Freedom of Association and Gay Rights

" long as the majority doubts, discussion proceeds, but as soon as it has, irrevocably, rendered  its decision, everyone keeps quiet, and both friends and enemies of the decision seem to rally in unison to its cause."

"...tant que la majorité est douteuse, on parle; mais dès qu'elle s'est irrévocablement prononcée, chacun se tait, et amis comme ennemis semblent alors s'attacher de concert à son char."

- Alexis de Tocqueville, Democracy in America


In my last post, of April 11, I discussed the Greek idea of the apeiron, the infinite, and its cultural consequences. I concluded by stating that when we forget the broader implications of the infinite, our democracy begins to decline because, in falsely believing that we have all the answers, we come to suppress dissent. I should now like to apply this notion to a particular contemporary case and examine what some applied philosophy might teach us about it.

Thomas Cole's Course of Empire: Destruction

As of this writing, those lobbying for gay rights in this country have successfully pressed Indiana into reforming its Religious Freedom Restoration Act. I was not paying much attention to the issue one way or the other until I was invited by a friend to join a boycott against Indiana for allowing private businesses – a wedding cake bakery being the stock example – to choose which marriages they would cater (the law was broader than that, but this was the core of the issue) and therefore to decline, if they so choose, to serve a gay wedding. This leads us immediately to the issue of freedom of association, which enjoys an important place in the history of political philosophy.

Freedom of association is, on the one hand, the right to join and to decline to join groups of one’s own choosing, and, on the other hand, the right of those groups to extend membership to some but not to others. So assuming that a particular group wants me as a member, I have the choice to join or not to join it. And assuming that a person wants to join a group, that group has the choice to accept or reject the person seeking membership. For example, if we did not have freedom of association in this country, a college fraternity for African-American students would be forced to accept a white supremacist student as a member if that student insisted that he wanted to be a part of the group; a professional photographer who happened to be homosexual could be coerced into photographing speakers at a fundamentalist Christian event where the topic of discussion was the putative sinfulness of homosexuality. Without freedom of association, the government can destroy groups and assemblies at will, and deem some of them acceptable and others not. Freedom of association is thus necessary for dissent, dissent both from the government and from general public opinion. Needless to say, freedom of association is crucial to the functioning of any democracy, and the concept, for this reason, has a fairly venerable philosophical tradition behind it, being the subject of a treatment by John Stuart Mill in his On Liberty, published in 1859.

(Freedom of association is not found explicitly in the American constitution – the closest we have to it is the first amendment – but it has been amply established by precedents in case law, which in our Anglo-Saxon system of Common Law carries great force (as opposed to the Civil Law system that exists in continental Europe, where case law is far subordinate to statutory law; each system has its merits: Civil Law systems are inflexible but on the other hand give less credence to the impulses and whims of individual judges, while our own Common Law is flexible and can adapt to the times, but is also, as a consequence, apt to suffer from the prejudices of the moment and to establish new ways which must then be overturned, once the public mood changes, with the setting of new precedents, an often long and difficult process).)

In the case of Indiana, those who called for that state to change its law that allows private businesses to decide on their own with whom to enter into association and contract did not realize that, when the mood of public opinion alters, as it always does from time to time, it is they who will benefit from the freedom of association that they now seek to destroy. For much of the history of the West, homosexuality was unfortunately and erroneously considered to be wicked. Had we had the idea of freedom of association for all of that history, much of the persecution from which homosexuals have suffered would have been impossible. Now that many people have finally come to realize that love is love, some wish to do unto others what was sometimes done unto them.

Thucydides explained better than anyone else, before or since, human nature's capriciousness and obsession with power...

It was entirely predictable that this would happen. One of the original arguments in favor of gay marriage was that it would not adversely affect anyone else, so why not let gays do as they please with one another? I made the point about six or seven years ago that, while the idea of gay marriage itself does not bother me in the least, once gay marriage is achieved homosexuals would want even more rights that would, in fact, infringe upon the rights of others – not because that is what homosexuals are like, but because it is what human beings are like. When people smell power and success, they want more of it; when they sense that after a long time of suffering mistreatment the tide is finally turning in their favor, they become brutal. I recall being thoroughly laughed at for making this argument, but of course this is exactly what has happened. Now that a Christian baker feels uncomfortable catering a gay wedding, we are meant to think that the state should coerce him into going against his own beliefs. Of course, those who bully Christians in this way do not really believe in their own old credo of live and let live – they simply hate Christianity. If they were ever to demonstrate in front of a Muslim bakery that also does not want to cater a gay wedding, one could at least say that they have the courage of their convictions. But they do not demonstrate there, because bullies, in order to become bullies, first have to be cowards.

...while Plato applied that understanding in describing how democracies evolve and decline...

Those who want to deny Christians and others the right to freedom of association – which is actually their own key to freedom as well – are thus acting in a way that is highly corrosive of our democracy. To know that this would happen I did not need to possess any particular powers of prediction but simply look toward the past, beginning, as usual, with the Greeks:

Thucydides, the greatest of all historians and perhaps also of political philosophers, illustrates throughout his History of the Peloponnesian War how human nature remains a constant and how, given a particular set of circumstances, the human reaction will invariably be the same. In Book 3, during the debate in the Athenian assembly on whether to destroy or spare Mytilene, the speaker Cleon eloquently makes the point that it is better for people to enjoy a moderate amount of success than absolute victory, lest they become intolerably arrogant, and that one should not fully surrender one’s cause, because people generally despise those who treat them well and look up to those who make fewer concessions. During another debate in Book 5, on whether to accept the neutrality of Melos, the Athenian ambassadors argue that it is a general law of nature that one should rule wherever one can [such as in one’s own bakery], because the moment one yields but a little, the opponents will strive to gain even more.

...and Polybius gave the process a name: the state of ochlocracy.

...and Polybius gave the process a name: the state of ochlocracy.

Plato, in Book 8 of his Republic, explains how democracy so easily declines into mob rule and despotism. In an astonishingly perceptive and prescient passage, he illustrates how the concepts of liberty and equality are always evolving, so that what one generation considered equality will be understood as oppression by the next, and that this process continues to such a degree that finally, in the name of equality and liberty, society ceases to function and people cower in fear of the mob: cultures hostile to our own are considered equal to ours; professors are afraid of and flatter their students; children curse their parents; human beings must yield to animals, etc. – he is parodying late 5th and early 4th century BC Athens but could just as well be describing our very own culture today. The people become so insistent on liberty and equality that they will brook no contradiction, not even from the law itself, and those standing in their way will be bullied into submission. Concepts like liberty and equality are in fact always evolving, and there is never an end to them. To understand how ephemeral our current understanding of these concepts is, we must see how they have been understood in the past and, by extension, how they will be understood in the future. That is, we must grasp the apeiron I discussed in the previous post and humble ourselves regarding the supposed righteousness of our outrage.

The Chopin look-alike Alexis de Tocqueville applied Greek wisdom to America itself...

The later Greek historian Polybius, describing the rise of the Roman Empire in his Histories, refers to this mob rule as ochlocracy. Mobs can occasionally do good, as when they suddenly rise to topple a dictator, but when their power becomes an enduring condition, it is always bad. Important to realize is that, although one might agree with a particular cause of a particular mob, mobs are fickle, which is why one would do well to distance oneself from them in general. The mob that believes it is above the law and can coerce a private business into doing its bidding will, at another time, lynch a black man for having looked the wrong way. A mob need not be armed with nooses and torches and run amok in the streets – mobs can also sit before their computers and spread their pressure on our legislatures electronically. Another term for this sort of mob rule or ochlocracy is the “tyranny of the majority”, a term not coined but certainly popularized by Alexis de Tocqueville in his De la démocratie en Amérique / Democracy in America (1835; Book 1, Part 2, Chapter 7), where he argues, among other important points, that the independence of officials from central authority in the United States, although it can be a very good thing, also means that the officials are more liable to stretch their authority at the instigation of the public majority, which may prove fatal to American liberties (the surrender of state legislators in Indiana regarding the free exercise of one’s religious conscience, or the implicit encouragement by New York City’s mayor of protests against his own police force – because he is pandering to the popular mood – are current examples). John Stuart Mill, whom I mentioned in the beginning, also employs the term “tyranny of the majority” in his On Liberty. From the works of all these authors we learn that human nature will always swing to the extremes: the achievement of equality vis-à-vis an opponent will not end there, but will almost immediately turn into oppression against that opponent.

...while John Stuart Mill, although not quite as handsome as his intellectual forbears, finally stressed the crucial idea in political philosophy of freedom of association.

And so considerations of history and human nature oblige us to respect the freedom of association, which includes the right of a baker to decide with whom to enter into contract. (One could argue that by the same token a business should then be able to refuse to cater an African-American wedding, and even though this is in fact a logical conclusion of the freedom of association, one could proffer the counter-argument that due to the special history of black people in this country – the only demographic enslaved here over centuries – an exception should be made in that case. And our Common Law system has in fact established such a precedent, in Runyon v. McCrary in 1976.) Those constantly screaming about tolerance are the first to become intolerant the moment they meet someone who disagrees with them. Another irony is that the bullies who will tolerate no dissent are doing the bidding of the big businesses that in socialist contexts they so adore to vilify. When the CEOs of Apple or Wal-Mart come out against freedom of association, they do so not out of any moral purity but because they know they will sell more of their products to the mob. This is simple marketing. It is the small family businesses who seek to follow their own conscience that suffer. And thus, those who do not want to enter into association with someone who would decline to cater a gay wedding must, in turn, accept his right not to enter into association with them. If we do not offer such acceptance, we destroy our democracy, not to mention our freedom of religion. Indiana lost this particular fight, but there will be other confrontations. If we heed the thinkers of the past we will, perhaps, be able to reconquer the truth of that credo of live and let live that was invoked in the first place.