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The Right To Exclude

August 13, 1999

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.

* * * * *

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


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