Who Gets to Say What’s Right?

Today I got into one of those annoying and unproductive discussions on Facebook — a disagreement with a complete stranger. It started with the question of whether a Christian florist (by which I mean, a Christian florist of the bigoted asshole variety) should have the right to refuse to provide flowers for a gay wedding, or whether the florist should be required not to discriminate as a condition of doing business.

As nearly as I can determine, my antagonist in this little debate was (a) in favor of equal treatment for homosexuals, (b) opposed to government sanctions of almost any kind. He raised the specter of California’s Proposition 8, and asked whether I support the right of the people of California to legally deny marriage rights to gay couples. To him, this is an example of the government mandating a moral principle, something he feels shouldn’t be allowed.

But this is not as easy a question as it seems. In each case — enforcing gay rights or forbidding them — the government is essentially stepping in and making moral decisions that are then binding upon individuals, so I can certainly see that there need to be limits on what the government can or should do. After mulling it over, I think a productive way to approach such questions may be to make a distinction between public morality and private morality.

A Christian of the bigoted asshole variety certainly has a right to cross the street in order to avoid coming into proximity with a gay couple that is holding hands, or to refuse to rent a room to them in his home. The right to avoid gay people is a private right. Likewise, a church is essentially a private, voluntary association. Its worship practices are not public services, so a church should absolutely not be required to conduct services for gay couples.

The owner of a florist shop, however, is providing a public service. If we, as a society, decide that it’s okay for the florist to refuse to provide flowers for a gay wedding, then we would also have to allow the florist to hang a sign in the front window of his shop saying, “No Jews or Muslims.” The question we have to ask, as a society, is whether denying business services to Jews, Muslims, or African-Americans is a private right that should be reserved to the individual, or whether the florist is providing a public service and therefore is not to be allowed to discriminate.

The border between public rights and private rights is not fixed. It changes over time. For a thousand years of European history, the right even to practice Judaism in private was seldom respected or even articulated as a concept. (If you were so bold as to suggest that there was such a right, you might find yourself being burnt at the stake.) Jews simply had no legal or moral right to be Jews. And in fact, even if they converted to Christianity, the Inquisition could go after them and quite possibly torture or execute them because it was suspected that they were secretly still practicing Jewish rites.

Today, the right to practice Judaism in private is pretty much accepted without comment, except perhaps in certain Muslim countries. The right to practice Islam is much less respected in Europe and North America. Muslims are the new Jews, though perhaps one should be more sensitive than to put it quite so baldly.

Until quite recently, the right to be homosexual, even in private, was not respected, either by the legal system or by ordinary people. Today, however, that right has become widely respected. It is no longer the case that being gay is considered a public offense against morality, except by a vociferous minority of the bigoted asshole variety.

In general, the government has a duty to protect private rights — the right to worship, the right to be affectionate with the consenting adult of one’s choice, and so on — from infringement by other people. (Not everyone would agree, unfortunately, that the government has an obligation in such cases.) But is there a right to discriminate in the providing of public services? Is that a private right, or is it a public act and therefore a proper area for government intervention? In the case of any particular type of behavior, we may judge this question differently than people would have 100 years ago. And people 100 years in the future may judge it differently than we do.

For the record, I oppose Prop. 8 not because it’s an attempt to use the force of government to control private behavior on moral grounds, but because it’s morally wrong. There are clearly cases where the government has a duty to control private behavior on moral grounds. Pedophilia is as good an example as any.

My antagonist in the discussion seems to have taken the position that the government may never interfere when discrimination is practiced, though he seems to be okay with the notion that the government should step in if someone is actually assaulted. The difference between discrimination and assault is not always clear-cut, however.

Discrimination is not always a simple, direct activity between two individuals (in this case, the florist and the gay fiancee). We can imagine any number of scenarios in which discrimination reverberates far beyond the two individuals, and therefore has social repercussions. We see problems of this sort in the news — hospitals owned and operated by the Catholic Church, for example, which are open to the public, yet refuse to provide certain medical services that are legal. In a small community, the individual who needs medical care may not have any other hospital to turn to. The hospital’s refusal to provide needed services to a pregnant woman could result in her death, and that would directly affect her husband and her other children. Does the hospital have a right, in this case, to refuse services based on the religious teachings of the owners, or is it providing a public service that must be offered in a non-discriminatory manner, irrespective of the wishes of the owners?

Or consider access to education. What if a teacher at a public school refuses to have gay students in her high-school class, and is supported by her principal? All sorts of bad things may happen to the student as a result; being a victim of bullying would be only the start of the problems that might ensue. Is the teacher’s act permissible because it’s private behavior and must not be controlled by legislation and the power of the courts? Is it acceptable for the voters of the community to elect a school board to make the determination as to whether the teacher was within her rights? Or does the state or federal government need to step in and assure that the student is not discriminated against, even if the school board thinks kicking out gay students is okay? Does it make a difference if the school is private rather than public? What if the private school is accepting taxpayer funding?

These questions are not simple, and the boundaries may change from decade to decade. But trying to apply an inflexible libertarian view of government to such questions is, quite simply, a way to increase the suffering among already marginalized groups. (Anybody who thinks Christians are marginalized in the United States today is suffering from paranoid delusions, and should seek treatment.) When libertarian views increase suffering in the name of personal freedom, libertarian views are contemptible, and must be repudiated by all intelligent, compassionate people.

What libertarians refuse to understand is that society cannot exist as a free-for-all. We establish laws and empower government institutions to enforce the laws in order to assure our mutual happiness — and everybody has to sacrifice a little here and there, or sometimes more than a little, in order that the amount of happiness as a whole, throughout the society, is maximized. For all its flaws, that’s what government is for.

Libertarians want to snatch all the cookies in the cookie jar, sit in a corner, and eat the cookies. They don’t know how to share.

Sharing is something you’re supposed to learn in kindergarten. Why these folks never learned that basic lesson, I sincerely don’t understand.

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