The Kansas Anti-Gay Law and The Freedom of Association

CNN.com reports: Denying services to same-sex couples may soon become legal in Kansas.

House Bill 2453 explicitly protects religious individuals, groups and businesses that refuse services to same-sex couples, particularly those looking to tie the knot.

It passed the state’s Republican-dominated House on Wednesday with a vote of 72-49, and has gone to the Senate for a vote.

Such a law may seem unnecessary in a state where same-sex marriage is banned, but some Kansas lawmakers think different.

They want to prevent religious individuals and organizations from getting sued, or otherwise punished, for not providing goods or services to gay couples — or for not recognizing their marriages or committed relationship as valid.

This includes employees of the state.

A reader wrote me: “Obviously if I owned a business I wouldn’t do that. And I wouldn’t patronize a business that did. That said, I do believe private businesses should be allowed to discriminate all they want. I don’t think the Kansas law is good because its basis is religious freedom, and not just freedom itself. It’s backwards in some ways that I can’t put my finger on. It’s anti-gay, not pro freedom. It’s like… A little right by accident and with all the wrong intentions. Do you know what I’m trying to say?”

My reply:

Yes, I think I know what you’re getting at here.

First of all, as you said, there should be no laws (or threats of lawsuits) for discriminating in the first place. Proposing or passing such a law concedes to the proponents of statism that they’re right. That’s the one thing making you uneasy.

The second thing (I believe) making you uneasy, and it’s definitely making me uneasy, is the anti-gay nature of the law. (This applies to the whole “religious right” more generally.) It’s as if proponents of this law are implying, “Discrimination should be against the law and we’re not questioning that. Keep your anti-discrimination laws to protect blacks and women. But not gays. That’s a different matter.”

Still another implication might be, “I don’t think there should be anti-discrimination laws. But if we must have them, I’ll accept them. But I draw the line at gays. That’s ridiculous.”

Yet why is it ridiculous? If it’s valid to pass a law forcing people to allow black people or women to enter a business where they had previously been prohibited, then why not pass a similar law protecting gay people? Or all kinds of other people, for that matter? It reduces into absurdity, although the proponents of such laws (leftist or conservative) never concede that; they only focus range-of-the-moment on their particular concern, out of context of everything and everyone else.

When we outlaw discrimination, we’re outlawing the distinctively human form of cognition: concept formation. Rationally discriminating among perceptual objects and people is how we form concepts — e.g., how we distinguish tables from owls, or cats from toasters and computers.

“Discrimination,” in the social and political context, has unjustly come to mean irrational cognition. For example, unfounded generalizations such as, “All black people are such-and-such,” or “All gay people are such-and-such.”

Opponents of discrimination, by zeroing in on this term as the source of all evil, throw out the rational conceptual baby with the irrational, prejudiced bath water. It’s implied that all discrimination as such is invalid and wrong, and therefore must (at a minimum) be curbed by government. But if government consists of mere mortals, aren’t they just as irrational and incapable of discerning the rational from the bigoted and the prejudiced as you and I? No answer is ever given, because nobody is brave or aware enough to ask the question, not in the public realm.

The fact remains that if we’re to be a free country, then discrimination is an individual and private property right. I have talked to gay people who tell me they don’t want straight people in their establishments or organizations. I have met people who own businesses who don’t want children to be allowed entrance. By and large, these forms of discrimination are permitted. Why some forms and not another?

My defense of the right to discriminate does not mean it’s rational to be bigoted or prejudiced. But being irrational should not, by itself, be against the law. Just because you believe something should be legal does not mean you approve of it. I don’t want to be near people who make unfounded generalizations and discriminate in the irrational sense of the term. But what I want even less is to live in a society where government officials and/or lawyers and/or bureaucrats do this thinking, and make these decisions, for us.

When you deny people the right to discriminate on their own private property, then where does it end? On the same principle, government may intervene in the decisions of your household, deciding with whom you may or may not associate. Sooner or later that time will come, if this faulty thinking remains unchallenged. If we do challenge it, then we restore the right of people to associate with whom they please. It’s either a free country, or it isn’t. Increasingly, we are not.

Some are claiming that the Kansas law amounts to “segregation.” But the segregation of the South involved state and local governments forbidding private business owners to allow blacks into their establishments. This is outrageous, and violates the rights of individual business owners every bit as much as forcing business owners to have particular people as customers. To my knowledge, the Kansas law does not impose segregation, so it’s not the same thing.

What we need is a law — or a Constitutional amendment, if need-be — ensuring freedom of association. In other words, all individual citizens should be guaranteed the right to associate, or not associate, with whom they choose. This applies in the business realm no less than the personal realm, because the individual is sovereign over both.

Irrational attitudes about gays, blacks and others have diminished with the passage of time and the gradual triumph of reason over coercion. None of this is thanks to government (aside from repealing segregation laws); all of it is thanks to the triumph of reason and logic in these particular matters.

If you think holding a gun (or a civil lawsuit or fine) to the head of anyone will ever change a mind about prejudice or bigotry, then you’re guilty of greater ignorance than the worst of the racists and homophobes among us.

  • Levi Russell

    Great stuff! I personally think the law is more good than it is bad. I’d rather have a sliver of freedom of association than none at all. This is a move in the right direction.

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