-Caveat Lector-
> The right to exclude
>
> -----------------------------------------------------------------
> -------
>
> The New Jersey Supreme Court says the Boy Scouts must accept gays
> as leaders or else. The theory is that gays should have the same
> opportunity to join the organization as any one else. But this
> theory is at odds with the free society.
>
> The word liberty conjures up a vision of endless opportunity and
> choice. But liberty also means the right to exclude because
> property owners decide questions of access. There is no right to
> crash a private dinner party, for example. The owners of the
> house have the right to invite or not invite on any grounds.
> Similarly, there is no right to invade a private organization.
>
> Yet the right to exclude has been under attack in American law
> for decades. The New Jersey Supreme Court defined the Boy Scouts
> as a "public accommodation," and thus subject to New Jersey
> anti-discrimination law, which specially protects gays. Note that
> there is nothing the Boy Scouts could have done to avoid this
> special designation, apart from going out of business.
>
> But the designation means that government decides who can and
> cannot be excluded from entry, which is no different from a
> homeowner being forced to invite Kosovo refugees or some other
> politically favored group to dinner.
>
> The courts might respond that the Boy Scouts serve the "public"
> whereas a homeowner serves himself. But there is no such thing as
> the "public" as such. Hotels and restaurants do not offer service
> indiscriminately. They turn people away when they are full, for
> example, or exclude people because of their dress or drunkenness.
>
>
> In these areas, the question of who is to be served (by a
> restaurant, mall, subdivision, or anything else) is a question to
> be decided by the owners. By overriding some decisions and not
> others, the government is exercising arbitrary power.
>
> In short, the lawyer for the defense had it exactly right. "This
> is a case about whether the Boys Scouts, as a private voluntary
> organization, has a right to establish criteria for its
> membership and leadership." In a free society, those who don't
> like the rules can start another group, but no one can force his
> way in.
>
> Freedom, of course, was the last thing on the judges' minds: "The
> sad truth is that excluded groups and individuals have been
> prevented from full participation in the social, economic, and
> political life of our country. The human price of this bigotry
> has been enormous. ... [A]dherence to the principles of equality
> demands that our legal system protect the victim of invidious
> discrimination."
>
> Here in a nutshell is the basis on which liberty and property are
> undermined in America every day. Victimization: if a group can
> plead supposed bourgeois prejudice, it can gain special
> privileges granted by government. Equality: a notion more
> applicable to arithmetic than human beings, now so expansively
> applied that it overrules every other consideration of life.
> Discrimination: a word that once meant good judgement, now
> distorted into a sin.
>
> What if the Boy Scouts had decided to exclude, say, racists as
> Scout masters. Would the courts have intervened on behalf of, for
> example, a Klan member's right to join? Not on your life. This is
> not an equal application of the law, but one that favors interest
> groups approved by government. For that reason, the temptation is
> to defend the religious grounds on which the Boy Scouts exclude
> gays.
>
> But whether gay leaders are compatible with family values is not
> the fundamental issue. It is whether a private organization has
> the right to set its own membership rules. These rules may or may
> not fit with social norms. But in a free society, the Manhattan
> Pagans have as much right to exclude Christians as the Milwaukee
> Beer Drinkers have to exclude teetotalers.
>
> The alternative to the right of exclusion, as the Boys Scouts'
> lawyer said, is the "total state." Under that system, no one is
> permitted private space into which the state cannot intrude.
> Ironically, gay groups -- which have long demanded the right of
> privacy in the bedroom -- now argue for the government to bust
> down the doors of any private space that doesn't welcome them.
>
> What's the precedent for this breach of property rights? In 1948,
> the U.S. Supreme Court addressed restrictive covenants that
> exclude on grounds of race. The justices ordered the states, in
> Shelley v. Kraemer, not to enforce such covenantal contracts,
> since that allegedly would make them a party to actions contrary
> to due process.
>
> That was the first grease on a very slippery slope. If voluntary
> contracts can go unenforced on grounds that judges don't like
> them, there are no rights to property, no rights to free
> association, no rights to the freedom of contract.
>
> Consider the words that set off another landmark case: the
> government may not "limit or abridge, directly or indirectly, the
> right of any person, who is willing or desires to sell, lease, or
> rent any part or all of his real property, to decline to sell,
> lease or rent such property to such person or persons as he, in
> his absolute discretion, chooses."
>
> Perfectly in keeping with the strictures of a free society,
> right? John Locke or Thomas Jefferson could only cheer. The words
> are taken from a 1964 amendment to the California constitution
> that passed by referendum 2-to-1. But in 1967, the U.S. Supreme
> Court struck that amendment down -- on the same grounds that the
> New Jersey court ruled against the Boy Scouts.
>
> Since then the right of free association has experienced many
> blows, from the 1964 Civil Rights Act, which defined any business
> enterprise as a public accommodation to be controlled by
> government, straight to this New Jersey decision. If a group is
> politically powerful enough, it can have the tyrants in black
> robes override anyone's property rights.
>
> This leads to some peculiar situations. All-boys schools are
> attacked for discrimination, but all-girls schools are consistent
> with the needs of diversity. All-white clubs are verboten, but
> all-black clubs are a healthy reflection of racial pride.
> All-Christian schools are pockets of bigotry, but all-atheist
> schools are essential to pluralism.
>
> Even more peculiar is this notion of "public accommodation," an
> unfortunate holdover from English common law. But it is a
> completely arbitrary designation. All property is owned by
> someone. Either it is owned by private individuals or it is owned
> by the government. It makes sense that the owner is also in
> control.
>
> But with public accommodation law, we have a third category:
> private property that the government controls. The phrase itself
> flies in the face of a free society's legal regime. The practice
> also violates the 13th amendment, since owners and their
> employees are forced to serve those whom they do not wish to
> serve.
>
> That is why libertarians must seek to do more than reverse the
> most recent attack on the Boy Scouts. They should seek to undo
> the long legal history of government intervention into private
> affairs that made the Boy Scout case inevitable.
>
> -----------------------------------------------------------------
> -------
>
> Llewellyn H. Rockwell Jr. is president of the Ludwig von Mises
> Institute in Auburn, Alabama.
> ---------------------------------------------------------------
-
> <Picture: WorldNetDaily.com>
>
> -----------------------------------------------------------------
> ------- � 1999 WorldNetDaily.com, Inc.
>From WorldNetDaily
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