The Right of Association and Equal Protection of the Law

The Right of Association

Since libertarians oppose “the initiation of force, and its advocacy to achieve social and political goals”, it follows that we oppose the initiation of force to prevent people from associating or force them to associate. And we believe that all associations should be mutually agreeable and not initiate force to interfere with the rights of others.

This particular corollary of our Libertarian Principle lends itself very well to making a distinction between our principles-based philosophy and the conglomeration of unrelated advocacies known as Liberalism and Conservatism. The case of the right of gays to marry illustrates what this libertarian right of association really means.

Libertarians favored the right of gays to marry since the time our party was formed in 1971, because it is part of the right of association.

Most liberals started supporting the right of gays to marry at around the start of the 21st century, because liberals, by nature, are more accepting of change (and even get very excited about it) and because they favor diversity.

Conservatives opposed this right because they support traditions, such as biblical teachings, and don’t like change; and because they like uniformity, which makes gays outliers to the majority sexual views and practices.

On June 26, 2015 the Supreme Court decided, in the Obergefell vs. Hodges, 5 to 4 that “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex.”

Then, on July of 2018, a Lakewood, Colorado Baker named Jack Phillips refused to create a wedding cake for a gay couple. His reason was that this was contrary to his Christian believes (though he had not objections to the couple could purchasing other goods).

In an appeal from a Colorado court that sided with the gay couple, the Supreme Court, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, on very specific and narrow grounds, decided that the baker cannot be forced to make a cake for a same-sex wedding. But the constitutionality of this case is not what I am addressing here. It is how liberals and conservatives reacted to it, and how libertarians follow their principles consistently.

Liberals defended the “right” of the gay couple to be served and not to be victims of anti-gay discrimination. Conservatives argued that the baker’s decision was protected by the first amendment’s provisions of religious rights, therefore, he should not be required to serve the gay couple.

When I heard the conservative argument, my reaction as a libertarian, was: Why should only religious people have a right of association (which includes the right to not associate)? The bigger issue in this case is weather the right of association should be enjoyed by the baker as much as by the gay couple, not the religious reason for his refusal to serve the gay couple. Of course any libertarian would answer that the baker should have the right of association. This is an example of how libertarian principles are applied consistently.

But you may ask, what is the value of being consistent about principles relating to rights and responsibilities? Don’t we sometimes need to be flexible to adapt to different circumstances?

The reason we are consistent about our principles of freedom is that we seriously believe that defaulting to voluntary activities over the first use of force (by way of the state requiring the baker to provide the cake) always allows for a healthier relationship in any social situation. Of course, force has to be used to constrain or punish those that initiate the use of force (using processes and procedures that give rights of those accused to defend themselves in a court of law).

But using force to prohibit or require any kind of transaction or association only creates resentment and other adverse reactions, and it prevent the process of voluntary negotiations over differences. Defaulting to voluntary choices that respect the rights of everyone is always the best way to promote peace, security and understanding.

If we want to work towards a country that is fairer to minorities that some will prefer to not associate with, we should start by tearing down the many legal barriers that still exist to many types of employment that, in practice, obstruct the access to employment by many of the poorer people in ours society. One of the worst of these are the unnecessary business and occupational licensing laws. They are mostly designed to protect the current business owners and professionals against competition from newcomers or from residents of other states by making it more difficulat to enter many occupations.

Occupations like nursing are limited regarding what they can do, so at to protect medical doctors; and both doctors and nurses licensed in one state cannot practice in others. Barbers, hair braiders, nail salon operators, plumbers, liquor stores, taxi cab operators and many others in most states require licenses for reasons whose principal purpose and effect is to protect the incumbent in the businesses from competition.

Freeing these occupations from their licensing requirements will do more to help minorities and the poor find better paying occupations and more acceptance in their community than forcing existing businesses to serve anyone or hire anyone.

Refusing to serve a paying customer is a very rare thing in a business, since it cuts into its revenues and profits. And employment discrimination due to race, national origin, religion, etc. also denies businesses the best choice of employees, which also reduces their profit. Therefore, regulations to force these associations are not necessary and is counterproductive. In the few cases where a business owner refuses to involve specific people, they have the choice of using other business, particularly if we remove the licensing requirements.

Of course the really damaging forms of discrimination are the ones that are backed by the force of the state, such as the racist school, neighborhood and bus segregation, and the law enforcement biases that used to prevail in the South and are often still seen; and until June 26, 2015, the denial of the right to marriage to gay couples.

This is why the choice of who to associate with should not be set by the government. Our delegation of the use of force to the government requires that its powers to use this force be limited and constrained by the legal requirement that it treat everyone the same.

Equal Protection of the Law

In the United States, the Fourteenth Amendment to the Constitution expresses the principle of “equal protection of the laws” in this sentence of Section 1:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

“Equal protection of the laws” means that laws should apply equally to everyone. This amendment was passed in 1868, after the Civil War as a way to protect the rights of blacks in Southern states that were being violated by discriminatory and abusive laws and practices (but was not really enforced between the late 1870’s and early 1960’s). To the extent that “equal protection of the law” prohibits state-enforced racial or other forms of segregation by defined groups of people, it protects everyone’s rights of association.

This original intent of “equal protection” has had the effect of applying it primarily to: (a) prevent unequal legal treatment by race, sex, sexual preferences and other ways in which people identify themselves and (b) to prevent government officials such as police officers, prosecutors and judges from unfairly applying the laws in different ways to different people.

However, as a libertarian and a believer in interpreting the Constitution as it is written, I submit that “equal protection of the law” should apply to all laws. This is clearly not happening, since there are abundant cases of laws for special tax exemptions or lower tax rates for favored companies or industries and higher tax rates for others, billions of dollars given as subsidies to agro-businesses, protective business and professional licensing and numerous other cases of laws that “protect” different people differently. These are a form of unequal protection of the law that should be found unconstitutional.

After all, why should laws that protect farmers or liquor store owners at the expense of everyone else be any less of an unequal protection than those that protect the racist tendencies of some people identified as white.