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Indiana

(UPDATE:  At the outset, two views a bit different, though not completely different, from mine.  View 1 and View 2)

I have written some things about the “discrimination” problem in Indiana, and the reaction of many people.

Like this.  And this.

But I wanted to take a more serious, and comprehensive, perspective here.  Some preliminaries.

First, there is a fundamental freedom of association, both the choice of whom to associate with, and also with whom not to associate.  Acting as a private person, this right is at the core of civil liberties, both in politics and in economic contracts.

Second, a clear, venerable, and useful common law doctrine is the “implied contract” associated with being open for business.  This is is in the realm not of private individual, but of a commercial enterprise.  I advertise prices and goods/services, and when someone makes a valid offer I have substantial–not absolute, but substantial–obligations to honor the offer implied by my being “open for business.”  For me not to act on the advertised terms is a kind of “bait and switch,” bordering on fraud.  So, for example, if I open a pizza restaurant with prices, sizes, and toppings I am obliged to provide such pizza and such toppings at such prices.  If I present a bill where all my prices are arbitrarily doubled, that would violate the contract implied by my posted prices.  There are limits on this: I may run out of toppings, or one topping, I may find that my oven breaks and I can’t cook pizza that night, etc.  Further, I might have the right, under some circumstances, to refuse service to someone who is very drunk, very noisy, or might otherwise prevent other customers from enjoying their pizza.  (UPDATE:  Though one could argue that restaurants are not either “common carriers” or “public accommodations,” though that distinction matters for statutes, as referenced here...)

Third, many services of a more individuated, personal nature are not implied contracts.  If I am an attorney, for example, I may interview a potential client and decide that I do not want to take the case.  And I would have substantial latitude in making such a choice.  If I am a catering business, then if someone comes in and asks me to prepare a contract I might decide, after talking to the person, that I would not want to work with that person and decline to offer a contract.  Note that the fact that I run a catering business does not imply a contract, because the service is individuated, and quite different from a sign posting prices for pizza and toppings.

Here is the Indiana law, or what was the Indiana law.  An excerpt:

Sec. 8. (a)…a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.

(b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.

So, a person can make choices based on religious beliefs, even if that belief would violate a “general application” of what otherwise would be a common law obligation to provide service.  And if a person is sued for violating a generally applicable rule, religious belief is a valid defense.  It is not true that the freedom to associate must be subordinated to “public interest” needs, unless that need is very substantial.  So, this claim is absurd.  There are other places to get weddings catered, and pizza is not medical care.  (Though the comparison of gay folks to Nazis seems a little clumsy).

nazi

Now, my own view:

I.  It would be wrong to have signs that limit the implied contract associated with offers to do business.  So if a pizza restaurant had prices and toppings listed, but also had a sign that said “No Gays Will Be Served” or “Jews Will Be Charged Double” that cannot be a protected right of association, even if it’s true that the person is a Baptist and thinks gays are evil, or even if the person honestly thinks Jews are evil.  It’s not clear to me that anyone proposed that this would be an application of the Indiana law, mind you, but I would not concede that such things could be protected.

II.  It would not be wrong for a caterer to decide not to extend a contract for the kind of individuated service implied an agreement to cater a wedding, or to photograph a wedding.  Those are much more personal and individual contracts, and no one should be compelled against his/her will to perform such services.  No reason need be given.

III.  The Indiana law is trying to take this out of “Don’t ask, don’t tell” territory into an area where a reason could be given.  “I’m sorry, but I do not support the idea of gay marriage, and I would not be comfortable in catering/photographing your wedding.”  Oddly, the person would also have to document, potentially, that this belief has explicitly religious rather than other foundations.  This is odd because one could imagine an atheist who also happens to oppose, for whatever reason, gay marriage.  It might appear that this would not be a protected assertion of the right to free association, in Indiana.  Only religious reasons are protected.

IV.  That shows you why the Indiana law is so controversial.  But to be fair what Indiana was trying to do is to say that at least religious reasons are valid defenses.  In fact the atheist might well be allowed to decline to associate with clients, but the case would have to be argued on its merits rather than referring to the explicit religious exemption.

V.  So, in particular, the pizza restaurant should already have been protected against being obliged to cater (though not against simply selling, and delivering, if those are normally advertised general services) a same-sex wedding, or in fact any wedding.  Catering is more like an attorney choosing to take (or not) a case than a grocery selling canned goods.  But I object to the “religious exemption,” which is arbitrary, unnecessary, and discriminates against atheists.  The old distinction should apply:  you can’t discriminate in general contract offers, and you have discretion in personal contract offers.  In general offers you need a real reason, based on harm to your business or other customers, and in individuated contracts you don’t need a reason, because it’s up to you.

VI.  Finally, and purely as an obiter dictum, I find it bizarre that so many opponents of the law thoughtlessly assert their universal right to refuse to do business based on their dislike of something.  After all, the question is whether A can refuse to do business with B because of something A does not like about B.  For some reason, if B is gay, and that makes A unwilling to enter into an individuated, personal contract with B, that is illegal discrimination.  But if C then refuses to do business with A, that is somehow acceptable, and even noble.  If C’s beliefs can justify a boycott of A, then A’s beliefs can justify a boycott of B.  We can’t be in the business of judging whether people’s reasons are good enough.  The freedom of association is not contingent on “if I have good reasons.”

Boycotts by opponents to the Indiana law are baldly asserting the very right they want to deny to the people of Indiana. More fundamentally, the same right–freedom of association–that allows gay marriage (which I strongly support) also protects people who don’t want to cater that wedding.  In other words, this.

(NOTE:  UPDATED 11 am 4-5-15 to correct typos and infelicities)

(NOTE:  A response from David Henderson, over at EconLib…)

  • Krinein_ev

    Advertising goods for sale is usually not an “offer” in the legal sense, but an “invitation to treat.” Technically, the customer makes an offer that the business can refuse.

    • Sean II

      Yep, that’s a ridiculous argument. A sign that says “wedding cakes for sale” is not an agreement to do business with anyone and everyone.

      Of course it’s no more ridiculous than the “common carrier” notion itself.

      Either way, the theory boils down to “you brought forth a good or service and abracadabra you now have fewer rights”.

      That’s as absurd as it sounds.

      • AP²

        Transphobia is just a specific term that makes up the general idea of failing to “treat people with respect as long as they aren’t harming anyone”. I can understand criticizing the abuses that are made in the name of non-discrimination, but generally criticizing the condemnation of discrimination of transpeople because “it’s too soon” is pathetic.

        Gay marriage is different, but the first lawsuit reached the SCOTUS in 1971; the fact that people need it to be “fashionable” to accept it doesn’t strike me as a particularly good argument.

        • Sean II

          You’ve missed the point. “Too soon” is not the issue.

          The problem is: our society is coming to accept that idea that if someone says “tranny”, or speaks out against gay marriage, or says “you people” to the wrong people, a fit punishment is that they should lose their job and/or their business.

          The fact that its happening rapidly is an important clue to the motives (big surprise, it’s another SWPL elite signaling treadmill!). The fact that it’s coming from people who typically don’t want anyone to get fired for anything, that’s another.

          This tendency would be obnoxious at any speed. It’s all the more alarming, and all the more unjust, now that the unwary yokels are only being given a couple years to comply.

          • AP²

            Fair enough; if firing people for saying “tranny” is becoming a common occurrence, I can agree that it is worrying. I’m not from/in the US, and I can safely say it’s not happening around here, even though we’ve recently legalized gay marriage as well.

          • Sean II

            Don’t evade the general point.

            It doesn’t matter how many people get fired for saying “tranny”, in particular.

            What matters is: we’ve already arrived at a point where the preferred methods for promoting tolerance and diversity are:

            a) Forced association.

            b) Periodic cultural purges in which a clumsy word or an out of favor opinion costs is punished with consequences totally out of proportion to the “emotional distress” inflicted.

          • AP²

            tmeSure, the particular example doesn’t matter, but I think it does matter how widespread the problem you’re pointing out really is. People have a tendency to overgeneralize based on a few well publicized cases, as you should known.

          • Sean II

            The problem is very widespread indeed.

            I’m a straight white cisgender male. A quick back-of-the-envelope calculation reveals there are at least 200 million people in America who can force me to associate with them. True, the probability of an accomplished suit or settlement is low, but when such things happens they are sometimes ruinous, so the threat is very powerful indeed. If you need proof, simply look to the sums spent by people trying to insure themselves against the risk. Look at the fees of lawyers, the salaries of HR specialists, diversity trainers, public relations people, etc.

            If that doesn’t persuade, consider the cultural evidence. Every week now, someone is getting fired or suspended or placed on leave or pushed into retirement for saying the wrong words.

            In some cases, there is mercy for those willing to grovel through the streets with an “I was a capitalist roader” sign around their necks.

            In other cases, an offender may be saved by dint of double standards. The new host of the Daily Show, for example, keeps his job only because he himself belongs to a protected category.

            Meanwhile no one seems to wonder if these punishments might be out of scale to the offenses that trigger them.

            I’m sure Larry Summers is a dick and all, but is “forfeit the presidency of Harvard” really proportional to “said the wrong thing about girls and math”? Is “lose your small business” really a fair retaliation for the sin of being 10 years behind the vanguard on gay marriage?

            Do you think so?

          • AP²

            > Every week now, someone is getting fired or suspended or placed on leave or pushed into retirement for saying the wrong words.

            But is there someone getting fired, etc every week? Or does it seem like it? Like I said, I’m a foreigner. How can I know, except for taking your word as gospel?

            As for Larry Summers, between the words and the resignation (more than an year), there was a lawsuit by the US government in which both he and Harvard had to pay millions to settle. I’m not sure the words were what actually caused him to resign – are you?

          • Sean II

            Where are you from?

          • AP²

            Portugal. Does it matter?

          • Sean II

            You mentioned it, so I asked.

            It matters because you claimed to be insulated from, and innocent of, America’s PC snipe-hunt-of-the-week cycle.

            Knowing your answer, I believe you.

            It’s not that Portugal doesn’t have gay people (it does), nor even that Portugal doesn’t have anti-discimination laws (it does).

            If Portugal is different, then it’s probably because you don’t have quite so many of what we have in such abundance: straight, white, rich and/or upwardly mobile social justice warriors, desperate to prove how tolerant they are with a torch in one hand and a pitchfork in the other.

            That’s the real key ingredient in affairs like this. The actual formerly oppressed minorities are just means to and end.

          • AP²

            I still wish you could show me that the US does have that problem. How do you get the information that “every week now, someone is getting fired or suspended or placed on leave or pushed into retirement for saying the wrong words”?

          • Libertymike

            If anything, Sean II is underplaying the frequency with which it happens.

          • Sean II

            How do I get the information?

            Same way I get the information that beards are back in fashion.

            You look around, there’s just no escaping it.

        • Sean II

          Oh yeah, and by the way: people are only eligible to claim they’re “not hurting anyone” BEFORE they summon a mob against you, or use the coercive apparatus of the state to sue you for not liking them enough.

          At this point in the story, the gay movement has stopped being something that isn’t hurting anyone.

          • AP²

            I was talking about gay and trans people, not members of the “gay movement”, any more than as an atheist I’m part of those idiots that go around blaming every religious person for the murderous fanaticism.

            A gay or trans person is not harming anyone by being gay or trans. If anything else they do is harmful, that’s a different issue.

          • j r

            At this point in the story, the gay movement has stopped being something that isn’t hurting anyone.

            This is a funny statement. Also, in your lifetime, the state claimed the authority to send armed agents into your home and charge you with the crime of sodomy for engaging in consensual behavior with another adult. These laws weren’t invalidated until 2003.

            And because a bunch of SJWs get worked up on Twitter, you’ve decided that the “gay movement” is hurting people?

          • Sean II

            Oh, shit. Are we gonna do that “thing” where “you” put “the gay movement” in scare quotes, “”, as if you don’t know what that “is”?

            I certainly hope not, because it would be very dull if you obliged me to summon evidence for the obvious by showing: that there’s something called the gay movement, that it’s overwhelmingly left-statist in character, which is another way of saying, that it’s very comfortable calling for coercion to solve social problems, and that this is clearly what I meant when I said the gay movement was now hurting people.

            None of that should need saying, because all of that is perfectly obvious.

          • j r

            I didn’t put anything in scare quotes. I just quoted the portion of your comment on which I wanted to comment.

            And the problem with your comments is that they are almost completely ahistorical. Sure, the gay movement is overwhelmingly left-statist in character. And that is likely to some extent because they are engaged in fighting an opposition that is overwhelmingly right-statist in character. Who knows what the present gay movement might look like had the anti-gay movement not spent the last 20 or so years fighting a scorched earth campaign.

            Personally, I feel no moral obligation to either side. I prefer to stay out of what tend to become arguments over whose turn it is to hold the whip. That said, I do feel an obligation to get the facts straight. And one side has used that whip a lot longer and to much greater detriment than the other.

          • Sean II

            One hears this all the time, but there’s one thing the guy saying it always overlooks…

            If the leftism of gay/[insert identity group] people can be explained/excused because they’re fighting an opposition that’s right statist, then why isn’t the other side eligible for this defense?

            Why aren’t you saying “maybe homophobia survives on the right because hey, after all, they are engaged in fighting an opposition of left statists, and 4/5 of gay people support bad economic policy”?

            Both are equally stupid, but the former I hear all the time. The latter I hear never.

          • j r

            Not sure if you’ve misunderstood what I said or if you’re being purposefully obtuse. If it’s the latter, then this might be the absolute dumbest thing that I’ve ever seen you write.

            We don’t need to bother with what “one hears.” We have actual historical facts and events to consider. No one argues that homophobes are homophobes because the gays support bad economic policy because that argument can be easily debunked.

            On the other hand, we can look for ourselves and see that those fighting against gay marriage have always been fighting against gay marriage and the very acceptance of gays and not just for the right to be left alone. These were the same people pushing for laws and amendments that explicitly barred civil unions and de-legitimize same sex marriages performed by willing religious institutions.

            Also, here is the other set of historical facts that we ought to consider: cultural reactionaries are not and have never been lovers of liberty. They have always tended to have as equally poor a grasp of economics as the left and an equal desire to use the state to reward preferred interest groups and punish dissenters.

          • Libertymike

            Re: your last paragraph- Ironically enough, I made roughly the same point to the late Judge Robert Bork during a guest appearance on the late David Brudnoy show (WBZ-Boston) after I had schooled him on the ahistorical basis of his faith in the judge made doctrine of judicial deference to the will of the legislature and how progressives had fed PEDs to the doctrine.

          • Sean II

            It doesn’t matter if those cultural reactionaries are libertarians. Of course there not. Only libertarians are libertarians, and there aren’t many of us.

            What matters is this:

            A Republican net taxpayer (and yep, most of the latters are formers) can look at a gay pride parade and RIGHTLY say “on the whole, those folks would do me harm. They vote very consistently to have my most important liberties – which happen to be economic – curtailed.”

            Meanwhile, the folks in the parade can look at that Republican and RIGHTLY say “on the whole, that dude would do us harm. Given the chance, he’ll stop me from getting married, getting spousal benefits, adopting kids, etc. He wants to curtail my favorite liberties, which happen to be social.”

            Neither party is wrong to notice these things about the other. They’re both dead right on the facts.

            But – and this is where you go astray – neither party can use those facts as an excuse for being idiots about some unrelated policy area.

            Not liking the PEOPLE who usually oppose confiscatory taxes is not a good reason to support such taxes.

      • ThaomasH

        “unless of course you happen to believe that the bringing forth of goods and services is a bad thing, and so to be punished. Not a belief I expect from anyone but habitual market-haters.”

        Although I deny being a “habitual market hater”I happen to believe that certain ways of organizing your wedding cake business may properly entail fewer rights than other ways. And while refusing to do business with Category X persons ought not be illegal for a single proprietor, this need not apply to Wedding Cakes, Inc. with thousands of branch ovens.

        A different (second best) issue is whether, given an unjust law that does oblige single proprietors not to refuse to do business with persons of Category X1, X2, X3 …Xn, should we make an exception to this for those that wish not to do business with persons of Category Xj for “religious” reasons? In this case it is hard to escape the impression that the State Legislature would be singling out Category Xj people as less worthy of protection than other categories and raising “religious” reasons above other reasons for wishing not to do business. My general position is that making narrow exceptions to unwise to unjust laws are often more unjust than not making any exception (although there may be exceptions = 🙂 = to this rule of thumb).

        • Libertymike

          Upon what rational basis do you “happen to believe that certain ways of organizing you wedding cake business may properly entail fewer rights than other ways.”
          Does the principle, i.e., the right to associate, change because a proprietor incorporates?

          • ThaomasH

            Sorry if I was not clearer.
            The difference turns on the personal nature of the service.  For the owner of a large multi-outlet enterprise (incorporation is irrelevant) to have a company policy not to bake cakes for lesbian weddings is one thing and for an individual not to want to bake cakes for lesbian weddings is something else.  I think non-discrimination and personal liberty are both good things but that the trade-offs are different in the two cases. This presents the issue as I see it.
            Do You Want to Destroy Every Mom and Pop Business That Opposes Gay Marriage?
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            | Do You Want to Destroy Every Mom and Pop Business Th…The attack on Memories Pizza and its implications | | |
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            Libertymike
            Upon what rational basis do you “happen to believe that certain ways of organizing you wedding cake business may properly entail fewer rights than other ways.” Does the principle, i.e., the right to associate, change because a proprietor incorporates? 12:27 p.m., Monday April 6 | Other comments by Libertymike |   |
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          • Libertymike

            Okay, the two situations are different, but, how does that, standing alone, thereby deprive the primary stakeholder of the multi-outlet enterprise of his associational rights?

          • ThaomasH

            I’m balancing two desirable things: Category X people not facing discrimination and the owner to do business with whom he chooses.  In the case of the multi-outlet enterprise where the owner is issuing orders to the employees as to whom to serve and not serve, I think the first predominates; in the case of the the individual, I think the second predominates.
            From: Disqus
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            Subject: Re: Comment on Indiana

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            Okay, the two situations are different, but, how does that, standing alone, thereby deprive the primary stakeholder of the multi-outlet enterprise of his associational rights? 6:28 p.m., Monday April 6 | Other comments by Libertymike |   |
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          • Sean II

            Oh, you’re doing a balancing act alright. Just not the one you imagine.

          • ThaomasH

            Please elucidate.

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            Sean II
            Oh, you’re doing a balancing act alright. Just not the one you imagine. 11:22 p.m., Monday April 6 | Other comments by Sean II |   |
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            | Sean II’s comment is in reply to ThaomasH: |
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            | | I’m balancing two desirable things: Category X people not facing discrimination and the owner to do business with whom he chooses.  In the case …Read more |
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          • Sean II

            Why bother? Your game is obvious enough. For me this is an especially painful case of “I wouldn’t mind, but…”

            I wouldn’t mind if you and Munger and everyone trying to conjure up fake complexity around the right of association, just said: “Normally I don’t like forcing people to do stuff, but if that’s what it takes to avoid being on the wrong side of racism, homophobia, etc, I’ll do it.”

            That’s obviously what’s going on here. “Common carrier” is just the sort of arbitrary nonsense libertarians scoff at in every other context. No one really believes that crap, until suddenly they need to. The definition Munger and J.R. give for implicit contract would have us all suing each other ten times a day. No one believes that one either. Your tack is slightly better, but still fails, because you can’t balance a right that does exist (the right to associate), with a right that can’t exist (the right not to feel butthurt). Why not? Because the former is definable while the latter is potentially infinite. The same problem exists with other kinds of first amendment balancing. You can’t balance my right to speak against everyone else’s right not to be offended, because there is no limit to who or how many can claim offense. They must inevitably win.

            Clearly, then, these are not genuine pillars of your (or Mungers, or J.R.s) legal thought. They’re just braces hauled in during a crisis, to prop up a conclusion. And they’re conspicuously unique to this issue. No one talks about this stuff EXCEPT when its time to signal up a robust opposition to racism, homophobia, etc.

            If a straight white guy had walked into a pizza parlor in Cleveland, and the owner said “Fuck off, dude. I don’t like your face”…this conversation would not be happening. The parlor owner would not be a common carrier. The “Hot Pies Here” sign would not be an implied contract. And you, sir, wouldn’t be balancing anything.

          • Libertymike

            1. Re: your last paragraph, see Kentucky Wildcat Andrew Harrison’s post game incantation of the n-word regarding Wisconsin’s Frank Kaminsky after Kentucky lost the national semi-final game to the Badgers on Saturday.
            Yes, not a perfect analogical fit, of course, but mighty close and damn demonstrative of your point (I assume you know the enough of the facts regarding the matter as previously you have posted such that I can reasonably infer that you are a sports fan).
            2. One reason I am sure that you abhor legal reasoning is the conception and evolution of “balancing tests” designed to make sure that the government or public interest would prevail over the individual interest and the rationales employed by the courts to justify the use of such balancing tests.

      • j_m_h

        Except if you’ve been advertising X and someone takes the time and effort to come to you location to buy they have already incurred a cost based on your advertisement. At the very least the business should then have to compensate for the damages incurred.

        The other aspect here is that as a society we grant businesses a number of benefits — like limited liability. That’s something everyone in society is providing not the select group of allowed customers. I would say, a business that wants they type of selectivity in customers then give up all those special benefits. Make it a truly private operation.

        • Sean II

          Yeah, right. Very stable principle you’ve got there. Not absurd at all.

          The other day I went to Trader Joe’s and they were all out of this fiesta dip I wanted. In fact, they stopped making the stuff altogether, without a word of warning to yours truly.

          How much compensation should I demand?

          • j_m_h

            Sean you’re better than that reply. The setting I’m talking about is when you go to Trader Joe’s for their advertised fiesta dip, carry it up to the counter and then are told “We don’t server your type here.”

            So don’t be so absurd yourself.

          • Sean II

            “Except if you’ve been advertising X and someone takes the time and effort to come to you location to buy they have already incurred a cost based on your advertisement. At the very least the business should then have to compensate for the damages incurred.”

            That was your comment. It states a general principle about how advertising leads to incurred costs, and incurred costs give rise to a just demand for either service or, failing that, compensation. You didn’t say anything about how this applies only if the reason is especially bad. That wasn’t part of your comment, so I quite fairly assumed it wasn’t part of your theory.

            And by the way: if I walked into a store and the owner refused me service for NO REASON, I wouldn’t think I was entitled to anything from him. If he refused me for the worst reason I can dream up, I still wouldn’t think to demand anything from him, nor would I set about trying to destroy his business.

          • j_m_h

            I cannot possibly see how suggesting a busniess owner accept more business could possibly be construed as “trying to destroy his business”! You have quite the mind there Sean.

            Since you’re not getting the general position I’m taking I’ll clarify. Business is not Private in the same sense as my home. When someone opens a business they have exited a private setting and entered a public one. In our society we say we’re all equal in such a setting — the public spaces.

            The Indiana law confuses the condition of private ownership with that of operating in a public setting. It’s bad law, bad social rules and will only lead to further deterioration of the idea that we’re all basically equal and should be treated as such in what are public social interactions.

          • Sean II

            Oh, I understood your attempt to create a distinction between public and private spaces.

            It’s bullshit, though. To save us both some time: you don’t have a non-circular definition of public.

            If we chased each other around for a couple hours, it’d turn out that you’re using “public” to mean “the places where you can’t discriminate”. Granted, that gets you to your conclusion …but only by starting from it.

            Meanwhile, what private actually means is “belonging to someone”. What public actually means is “belonging to everyone”.

            Pizza parlors and cake shop are not public.

          • j_m_h

            We can continue, and no doubt will, to disagree here and I’m completely unconcerned about your charge of circularity. I would fully agree that in a society such as our and the underlying ideals that discrimination with acting the what is a public social interaction should not be supported under law. It’s not an argument but a tautology or ideal image.

            We know how the legalized segregation works — poorly.

          • Sean II

            Actually, some of what you know about legalized segregation just ain’t so.

            Half the country went directly from a condition in which segregation was legally mandated, to a condition in which it was legally banned. No examples of legalized segregation can be found down there.

            Meanwhile, some of the better moments in black history come the prewar north, where segregation was neither required nor banned.

            The Harlem Renaissance emerged in those conditions. But lemme guess: you prefer the Harlem we got after 1964?

    • j_m_h

      I suspect there is a rather large jump from a technical definition of a term to an applied principle much less a behaviour a reasonable man might expect from such an advertisement.

  • Geoff Arnold

    I’m with you right up to your last point. I don’t think it works in any way, shape, or form. There is a fundamental asymmetry between the roles of buyer and seller. As a potential buyer, there is no implied contract until I choose a seller.

    • DST

      First, Munger incorrectly characterized being open for business as an implied contract. Whereas an express contract is evidenced by written or oral agreement, an express contract is evidenced by actions. The concept of implied contract only indicates that terms of the contract were never reduced to language, and has nothing to do with being open for business. An implied contract still requires both parties to express agreement, albeit through their actions. Maybe Munger confused implied contract with common law principles of public accommodation.

      Second, as Krinein_ev pointed out, an advertisement in itself is not an implied contract, but an invitation to bargain (or treat), and so does not ordinarily constitute an offer which, if accepted by another party, would form the basis of a binding contract. Therefore, merely being open for business does not force you into contracts with everyone who wants to buy your goods.

      Third, I’m not sure your distinction between buyer and seller is what you want it to be. What if I run a business buying gold from average people (that is, people who are not gold merchants)? I’m a buyer, but I’m also the only professional in the transaction. If I were to refuse to buy gold from a gay man (gold is particularly good conductor of homosexuality, after all), would I be just as bad as the person who refuses to sell gay wedding cakes?

      In short, with respect to freedom of association, there is no meaningful distinction to be made between buyers and sellers, or even professionals, and not professionals. The idea that putting time, effort, and money into starting a business would *reduce* a person’s freedom of association is absurd.

      • Theresa Klein

        I find particularly appalling the argument that progressive make when they pull in the Warren-style “you didn’t build that” arguments. Supposedly, if you open a business you are under some collossal obligation to everyone in society for making use of the fact that society exists to have people to sell to. therefore, because your under this massive debt to everyone else, they are perfectly within their rights to control absolutely every aspect of your business. You’re basically just an employee of the people, grovelling for permission to keep a few dollars out of the proceeds of what you’ve produced at that point.

        • ThaomasH

          I believe the intentional misinterpretation of “you didn’t build that” is made against President Obama, not Sen. Warren. Let’s keep our demons separate.

          • Theresa Klein

            According to the progressives, Obama got it from Warren in the first place, and was essentially paraphrasing things that she said first.

          • ThaomasH

            I’ll take your word for it. I don’t know what context Warren may have used similar words but in Obama’s, saying that “you” (no one person or group) created the business environment that enables people to invest and prosper and that therefore no one can make a fairness argument that they morally deserve each and every penny earned, makes good sense. Trying to paint President Obama as “anti-business” was just failed 2012 campaign mud.

          • Theresa Klein

            What creates the business environment that enables people to invest and prosper is the legal structure of private property rights and court enforcement of contracts. The underpinnings of a free market that almost all libertarians are comfortable with paying taxes for.

            What Warren (and to a lesser extent Obama) argue is much boarder than that, and involves moral obligations to provide welfare and live by societies rules on a host of issues that are totally unrelated to the actual services that one benefits from. I have in fact seen this exact argument used – that business owners didn’t build the civilization that they are able to profit from, so it’s reasonable for society to demand that they provide wedding services to gay couples as a condition of being allowed to enter into commerce.

          • ThaomasH

            My interpretation of what Obama was saying is that because you Mr. typical Republican didn’t “build” the complex of laws and regulations that enables your success, you cannot claim at any change in that edifice that disfavors you is necessarily unjust.  This is necessary to begin a discussion of what if any specific changes would be desirable.  Yes, we cannot on general principles rule out the legitimacy of laws requiring some kinds of businesses in some circumstances be required to transact with people in certain categories.  Whether such laws should apply to individual proprietors of cake-baking businesses transacting with lesbian couples is a separate question.
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            A new comment was posted on Bleeding Heart Libertarians
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            Theresa Klein
            What creates the business environment that enabled people to invest and prosper is the legal structure of private property rights and court enforcement of contracts. The underpinnings of a free market that almost all libertarians are comfortable with paying taxes for. What Warren (and to a lesser extent Obama) argue is much boarder than that, and involves moral obligations to provide welfare and live by societies rules on a host of issues that are totally unrelated to the actual services that one benefits from. I have in fact seen this exact argument used – that business owners didn’t build the civilization that they are able to profit from, so it’s reasonable for society to demand that they provide wedding services to gay couples as a condition of being allowed to enter into commerce. 1:57 p.m., Monday April 6 | Other comments by Theresa Klein |   |
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            | Theresa Klein’s comment is in reply to ThaomasH: |
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            | | I’ll take your word for it. I don’t know what context Warren may have used similar words but in Obama’s, saying that …Read more |
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          • reason60

            Theresa, you are comfortable paying taxes for the “underpinnings of a free market”.

            But don’t these underpinnings consist of positive acts from the rest of us?

            The market literally cannot exist without the cooperation and active participation of all the millions of people who define property, defend it, adjudicate contracts, etc.

            You are setting this up as a contractual relationship- you pay me X, sufficient to cover the cost of these services and I provide Y, the services.

            But is that really how a just negation goes? Where one party decides what the terms and conditions are, while the other party is silent?

            Aren’t I- and the other 300 million of us- entitled to decide what terms and conditions we are willing to accept?

          • AP²

            The obvious response is that you are the one trying to force people to accept terms and conditions they aren’t willing to accept, while the buyers already had that right (they could walk away or offer different terms).

            But the underlying difference is that you see this in terms of class relations, while most of the others here see it in terms of individuals, so you’re arguing past them.

          • reason60

            So is it fair to say that what you are proposing is that you want is to coerce me into paying taxes sufficient to create the underpinnings (courts, police, etc); Yet I am not allowed to say no, or add conditions of my own? Is this what you call liberty?

            This is the nut of the Indiana case. That both sides want the fruits of the cooperation and participation of a civil society and marketplace- the pizzeria wants a coercive tax regime to provide a stable marketplace, and gay people are willing to provide this.

            Yet both sides also present competing conditions for their participation.

            What I am seeing is that if the conversation can only speak in terms of rights, there isn’t any way to resolve it without it becoming a triumphalist win-lose situation.

          • AP²

            (I want to make clear that I’m playing Devil’s advocate. I don’t feel qualified to have strong opinions on these issues yet)

            Are you really comfortable with putting it in those terms? Say business owners replied “OK, then we move that gay people are now tax exempt, but we can discriminate against them at will”. If the anti-discrimination policies are to be upheld on the basis that gay people pay taxes, this should be acceptable, no?

            But lets ignore that for now. Would you say that it’s OK for a gay, say, photographer to be forced to be employed by the Westboro Baptist Church for some of their “events”? If not, what makes it different?

          • reason60

            My point is that is isn’t really a matter of what I think is or isn’t OK.

            My point is that the underpinnings of the market, the basic basket of rights, requires group consensus and active, not passive, participation.

            I can’t just passively respect your property rights. I have to agree to pay for them, or actively participate in their defense, even putting my life on the line.
            Not surprisingly, different people attach different strings to their participation and agreement.

            As with any negotiation, rights alone aren’t sufficient to allow a productive discussion.

          • AP²

            And my point is that it isn’t a negotiation, because the other part isn’t allowed to reject the offer. They can’t say “fine, then we refuse; we prefer to live without the active participation by the gay community of our property rights.”

          • AP²

            I meant “(…) in the defense of our property rights.”

          • reason60

            I agree. Gay people, and people generally, are forced to live under a regime that enforces property rights.
            So we respond by attaching conditions, such as taxes and regulations.
            This is the basis of the “you didn’t build that”.

            Whether that is a just state of affairs is a matter of opinion.

          • Theresa Klein

            If I accepted your terms and conditions, I would soon no longer have a legal environment that would enable me to invest and prosper.

  • I found that difficult to follow in places, though I agree with the general tenor of it. You mention that people are boycotting businesses that discriminate, which is itself a form of discrimination. But are they also urging that there should be a law prohibiting such discrimination? I guess that some of them are (I am not in the US, so I have not been following this story). What troubles me is the psychology of that.

    Who would want to receive a service from someone who objected to providing it and was doing so only because they were legally compelled to do so? Okay, in medical cases, especially life-and-death, one may well be grateful for getting a service that the provider would rather withold from one. But if someone objected to providing a catering service to me and my ‘kind,’ I would not want to receive the service from them; and I would still not want to receive it from them if they were compelled to provide it. Fuck them! It strikes me that people who want to compel others to provide a catering service (or something more or less similar) to them, even though those others would rather not provide it to THEM, lack self-respect. Why don’t they say, or at least feel:

    “You are happy to provide the service to others but not to me or my ‘kind’? Then fuck you! I would not accept the service from you even if you paid me to take it. Go fuck yourself!”

    Why would they accept a service from someone who does not want to provide it to them and their ‘kind,’ but who provides it only because the law compels them to do so? That seems to be like an acceptance of second-class citizenship.

    • AP²

      One possibility: schadenfreude. After possibly feeling rejected, humiliated and possibly tortured by racists and homophobes, I can sympathize with the mixed feelings of pleasure (and contempt – for the other and, often, oneself) that arise from exerting that power, of forcing the bully to do something he hates.

      That doesn’t mean I necessarily agree with the proposed law, but I can sympathize.

      • Isaac Hoppe

        MANY of my friends are about the schadenfreude in situations like this. The reasoning generally goes that the way to chip away at an oppressive system is to make the perpetrators feel the same way we do.

        I think that idea assumes a lot… That the targets will understand the message, that it will make them feel contrite instead of defensive, etc. But ultimately, I take issue with giving attention to these bit-player bigots because it sucks up our time and energy with no positive results, only deeper partisanship. We will certainly be held to account for that ourselves eventually and this kind of bill is the beginning of that.

    • j_m_h

      I’m sure there are a lot of different agendas in the debates.

      For me the issue is really that in public interactions — such as selling to the general public, getting a license to operation such a business and taking advantages a some of the privileges that come with it (limit liability, ability to restructure you income to a more favourable tax status…) — there should be common access granted that doesn’t allow persecution of others in society just because they believe things you don’t (like homosexuality being okay or that god exists or that the universe started with a singularity and a big bang). Those are in nearly all cases just irrelevant to the commercial transaction.

      To me this is just something of an extension to the idea of Rule of Law. Within that common application of “open for business” market interactions will introduce a self-selection process where people go to the providers that best serve their wants/needs.

      It’s easier and socially less costly to start with the individual opting out of these public interactions than to establish a right to discriminate against that which one doesn’t like. What’s next — employers will have to provide workers co-workers and managers who also share these values or we’re intruding on that persons exercise of X personal freedom.

      • AP²

        Basic arguments: how is choosing not to do business with someone “persecution”? Is a bar “persecuting” men for offering a ladies’ night? Is an NGO dedicated to helping African-Americans persecuting everyone else?

        employers will have to provide workers co-workers and managers who also share these values or we’re intruding on that persons exercise of X personal freedom.
        If defined in the contract, why not?

        Besides, arguably, that’s already the case. If you as an employer put an outspoken racist with a member of a minority, prepare to get sued by the latter for violating their personal freedoms.

        • j_m_h

          I’m not sure the “persecution” is the key element in my view — even though I’m sure that is part of the issue in some cases and should not be supported by social rules for a free and open society. To me the main element is that entering the commercial world means you have chosen to enter the public sphere and left the private sphere.

          In a society based on the equality of each person as a person and one based on open markets each of us should be granted the same access to those markets. This doesn’t mean we are all identical in thinking of beliefs. The difference here are part and parcel of the idea of a free society and the equality of each person as a person.

          Putting the two together I say when you open your pizza shop you’re committed to selling the pizza if you have one to whoever walks through the door with the money to pay for it regardless of the private difference we might have that have not bearing whatsoever on transaction — such as one’s religion of sexual preferences.

          One of the reason I think this is important is that such a society as ours should not be enabling public behaviour that produces divisions within the society in those public interactions or legally giving preference to one set of views over another in the public sphere of social interactions.

          In short, I think the Indian law is confusing a setting that is inherently a public interaction with that of a private interaction.

  • Bryan C. Winter

    Athiesm could be considered a form of religious beleif, at least in the legal sense couldn’t it? It represents an abstract view of the world, and while it is founded on reason, it is essentially a philosophical beleif system. I’m not sure that laws that allow for religious exemptions somehow don’t protect atheism.

    For example, I could be an Atheist photographer, who will only service non-denominational weddings. I could easily imagine an atheist with strong conviction who does not want to condone a christian wedding.

    • AP²

      Courts have said that atheism can be considered a religion for the purposes of constitutional protection, such as the First Amendment. See Kaufman v. McCaughtry.

      • CJColucci

        True, but atheism, as such, has no doctrines or principles other than the likely non-existence of a deity. There are no atheist teachings that could be the basis of a belief that would be burdened

        by some secular requirement. The atheist who objects to serving, say, Presbyterians, Nazis, or heterosexuals is not acting based on his beliefs concerning religion, but on his general, secular ethical or political beliefs. He is not, and does not conceive himself to be, obeying the command of non-God. As a practical matter, you won’t see atheist “exemption” cases.

        • j_m_h

          I get the impression that atheism isn’t about “likely non-existence…”; that’s really agnosticism. I think atheism fits the religion mould/model more due to it’s many practisaners that have such a rabid reaction to any other religion.

          • AP²

            That’s a deep rabbit hole, but many of us are of the opinion that “atheist” and “agnostic” aren’t two different positions on the same issue, but positions of two different issues.

            See http://en.wikipedia.org/wiki/Agnostic_atheism

            Hence, the ones with rabid reactions are the gnostic atheists.

  • RKevinHill

    The political problem here is that many people on the Left would not credit your point that the very same right is involved, because they believe that the relationship between buyer and seller is asymmetrical, with some sort of power advantage held by the seller. So it is prima facie right to boycott sellers and prima facie wrong to refuse to sell to buyers. Unless of course we’re talking about buyers and sellers of *labor* in which case it’s the other way around. 😉

  • Theresa Klein

    I pretty much agree with all of you points, but I don’t think you can totally ignore the freedom of conscience issue as well. Being compelled to do something for a class of people you dislike is not exactly the same thing as being compelled to engage in an activity that goes against your religious or moral beliefs. This is not too different from the contraception mandate case. The people in question aren’t objecting to the fact that their customers are gay, any more than Hobby Lobby was objecting to it’s employees having different religious beliefs. They are objecting to facilitating an act they consider immoral. In one case gay marriage, in the other abortion/emergency contraception.

  • DST

    “It would be wrong to have signs that limit the implied contract associated with offers to do business. So if a pizza restaurant had prices and toppings listed, but also had a sign that said “No Gays Will Be Served” or “Jews Will Be Charged Double” that cannot be a protected right of association, even if it’s true that the person is a Baptist and thinks gays are evil, or even if the person honestly thinks Jews are evil.”

    On the philosophical side, how on earth can you possibly defend that view, particularly within a libertarian framework? What about charging seniors, veterans, and children less? What about excluding observant Sikhs who carry a kirpan because the proprietor doesn’t want weapons on the premises? Denying discrimination the protection of freedom of association is like denying insults the protection of freedom of speech. You don’t have free speech if all you can do is compliment, and you don’t have freedom of association if all you can do is include and not exclude.

    On the legal side, as far as I can tell, you’ve confused the doctrines of implied contract and public accommodation. An implied contract is just one that hasn’t been reduced to language, but still requires mutual assent.

  • Pingback: Thousands protest 'religious freedom' law in Indiana()

  • Craig J. Bolton

    It appears that you are not using the term “freedom of association” correctly, according to the very Findlaw analysis you link to:

    “The doctrine is a fairly recent construction, the problems associated with
    it having previously arisen primarily in the context of loyalty-security
    investigations of Communist Party membership, and these cases having
    been resolved without giving rise to any separate theory of association.
    197

    Freedom of association as a concept thus grew out of a series of cases
    in the 1950’s and 1960’s in which certain States were attempting to curb
    the activities of the National Association for the Advancement of
    Colored People. In the first case, the Court unanimously set aside a
    contempt citation imposed after the organization refused to comply with a
    court order to produce a list of its members within the State.
    ”Effective advocacy of both public and private points of view,
    particularly controversial ones, is undeniably enhanced by group
    association, as this Court has more than once recognized by remarking
    upon the close nexus between the freedoms of speech and assembly.” 198 ”[T]hese indispensable liberties, whether of speech, press, or association,” 199
    may be abridged by governmental action either directly or indirectly,
    wrote Justice Harlan, and the State had failed to demonstrate a need for
    the lists which would outweigh the harm to associational rights which
    disclosure would produce.

    Applying the concept in subsequent cases, the Court again held in Bates v. City of Little Rock, 200 that the disclosure of membership lists, because of the harm to be caused to ”the right of association,” could only be compelled upon a
    showing of a subordinating interest; ruled in Shelton v. Tucker, 201
    that while a State had a broad inter est to inquire into the fitness of
    its school teachers, that interest did not justify a regulation
    requiring all teachers to list all organizations to which they had
    belonged within the previous five years; again struck down an effort to
    compel membership lists from the NAACP; 202
    and overturned a state court order barring the NAACP from doing any
    business within the State because of alleged improprieties. 203
    Certain of the activities condemned in the latter case, the Court said,
    were protected by the First Amendment and, while other actions might
    not have been, the State could not so infringe on the ”right of
    association” by ousting the organization altogether. 204 – See more at: http://constitution.findlaw.com/amendment1

    This clearly has to do with your right to keep your associations private, not to open a public business and then refuse ready buyers.

  • Craig J. Bolton

    And your conclusion is nonsense. As the reader can clearly see, the argument for nondiscrimination in publically opened businesses rests upon implied contract. But you conclude that those CONSUMERS who boycott are a bound by nonexistent implied contract to buy from those who open a business and offer to sell at a stated price to all consumers. What?

    • Theresa Klein

      But many of the boycott actions in this case involve not just refusals to buy, but also refusals to sell. See Wilco (whoever that is) cancelling it’s concert. People boycotting the entire state of Indiana are refusing to SELL to anyone in the state of Indiana until they exert compulsion upon a small minority of their residents.

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  • Azog

    The Libertarian principle is straight-forward here. I don’t understand why so many have a hard time understanding it.
    If a business advertises a product or service, and then denies me that product or service because of being gay or Muslim or whatever, they have harmed me through fraud.
    Based on the information that they have advertised, I have spent time and energy choosing that product, driving there, consuming more time, gas and wear and tear on my car, only to be told that they will not in fact honor the information they have posted.
    How are they not liable for the costs they have imposed upon me by their fraud?
    I agree that a person need not provide individualized services such as catering or legal services or whatnot. But unless advertised information, such as signs advertisements, webpages, listings, etc, are all clearly marked as “Not serving Gays” then they are imposing costs on others through fraud.

    • martinbrock

      I can go along with that, but posting the sign offends opponents of the Indiana law even more than an isolated incident of discrimination.

    • Theresa Klein

      It’s worth noting that nobody in the Indiana pizzeria case, or any of the other cases in the news, were actually claiming they wanted to turn down gays generally. They just didn’t want to provide wedding-related services for same-sex marriages. Nor was the RFRA law intended, or likely to result in, protection for general discrimination against gays. This was prompted by the cases of the baker who didn’t want to bake a wedding cake for a gay marriage, and the photographer who didn’t want to shoot wedding pictures.

      Note: The one other case I can think of, where a pediatrician turned away a child of a lesbian couple is the one case where I actually agree that the doctor has some moral obligation to treat the child, but that’s mostly because the professional ethics of the medical field seem to demand non-discrimination.

  • I think that in your second point, in discussing the bait and switch, you actually make a bait and switch. First, you mention that if an individual advertises “prices and goods/services, and when someone makes a valid offer I have substantial–not absolute, but substantial–obligations to honor the offer implied by my being ‘open for business.'” Then you give an example where “If I present a bill where all my prices are arbitrarily doubled, that would violate the contract implied by my posted prices.” It seems that in the first instance, neither individual has yet performed any service for the other, or no kind of exchange has taken place yet, while in the example the restaurant already served the customer. Now, if the part about the advertising was true, it follows that the example should be true, but if the example is true, it doesn’t necessarily follow that the part about advertising is true. I’m not sure about the accuracy of this common law doctrine, at least in the way it was described with the advertising, but I know many libertarian theories of contract might reject it.

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  • martinbrock

    I. Are you also saying that a kosher deli may not refuse to serve a neo-Nazi with a swastika tattooed on his skin head? If not, where are you drawing the line precisely? How about a dominatrix in black leather leading her slave on hands and knees by a chain and occasionally slapping his naked butt with a whip? [He’s completely into it and does not object.] May Chik-fil-A refuse to serve this woman?

    III. Agreed. The problem with these laws generally is that they grant special privileges to persons with “religious reasons” to discriminate. Free association should not be a privilege of conventionally “religious” people.

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  • NDaniels

    The error, from the start, is giving personhood to sexual desires/orientation. Regardless of our sexual desires, a person remains, in essence, from the moment of conception, a son or daughter.
    Marriage equality already exists, as every man is free to choose a woman to be his wife, as long as that particular man and woman have the ability and desire to exist in relationship as husband and wife, and every woman is free to choose a man to be her husband as long as that particular man and woman have the ability and desire to exist in relationship as husband and wife.
    Removing the necessary requirement for a marriage contract, which is the ability and desire to exist in relationship as husband and wife, will result in the promotion of marriage fraud and the sin of adultery.
    It is time to define person, making it clear that a human person can only conceive a son or daughter, and sons and daughters are not, in essence, objects of sexual desire, but human persons, who have the inherent Right to be treated with Dignity and respect in private as well as in public.

    • AP²

      Yeah. Political freedom also exists in North Korea; you’re free to have any political opinions you want, as long as they’re consistent with the Maoist-Leninist ideology. Likewise, removing that requirement would result in the promotion of decadent values and the sin of exploitation of workers.

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  • I reject the religious freedom argument simply because we don’t need to categorize freedom of choice — all businesses should have the freedom to discriminate, unless a powerful cartel gained enough power to exclude a group people from important products and services — I don’t see that happening. It’s good to know who likes to discriminate for what reasons.

    • Bob

      Who defines ‘a powerful cartel’? What is ‘important’?
      Should we nationalise basic goods and services production, since price discriminates against the poor?

      • who defines? — Judges who understand Constitutional rights
        Should we nationalize basic goods, etc — No

      • Who defines? — a judge who understands individual rights

        Do we nationalize basic goods, etc – no

  • Bob

    “The reason that bigotry against LGBT citizens has fallen so rapidly is that straights were already associating with gays closely – they simply did not know they were associating with gays. As gays “came out” Americans learned that their friends, relatives, and colleagues were LGBT. Instead of gays being the sinister unknown, they turned out to be your buddy who had the same concerns about his mortgage, his chances at promotion, and his sick mother that you had. Other hated minorities, however, rarely occurred in your own family and were easily observable – and therefore easily avoided. The civil rights acts’ bans on discrimination in the educational and commercial spheres, therefore, provided a far more critical role in reducing discrimination against these more observable minorities. Again, this greatly increased the scope of “freedom of association.” And nobody, despite the civil rights acts, other than your mother, tries to tell you who to marry.”
    http://neweconomicperspectives.org/2015/04/response-to-a-distressed-libertarian-reader-about-discrimination.html

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