Equality, Marriage, and the Right to Discriminate

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3018087812_3fd3e76117.jpgHannah Arendt characterized the "right to marry whoever one wishes" as elementary, locating it among the "inalienable human rights to 'life, liberty and pursuit of happiness proclaimed in the Declaration of Independence.'" She was concerned with miscegenation laws, which in her view "constitut(ed) a much more flagrant breach of the letter and spirit of the Constitution than segregation of schools." She even considered political rights, including the right to vote, "secondary" to "the right to home and marriage."

This defense of marriage rights appears in "Reflections on Little Rock," Arendt's controversial critique of federal efforts to desegregate public schools, written over 50 years ago. She was wrong to oppose forcible school desegregation, but she was wrong for good reasons that remain relevant today, to battles over speech and association, as well as gay marriage (which, as Andrew Sullivan observes, seems destined to be legalized, eventually).

Arendt's opposition to federal enforcement of equal education rights was partly pragmatic, partly a reflection of her strong distaste for thrusting children into the front lines of a vicious, often violent political battle, and partly a demand to limit government intervention in private life and liberties (which also underlay her regard for marriage rights). Arendt was sympathetic to the private associational rights of parents who wished to control their children's education. In this instance, her defense of associational rights was inapt: if mandatory desegregation violated the rights of white parents to send their children to all-white schools, mandatory segregation had long trampled the analogous rights of African-American parents; in any case, laws governing public education ought not be written by private biases.

But while Arendt was wrong to place public schools outside the public realm, while she was insufficiently attentive to the relationship between educational and political equality, she was quite right to defend the freedom to discriminate in private and social realms. "[D]iscrimination is as indispensable a social right as equality is a political right," she stressed. "What equality is to the body politic - its innermost principle - discrimination is to society...without discrimination of some sort, society would simply cease to exist and very important possibilities of free association and group formation would disappear."

Today, those "very important possibilities" are indeed in danger of disappearing, thanks, in large part, to illiberal attacks by liberals on the private right to discriminate. Prohibitions on allegedly offensive or abusive speech and exclusionary private associations are common on college campuses (as I repeatedly lament), where generations of students are being taught that verbal insults are actionable virtual assaults, where an imagined right not to be insulted often trumps rights the fundamental right to speak, and where private associations are expected to comply with public rules prohibiting discriminatory membership requirements.

If campus crusades against speech and associational freedom eventually flourish off-campus, as today's students age into tomorrow's bureaucrats, the U.S. could eventually resemble Britain, where official illiberalism is rampant. The far right British National Party, for example, is being forced by the government to revise its constitution and membership criteria that discriminate on the basis of race, sex or religion. Membership is message, which means that the message of the BNP--and other groups--may be subject to government approval. Meanwhile, the repressive campaign to eradicate racism--not simply from education or employment but from everyone's hearts and minds--has resulted in reports of 40,000 incidents of racism a year involving children, according to a recent story in the Daily Telegraph (relying on an account by a local civil liberties group). "Primary schoolchildren and toddlers in nurseries are being punished for making racist insults...even if they do not understand the terms they use...At the same time, diversity 'missionaries' sent into schools to teach pupils about bigotry are said to be increasing the divide between white and black children by forcing them to see everything in terms of race."

Diversity zealots like this eviscerate everyday freedoms without advancing equality. It may seem counter-intuitive, but the fight for equal marriage requires a commitment to preserving the fundamental rights of bigots--racists, sexists, and homophobes--to think and express discriminatory thoughts and to act on them in private and social life.  "Social standards are not legal standards," Hannah Arendt pointed out, "and if legislature follows social prejudice, society has become tyrannical."

This was an argument against mandating equality in private life (when social mores demand it) and prohibiting it in public (when social mores condemn it). "The moment social discrimination is legally abolished the freedom of society is violated...The moment social discrimination is legally enforced it becomes persecution...." The day that opponents of equal marriage are required to attend gay weddings or socialize with gay couples or prohibited from expressing disdain for them will be the day they suffer the sort of persecution now visited upon gay people denied the right to marry.

(Photo: ProComKelly/Flickr)
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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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