My freedom of association, and yours

May I order orange juice at Memories Pizza?

Last week saw the roiling of public opinion over laws in Indiana and Arkansas that seek to allow greater protection to those with religious objections to legal mandates that they perform specific actions when they claim a conscientious objector status. The media immediately interpreted the law as about discrimination against gays and lesbians, one suspects largely because this is being honed as a wedge (and fund raising) issue for the 2016 campaigns by Democrats casting about for something they could present to voters as either an accomplishment or a desirable goal to be achieved by a future Democratic administration. (This seems even more likely since President Obama has this week announced plans to campaign against so called “conversion therapy” that promises to make unhappy gays straight. The Democrats really want to tap the GayTM, now more important than ever as they seem to be willing to alienate Jewish voters.)


Toward the end some of the pundits focused in on questions related to business. Cato’s Walter Olson pointed out that the bills pending were rewritten in a more “pro-gay” direction because of lobbying from giant corporations like Apple, and that this is unsurprising to anyone who has “followed the rapid engagement of American business with the gay issue. Last month, 379 companies and employer organizations signed on to an amicus brief urging the U.S. Supreme Court to uphold a constitutional right to same-sex marriage, including — just to sample the A’s — Accenture, Aetna, AIG, Amazon, American Airlines, American Express, Apple and AT&T.” Indeed, Fortune 500 companies have been implementing gay inclusive policies since the late 1990s, long before governments started ending policies like DOMA or Don’t Ask, Don’t Tell.

While Olson pointed out what big business was up to, The Atlantic‘s Conor Friedersdorf’s worried about the ethics of witch hunts against small businesses: “What do white evangelicals, Muslims, Mormons, blacks, conservative Republicans, and immigrants from Africa, South America, and Central America all have in common? They’re less likely to support gay marriage than the average Californian. Over the years, I’ve patronized restaurants owned by members of all those groups. Today, if I went out into Greater Los Angeles and chatted up owners of mom-and-pop restaurants, I’d sooner or later find one who would decline to cater a gay wedding. The owners might be members of Rick Warren’s church in Orange County. Or a family of immigrants in Little Ethiopia or on Olvera Street. Or a single black man or woman in Carson or Inglewood or El Segundo. Should we destroy their livelihoods?”

It’s tempting to ask a Murray Rothbard or Gabriel Kolko style question about whether complying with anti-discrimination laws — diversity in marketing and advertising, maintaining records on employee demographics, publishing pro-inclusion conduct manuals, retaining a law firm to deal with regulatory complaints — doesn’t penalize all small and upstart businesses and favor giant corporations. But rather than worry about either Olson’s big businesses or Friedersdorf’s mom and pop shops, what about the businesses that “exclude” straight people because they intend to serve gays and lesbians?


There are lots of gay businesses that exclude non-gays, and lesbian ones that exclude heterosexuals, and even gay men or transgender people: lesbian-oriented Olivia cruises (founded in 1988) , gay male Atlantis Events cruises (founded in 1991), the Michigan Womyn’s music festival, and around 4,800 gay-oriented hotels, resorts and B&Bs worldwide (I’ve stayed at several, and, in Ft. Lauderdale seen one turn away a straight couple, who I assume were named something like Pat and Chris, who had made reservations, and were no doubt attracted by the adjoining high end spa featured on B&B’s web site).

Now some of these businesses would probably claim that they don’t actually discriminate against heterosexuals, men, etc. Not the 39 year old, outdoor, radical feminist/lesbian separatist Michigan Womyn’s Music Festival, which faced protests last year from the LGTB group Equality Michigan, for its explicit policy of excluding male-to-female transsexuals (as opposed to “women born women” with two X chromosomes). The Festival, which has up to 10,000 attendees each summer, also maintains a separate camp for the sons of lesbian moms, Brother Sun Camp (whose alums have their own facebook group), since little boys are excluded from the Festival, even if with a lesbian mom or moms, and must be dropped off across the highway at a separate camp.

On the other hand, the lesbian cruise company, Olivia (annual revenues around $25 million), technically allows men, kind of, as did its earlier incarnation, Olivia Records. According to Olivia’s founder Judy Dlugacz, a formidable organizer and business woman (and red diaper baby), she hired one male-to-female transgender sound engineer for her old record company, Olivia Records, in the 70s, which famously produced an anthology album “Lesbian Concentrate” in response to Anita Bryant. And, according to Dlugazc, a very few men have actually gone on one of Olivia’s cruises (which, unlike Rosie O’Donnell’s cruises for gay families of both genders, are marketed only to lesbians, mainly well heeled 30-60 something lesbians), That’s probably prudent for Olivia, which is incorporated in California (as is Atlantis Events, the gay male cruise company, which has somewhat larger revenues). Unlike Michigan, California has anti-discrimination laws that cover sexual orientation. But the clock is ticking for Ms. Dlugacz and other LGBT oriented business owners. In the wider world companies are often fined or sued if their advertising and marketing doesn’t include outreach to a wide variety of races, sexes, etc. Indeed, in Washington, D.C., where sexual orientation is a protected class under local fair housing law (and where Ms. Dlugacz lives half the year with her partner, an Obama political appointee at the Agency for International Development, tasked with working on gay issues), large corporate owned rental apartments have for some years used groups of models in their ads that most people interpret as being either groups of gay men or gay couples. Anyone licensed in any housing related field is compelled to take continuing “education” courses every two years on fair housing where they are “taught” they must be inclusive in where they spend advertising dollars. Why should Olivia (or Atlantis Events) be free to spend its advertising budget as it chooses, targeting (and picturing) only women or lesbians (or in the case of Atlantis, shirtless young men)?
I won’t be surprised if people in the “traditional marriage” movement, who have lost on the issue of marriage equality, become civil rights Social Justice Warriors, and sue all of these businesses out of existence. And could one blame them? I almost welcome it, just to make the point that if you want to begin outlawing all freedom of association (and freedom of belief) then two can play that game. As a realtor in Washington, D.C. I have actually had a (very nice) lesbian couple ask me if I could tell them about the gay and lesbian neighbors on a block where they were looking at rowhouses. I’ve had to tell clients like them — usually self-described left-liberal Democrats, frequently employed by political campaigns and lobbying groups — that if they want to look in Virginia, where sexual orientation is not a protected class, I can answer that question; but in D.C., providing any information about anyone’s sexual orientation in a real estate transaction is grounds for me to lose my license. (The response: “Oh, that law is there to protect me. You can tell me!” So much for equality before the law.) Real estate developers are just beginning to discuss gay oriented nursing homes and 55+ communities, so let’s nip that in the bud too. (The list is endless – gay oriented health care providers, etc., etc.) Gay-oriented businesses have banned straight people, at least in large or organized groups, before. In the past decade it became popular to hold heterosexual bridal parties at gay male bars, which began banning them, in some cases because the regular clients didn’t want straight women there, and in some cases as a protest for marriage equality. (The Welcoming Committee, a gay group that “takes over,” primarily heterosexual bars in a kind of social media flash mob, seems to be welcome to do so, though it works it out with the owners in advance.) The existence of gay-oriented businesses in a jurisdiction with anti-discrimination laws covering sexual orientation seems totally dependent on there not (yet) being an aggrieved, rent-seeking plaintiff on the lookout for damages. It’s possible some LGBT oriented businesses can deter straight people from moving in just by pitching themselves at price points that only higher income consumers can afford, and then count on upper income heterosexual progressives being polite and not sticking their noses into venues not intended for them. But that also means these same LGBT businesses may be deep pockets attractive to any shakedown grifter who wants to use an anti-discrimination law for a nice settlement.


Not wanting to be with straight or gay or bisexual or transgender people in all situations doesn’t automatically make you a bigot. When my (married, heterosexual) female doctor left Washington, D.C. some years ago for for Palo Alto, I had to find a new doctor. I finally settled on her medical partner, a frighteningly good looking married heterosexual guy. But I had to think about what kind of person, among the many doctors available at the silk stocking medical center I had been using, I would feel most comfortable having their hands on (and even in) me and my aging, thickening body: a man, a woman, someone attractive, someone not attractive, gay, straight, young, old. (The answer is I don’t really like having any of these people in this situation — but I’d hate to be forced to accept one – or have them forced to accept me or anyone that made them uncomfortable.) I think there are lots of sensitive areas, from kindergartens to nursing homes, where the idea that we should force or even shame people into accepting what they aren’t (maybe yet) comfortable with, is malicious. And I don’t think the state should get to decide for other people which services – tailors, hair stylists, shoe salesman, massage therapists, chiropractors, algebra tutors, etc. – are sensitive or not.

Gay rights is a funny issue for Democrats to promote. The Libertarian Party beat them to it by decades, putting planks in its platform back in 1972 calling for eliminating all laws against any adult, consensual relations and for abolishing discrimination in government employment AND running the late John Hospers, a University of Southern California philosophy professor, and fairly open gay man (by 1970s standards), as its first presidential candidate (who then also became the first gay person to receive an Electoral College vote). The Libertarians came back, in an odd way, to compound that, running “Little House on the Prairie” creator Roger McBride, who was gay, though in the closet, as their second presidential candidate in 1976. (They’ve run straight guys, so far, ever since.) Meanwhile Democrats, who have a few openly gay elected officials, sometimes “outed” in embarrassing circumstances — as when Congressman Barney Frank got caught fixing parking tickets on Capitol Hill for a “roommate” who was a “sex worker” — keep most of their gays in the closet. Everyone in D.C. knows retiring [mc_name name=’Sen. Barbara Mikulski (D-MD)’ chamber=’senate’ mcid=’M000702′ ], the longest serving Senator in history, is a lesbian, and a good hard Googling will even find a photo or two of her with a friend, but she was never open about it with Maryland voters. Many people, myself included, know women who major Democratic campaign manager (Gore, Obama, Eleanor Holmes Norton) Donna Brazile has dated (or have stood beside her at a mainly lesbian party), and though Ms. Brazile seems nicer and even slightly more honest than many other Democrats serving as talking heads on TV, she occasionally feels the need to go on and on when she is on shows like ABC’s This Week, about what a fine looking man Rick Perry or some other Republican politician is. It seems we may need an anti-discrimination law protecting LGBT people who work for the Democratic Party. Indeed, the DNC was actually sued as recently as 2008 for anti-gay discrimination.


The only reason Americans think the government (rather than anyone with whom we might be trying to voluntarily associate) should be involved in deciding when our thoughts and feelings are bigotry — life shatteringingly, livelihood endingingly, punishable bigotry — and when they aren’t, is because the civil rights paradigm that has ruled us for decades is our only remaining shared moral consensus. But the civil rights paradigm is a disaster. Originally intended to benefit African Americans, who have a rather unique history in the U.S., the paradigm grinds on, trying to identify new “protected classes” whom its bureaucrats and lobbyists and shake down grifters can make more money and acquire more power protecting by forcing you to share a locker room.

African Americans, the original intended beneficiaries, have double digit unemployment and are often trapped in failed, de facto segregated, school systems, where the rounding up and selling of poor children of color to the educrat cartels funds the candidates of the political party, the Democrats, most wedded to the failed civil rights paradigm. And real moves to inclusion and equality occur because of innovations in the market, like Uber or Lyft, where an African American hires and pays for a ride and get it regardless of color, while taxi cabs that have been regulated as a so called “public accommodations” under civil rights law for decades pass you by based on your race or zip code, even though the civil rights regime supposedly prevents that. It is very, very unclear to me — living in Washington, D.C., a city ruled by liberal Democrats with a 75% Democratic registration, yet divided almost in half geographically into poor black neighborhoods to the east and wealthy white neighborhoods to the west — that the parts of the civil rights regime that violate freedom of association (as opposed to those that outlaw governmental discrimination), have helped or were needed by women or people of color.

We need to scrap the entire civil rights mythology and its priestly class and reformulate all such policies to be based on the ideas of individual self-ownership and all that it entails, including freedom of association.




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