Libertarians are an argumentative bunch, so I shall await possible contradiction to this statement: there is only one libertarian position to take with regard a particular, high-profile legal battle, and that is to support the right of the Christian B&B owners to turn away the custom of the gay couple, due to the fact that it is their business and their private property. As such, the law which has been used to punish them is unjust and contrary to liberty.
In a free society, business transactions take place voluntarily between two parties. If one party does not wish to undertake business with the other, they have every right to abstain from the transaction. As customers, we do this all the time by frequenting the businesses which have treated us well in the past and avoiding those which have not. Businesses also – in a free society – are within their rights to abstain from serving potential customers for whatever reason they choose. The laws which violate this principle, by prohibiting some grounds for discrimination are an attack on fundamental property rights, notwithstanding the good intentions which inspired them, nor the fact that most reasonable people would not seek to discriminate in such ways that fall foul of the law.
As usual, such laws are selectively enforced. This is partly due to the fact that they do not rest on clear principles, but rather the necessarily-vague notion of ‘reasonableness’, as interpreted by our somewhat inconsistent judiciary. Therefore, the women-only establishment, or indeed the exclusively-gay hotel, escape legal action, even though the exact same arguments which have been used against the Christian B&B owners can be made.
The notion that a law should be respected even when it is contrary to justice is not one that a moral individual can subscribe to. Accepting that there may be consequences for breaking an unjust law is one thing. This is merely facing reality, but, if we are moral individuals, we may be obliged by our conscience to defy an unjust law. I am sure that my dear readers are able to furnish their own examples of unjust laws from the past if not the present, but let us consider a particular one which is somewhat germane to the discussion: the prohibition of homosexual acts between consenting adults. Are there any amongst the gay rights lobby, who have attacked the Christian couple, who would agree that that old law should have been obeyed without question whilst it was in operation? In fact there are many countries where such a law is still in operation today, and I very much doubt that Stonewall is exhorting homosexuals in those countries to obey.
The old principle of the Common Law was that the law is discovered, not legislated into existence. It was also said that the law is just, and if it aint just, then it aint the law. Such high-minded principles will not protect you from the prosecution of unjust laws, but it should serve to remind us that the law is only a means to an end, and that end is justice.
If you are going to defend private property rights, it is likely that you will be confronted with something along the lines of: “I suppose you think that people should be able to put signs up saying; ‘No Irish, no Blacks, no dogs’, just like in the bad old days?”
The honest, consistent answer is of course; Yes. No doubt, you will then need to run through various clarifying statements, expressing your personal disapproval of such exclusions, your belief that such exclusions would be very rare in this day and age, and that the businesses which applied such exclusions would be punished in the market place, by the loss of trade, not only from the potential customers explicitly excluded, but by many more people who would choose to boycott the business. The loss which such a business would sustain would be matched by a gain by other, more inclusive businesses. This is certainly the case with the gay couple, with rival businesses coming forward to offer the gay couple accommodation.
However, the confusion between those two distinct entities, society and state, is such that many people cannot conceive that it is enough for society to punish such a business, through boycotting and stigmatisation, both of which are non-violent, so the call goes up for the force of the state to be brought to bear on such transgressors.