WEDNESDAY
   AUGUST 11
    1999
            
     

             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.
                                             
                                                        
      
            


                                                       

                                       

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