|
| |
WEDNESDAY
AUGUST 11
1999
The right to
exclude
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 they
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.
� 1999 WorldNetDaily.com, Inc.
This
page was last built 8/11/99; 2:47:22 AM Direct corrections and technical
inquiries to
webmaster@worldnetdaily.com
| |
|
