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Category Archives: Presumptive rights

Must Support For “Family Planning” Be Compelled?

05 Monday Oct 2015

Posted by pnoetx in Big Government, Liberty, Presumptive rights, Property Rights

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Abortion, Compulsion, Federal funding, Free Association, Libertarians, Nonexclusive benefits, Planned Parenthood, Property Rights, Public goods, Reproductive rights, Sheldon Richman, Slate

Fund Me

Where do Libertarians stand on the issue of federal funding of Planned Parenthood? What sort of balance should be struck between the rights of conscientiously-objecting taxpayers and the rights of women to use Planned Parenthood (PP) services? The correct answer has nothing to do with abortion, an issue on which Libertarians lack unanimity. However, the existence of moral objections by any segment of society, whether considered valid by a majority or not, is an important consideration.

Do Individual Freedoms Require Taxpayer Support?

Sheldon Richman discusses the funding question on his Free Association blog in “Planned Parenthood, Social Peace and  the Libertarian approach“. He first makes a basic point: “… no one’s freedom is violated by lack of access to taxpayer money.” I agree, but this statement requires some context. For Libertarians, the baseline is a society in which individual liberty is a presumption. That cannot be the case if taxes and transfers dominate our economic lives. If we’re all busy picking each other’s pockets, then perhaps anyone can lay claim to a dollop of public funds to pay for any damn thing they want. But in a society that explicitly limits the powers of coercive government, private individuals cannot, on the public dime, lay claim to whatever they wish to compel from others. What they desire, after all, is almost always available privately. Therefore, the denial of public funding for PP does not constitute a denial of anyone’s rights.

Individual’s are free to exercise their reproductive or non-reproductive rights as they see fit, and to pay for related services themselves or by seeking a benefactor. Nothing is deprived to that individual other than an invalid claim on the belongings of others.

“Individual rights ultimately boil down to the single right to be free from aggression, that is, to self-ownership. Rights would be defined out of existence if they could be ignored whenever doing so would make someone else’s objectives easier to accomplish. Such an approach to “rights” would turn rights theory on its head by making us a mere means to other people’s ends rather than ends in ourselves.“

Consistent Application of Property Rights

Richman asserts that the right of ownership of one’s body applies equally to the right of individuals to the income they produce:

“Ironically, the right to choose abortion is defended as an application of the right of women to their bodies, that is, as a property right (self-ownership). Another implication of the right to one’s own body is the right to control the fruits of one’s labor (income). No coherent theory of rights can permit a clash of the right to one’s body with the right to the fruits of one’s labor. Thus implicit in the pro-choice case is an argument against tax funding of Planned Parenthood (and anything else), that is, against taxation itself.“

Leftist elites say that a denial of public funding for PP is tantamount to a denial of service to low-income women. Richman asks the elites to put up or shut up: if they believe the services in question are critical, they are free support PP financially, but they much prefer to extract resources from taxpayers without regard to possible moral objections.

Protection of Religious and Moral Principles

Richman adds the following thoughts on public funding of Planned Parenthood near the end of his post:

“Reasonable people of all persuasions should see that it is simply unreasonable to force people to finance an organization they find morally offensive. Thomas Jefferson famously said, ‘To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.’ Compelling men and women to furnish contributions for the performance of services they deem immoral (whether or not they are) is worse.“

Supporters of public PP funding have sought to deflect morality-based opposition with the contention that abortions represent only 3% of PP’s services, but Slate debunked that claim over two years ago. It was based on a count of tests and procedures performed, not on revenue. PP also claims that tax funds never pay for abortion, but as Richman points out, once available, the revenue is fungible and may be used to cover the cost of any procedure. In short, the argument is specious.

The Public Good Argument Is Weak

One more elephant in the PP funding debate concerns the appropriate functions of government. Does PP provide a truly “public” good, one having benefits that are nonexclusive to the primary user? Health services are sometimes assumed to confer public benefits; that is an easy argument in the case of infectious diseases and to some extent for medical research, but not for most health services. The benefits of individual health services are largely private, providing little justification for government funding of PP from a public finance perspective.

Collective Action Needs Strict Limits

Collective action should be confined to the provision of public goods, but even then it can be fraught with conflicts, such as the difficulty of accommodating pacifists during wartime. A truly liberal society will do all it can to accommodate diverse beliefs by allowing objectors to opt out, if possible, or avoiding the funding of private activities, especially those over which there is significant dissent. Under no circumstances should one be compelled to pay for private services that they find to be morally objectionable.

Suit Me, Or Face a Lawsuit: Adventures In Litigationland

06 Monday Apr 2015

Posted by pnoetx in Discrimination, Presumptive rights

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Tags

14th Amendment, 1st Amendment, Anti-discrimination law, Constitutional rights, Economics of Discrimination, Eugene Volokh, Free exercise, Free expression, Freedom of Association, Gary Becker, Gay rights, Indiana, New Mexico, Presumptive rights, Private discrimination, Religious Freedom Restoration Act, SCOTUS, Taste for discrimination, Tolerance and profit

Racism-cartoon

Suppose that Jim and Bob, who are life partners, own and operate a company that produces signage. A church group requests a banner to read “Only one man and one woman make a marriage”. Jim and Bob are likely to be offended by the suggestion that they use their art to express such a sentiment, and I think they are entitled to refuse the business. The freedom of expression granted by the First Amendment to the U.S. Constitution protects individuals against compulsion to express things they find objectionable. Will Jim and Bob engage in discrimination if they refuse the business? You bet, but I do not think the government has a “compelling interest” to intervene on behalf of the religious group, especially if there are other businesses capable of producing the banner or if the group can produce it themselves.

Has the exercise of free expression been tested as a defense against charges of illegal discrimination? The example above dealt with discrimination by a private company against a religious group. A similar case involved New Mexico photographers who refused to shoot photos at a same-sex wedding. The plaintiffs alleged discrimination on the basis of sexual orientation, but the photographers claimed that compulsion to accept that work constituted a violation of their freedom of expression. The New Mexico Supreme Court ruled against the photographers. They appealed to the U.S. Supreme Court (SCotUS), which refused to hear the case without additional comment. While this case established a precedent in New Mexico for the compelling interest of government to enforce anti-discrimination law, the refusal of SCotUS to get involved did not create a wider precedent in favor of anti-discrimation law over free speech. There are a number of reasons why the Court might have refused to hear the case, including the fact that the suit was brought under state law, not federal law; simple prioritization across many competing cases for an always full docket; or the lack of any conflict with other court decisions.

At the link above, which was written just after the New Mexico court’s ruling, Eugene Volokh offered his views on the case:

“Is it permissible for the law to require freelance writers, composers, artists, editors, and the like to create speech that they don’t want to create? Might it even be permissible for the law to require other conduits, such as bookstores and movie theaters, to distribute speech that they don’t want to distribute? (I use ‘speech’ here in the standard First Amendment sense, which includes music, pictures, video, and the like.) … It seems to me that having to create speech, using your own creative abilities and judgments as an artist, musician, writer, or what have you, is an even deeper ‘foster[ing]’ of ‘an idea [you might] find morally objectionable’ — an even deeper intrusion on ‘individual freedom of mind’”

We often couch discussions like this in terms of “rights”, which is easily understood. However, there is a strong distinction between this framing and the actual structure of the Constitution. Rather than granting specific rights to individuals, that document presumes the existence of those rights and instead enumerates powers held by the federal government and restrictions on its exercise of those powers. For example, here is the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

And below is a key excerpt from the Fourteenth Amendment, upon which much anti-discrimination law is based. Note that its prohibitions apply only to government action, not private action:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

One right that should be presumptive is that of individuals to form a union in marriage. It is not addressed explicitly in the Constitution, and perhaps that would be less important if the government were not so intricately involved in the marriage business. Property rights, estate law, taxes, and legal benefits to employees and significant others can all be dependent on the legal status of a marriage. Still, it is not obvious why the government should be anything but neutral with respect to who can be married. Even if we concede a government interest in certifying marriages (it is a source of license fee revenue), are there other reasons for government authority in this area? Call me a skeptic. In any case, the legal recognition of marriage has been left up to the states.

Laws against private discrimination are thought to derive their authority from an enumerated power in the commerce clause, in Article 1 of the Constitution. This allows Congress to “regulate commerce among the several states“. This power was traditionally held to relate only to interstate commerce, consistent with the preservation of federalist principles and states’ rights. The courts have interpreted the power more broadly at times, but it is certainly not unlimited. In the traditional context of interstate commerce, and in view of the presumptive nature of individual rights under the Constitution, this seems to be a strikingly thin rationale for regulating many kinds of private behavior, or for compelling certain activities that burden the exercise of other rights.

Returning to the example above, defending Jim and Bob for turning away the church group’s business is similar in most respects to defending the photographer in the New Mexico case, or the baker who refuses, on religious grounds, to decorate a cake with a gay wedding theme. The cases all involve a form of private discrimination and a conflict between anti-discrimination law and forms of free expression. Whether presumptive rights to free speech, religious practice, or even freedom of association can trump statutory prohibitions against discrimination, or vice versa, is unlikely to be resolved once and for all, at least not any time soon. The individual circumstances surrounding a dispute of this nature will always be helpful, if not determinative. But what sort of test can be applied in order to achieve a resolution?

When sufficient tension exists, it is up to the courts to consider the specific nature of the discrimination in question, its rationale under any presumptive rights, and whether the claimant has “protected” status under a relevant anti-discrimination law. In terms of anti-discrimination law, a line is often drawn by insisting on the universal, non-discriminatory provision of “public accommodations”. The exact meaning of this term can differ by jurisdiction, but it generally implies a sales channel for which the “doors are open”. The presence of competition and alternative providers would argue against the state’s contravention of the presumptive rights of individual sellers in order to satisfy a statuary requirement. The competitive landscape and presence of viable alternatives should be an important consideration in balancing interests in these kinds of conflicts.

Choosing to discriminate against a specific group is not costless, even when legally sanctioned. It is obvious to most business people that tolerance is more profitable than intolerance. The acceptance of this disparity was clearly articulated as a “taste” for discrimination by Gary Becker in his 1957 book, “The Economics of Discrimination“. Becker’s analysis of discrimination in the labor market noted that employers with such a “taste” are willing to pay higher wages in order to avoid hiring certain minorities. In the examples above, Bob and Jim are willing to turn away otherwise profitable business, as are the baker and the photographer. However, their tastes for discrimination do not imply economic irrationality. In all three cases, the business people hold the maintenance of certain principles to be of greater value than the foregone profits.

These issues are relevant to the recent controversy surrounding Indiana’s new Religious Freedom Restoration Act (RFRA). The context for RFRAs is narrower, as they relate to religious expression as opposed to expression generally. The first RFRA was a federal law supported by liberals in response to a conservative SCotUS decision in a dispute over the use of peyote for religious purposes. Generally, RFRAs require that the government have a compelling interest in burdening religious exercise and then must do so using the least restrictive means available. A number of individual states have passed their own RFRAs in order to carve out religious exemptions to various rules. In a recent post, Eugene Volokh discusses the history that gave rise to RFRAs, and the irony that many liberals now decry their existence, while conservatives tend to support them. The principles underlying these laws were once championed by prominent liberal members of SCotUS.

The version of the Indiana RFRA originally signed by Governor Pence would have allowed religious expression to be used as a defense in a discrimination lawsuit. Subsequently, the Indiana state legislature amended the bill with a provision stating that the law does not authorize a “provider” to refuse business from a range of protected groups, including gays and lesbians (ministers, churches and non-profits are exempted). Does this nullify the impact of the bill on free exercise of religion? Many believe so. However, the absence of positive “authorization” may not mean the courts will decide that the state of Indiana has a compelling interest in preventing a particular case of discrimination.

[An aside: One interesting approach has been suggested for businesses in the wedding industry whose owners believe that accepting work at same-sex weddings would violate their religious principles. These businesses should continue to accept business through their “public accommodations” except for customized wedding goods and services. According to this approach, they should offer the latter exclusively through binding contracts with specific churches or places of worship, thereby operating  exemptions granted to those institutions.]

Critics of the original Indiana RFRA were generally silent regarding RFRAs in 19 other states, as well as a federal RFRA signed by President Clinton. Moreover, it is clear that there has been some contrived activity from partisans on both sides (see here, here and here). At least the contrived activity demonstrates a greater depth of understanding than some of the hateful speech that I have witnessed on social media. Some would claim my example of Jim and Bob is contrived as well, but it is a plausible scenario and it shows that the tension between rights can cut both ways. A call for the legal supremacy of anti-discrimination law over presumptive rights means that the freedoms of protected groups can be abrogated as well when in conflict with another protected group.

Persecution is well known to both gays and people of faith. Both groups are certainly aware that there will always be others who do not share their views, strictures and practices, and some who may well disapprove. Both groups should be sympathetic to the notion of “live and let live”, and they should have the forbearance to avoid insisting on everyone’s direct participation in their celebrations. Some might even call this good manners. Participation (even for profit) cannot be compelled any more than approval. Regardless of what one might think of the values of outsiders who do not wish to participate, the “discriminatory” actions (or failures to act) in question are not prima facie evidence of hatred.

Jim and Bob, as well as the baker and the photographer, have broad presumptive rights under the constitution, whether they involve free speech or religious exercise. No one should be compelled to engage in expression they find objectionable without the ability to challenge it in court. Protections against discrimination are important, but they certainly do not confer the power to force others to participate in your celebrations. And why bother? Live and let live.

Postscript: Why bother, indeed! And here is Jonathan Turley on the key issue of defining an “expressive act”.

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