Inalienable Rights · Social Issues · The Constitution

Equal Rights vs. Freedom of Association

These days, there’s a lot of discussion about how important “equal rights” are to maintaining freedom in America (and other countries with similar laws and legal structures, but I’m focusing on just the USA).

The most clear champions of the term are social progressives, who constantly seek to “progress” society by identifying someone who is not being treated equally (by their definition), and campaigning endlessly through whatever means necessary to “solve” the “social ill” that has been “discovered.”

Based on my quotation mark usage, you can tell I disagree with their entire approach, but that’s a separate post I’ll write later.

Where the operational definition of “equal rights” runs afoul is in two areas: being misdefined entirely relative to the Constitution and Declaration of Independence, and being used to abrogate a just-as-important right guaranteed in the First Amendment, freedom of association.

“Equal Rights” is Flawed

Right now, “equal rights” is more properly “to be treated identically to some other group of people, regardless of qualitative differences between the two groups.”

Hence, equal rights for homosexuals must include state-recognized marriage, since that’s what heterosexual couples have. This disregards:

  • The social stability that a man-woman marriage provides to both men and women (namely safety for a woman, commitment for a man)
  • The inherent capability to procreate (necessary to humanity’s survival)
  • The need for both genders to raise a child (USCCB article with references)
  • The simple reality that man-woman marriage has been the basis of civilization for civilization’s entire existence

This definition is immediately conflated with the Declaration of Independence’s equal rights to life, liberty, and the pursuit of happiness, such that if Oppressed Group A doesn’t get exactly what “Un”oppressed Group B has, their rights are being infringed.

Such logic has underpinned Obergefell v. HodgesRoe v. Wade, and numerous other district and appellate court-level decisions in the last few decades.

The problem with this logic is it protects and upholds a specific group as “more special” than everyone else, whether it be on account of their race, sex, ethnicity, sexual orientation, gender identity, or favorite color. Not only must the government not get in the way of these people, the government must explicitly endorse what they do.

Flashback to 1776, when the Declaration of Independence was being drafted and signed. At the time, the British government telling the colonists what to do without any say-so in it was sufficient to rebel and start a new country.

Yet here we are in 2017, having people clamor for government to be involved in telling people what to do, whether or not they want it.

Equal Rights under the Law

What a lot of social progressives forget is the simple legal fact that equal rights already exist, and have existed in a direct sense ever since the Thirteenth and Fourteenth Amendments outlawed slavery and treating a different race as worth less (Honorary mention to the 15th, 19th, and 24th Amendments).

Yes, it took a ton of cultural change, multiple judicial decisions, and several laws to finally make that Constitutional protection something honored by society, but it did exist in a legal sense. Even taking it from this approach, equal rights have been enshrined in Congressional law since 1964.

But equal rights under the law is more narrow than many act. It essentially means that the government cannot treat you differently based on unchangeable characteristics. It also means that when you bring a suit to a court of law, it will be treated on the merits, and not on aspects unrelated to the case.

Necessary caveat: No, this does not always happen. Yes, judges and juries rule incorrectly, and lawmakers pass bad laws. Government agencies do things that straight-up aren’t Constitutional (or lawful). But legal principle and actual practice are very difficult to match up in a fallen world.

Notice what is missing from the above reality: other people. The government is not allowed to treat you differently, but other citizens are more than welcome to as long as they do not violate the law. This leads into freedom of association.

Freedom of Association

In actual words, the freedom of association is lacking from both the Declaration of Independence and the Constitution. However, it is a right fundamentally derived from the First Amendment’s guarantee of the exercise of free speech and the Declaration’s unalienable right to liberty.

Exercise of Free Speech

The First Amendment plainly states:

Congress shall make no law…abridging the freedom of speech…

Speech is a really broad term, and quite readily it also means actions. Consider the old maxim “Actions speak louder than words.” Thus, what people do to support what they say cannot be abridged by Congress (and by extension, no one else in the government).

(Of course, this is with the necessary caveat that what people do must be within the bounds of protecting other people’s rights, namely to life (e.g., no murder), liberty (e.g., no assault, kidnapping), and pursuit of happiness (e.g., no stealing, raping))

Right to Liberty

Liberty means a lot more than simple “freedom.” The entire War of Independence was fought on the basis of refusing to let the government tell people what they had to do. Liberty, from the government’s standpoint, means that unless someone is preventing someone else from their rights, it cannot and should not be involved.

Freedom of Association Defined

These two combined create an implicit right to free association. Simply put:

Freedom of association is the right to do business, act, or otherwise associate with whoever a person wants.

A simple example of this is a small sign seen in businesses: “We reserve the right to refuse service to anyone.” Most often, this is used as a catch-all to remove a customer who is disrupting everyone else and likely driving other business away.

But this also includes the right to not participate, to not act, based on clearly defined rationale. And this conflict is at the heart of the argument between “equal rights” and freedom of association, most typically around Christian bakers, florists, and the like declining to participate in homosexual commemoration ceremonies.

And it is on this topic that I will speak next.


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