should be coercing peaceful private parties into government-approved associations.
Those of us who are not lawyers for the Boy Scouts are free to tell the truth that the analogy between blacks in the 1960s and gays today is nearly exact. Both the civil rights movement then and the gay movement now represent attacks on private property rights, which means that they assault the basis of freedom itself.
No need to look any further than the Civil Rights Act itself, title II, section 201: “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation … without discrimination or segregation on the ground of race, color, religion, or national origin.” The act goes on to define a “public accommodation” as any institution whose activities “affect commerce.”
That, my friends, is a recipe for the total state. As for the “forbidden grounds” listed in the act (race, color, religion, national origin), history has shown that they are easily expanded to include other traits such as gender, disability, sexual preference, ugliness, girth, or any other quirky category a pressure group can muster. It is only a matter of time, lobbying, and political power. Once you grant the right of the state to guarantee entitled access to private property — and effectively to enslave the owners of that private property — all bets are off.
It is customary to claim that those who resisted the 1964 Civil Rights Act were racists who wanted to deny blacks their rights. This is a smear. Look at the arguments by the defendants in the 1964 Supreme Court case Atlanta Motel v. United States, 379 U.S. 241. They argued on strict Constitutional grounds: 1) the 5th amendment prevents the government from telling a private hotel who must be allowed to enter its property, 2) the 13th Amendment forbids involuntary servitude and hence the government can’t impose customers on unwilling merchants, and 3) the commerce clause of the Constitution doesn’t apply, and so the states are the appropriate jurisdictions to decide these issues.
These libertarian-style arguments were repeated on op-ed pages and in the booklets of the anti-civil rights forces. Contrary to the official history that demonizes these people, those who resisted coerced integration were doing the work of liberty, defending private property rights, and upholding the freedom to associate without government interference. Theirs was a principled stand, and it was tragic for liberty when their arguments didn’t carry the day.
And what about the political left, which has gained much political mileage by posing as defenders of civil liberty against the authoritarian political right? Well, it turns out that the left has taken off its mask and now openly argues for the police power of the state to quash freedom of conscience and association. Women’s rights advocates want the government to crush men’s rights, the atheist lobby wants to wreck the rights of believers, and the gay lobby wants to enslave the straight world.
People who resist are still traduced at every turn. And libertarians have proven unwilling to defend the right to exclude as intrinsic to a free society. Even the legal theorist Richard Epstein stops short of attacking the socialist thinking behind “public accommodations” law. That’s too bad, because such an attitude has left the field open for would-be totalitarians to agitate against even the institutional autonomy of the Boy Scouts in choosing Scoutmasters.
But if the 1964 Act hadn’t passed, wouldn’t blacks have been left out on the street with no place to sleep on their travels? That’s the legend. The reality is that the free market views every act of exclusion as a market opportunity. If a hotel chain excludes blacks, it opens the way for a chain of hotels that seeks out the excluded, and profits from it.
We see this process working every day in the competitive market. The rights of boys are not violated because the Girl Scouts exclude them. The rights of Presbyterians are not violated because Catholics won’t give them Holy Communion. The rights of girls are not violated because the NFL won’t let them play. Each exclusion creates a new market niche, and all together they form real as versus coerced diversity.
The Boy Scouts might prevail in the Supreme Court, and their victory would be cause for celebration. Regardless, the grounds on which a favorable decision would be rendered would be far too narrow. We need to refute the idea that government can bully property owners into acting against their perceptions of their own interests. For the sake of liberty, we need to overturn not just James Dale v. Boy Scouts of America, but also Atlanta Motel v. the United States.