The right to exclude

The New Jersey Supreme Court says the Boy Scouts must accept gays as
leaders or else. The theory is that gays should have the same
opportunity to join the organization as any one else. But this theory is
at odds with the free society.

The word liberty conjures up a vision of endless opportunity and
choice. But liberty also means the right to exclude because property
owners decide questions of access. There is no right to crash a private
dinner party, for example. The owners of the house have the right to
invite or not invite on
any grounds. Similarly, there is no right to invade a private
organization.

Yet the right to exclude has been under attack in American law for
decades. The New Jersey Supreme Court defined the Boy Scouts as a
“public accommodation,” and thus subject to New Jersey
anti-discrimination law, which specially protects gays. Note that there
is nothing the Boy Scouts could have done to avoid this special
designation, apart from going out of business.

But the designation means that government decides who can and cannot
be excluded from entry, which is no different from a homeowner being
forced to invite Kosovo refugees or some other politically favored group
to dinner.

The courts might respond that the Boy Scouts serve the “public”
whereas a homeowner serves himself. But there is no such thing as the
“public” as such. Hotels and restaurants do not offer service
indiscriminately. They turn people away when they are full, for example,
or exclude people because of their dress or drunkenness.

In these areas, the question of who is to be served (by a restaurant,
mall, subdivision, or anything else) is a question to be decided by the
owners. By overriding some decisions and not others, the government is
exercising arbitrary power.

In short, the lawyer for the defense had it exactly right. “This is a
case about whether the Boys Scouts, as a private voluntary organization,
has a right to establish criteria for its membership and leadership.” In
a free society, those who don’t like the rules can start another group,
but no one
can force his way in.

Freedom, of course, was the last thing on the judges’ minds: “The sad
truth is that excluded groups and individuals have been prevented from
full participation in the social, economic, and political life of our
country. The human price of this bigotry has been enormous. …
[A]dherence to the principles of equality demands that our legal system
protect the victim of invidious discrimination.”

Here in a nutshell is the basis on which liberty and property are
undermined in America every day. Victimization: if a group can plead
supposed bourgeois prejudice, it can gain special privileges granted by
government. Equality: a notion more applicable to arithmetic than human
beings, now so expansively applied that it overrules every other
consideration of life. Discrimination: a word that once meant good
judgement, now distorted into a sin.

What if the Boy Scouts had decided to exclude, say, racists as Scout
masters. Would the courts have intervened on behalf of, for example, a
Klan member’s right to join? Not on your life. This is not an equal
application of the law, but one that favors interest groups approved by
government. For
that reason, the temptation is to defend the religious grounds on which
the Boy Scouts exclude gays.

But whether gay leaders are compatible with family values is not the
fundamental issue. It is whether a private organization has the right to
set its own membership rules. These rules may or may not fit with social
norms. But in a free society, the Manhattan Pagans have as much right
to exclude Christians as the Milwaukee Beer Drinkers have to exclude
teetotalers.

The alternative to the right of exclusion, as the Boys Scouts’ lawyer
said, is the “total state.” Under that system, no one is permitted
private space into which the state cannot intrude. Ironically, gay
groups — which have long demanded the right of privacy in the bedroom
— now argue for the government to bust down the doors of any private
space that doesn’t welcome them.

What’s the precedent for this breach of property rights? In 1948, the
U.S. Supreme Court addressed restrictive covenants that exclude on
grounds of race. The justices ordered the states, in Shelley v. Kraemer,
not to enforce such covenantal contracts, since that allegedly would
make them a party to actions contrary to due process.

That was the first grease on a very slippery slope. If voluntary
contracts can go unenforced on grounds that judges don’t like them,
there are no rights to property, no rights to free association, no
rights to the freedom of contract.

Consider the words that set off another landmark case: the government
may not “limit or abridge, directly or indirectly, the right of any
person, who is willing or desires to sell, lease, or rent any part or
all of his real property, to decline to sell, lease or rent such
property to such person or persons as he, in his absolute discretion,
chooses.”

Perfectly in keeping with the strictures of a free society, right?
John Locke or Thomas Jefferson could only cheer. The words are taken
from a 1964 amendment to the California constitution that passed by
referendum 2-to-1. But in 1967, the U.S. Supreme Court struck that
amendment down — on the same grounds that the New Jersey court ruled
against the Boy Scouts.

Since then the right of free association has experienced many blows,
from the 1964 Civil Rights Act, which defined any business enterprise as
a public accommodation to be controlled by government, straight to this
New Jersey decision. If a group is politically powerful enough, it can
have the tyrants
in black robes override anyone’s property rights.

This leads to some peculiar situations. All-boys schools are attacked
for discrimination, but all-girls schools are consistent with the needs
of diversity. All-white clubs are verboten, but all-black clubs are a
healthy reflection of racial pride. All-Christian schools are pockets of
bigotry, but all-atheist schools are essential to pluralism.

Even more peculiar is this notion of “public accommodation,” an
unfortunate holdover from English common law. But it is a completely
arbitrary designation. All property is owned by someone. Either it is
owned by private individuals or it is owned by the government. It makes
sense that the owner is also in control.

But with public accommodation law, we have a third category: private
property that the government controls. The phrase itself flies in the
face of a free society’s legal regime. The practice also violates the
13th amendment, since owners and their employees are forced to serve
those whom they do not wish to serve.

That is why libertarians must seek to do more than reverse the most
recent attack on the Boy Scouts. They should seek to undo the long legal
history of government intervention into private affairs that made the
Boy Scout case inevitable.