SB 1062, the vetoed legislation that would have expanded the ability for businesses and individuals to attempt to claim religion as an exemption from public accommodation laws.Libertarians may have tried to debate non-libertarians about whether bakeries can be forced to make wedding cakes for gay couples or what Arizona was trying to accomplish with
The debate might have gone something like this:
Person: It’s wrong to discriminate against gay people.
Libertarian: Businesses have the right to choose whether they’ll provide their services to people.
Person: Does a bakery have the right to refuse to make a wedding cake for an interracial couple?
Libertarian: Of course.
Libertarian: Freedom of association!
Person: Civil Rights Act of 1964!
Libertarian: There are no positive rights. Forcing somebody to provide goods or services to you through government mandate is a type of slavery.
Person: No, slavery is when white people beat you with whips and make you work 20 hours a day and rape you! That’s slavery! Don’t you know history or are you some sort of racist?
And so it goes. The emotional response to America’s racist history (and the racist history itself) makes it a challenge to argue for the libertarian ideal of this manifestation of property rights. To a libertarian living in America in 2014 it seems absurd to think that if the Civil Rights Act of 1964 were to expire that segregation would somehow return like it never left. While there is certainly racism in America today and plenty of it, the collusion between bigoted government leaders and bigoted business leaders no longer exists at a level where this country could ever or would ever (or would want to) return to the days of the segregated lunch counter. And not just because lunch counters are largely irrelevant now.
But while there were a lot of ways slavery and segregation could have ended that would have been more aligned to libertarian values, we only have what actually happened. The concept of property rights in America was fundamentally altered in order to force an end to a widespread effort to prohibit minority races from accessing the same goods and services that whites enjoyed.
When the hardcore logic of the libertarian freedom philosophy collides with the larger emotion-based responses to real world discrimination, arguments sometimes go utterly nowhere. There isn’t a debate that can be had when the two sides don’t even agree on what words like slavery and freedom even mean. A couple of photographers or bakers refusing to accommodate gay weddings utterly pales in comparison to what has happened historically, so there’s an irony when supporters of Arizona’s legislation are accused of not knowing history. And nothing highlights the absurdity of the emotions behind the outrage than comparing the small number of discriminatory incidents that take place now to the Jim Crow South.
Attempting to create religion-based carve-outs for public accommodation rules and workplace discrimination laws is a suboptimal choice, because it argues that some people have greater freedom of association than others, if they have the right reasons, according to whatever a government body declares. Why should some folks be able to use some holy book as an excuse not to make somebody a cake rather than just having the free speech/free association right for whatever reason at all?