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US state Indiana to allow freedom of association?

… and you cannot have freedom of association without freedom of disassociation.

Therefore I am perfectly willing to see a non-state owned company decline to do business with me because of my politics, or because of my hippopotamus fetish, or because I tend to wear red trousers. Of course by ‘perfectly willing to see’ I mean ‘that a company is legally permitted to discriminate against me’… I am not suggesting I would be thrilled by it.

So is there any reason anyone who cares about liberty should oppose this? Indeed would it not be better if the law just stated it was none of the state’s business who a company chooses not to do business with for any reason, absent any prior or overarching contractual obligation?

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44 comments to US state Indiana to allow freedom of association?

  • David

    would it not be better if the law just stated it was none of the state’s business who a company chooses not to do business with

    Modern politics is “nanny state” personified and while the sentiment is laudable it ain’t gonna happen mate. For fifty years since I first took an interest in politics I’ve watched the erosion of personal choice and responsibility at the hands of government and I see no prospect of any political party arresting that trend.

    To paraphrase that American bloke it is “government of the people, by the politicians, for strident self interest groups”

  • I’m totally with you. Most of the people I know think it’s dreadfully evil to suggest such a thing; but most of them also equate it to segregation in the South. Apparently they aren’t aware that the South didn’t grant businesses the freedom to decide such things for themselves, but legally mandated segregation—what Indiana is doing is intolerably liberal by segregationist standards. The idea that the state should not dictate who businesses can deal with seems to be foreign to a lot of people.

  • Lee Moore

    The first comment at the link (first because most loved) is :

    “Gov. Mike Pence is a moron if he truly believes that this reprehensible legislation is anything more than state-sponsored discrimination against a class of citizens. His mindset and style of governance is tantamount to that of a fascist authoritarian”

    which indicates that many people’s idea of liberty differs wildly from Perry’s.

    It would be easy to assume that the commenter and those who liked the comment are just shouting rhetorically, and that really they know that anti-discrimination laws are the fascist-authoritarian things, and that liberty requires freedom of association. And the screaming is simply an acknowledgement that though they understand what liberty is, they just don’t like it.

    My own experience is that while that may be true of a small minority, it isn’t true of the great majority. Including those who are very very stupid, but also including loads of – the majority of – unstupid people. Liberty is a difficult concept for most people. It’s a good thing, right ? So we support it, right ? But refusing to serve negros at soda fountains is bad, right ? So banning people from refusing to serve negros at soda fountains must be a good thing. So if it’s a good thing, and liberty’s a good thing, then such bans can’t conflict with liberty. So banning things sometimes actually enhances liberty.

    Stands to reason.

  • Julie near Chicago

    Lee,

    Such are, sometimes, the workings of that amazing and wonderful construction, the human mind.

    I’m afraid you’ve got the straight of it.

    I would really like to know whether there really was a time in our history when most people “got it.”

  • Chip

    I have many gay friends who are filling up my Facebook feed with emotional appeals to freedom, which really mean causing others to be less free.

    Coercion is freedom.

  • Laird

    Lee, the only thing the author of that comment has shown is the he doesn’t understand the meaning of either “fascist” or “authoritarian”. In fact, this law is the opposite of authoritarian.

    As to “discrimination”, it’s a word people throw around thoughtlessly all the time. We discriminate every day, when we choose one thing over another. The is nothing inherently wrong with “discrimination”; indeed, to say that someone has “discriminating taste” is intended as a compliment. From a purely legal perspective it is in fact unlawful to discriminate on certain impermissible bases (we call them “protected classes”), but that’s it. I don’t know whether sexual orientation has yet become one of those protected classes in every state (if not, we’re well on our way to that result), but what we’re seeing here is what happens when a true constitutional right (religious freedom) conflicts to an imaginary “right” invented by legislators or (even worse) courts. Perry is correct: it is none of the state’s business who a company chooses to do business with. It is wrong for the state to mandate either way (segregation or integration) on any basis.

  • KTWO

    From David saying ‘it ain’t gonna happen’ to Chip’s ‘Coercion is freedom’ all the comments have elements of truth.

    If others have any rights then government is limited. Why expect public employees or officials to ever want to be limited? So they act steadily to erode or erase any and every limit.

    By nature a government, which doesn’t actually think, will behave as if it does and as if it hates any other power. It won’t matter which: other governments, a church, a business, a parent, or the individual.

    However all of those may continue as long as they are sufficiently tamed and weak. Provided doing so is useful as propaganda to the state. If not, into the ovens.

    Stoddard reminds us that Segregation was imposed by the state. That was no accident; you could go to jail for not discriminating. When events indicated government could control people better by ending it than by continuing it then it was ended.

  • Patrick Crozier

    In answer to Perry’s question there is no reason why anyone who is favour of liberty should oppose this. Still, I am a bit baffled why it required a new law. Anyone know?

  • Lee Moore

    Still, I am a bit baffled why it required a new law. Anyone know?

    Lest the courts find to the contrary, of course ! American courts are capable of finding almost anything they please (no superior English sniggering at the back there, the modern English judiciary now makes Lord Denning look like a hidebound literalist.)

    1. Once upon a time you were allowed to discriminate as you please (as a private person – different constitutional considerations applied to government.)

    2. Then there came various federal, state and local laws banning discrimination on grounds of race, sex etc (of which the Civil Rights Act is the best known.) At present, the Supreme Court has not yet said that etc includes gayness, though of course it, or any junior court could decide that in due course.

    3. The Supreme Court decided initially that the “Free Exercise of Religion” bit of the constitution forbade any law that “substantially burdened” the exercise of anyone’s religion, unless there was a really really good reason. Later they changed their mind and decided that pretty much any reason was good enough.

    4. So Congress stepped in and passed a federal law saying more or less what the previous Supreme Court rule was.

    5. Then the Supreme Court said, yes that’s fine as regards federal laws, but you, Congress, can’t apply that to state laws. Them’s the state’s business.

    6. So various states have been passing their own versions. This one is Indiana’s.

    You might think that if Indiana’s legislature and Governor are sufficiently “fascist’n authoritarian” to pass this wicked Bill, it is a pointless exercise because they won’t be passing any laws preventing private discrimination anyway. Which returns us to step one. I don’t know what anti-discrimination laws Indiana has on the books already, but whatever there is or isn’t, the courts could find whatever they want to find. Even an obviously wacky judge who gets overturned six months later is perfectly capable of putting you out of business. The process is the punishment.

    Secondly, local bits of Indiana will make their own local regulations. I don’t know if there are any commie bits of Indiana , but if the “liberal” stronghold of Palookaville, Indiana passes a regulation that says you can be sued or fined or both for anti-gay discrimination, then Palookaville florists who decline to provide flowers for gay weddings are on the hook. This state law will get them off it, because state law will trump local regs. (Always subject to the Indiana Supreme Court getting out a higher trump card declaring that the new law is against the State constitution. For some reason even states that have been run by the Republicans since 1492 have still got “liberal” majorities on their Supreme Courts. I believe this must be some kind of constitutional requirement as nothing else can explain it.)

    Note that in any event this law does not create freedom of association in Indiana. Federal ant-discrimination law still applies, as does any state and local anti-discrimination law. All this does is provide a limited defence under state law for religious folk, in some cases. If you ain’t got the approved religious reason for wanting to discriminate, you’re back on that hook.

  • Gordon

    Lee Moore:
    I like to think of myself as a reasonably humane person but I can see no non-cadean solution to all this.

  • All great points, Lee. Still, the commenters are all NPR readers (and listeners?), while at least on the face of it the majority of IN voters support this bill.

    On the other hand though, I do wonder how those same IN voters would treat an imaginary bill, similar to this one, only where the discrimination in question is not against gays but against Christians?

    My only point in all this is to reiterate that ‘Liberty is a difficult concept for most people’ – indeed it is.

  • Tedd

    Lee:

    Regarding your earlier post, an implied premise of the non-stupid person’s argument is that if something is good then compelling that same thing is also good. It would not be difficult to demonstrate to a non-stupid person that that premise is wrong. (Else they don’t qualify as non-stupid.) Getting them to listen long enough might be difficult, though. And getting them to change their opinion even after having understood that’s it’s irrational is also not a guarantee, even among the non-stupid.

  • 18 years and counting

    I confess that I don’t follow “the news” too much these days, so I may well have missed incidents. But it does occur to me that all the legal boundary-pushing by gays and other groups, insistent on people serving them against their beliefs, seems to be focused on Christians. I think there is at least one other religion whose adherents might be equally reluctant to serve gays, but it never seems to be challenged on this issue.

  • Paul Marks

    This is actually a rather timid and limited measure.

    Why should a shop owner (or whatever) have to prove a religious reason?

    As others (including Perry) have already said – Freedom of Association must logically include the freedom NOT to associate.

    If someone wants to say “that Paul Marks is bald – I am not selling a loaf of bread to a bald git like him”, they should be free to do so.

    That a private business is “open to the public” does NOT make it a “public place” in the sense of a “government place”.

    Late Imperial Roman Law (with its “common carriers” and “public accommodations”) was just WRONG.

  • Paul Marks

    By the way the intense hatred this timid and limited measure has inspired on the left – the people who dominate the “education system” and the “mainstream media” is instructive.

    It shows that these people are as evil as I say they are.

    I keep “banging on about them” for very good reasons.

    They seek to corrupt the culture (utterly and completely) and they target the young and impressionable.

  • KTWO

    Gordon: I think you meant Cadmean. I found no online reference to ‘cadean’.

    In any case, I had never heard of Cadmean either. Thanks for introducing me to it. It seems exactly appropriate.

  • Phil B

    Ahhh! You unsophisticated rubes. You don’t get it, do you?

    The Indiana law is virtually a word for word copy of the 1993 Religious Freedonm Act enacted by Congress.

    The 1993 law was A GOOD THING (in the 1066 And All That sense of “good”) because it was:

    a) Enacted by the Democrats (and therefore A GOOD THING) and

    b) Intended to allow Native Americans to use Peyote in their religous ceremonies

    So it was a GOOD THING. OK.

    The Indiana just might, possibly, have a one in a million chance of offending someone or another so it is NOT a GOOD THING.

    This article:

    http://www.gormogons.com/index.php/2015/03/puter-makes-liberal-friends-heads-explode-on-facebook/

    Explains things …

  • lucklucky

    No is the Word of Liberty.

  • Phil B

    Yep – context is everything and which political party introduces the legislation is the key to its approval or rejection.

    And of course, anything coming from a Democrat Congress is politically correct and approved, the same legislation from a Republican Congress and it’s one step away from sending children up chimneys, people dying in the gutter and bringing back indentured servitude (if not outright slavery …).

  • Nick (Self-Sovereignty) Gray

    You can turn anything into an argument for strong government! I plead with you to read ‘Intrusion’, by Ken McLeod. It is a look at Britain in the future, with more government regulations intruding into every area of life. A Politician justifies this by pointing out that markets work on the assumption of perfect knowledge, but individual consumers don’t have perfect knowledge about every product on the shelves, so the Government (with much more access to all the facts) will decide for them, making the decision they would make if they had all the facts. Only Governments can run markets perfectly!

  • Tedd

    We’ve seen this same phenomenon in Canada. Legislation first proposed by the liberals but later passed by conservatives is deemed horrible (for example, the GST), while legislation first proposed by conservatives but passed by liberals is deemed progressive and good (for example, reform of the young offenders act). The federal Liberals were applauded by the press for eliminating the federal deficit only a few years after campaigning against the very idea of doing the same, when proposed by the (then) Progressive Conservatives. (Yes, the party used to be called Progressive Conservatives. Don’t ask.)

  • john

    Lee Moore:

    I don’t know if there are any commie bits of Indiana

    From where I’m standing in the southern part of the state, Indiana is a kind of little microcosm of the whole country…. Which is to say conservative to libertarian (more cultural habit than reasoned position) except for the capital — Marion County / Indianapolis has pretty much the same function and politics as DC — and a little bit in the upper left corner near the lake (and Chicago) As usual the big cities (Indianapolis and Chicago) and to a lesser degree college towns (Muncie and Bloomington) are, uh, I won’t go so far as to say “commie” but have the same kind of collectivist mind set across the country, including here.

  • Rich Rostrom

    The problem with unlimited personal “freedom of association” is when it is exercised collectively by a large fraction of a community, and enforced by self-appointed goons. At one time (maybe as late as the 1970s) off-base bars and clubs for U.S. military personnel on Okinawa were racially segregated. The U.S. military brass ignored this; it was off-base and voluntary. Except that it wasn’t voluntary; a body of determined white racist servicemen wanted it that way, and harassed any bar that didn’t go along.

    Segregation in the American South was similar. The market incentives for businesses to desegregate were trumped by the threat from racial enforcers. Government intervention was required to break the inchoate but very strong resistance.

    But there is a fundamental difference between universal segregation of everything based on condition, and not participating in expressive conduct that one finds repugnant.

    I have yet to hear of a photographer or baker who refused common services to homosexual customers. What the targets of this particular crusade have refused is participation in conduct specifically associated with homosexuality.

  • Lee Moore

    I think that’s an excellent point Rich, which explains also why I’m a bit ambivalent about burqa bans and so on. In theory a ban on women wearing burqas is an affront to liberty. In practice too. But what if some are wearing burqas because they want to, and others are wearing them because they don’t want acid thrown in their face or a serious beating from Papa or Bro ? It’s all very well to say you should stand up for your rights, but if you face a kicking or worse for doing so, it’s not so easy. There’s a reason why we all think Ayaan Hirsi Ali is an admirable woman – it’s because what she’s done is hard. When and how far to make compromises with high theory is the stuff of real life. Precisely how the state is to deliver its proper role of preventing, deterring and punishing private coercion is a messy, contingent business.

    I’m sympathetic to the idea that anti-discrimination laws may well have been necessary to break the sort of private coercion that you describe. But it
    certainly isn’t necessary these days. And it certainly isn’t necessary for gays who want to get their weddings catered or flowered. Just drive round the block to the next supplier. What the current stuff is about is requiring others to bend the knee when you have the power to make them. There would be no point in dragging Muslim florists into the courts – where’s the triumph in that ?

  • bradley13

    The whole concept of “public accommodation” really needs to be rethought. US federal law states that places open to the general public must not discriminate, and must be fully accessible to the handicapped. While well meant, this has the typical unforeseen consequences. Too many small businesses have been forced to close. Two examples I recall from when I lived in the US:

    – A restaurant on an upper floor in an old building with no elevator. Forced to close, because they could not become handicapped-accessible – it wasn’t their building to modify, and anyway, there was no possible place for an elevator.

    – A men’s weight-training center that closed when it was forced to admit women. Interestingly, women’s fitness centers in the area were allowed to continue being women-only.

    This Indiana law, and the federal law it is based on, restrict one small aspect of public accommodation. However, the whole thing ought to be re-stated with the “only if” and “least restrictive” ideas.

    In any case, the Gorgomons link given by Phil is dead on. Typical: “it’s good when we do it, and bad when you do it”…

  • Gordon

    To all who might have been confused by “cadean” or whatever.
    Think of Jack Cade: “lets hang all the lawyers”.

  • Snorri Godhi

    There is hardly anything to argue about in the post or comments, but i think it worthwhile to expand on something Nick wrote:

    […] more government regulations intruding into every area of life. A Politician justifies this by pointing out that markets work on the assumption of perfect knowledge, but individual consumers don’t have perfect knowledge […]

    I feel compelled to keep repeating (even though it should not be necessary to do so in this forum) that, although ONE possible justification for the free market is perfect knowledge (and perfect rationality) on the part of consumers, this is definitely not the only possible justification.
    In fact, it happens to be a justification that i utterly reject.

  • The notion markets require “perfect knowledge” is hilariously wrong, but people do keep trotting it out. And rationality is utterly superfluous.

  • Mr Ed

    although ONE possible justification for the free market is perfect knowledge (and perfect rationality) on the part of consumers

    Has anyone seriously suggested that consumers have perfect knowledge? On what basis? Of what do they have knowledge? How does one rate another’s preferences? The concept is surely not well-founded.

    As for perfect rationality, what is that supposed to be? How may anyone determine if another is acting rationally, without knowing that person’s motives and knowledge? How could that knowledge be obtained? von Mises points out that a ‘bone-pointer’ wishing to curse an enemy is acting rationally by pointing the bone and muttering a ‘spell’, it is just that the bone pointer’s technology is not up to the task, but if he genuinely believes that it works, he would be acting rationally even if his motive is malicious, and more to the point, his method is ludicrous and erroneous.

  • Tedd

    Mr Ed:

    Perfect knowledge (and rational outcomes) are straw men that critics of free markets use regularly. I’ve read many articles over the years that argue against those two, as though they were the argument that advocates of free markets were making. It’s not unlike how Adam Smith’s arguments are portrayed as a rationalization for selfishness, in contradiction of what Smith actually said.

    Rich Rostrom:

    There have definitely been cases of photographers refusing to serve gay customers. But I agree that such specific cases are different from a blanket segregation based on race.

  • Alsadius

    The part I find hilarious is the divestment movement that’s popping up around this law. They’re basically saying that Indianans have done something they find deeply and personally offensive, so the boycotters are going to refuse to do business with them as a result. It sounds like a prima facie argument for the exact bill that they’re opposed to.

  • Good point Alsadius! SQOTD I think!

  • Alsadius

    You know, I’ve been commenting here occasionally for over a decade, and I don’t think I’ve gotten a SQOTD yet. That’s pretty awesome.

  • Toastrider

    I had a discussion with a friend of mine about this.

    One point that I made was that I was never quite sure if the photographers (or cake bakers, or whatever) had signed any contract first. If they had already signed off on things, well, tough shit. Next time pay attention. If they hadn’t, though, it falls back on the right to refuse service. And if you want to COMPEL service, you’re running dangerously close of bumping up against the 13th Amendment, and wouldn’t THAT be a fun court case?

    The second, and more importantly, is the asinine tendency of activists to go straight for the hard option, i.e. legal action, when they can’t get their way. The 1st Amendment guarantees the right to speak out; take out ads in the paper, post a shitty Yelp review, call the local news station’s consumer rights analogue… they could’ve done all of those things and nobody would’ve minded. But nope; gotta bring Big Government in, because everything’s better when you sprinkle the magic fairy dust of government on it!

  • If they had already signed off on things, well, tough shit. Next time pay attention.

    I agree completely.

  • Lee Moore

    The second, and more importantly, is the asinine tendency of activists to go straight for the hard option, i.e. legal action, when they can’t get their way. The 1st Amendment guarantees the right to speak out; take out ads in the paper, post a shitty Yelp review, call the local news station’s consumer rights analogue… they could’ve done all of those things and nobody would’ve minded. But nope; gotta bring Big Government in, because everything’s better when you sprinkle the magic fairy dust of government on it!

    You are completely missing the point. Which is to PUNISH the unbelievers, and make them OBEY. It’s particularly neat when you can get a Christian businessperson to be forced to choose (a) stick to my religious principles or (b) elide my religious principles to stay in business, because it gets that old Mammon thing into play. It’s positively orgasmic to get a Christian to give in to Mammon because (a) it humiliates them and (b) it shows that we atheists were right all along – these cranky nuts don’t really believe the crap they spout.

  • […] means freedom of disassociation. You might want to know some background […]

  • John Mann

    This whole matter is interesting, in light of current events here in the UK – viz. the Ashers Bakery case in Belfast where Ashers Bakery chose not to accept an order for a celebration cake with the words “Support Gay Marriage” and a picture of Bert and Ernie from Sesame Street.

    http://www.belfasttelegraph.co.uk/news/northern-ireland/judgement-reserved-in-ashers-gay-cake-case-31100867.html

    The issue here is not that someone was refused service because of his sexuality, but that the bakery declined to take the order because the cake had a slogan calling for the legalisation of something that is currently not legal, and that the baker believes that should remain illegal.

    This is a far cry from anti-discrimination law when it first came in half a century ago.

    So, what if the baker refused to take an order for a cake that said “Support Cannabis Legalisation” with an appropriate picture. Or suppose the cake was to say “Support the lowering of the age of consent” with a nice picture of a gent and a little girl. Should the baker be forced to comply?

    Or, heaven forbid, suppose the baker was asked to asked to bake a cake that said “Legalise Freedom of Association” and refused, because the baker believed strongly in current political orthodoxy. What then?

  • Mr Ed

    On the basis of what John has said above, the Ashers Bakery complaint should fail, as ‘the reason why’ service was refused was not the sexual orientation of the customer, but the content of the cake. Had a ‘straight’ couple asked for the same cake (the comparator in discrimination law) then presumably the bakery would have refused to serve them.

    If what I have read is correct, I ask myself, what sort of person politicises a cake? Surely only a fanatic? This strikes me as vexatious and scandalous conduct. No doubt the court will have heard all the evidence and found ‘reasons’ for its decision.

  • Lee Moore

    From the newspaper report – which is as clear as newspaper reports on legal matters usually are – it appears that there are actually two horses running in this race.

    1. It appears that the shop initially accepted the order “to avoid embarrassment” though “in her heart” the shop manageress knew she wasn’t going to be able to go through with it. This is a contract law issue, and I don’t think the shop will do very well trying to rebut the presumption that there was an intention to create legal relations. So I suspect they’re on the hook for damages of a few quid. Memo – if you don’t want to bake gay-message bearing cakes, but don’t want to turn down the order for fear of giving embarrassment – risk the embarrassment.

    2. Then there’s the anti-discrimination law stuff, where we see that there’s a fatly taxpayer-funded quango with the “duty” no less, to go round hounding people it disagrees with. Nice. On the face of it, the fact that gay marriage isn’t legal in NI does not of itself prevent anti-gay discrimination by commercial organisations being illegal. So I suspect that turning down a message in support of gay marriage is illegal, but turning down a message against gay marriage would not be illegal. Indeed it might well be illegal to accept an anti-gay message. Since NI assembly members are not engaged in commerce (OK not officially chortle chortle) they’re not caught by the equality law, so they can continue to bigot away, and vote to carry on preventing gay marriage. But shopkeepers – not so much.

  • Mr Ed

    Is there even a contract, if the party requesting the cake had an ulterior motive an initio, that of suing the other party for alleged refusal to provide a service?

    A contract involves agreement, consensus and a change in position.

  • staghounds

    I oppose it, because , first, it will provide ammunition to those who want a particular range of sexualities made a protected class.

    Second, the lawsuits will suck money out of my pockets to pay judges to hear arguments about how religious people are.

    Most, because it is beneath what should be the notice, never mind the power, of government. Can no legislature say “You people are adults, solve your own wedding cake problems”.

    PS, I’m surprised that the people in the party of tolerance and love don’t say “If you believe that baking my cake will damn you, then I as a loving fellow human being won’t ask you to. Your soul is more important to you than my cake is to me”.

    Or that the people in the faith of “love thy neighbor” can’t choose to be good examples of turning the other cheek FOR PAY NO LESS.

  • Julie near Chicago

    Late to the party, as is too usual these days, but the anti-discrimination laws that Lee and Rich and some others describe are not the correct answer to coercion of (private)* businesses* by anybody, including “racial enforcers.”

    The correct answer is to declare pro-segregation LAWS unConstitutional and to punish the governing bodies and their agencies, state and local, that write or enforce such laws; then the “enforcers” are dealt with as one would any common thug or gang.

    Remember, the Mafia does and did the same thing in its “territories”: extortion and coercion against ordinary shopkeepers, businessmen, and law enforcement and judiciary people too. It is necessary to root out the corrupt and the Bad Guys from public office as much when they’re basically with the Mob as when they’re basically with the KKK & fellow-travellers.

    That’s why there was “Operation Greylord” in Chicago in the ’80’s and the Knapp Commission in New York. Not to say that either of those involved “the Mob” (though one would be amazed if not), because I frankly don’t know; I’m just pointing out that it’s possible for the Feds to fight local corruption or wrongdoing, if they can remember which side they’re on, *snark*.

    Same thing also with Communist gangs that used to be Enforcers in the name of their foul agenda.

    There’s no need to make special laws to deal with segregationist enforcers, just as there’s no need to establish a separate category of “hate crimes” for crimes whose victims are members of this or that “victim group.” Murder is murder. My god! Give a lighter sentence to X, who killed A for his money (or his encroachment on turf) than to Y, who killed A’s brother because he was homosexual/part-Negro/Muslim?

    *Just to be clear, in my view government ought not to be running any business of any kind. “Private business” is therefore actually redundant.