David Frum on the National Review Website has intervened in the recent discussion in the United Kingdom about homosexuality. He argues that a new bill coming up to the House of Lords which would outlaw discrimination against homosexuality in effect is a proposal to destroy people's freedom to discriminate as they wish with their own property. He even suggests that in forbidding the teaching of discrimination towards school children, the law has created an infringement on free speech. Frum's argument is worth considering because as he argues it makes the entire case for anti-discrimination laws on any grounds look very uncertain and very illiberal, indeed his argument would pull down not merely the recent laws about homosexuality, but laws protecting women and blacks against discrimination.
I don't want to take on the main thrust of Frum's argument here- I'm too tired and it involves a rigorous dissection of the relationship between the state and the individual, within a controversy that in the UK has been going on for weeks. But I do want to address one point, which in my view is a failing within Frum's argument and a failure frequently within conservative discussions of freedom. Frum presumes that an association which is not free to discriminate within its community is an association deprived of freedom and whose members are therefore deprived of the freedom to act- he is completely right. The problem with Frum's argument though is that it fails to appreciate that one is more or less free not merely in relation to the state but in relation to other organisations, no matter how voluntary their membership. Frum presumes that because I can leave a church or leave a church school, I am free with regard to that church or church school- and the truth is that I am not.
The problem is that Frum has a very absolutist conception of freedom. Its much better to reflect upon these things using Hobbes's conception of freedom. Hobbes said you were free to do anything so long as you weren't restrained- he even argues that you are free to murder in a state where the death penalty is imposed for murder, you just accept the consequences. In many ways Frum's definition of liberty is a much less logical one than Hobbes's. I am free to take my child who is homosexual out of a church school which teaches homosexuality is bad- but I have to take the consequences of my kid having a horrible experience being isolated and taunted by his fellows and moving schools. The law as Burke argued isn't the sole law within a state- there is also a law of prejudice and it is arguable that for example the freedom of a gay student is restricted in a church school, the freedom of someone who wishes to live in a community bound by the church (like say the Amish communities of North America) is restricted by Church members not speaking to him if he is gay- even though the freedom of the majority to discriminate is allowed.
The problem is that this is a very limited definition of freedom. Analysing the loss or gain of freedom in these cases is very complicated. It is something that needs more space to analyse than a simple column in this blog and it will be returned to here. Most of us would recognise that there is a graduation here- on the one hand a citizen should not exercise their freedom to hate homosexuals by not reporting a crime in which a gay person was attacked- on the other a citizen should not be forced to invite a homosexual into his home should he not want to. All that this item really says is that things aren't easy- if one for instance offers a service to the public, even with one's own property, there is a fairly good case that one should not, save on grounds of safety or permissable issues to do with age (18 certificate films come to mind) distinguish between members of the public. Freedom here is a much more complicated value than Frum has it as, because we are free in respect to other human beings as well as being free in respect of the state. The focus on the state's coercive role in this case isn't helpful to the debate because coercion exists in other forms than merely state action.
What I haven't dealt with here are the issues of the acceptability of prejudice, the acceptability of this particular prejudice or the issue of the state's relationship with Churches. This is a very limited argument. What I want to leave people with is the idea though that one is not merely constrained by the state but can be constrained by other (even voluntary) organisations. On that basis, there are times when the state is warrented to intervene to protect the rights of a minority within an association and the position of gays or the irreligious or indeed Jews or Muslims in Christian Schools might very well be one of those moments.