This discussion is applicable to the current controversy over the Religious Freedom Restoration Acts (RFRA) in Indiana, Arkansas, and other states. Anti-discrimination laws logically contradict the freedoms of association, religion, and speech. Most people do not realize this. Pick one position. You can’t have both.
One source of much confusion on this issue is the distinction between a private business and a government or “pubic” entity like the Post Office or Police Department–which is paid for by taxes, i.e. by “public funds”. The government is created to serve all of its citizens. Therefore, a government entity cannot properly discriminate against any citizen. But, a private business is private; it is paid for by private funds and is not a public entity. Just because a private business opens its doors to the public or “serves” the public does not transform it into a government entity. A private business should retain all of the rights of an individual citizen. It can post a sign that says: “No shirt, No shoes, No service”.
If you are free, then you must have a right to the freedom of association which is guaranteed by our 1st Amendment to the Constitution. If your government dictates that you cannot associate with someone, or that you must associate with him against your will, then you are not free. Freedom is all about choice. If you are free, then you are free to choose with whom you associate.
Legitimate rights cannot conflict. “Since Man has inalienable individual rights, this means that the same rights are held, individually, by every man, by all men, at all times. Therefore, the rights of one man cannot and must not violate the rights of another.” Ayn Rand, see the 9th excerpt in the link to the Ayn Rand Lexicon, below.
There is no such thing as the “balancing” of the right of one person against the right of another. If this is the situation, then either one or both of the alleged rights is not a legitimate right. Anyone who sees this issue as a balancing of rights needs to reevaluate his theory of rights—if he even has one.
Bilateral contracts in business are an application of the freedom of association. Any business transaction is a bilateral contract, the essence of which is two consenting traders. If one side to a trade does not consent, there is no transaction. It is that simple.
A private businessman has the same rights as any other individual. This is the principle of equality under the law. A businessman cannot properly force a customer to engage in a business transaction against the customer’s will, but neither can the customer force the businessman. Both have the same and equal rights. Thus, when a court of law forces a businessman to engage in a transaction against his will, that is a violation of the businessman’s rights. It is no longer a bilateral contract. The government has turned the businessman into a slave; he is no longer a free man. The government is wrong.
The basic political principle of a genuinely civilized society is that no person or group may initiate the use of physical force against any other person or group because this is the only way to violate anyone’s rights. The purpose of government is to protect the rights of its citizens by protecting them against the initiation of physical force. When the government forces a businessman to engage in a transaction against his will, it is perpetrating the very evil against which it is supposed to protect.
In the current controversy gay rights activists claim that their rights are being violated when a Christian business refuses to serve a gay wedding. There is no such thing as a right to not be discriminated against. There is only the freedom to patronize another business. To force a business to serve you is a violation of that private business’ right to freedom of association. To force that business to comply with your values is a violation its right to choose its own values. Forcing your values down another’s throat is initiating physical force when you are backed by the legal power of the court. That is certainly not consistent with the alleged value of “tolerance”. The premise of the gay activists is that the Christian business is not being “tolerant” of their sexual preferences. What about their tolerance for Christian beliefs? Are gay activists being hypocrites?
To those who believe that it is improper to discriminate on the basis of race, religion, gender, or sexual preference, what is the proper way to assert your belief in a free society? If a businessman discriminates in a way with which you disagree, you are free to patronize another business! This is one of many ways that a businessman could hurt his “competitiveness” in a free enterprise system. Most people will choose to not do business with a bigot. That businessman’s profits will suffer.
The real issue here is whether discrimination should be a personal or a legal matter. Does the government have the Constitutional authority to pass anti-discrimination laws? Should it have such authority? How does a government justify limiting a citizen’s freedom of choice and association? What is your theory of government? What is your theory of rights?
Discrimination is inherent in human life: choosing who to marry, selecting a meal on a restaurant menu, deciding what kind of music you like, or picking a sports team for whom you will root. By rooting for Team A, you are discriminating against Team B. So what? You are not actively sabotaging Team B. If you did, that would properly be a crime because you have initiated force or fraud against someone, or some team.
If a woman declines to have sex with me, then she is discriminating against me. If I physically force her, the crime is rape. Why? Because I initiated the use of physical force against her will. She did not violate any of my rights by saying no, but I definitely violated her rights by initiating physical force.
If a Christian baker declines to bake a cake for a gay wedding, he is not initiating any physical force on anyone. By saying no he has not violated anyone’s rights. If the gay person sues the baker in court to force him to bake the cake, however, that is the initiation of physical force. Why? If the court rules against the baker, he will either have to act against his will, pay fines, go to prison, or any combination of these penalties. His livelihood will be threatened. What happened to the baker’s freedom and his right to life? Is he being “raped”?
(After this opinion was originally written a Christian ordered a cake from a gay-owned bakery. The words on the cake were to say, “Marriage is between a man and a woman”. The bakery refused to bake that cake. Can this double standard be legal? What happened to equality under the law?)
Have you ever heard of gays demanding a wedding cake from an Islamic bakery? Why not? It is the same issue. Why are gays targeting only Christian businesses? Are they taking advantage of the whims of contemporary political correctness? Do they have an agenda? What is their agenda?
What if Islam becomes a major religion in the United States and gains strong support from political correctness? In a Sharia court a homosexual could be sentenced to death for being a homosexual. What will the gay movement do then? If you grant the government the authority to pass anti-discrimination laws, the precedent will be established. The gay person who then “discriminates” against the religion of Islam by not converting to it may conceivably lose his life. Be careful what you wish for. You might get it!
There are no special rights. There are only individual rights possessed equally by all human beings. A businessman does not lose certain rights by becoming a businessman. A gay person does not gain special rights just because he is gay. If you support an individual’s right to freedom of association, then you are an advocate of freedom. If you believe that the government should pass anti-discrimination laws, then you are an advocate of tyranny.
References:
Amendment I
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Applicable excerpts:
http://aynrandlexicon.com/lexicon/individual_rights.html
For more serious study: Ayn Rand’s Theory of Rights: The Moral Foundation of a Free Society
https://www.theobjectivestandard.com/issues/2011-fall/ayn-rand-theory-rights/