Freedom of Association and Anti-Gay Discrimination

As I have made it clear many times, I do not believe that homosexuality is in any way immoral.  Morality as it applies to homosexual acts is very similar to the application of morality to heterosexual acts in many important respects, though clearly it is differentiated by the absence of concern for the potential of responsibility for creating a baby.  I have supported gay domestic partnership contracts in their governmental form and noted that government really has no business addressing the spiritual aspects of marriage for anyone.  It should only grant domestic partnership contracts to consenting adults with no more concern for their sex or numbers than is appropriate for a business partnership contract. Adult individuals have the right to form the voluntary associations and contracts of their choice.

I have long been embarrassed by the stand of many Republicans for whom I have often voted on their stance on the issue of homosexual discrimination by government.  Government has absolutely no business discriminating against homosexuals or bisexuals or heterosexuals.  Government must support the rights of every individual to life, liberty, property, and the pursuit of their personal happiness.  This does not allow exceptions for homosexuals, bisexuals, or heterosexuals or many other characteristics individuals have or choices that they make.  Of course, for every Republican who embarrasses me in this regard, there are many more destructive and immoral choices made by almost every Democrat Socialist Party candidate.  Political candidates are never entirely rational and moral.

I argued for an end to the Clinton Defense of Marriage Act and for the end of Don't Ask, Don't Tell.  I contributed to the Log Cabin Republican effort in accomplishing these tasks and praised their work.  I contributed to the Marylanders for Marriage Equality group when it was trying to promote the ballot initiative to equalize same-sex marriages in Maryland.  That campaign was successful, with about half of all Maryland Republicans voting for it.  Unfortunately, these groups are now turning to attempts to make it unlawful for businesses in the private sector to discriminate against gay people.  On this matter, I part ways with these groups, for reasons of general principle and because their effort actually undermines their own right to freedom of association in a very fundamental and harmful way.

I find it an immoral act for a business to refuse service to someone because they are homosexual or because a gay couple may be married. I prefer not to do business with such a business and I applaud others who would not do so also.  In doing so, I am discriminating in accordance with my values.  This personal choice and expression of my own values and moral code is not one that I have the right to impose on others by the initiated use of force.  It changes nothing morally if I join a majority of voters and elect politicians who will use the force wielded by government to accomplish this same goal of imposing my values and my morality on others.  They too have a right to choose their own values and their own moral code.  The fact that I disapprove of the choices some people make does not give me the right to marshal the force of government to suppress their choices of values and actions made in accordance with their moral values.

Good government cannot be achieved or evaluated without a rational reference to principle.  Legitimate government has one and only one purpose.  That purpose is to secure and protect the equal, sovereign rights of the individual to life, liberty, property, the ownership of one's own body, mind, and labor, and to the pursuit of one's own happiness.  Government cannot do this if it does not allow individuals the implied freedom of conscience and the freedom of association.  The individual in possession of his own mind establishes the principles and values of his conscience and he acts in his life upon those principles and values in forming associations with others.  Good government imposes very little in the way of morality on its citizens.  It only requires that they respect the equal rights of others by not initiating the use of force against others and by not defrauding them.

So if a person forms his moral principles and values in accordance with a Bible verse of the Old Testament such as Leviticus 20:13

Leviticus 20:13 If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood [shall be] upon them.

without regard for the primitive, brutal nature of the times and the need of a small tribe to procreate madly in the interest of survival, it is not the role of good government to instruct this person on morality or to take actions against his discrimination in putting his moral beliefs into action, so long as his actions do not involve the initiated use of force or fraud.  Government should not require that the believer in Leviticus 20:13 not have an aversion for gay sex, though it must draw the line in not allowing the believer in this brutal dictum to kill or use other violence against those who have voluntary gay sex as adults.  In general, good government will no more prescribe morality than it will prescribe speech or dictate who one will marry or befriend.  Individuals have the freedom to choose their values and the moral principles by which they will live.  They enjoy freedom of conscience and freedom of association by choice.

These are freedoms are as critically essential to gay individuals as they are to heterosexual individuals.  Indeed, when the general principles of individual rights are not respected by government, it is various small minorities who usually suffer the most.  Historically, this has been clearly the case for homosexual and bisexual individuals.

Gay marriage is most often sold as a matter of equality, but that is a weak argument.  The response of some conservatives and other religious people is that everyone has the equal opportunity to marry someone of the opposite sex, so equality is maintained.  Of course, the freedom to enjoy one's own mind and body and to pursue one's own happiness may not be served by the equal opportunity to marry someone of the opposite sex.  In the context of rights, only the even-handed behavior of government is mandated.  Government must not differentiate the availability of equal domestic partnership contracts.  A person of religious belief or otherwise in the private sector, however, need not regard a domestic contract as the equivalent of a requirement of respect for that partnership that he might grant to other partnerships approved by his religion.  The private individual retains all rights to discrimination outside of governmental actions.

But the same-sex marriage advocates seemed rarely to worry about making a fundamental argument based on individual rights.  Too few of them have thought in general principles of the legitimate function of government and its very limited purpose.  Support for same-sex marriage has been based on a popularity contest riding the crest of a recent fad.  The broad and necessary right of a gay individual to choose his own values, who he wants to associate intimately with, who he wants as a domestic partner, and who else he will discriminate against for these purposes, is apparently unknown to him, with few exceptions.  Part of the problem is that most gay people do not think in terms of general good political principles because that would be inconsistent with the fact that most are too closely associated with the Democrat Socialist Party.  It is very difficult to find a valid and strong argument for freedom of conscience and freedom of association from the perspective of a collectivist!  Those arguments derive their strength from individualism and the clear and certain recognition that individuals are complex and highly differentiated.  Every individual has the right to life and the right to pursue his own happiness.  The nature of our lives, of our bodies and minds, and the paths to our happiness are rich in their variety.

I am discussing these fundamental issues of individual freedom pertaining to gay individuals now because of the recent hullabaloo over the Arizona state Senate Bill 1062 which allowed business owners to make association choices based on their religious beliefs.  Now my objection to that bill is that it is defective in limiting the freedom of conscience to that subset of conscience deriving from religious beliefs.  This is a common error in American law.  In reality, the individual has a broad freedom of conscience and it is wrong for government to limit that freedom to only its religious expressions.  I do not believe that when one owns a business, one gives up one's basic freedoms.  If that were so, then every business owner in exercising his right to earn a living and to own property for the purpose of doing so, would be losing other fundamental and necessary rights.  Our rights are broadly owned by each of us and we are rightly and properly deprived of them only when we initiate the use of force against others.

If a businessman is deprived of the right to discriminate against others for some choices or actions they take, can he long expect that he will be allowed to fire an employee who does not perform his job well.  Will he soon be forced to buy goods and services for his business from inept suppliers because a supplier might be a brother-in-law of the governor or represent an industry that makes large campaign contributions?  Must he sell items or services to some people preferred by the government at lower cost than to others?  Will he be allowed to fire an employee or not do business with a supplier who lies to him?  Businessmen have every bit as much need to discriminate among people based on their values as those who are not businessmen. An employee of a business has the right to judge his employer and if he finds him wanting, he is free to leave employment.  The consumer is free to discriminate against a businessman and not buy the goods and services he offers for sale, unless the service falls under ObamaCare, if you go along with one important aberrant claim on how limited our rights are.  In reality, our individual rights are not narrow, as American law tends to mistakenly take them to be, but they are broad, generous, and rich.

Legitimate and good government recognizes this fact.  The presumption of good government is that the freedom of the individual is sovereign and inalienable.  Only extremely rational reasons, agreed upon by most everyone, can be used to limit individual rights.  It does not impose the moral preferences bare majorities or a favored faction on others.  It must allow the individual the freedom to use his own mind and to act upon his own view of reality with only the most necessary limitation that we all have the equal right to do that.  None of us has the right to initiate the use of force to limit the choices and actions of others and we do not gain that right by manipulating a government to do this for us.  The presumption of individual freedom must be very strong in the healthy, individualist society.

Does the gay person refused service by a business suffer a measure of harm?  Yes he does.  He is done an injustice.  But, if the government forces a business owner whose moral beliefs dictate that he should not serve the gay person to serve him, then the business owner has also suffered a harm.  There is no way violating the rights of one person to prevent a harm or an injustice to another can be worked to prevent harm and injustice.  That course of action simply guarantees more harm and more injustice.  We have to expect in life that some people are going to make moral choices others of us will not like.  We cannot treat someone as a slave to be ordered about just because we believe they have done an injustice and that their morality is not as good as ours is.  No, in a free society one simply seeks out other adults who are willing to associate with us.  This is so for much the same fundamental reason that we do not force someone to associate with us for the purposes of sex.  Voluntary consent is critical in a free society.

While the modern Progressive Elitist does not believe freedom of speech and of the press is a broad right anymore and often wishes to limit them based on harm or hurt feelings, these rights are very broad.  It has served us well to enjoy a broad right to speak and write our minds.  It has served our society well to allow people to choose their own values, formulate or adopt their own moral ideas, and to manage their own lives.  While freedom of conscience and freedom of association are not always given the broad protections they should be given, for the most part in the non-business private sector they are tolerated by our government.  They should be equally tolerated in the business sector.  Indeed, they should be given a very committed and strong protection in all of the private sector in America.  If they are, gay individuals will prosper and flourish more certainly than if they are not.

USDA Makes Heterosexism Ugly

Most of us did not know that heterosexism does not describe those who practice or advocate the desirability of heterosexuality.  No, according to the US Department of Agriculture (USDA) and Sec.Tom Vilsack, it means the belief that marriage can only be between one man and one woman.

I am trying to figure out where this idea comes from.  Does liberalism mean that only one man and one woman can enjoy the benefits of a liberal society?  Perhaps it does now, when liberalism seems to mean that one great socialist leader and his First Lady will rule the country and choose everyone's values and impose them on everyone using the force of government.  This was not the origin of the term liberalism, however.  Libertarianism still means that one favors liberty for all and conservatism still means one favors many traditional values, so most isms do not have a parallel to this new word heterosexism.

Why is it that sexism does not mean that one believes in the desirability of sex or that one enjoys sex?  No, in our strange new world, sexism means one is biased against those of one sex or another.  In this vane, one would think that heterosexism would mean that one was biased against heterosexual activities.  But no, heterosexists are according to the USDA advocates of heterosexuality.  This would be in keeping with the traditional use of words such as liberalism, socialism, conservatism, and libertarianism, rather than the screwy use of the word sexism.  But, the USDA says that heterosexism is not just in favor of heterosexuality, but that its essence is the denial of marriage to those who are not heterosexual.  I do not know why attitudes toward the marriage rights of others must be wrapped up in this term at all.  This is very strange.

But applying this rule to other words that ought to be of the same family, leads us to the conclusion that homosexism is the denial of marriage rights to those who are not of the same sex.  Bisexism is the denial of marriage rights to those who are heterosexual and to those who are homosexual.

The USDA is re-educating its employees against biases directed at those who are not heterosexual.  Of course, any government agency has no business being biased on the basis of sexuality in its hiring and promotions.  The USDA is going beyond this to attack certain ideas about marriage though.  Given that the U.S. Supreme Court has not yet ruled that states cannot discriminate in favor of heterosexuality in marriage, it seems a bit premature for the USDA to be framing those who oppose marriage rights for those who are not heterosexual as bigots.  Mind you, I think such people are bigots, but the government's courts and Congressional law have made no such determination.  The Obama administration is all in favor of discriminating against those who believe marriage should be reserved to one man and one woman, however.

Furthermore, the USDA does not make marriage laws, so it is pretty much irrelevant whether some of its employees believe marriage should be limited to one man and one woman.  Any effort to dictate that they cannot think this is an attack on the religious beliefs that many people hold and is as clearly wrong as would be USDA discrimination against the hiring of homosexuals or its attempt to re-educate them to become heterosexual once hired.

This USDA effort is in the context of a diversity and inclusion program.  It is being pushed forward by the Office of Personnel Management as a model for all of the other agencies of the federal government.  It will then be pushed upon the states and upon all government contractors.  In practice, such diversity training and incentives result in managers preferentially hiring and promoting two-fers.  They will be rewarded for hiring or
promoting lesbian women and homosexual Black men, while discriminating against heterosexual white males and even those who are only one-fers, such as heterosexual Black males or white females.  This leads to what ought to be seen as clearly unlawful and immoral discrimination.

To overcome the fact that this is such transparent wrongful behavior, it is useful to actually denigrate the word heterosexual.  It has to be converted into a put-down.  This has been done with white male as in "The Founders were just a bunch of white males, so their work was full of evil and discrimination.  Therefore we can dismiss the Constitution in its entirety, not to mention the Declaration of Independence."  The strangely defined word heterosexism helps to give the word heterosexuality a very negative connotation.  Defining heterosexism as evil and as a denial specifically of marriage rights helps to accomplish this important goal of the Progressive Elitists.

It will be interesting to observe in time if one sense of the meaning of Progressive Elitism becomes the belief that only Progressive Elitists are allowed to marry.  When that starts to happen, will most Americans see that as a new form of bigotry?  Or will they just accept the idea as a return to the aristocracy's natural rights such as they enjoyed in the Dark Ages and Medieval times?  After all, the Progressive Elitist believes most Americans are too stupid to choose their own values and to manage their own lives.  It is clear that they already think of themselves as the educated aristocracy who by right take care of the dumb and uneducated peasants, who should be treated just a little bit better than the pigs.  Maybe.  Many environmentalists and animal rights advocates among the Progressive Elitists believe most of the peasants should not be treated as well as the pigs or the snail darter.

As I have discussed many times, the government ought not to be in the marriage business.  If marriage is a spiritual union of two or more people, then it belongs in the private sector.  Government should only offer domestic partnership contracts and these should no more limit the partners than a small business contract does.  These domestic partnerships should be completely non-discriminatory, so long as the partners are only consenting adults.  See my prior discussions on the right to form domestic partnerships without government discrimination here, here, here, and here.  Marriage or domestic partnerships are surely relationships in which one should be completely free to exercise one's right to the freedom of association.

Miron: Government Needs to Divorce the Marriage Business

Jeffrey A. Miron, a senior lecturer and director of undergraduate studies at Harvard University and a senior fellow at the Cato Institute, has made an argument similar to the one I have been making for about 5 years on the issue of gay marriage and the role of government in marriages.  To summarize his argument:

• Government should exit the marriage business.
• Private contracts for raising children, for the division of property, inheritance, and other purposes should be available as components to a bundled contract open to all couples.
• Opposite-sex and same-sex couples would have the same opportunities and be treated equivalently.
• Government would still define the default rules of a contract.

The main limitation of his argument is that he limits domestic partnership contracts to a couple.  There is no more reason for doing this than there would be to limit a small business partnership to a couple.

Equal Rights in Domestic Partnerships

Robert A. Levy, Chairman of the Cato Institute, and John D. Podesta, President of the Center for American Progress, wrote an interesting article for the 8 June 2010 Washington Post called Marriage Equality for All Couples.  They noted that the 1967 case of Loving v. Virginia, ended the ban on interracial marriage in the 16 states with laws banning it at the time.  The Supreme Court unanimously ruled that "marriage is one of the 'basic civil rights of man.'"  This decision was based on the 14th Amendment, ratified in 1868.  Sadly, it took 99 years for this ruling to finally be made.  At the time of that decision, 74% of Americans disapproved of interracial marriages.  Twenty years ago, only 6.8% of newly married couples said they married outside their race or ethnicity.  That number is now 14.6% according to a recent Pew Research Center study.  Clearly, the earlier prejudice against interracial marriages has subsided and more and more Americans are claiming their equal right to marry, whatever their racial mix may be.

The right of people to marry who are not heterosexual has not yet been given a basis in the federal courts.  In 2003, the American opinion was that only 37% supported same-sex marriages.  A February Washington Post poll found that 47% of Americans now support same-sex marriages.  65% of those ages 18 to 29 support same-sex marriages, so the trend will continue in the direction of increasing support.  Robert Levy and John Podesta are the chairmen of the advisory board of the American Foundation for Equal Rights, which is supporting the case of Perry v. Schwarzenegger.  This case is aiming to have California's Proposition 8 outlawing same-sex marriages declared a violation of the 14th Amendment and is now before the federal district court in California.  The case is likely to be appealed to the Supreme Court.  It ought to win the freedom for all couples to enter into equal marriages.

I have long made it clear that government should not be claiming to play a role in marriage at all.  For many, marriage is a spiritual union and I fully understand that concept even though it is not the case that I believe in a god.  There is good reason to reserve the term marriage to meaning a spiritual union and allowing people to control that spiritual content in their marriages without any presumption on the part of government that it has anything to say about that spiritual content.  Those who are religious or who have spiritual values which are not religious are best served by adopting a more appropriate term for the contract that government offers to couples.  It would be better if this were universally called a domestic partnership contract or agreement.  All of the issues which involve government are better described as contractual in nature.  Recognizing this, provides a separation of church and state in marriages/domestic partnerships which would help to diminish the passion of the argument from religious quarters against equal rights in domestic partnership contracts.

As I have written many times also, domestic partnership agreements ought to be a parallel to small business partnerships in that government does not dictate the sex or number of partners.  Two men, or two women, or two men and two women, or any other combination of several people ought to be free to enter into a legal domestic partnership contract.  Joint property, joint responsibility for raising children, the sharing of income, and critical medical decisions and support could readily all be incorporated into such domestic partnership agreements.

Very likely, most families would still be built around one father and one mother, but the huge number of divorces and resulting serial marriages are clear evidence that one-man-one-woman marriages do not work for large numbers of people.  Sometimes the failure is largely the result of two people becoming bored with one another or of one simply yearning for some change of pace.  Sometimes, the couple simply do not always share the same cycle of need for sex.  Sometimes, the strains of earning income, cleaning house, purchasing food and clothes, maintaining the house and cars, agreeing on a common vacation, and raising the children are simply too much for two people.  Some people would do better in larger domestic partnerships in which tasks are spread over more specialists or where they can be varied over time.  With most public schools having severe shortcomings, many such extended family groups would be able to have a member or two specialize in home-schooling the children, while a sufficient number of others remain to bring home the bacon.  One member might be particularly good in managing the family investments, while another is great in playing with the kids and caring for the yard.  One may love to cook, while another loves to work on the cars and keep them running.  Another may like purchasing the groceries, the furniture, and the clothes for the children.

Of course, in many such cases, family members may have the option for having a sexual life enriched by more than one sexual partner.  Sex is one of man's greatest pleasures in life.  It is very important to many people that they are able to optimally enjoy this pleasure.  There is no valid ethical principle that says that it is immoral for a man or a woman to have more than one sexual partner in any period of his or her life.  The ethical issue is whether the person one chooses to have sex with is a person of good character who is of great interest to and highly valued by the chooser.  If someone is fortunate enough to find more than one such person with whom they can form a more intimate bond with shared life-affirming sexual pleasures, people of good will ought to be ready to simply wish them the best.  This is true whether the individuals in the serious and sincere sexual relationship are of different sexes or the same sex.

A knowledge of history makes it very clear that while some people may be entirely heterosexual, very many people are bisexual or homosexual.  When societies are not burdened by severe heterosexual bigotry, it is clear that many people are happy to give outlet to their bisexual or homosexual desires and choose to pursue their happiness in that way.  In our present time, the video market in erotic movies and the rich offering of sexual images and discussions offered on the Internet, make it clear that sex is both of great interest to many people and that their interests are highly varied.  These interests, when given anonymous expression, do not conform to the publicly affirmed principles dominant in our society.  It is clear that many sexual interests are being suppressed, some for good reason, but many for no more reason than traditional prejudice.  It is no one's right to interfere with the exploration, development, and expression of another's optimal sexuality, so long as only consenting adults are involved.

We are all complex and highly differentiated individuals and one of the great expressions of that is in our sexuality.  To suppress the sexual development and expression of others is to attack the rights of the individual in a very basic and fundamental way.  This is an attempt to deny the nature of man and as such it is not consistent with a rational understanding of man and reality.  Let us hope that a step in the direction of our sexual liberation will be made with a Supreme Court decision that same-sex marriage must be allowed because all people have an equal right to pursue their happiness in domestic partnerships.

Levy: The Moral and Constitutional Case for a Right to Gay Marriage

Robert A. Levy is the chairman of the Cato Institute, a libertarian think tank in Washington, D.C.  He recently played a major role in strengthening the Second Amendment to the Constitution in the case of Washington, D.C. vs. Heller.  He recently wrote an article appearing in the New York Daily News on 7 January 2010 on the right to gay marriage called The Moral and Constitutional Case for a Right to Gay Marriage.  It is an excellent article, consistent with my oft-stated belief that we would be better served by getting government out of marriages, which I believe are a spiritual union of partners.  The government should only be offering an important legal contract for domestic partnerships, somewhat akin to a small business partnership.  The spiritual aspect of such a domestic partnership, the marriage aspect, is not something government can or should attempt to address.

Levy points out that New Hampshire and Washington, D.C. have just joined Connecticut, Iowa, Massachusetts, and Vermont in legalizing gay marriage after disappointing defeats in California, Maine, and New York.  Levy says:

The primary purpose of government is to safeguard individual rights and prevent some persons from harming others. Heterosexuals should not be treated preferentially when the state carries out that role. And no one is harmed by the union of two consenting gay people.

For most of Western history, marriage was a matter of private contract between the betrothed parties and perhaps their families. Following that tradition, marriage today should be a private arrangement, requiring minimal or no state intervention. Some religious or secular institutions would recognize gay marriages; others would not; still others would call them domestic partnerships or assign another label. Join whichever group you wish. The rights and responsibilities of partners would be governed by personally tailored contracts — consensual bargains like those that control most other interactions in a free society.

Levy notes that more than 1,000 federal laws dealing mostly with taxes and transfer payments have provisions for married people.  The states have many more laws with provisions for married people.  But Levy says:

Whenever government imposes obligations or dispenses benefits, it may not "deny to any person within its jurisdiction the equal protection of the laws." That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government.

Levy also observes that:

No compelling reason has been proffered for sanctioning heterosexual but not homosexual marriages. Nor is a ban on gay marriage a close fit for attaining the goals cited by proponents of such bans. If the goal, for example, is to strengthen the institution of marriage, a more effective step might be to bar no-fault divorce and premarital cohabitation. If the goal is to ensure procreation, then infertile and aged couples should be precluded from marriage.

More and more people are unable to find any substantial merit to the claim that gay domestic partnerships weaken or threaten heterosexual marriages.  As Levy notes, nearly 60% of Fortune 500 companies offer employee benefits to domestic partners.  The Senate Homeland Security and Governmental Affairs Committee has also voted to apply employee benefits to the gay partners of federal employees.  The clock is running out on this cruel act of discrimination.

Muslims and Gays in the Military

It has been pointed out that the military has no problem with Muslims in the military.  Indeed, it works hard to encourage them to join and stay in the military.  It is very politically incorrect to point out that one is unstable or strongly opposed to the wars in Iraq and Afghanistan.  On the other hand, if there are any gay or bisexual people in the military, the military leadership does not want to know about it.  If they do come to know about it, they want them out quickly.

Interesting.  At least a couple of Muslims in the military have killed a number of other serving members of the military in the name of Allah in what can only be called terrorist rampages.  Have there been any gay or bisexual terrorist rampages?  Inquiring minds want to know.