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The Right To Exclude

Mises Daily: Friday, August 13, 1999 by

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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 immigrants 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 at capacity, 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. But overriding some decisions and not others , the government is exercising arbitrary power.

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 to being assaulted by 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 judgment, 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 and moral 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—-who 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 US 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 of some legislation 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 US 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. 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.

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Llewellyn H. Rockwell, Jr., is president of the Ludwig von Mises Institute in Auburn, Alabama.