Has Freedom of Association Become a Crime?

The religious freedom controversies underscore the changing nature of freedom of association.

Thus, other things being equal, if a restaurateur-caterer is open to serve the public, he must serve all, consistent with common law principles. But if he’s sued for refusing to undertake the greater involvement entailed in catering a same-sex wedding, presumably he could show, as a defense, that doing so would burden his religious liberty. If not, it’s hard to know how these acts can still be called religious freedom restoration acts—or how they would protect even a minister from being compelled to officiate at such a wedding. To be sure, express protections might work, but there’s only so much we can spell out in a statute.

All of this remains to be sorted out by the courts, doubtless in more 5-4 decisions. At the least, however, we can say that this is what to expect when presumptions shift, in the name of some ideal, from liberty to compulsion.

It wasn’t ideal—it never is—when we were free to associate, or not, as we wished. That allowed for offensive discrimination. But like offensive speech, that is to be expected in a free society, and remedied by means other than the force of law, because the alternative is worse.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.

Image: Flickr/Gage Skidmore