To discriminate after all is simply to choose among alternatives, something we do every day of our life. The only problem with discrimination arises in the context of human association. As a nation we believe in freedom of association, freedom that entails not only the right to associate with those willing to associate with us but, the right not to associate, the right to discriminate. Absent that, freedom of association is compromised.
The slaves understood that basic principle. Given a choice, they would not have associated with their masters on the terms their masters offered. But they had no choice – government forced them, by law, to associate with the master. Under Jim Crow, after slavery was abolished, we saw the obverse, but the underlying issue was the same. Now dissociation or segregation was enforced by law, which meant that those who wanted to associate or integrate, whether on trains, or in marriage, could not do so. That choice, that freedom was denied. Forced dissociation had replaced forced association.
The 1964 Civil Rights Act was intended to right that wrong and did in so far as it ended the forced dissociation of Jim Crow, segregation by law but in the process, the Civil Rights Act introduced forced association – integration by law. While not as brutal or complete as the forced association of slavery, the underlying principle was the same. The government told those who wanted to discriminate that it was acceptable as long as it did not involve race, color, religion, sex, or national origin. Over the years, various jurisdictions have expanded the class of forbidden grounds to include everything from sexual orientation to hygiene habits to creditworthiness.
In the public sector that change was not only acceptable, it was in fact required. And the reason is as simple as it is compelling – government belongs to all of us and because it does, it must treat us all equally. It cannot discriminate among us except on grounds that are narrowly tailored to serve its various functions. That, my friend, is equal protection under the law.
That ownership principle applies in the private section as well but cuts the other way. Because private individuals are sovereign over themselves and the entities they own or control [and only those], they may discriminate as they wish in their associations. That simply means they cannot be forced to associate with anyone they don’t want to associate with. Private association in a free society must be free. It cannot be compelled or restrained by force of law. For if it could, there would be no end to the worthy ends or ‘good’ we might seek through the law. But we don’t all agree on what is ‘good.’ After all, one person’s irrational discrimination is another’s perfectly reasonable decision. Do we really want or need the government second guessing every private decision we make? Unfortunately, that’s what we’ve come to.
Individuals have no right to violate the rights of others but, short of that, they do have a right to do wrong. To many, flag burning or marching with the neo-Nazis is wrong and in a free society, we can, with perfect consistency, condemn those who engage in such irrational behavior while defending their right to do it. But, defending the right of citizens to make personal choices is not the same as embracing radical individualism.
Government should defend liberty beyond simply preventing direct harm. For example, the doctrine of common carriers the American Founders embraced prevents businesses that are necessary to the exercise of civil rights from denying service. Inns on the side of the road, for instance, should not segregate their rooms by race nor deny them outright to potential customers. Doing so would unduly restrain the right to travel. The exception for public accommodations, however, is just that: An exception to the domain of unregulated private live. Government should defend this private square, not hijack it for political purposes.
In a free society, every individual and business owner would have the right to refuse service. It is part and parcel of the inviolability of private property, the freedom of assembly, the freedom of association, the freedom of contract, free enterprise, and the free market. “In a free society a person has the fundamental right to associate with anyone he chooses and on any basis he chooses,” so says Jacob Hornberger of the Future of Freedom Foundation. “He might be the biggest bigot in the world, choosing only to associate with white supremacists, but that’s what freedom is all about, the right to make whatever choices one wants in his life, so long as his conduct is peaceful, i.e., no murder, rape, theft, fraud, or other violent assaults against others.”
Clearly, there is much confusion about discrimination in our relatively free, society overseen by regulators, bureaucrats, judges , authoritarians, statists, and busybodies who seek to use the force of government to compel others to associate or do business with people they don’t want to. Currently, if the patron of a business or organization is not a member of a federally protected class, the legal right to refuse service generally depends on whether the refusal was arbitrary or whether there was a specific interest in refusing a patron service. That leaves everything up to the whim of government regulators, bureaucrats, and judges.
There is a big difference between the government protecting “constitutional rights in public facilities and public education,” and the government providing “injunctive relief against discrimination in public accommodations.” The former is a legitimate purpose of government; the latter is an illegitimate purpose. One protects rights; the other violates rights.