From: Ian Goddard (Ian@Goddard.net)
Date: Thu Aug 12 1999 - 11:38:09 MDT
Many people have a problem with freedom. The
problem is that if others are allowed to own
property, they could do things with that property
that some people disagree with. For example, they
could commit homosexual sodomy or use drugs on
their property. To stop those actions, laws that
allow the violation of private property have
been written against sodomy and drug use.
Libertarians define such violations of private
property as tyranny. Yet, as homosexuality has
become more acceptable over time, some people
are having a new problem with freedom: if others
are allowed to have private property and groups,
they might exclude other people, like homosexuals.
Laws are therefore being written that allow the
violation of private property in order to stop
such exclusion. In both cases, anti-homosexual
law or pro-homosexual law, private property and
thus freedom is violated in order that some
may impose their values by force on others. In
both cases, freedom is denied and diminished.
The beauty of a private-property social system
is that the excluded are free to form their
own groups and to exclude others if they wish.
There are, for example, any number of homosexual
groups and groups that don't exclude homosexuals.
Resisting the social pressure to devalue freedom,
Llewellyn Rockwell makes the case for freedom:
============= http://WorldNetDaily.com =============
August 11, 1999
The Right To Exclude
Llewellyn H. Rockwell, Jr.
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 their rooms 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.
--------------------------------------------
Llewellyn H. Rockwell Jr. is president of the Ludwig von Mises Institute in
Auburn, Alabama.
http://www.worldnetdaily.com/bluesky_rockwell/19990811_xclro_the_right_.shtml
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