When I tell people I attend UC Berkeley, I am often asked if I have become, to put it delicately, a “raging liberal.” My usual response is, “No, but I have begun to dabble in libertarianism.” Although I have defined myself as a conservative for as long as I have understood the term, in my college idealism, I have been drawn toward libertarianism and its principle focus on individual liberty.
Last week, Arizona Gov. Jan Brewer vetoed a bill that was intended to protect the religious liberty of business owners but which some had accused of giving legal protection to homophobia. The catalyst for the bill was a decision handed down by a Colorado judge in December ordering a Christian baker to bake a cake for a gay wedding, something he had initially refused to do on religious grounds. While religious liberty is of paramount importance and should be defended zealously, the real issue at hand is not religion but private property.
One of the central elements of libertarianism, the “sanctity” of private property and the absolute right to use it as one pleases, harkens back to classical liberalism (the kind actually about liberty). This understanding of private property is closely intertwined with the American political tradition, stretching back to the Founders. Implicit in this understanding of property, as well as freedom of association protected by the First Amendment, is the right to, for lack of a better word, discriminate when it comes to private property, including businesses. It is entirely within the right of the owner of any private establishment to refuse service to any individual, regardless of the reason.
This is not to say that such discrimination is moral or just but simply that everyone has the right to do as he pleases when it comes to his own property. Just as the freedom of speech gives one the right to say vile, disgusting things, the right to choose what one does with his own property gives one the right to discriminate in morally reprehensible ways. Simply having the right to do so is in no way meant to imply that such actions are, or should be, acceptable in polite society.
It is often difficult for those not accustomed to thinking of individual liberty as sacrosanct to see such discrimination as acceptable. It seems wrong that people be denied service because of their sexual orientation or beliefs or race, and it very well may be morally reprehensible. But it is not the concern of the state to regulate free interactions between individuals: If a baker can be forced to bake a wedding cake for a gay couple, then a catering service, owned and operated by another gay couple, can be forced to cater an event to the Westboro Baptist Church, even as the members scream hatred and intolerance; or a restaurant, owned and run by an African American, can be forced to serve members of the Ku Klux Klan in full regalia. Rather, it is up to individuals to decide what they will do with their own property.
It should be emphasized, however, that these rights concern private, not public, property. There exists no right which permits a public institution of any kind — or any institution that receives public funding — the right to discriminate. To do so would be blatant violation of the Equal Protection Clause of the 14th Amendment.
We will never eliminate bigotry, hatred or discrimination through legislation, and any attempt to do so inevitably involves the violation of individual rights. While we may force some businesses to serve a few customers they might otherwise have refused, it won’t solve the underlying problem. But just because we refrain from using the power of the state to force private businesses to serve everyone does not mean we are powerless. Social and economic pressure can be incredibly powerful. It is hard to imagine that any establishment that categorically denies service to members of a certain race would remain in business for long. Such blatant racism has become culturally impermissible — something no mere law can achieve. Only by instilling this in our society and our culture — something that we, as the young and educated, are well positioned to do — will we make it permanent. Legislating change does not actually solve anything; it only attempts to cover up ignorance and hate, not end it.
Our rights to the free exercise of religion, speech, the press, assembly and association are the foundation upon which our personal liberty stands. They make our society stronger and freer but at the cost of permitting behavior or speech we may find immoral or wrong. But just as the answer to the evil of “falsehood and fallacies… is more speech, not enforced silence,” as Justice Louis Brandeis wrote in Whitney v. California, so too the answer to bigotry and hatred in business is social and economic repercussion, not coerced service. In the words of libertarian and political philosopher P.J. O’Rourke, “There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences.”