Last week lawmakers in the North Dakota House of Representatives, after much emotional floor debate, voted down SB 2279 by a nearly two-to-one vote margin.
The legislation would have added homosexuals to the state’s list of protected classes, prohibiting discrimination against them for employment, housing, accommodations and business services.
The reaction to the bill’s failure was immediate and furious.
Thousands took to social media to vent spleen and invective. The Forum turned its front page into a sort of wanted poster featuring the pictures of every lawmaker in the two-thirds majority who voted against the bill. A Fargo-based coffee shop, the Red Raven Espresso Parlor, even posted a notice at their entrance barring the no-voting lawmakers from the premises.
There is irony in that last reaction, which is illustrative of the dispute at the root of this debate. The Red Raven management is exercising the very right to express their conscience that the House lawmakers were voting in favor of. As petty and intolerant as the coffee shop’s decision is, they should have every right to refuse service to politicians they disagree with.
Neither politicians nor anyone else have the right to conscript the unwilling service of another.
That’s how things work in a free country. Or, how they should work, anyway.
It’s understandable why some would conflate the desire to protect discriminatory decisions with endorsement of discrimination, but these are two distinct concepts. For instance, we recognize that the First Amendment grants Americans the right to say what they wish, and we protect that freedom even though at times it puts us in the position of having to defend speech we detest. Like speeches at a Ku Klux Klan rally, for instance.
By the same token, we should recognize that the freedom to associate includes the freedom to disassociate.
Ironically, the notion that Americans have a right to free association is the cornerstone of the argument for legalized gay marriage. Why shouldn’t consenting adults be allowed to enter into consensual unions with other consenting adults in whatever gender combinations they wish?
That’s a valid question. Of course gays should be able to wed, just as every American is free to join a labor union or a Rotary Club or the NRA. It is your right to associate with whom you wish.
But that right cuts both ways. Just as we wouldn’t support forced marriages, why should we support forced commerce involving an unwilling participant?
“What about the Jim Crow era?” you may be tempted to ask at this juncture.
One could argue that the laws which so many credit with diminishing racial discrimination and segregation were the product of social change which was already taking place. By the time the political majorities emerged to endorse that sort of reform, the support for the discrimination it was intended to address was already waning.
In short, the law followed the social change, not the other way around.
In today’s America, gays are not treated in a fashion that’s anything approaching what racial minorities went through in the civil rights era. That was an expressed concern of the lawmakers who voted against SB 2279. Despite piles of anecdotes presented by supporters of the bill, most lawmakers simply couldn’t discern in our state the sort of widespread, consistent discrimination that would have justified the law.
We can quibble about that fact, but it’s a perfectly reasonable position to take that has nothing to do with bigotry and everything to do with the efficacy of the policy.
One could argue that the pervasive racism of the Jim Crow era created a need for prohibitions on discrimination which outweighed the damage done to the freedom to associate. That racism, after all, was the result of centuries worth of state-condoned slavery.
But it isn’t 1963 any more. Discrimination against gays has not risen to anything approaching the racial discrimination of another generation, and many, including a majority in the state House, believe it doesn’t justify setting aside the association rights of business owners.
Some may see that as bigotry. It wasn’t. Rather, it was a careful consideration of the nuances of this policy. Those voting against SB 2279 should be admired for taking a principled but politically unpopular stand.
