The right to choose your customers

We have this on-going discussion about rights, about what they are, what we mean by them, what they aren’t or shouldn’t be or shouldn’t be thought to be, how they are justified, and the like. We have some commenters defending the idea that Christians do have rights to refuse service to gay people in public accommodations. They’re using arguments that have a certain familiarity. The ‘right to free association’ for instance. From a comment on ‘The fundamental right to say get outta my store’: ‘the right to free association. That’s the very same right denied in apartheid south africa or in the US under segregation or by many anti-union laws.’ Well, no, actually. It was the defenders of apartheid and segregation who resorted to talk of rights to free association or to choose one’s own company or customers, not the opponents. There is this 1964 incident in the career of William Rehnquist, a recent Chief Justice of the US Supreme Court, for instance:

he opposed [Phoenix, Arizona’s] public accomodations law, defending in a letter to the Arizona Republic ‘the historic right of the owner of a drug store, lunch counter, or theater to choose his own customers.’ [Peter Irons, A People’s History of the Supreme Court, p. 443]

The churches, whether they realize it or not, are aligning themselves with intransigent segregationists of the 1950s and early ’60s. They can do that, of course, but it’s as well to be aware that the defense of ‘free association’ has particular historical resonances. It emphatically does not refer to or mean the right of black people to associate with whites, it means the right of white people not to associate with blacks, and to exclude them from public accomodations for that purpose. Not a pretty or inspiring kind of right, not one that reasonable people (frankly) ought to defend. The picture to form in your head is not a living room full of friends but a restaurant with ‘No Niggers’ or ‘No Queers’ on the door.

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