Art, Photography, and Homophobia

Sometimes the theater of the absurd, current events that is, just gets to be too much and I have to comment. This time the issue is whether photography is an art form, a case arising from a professional photographer’s refusal to cover a lesbian wedding. If photography is art, goes the argument, it’s a form of speech protected by the Constitution and that protection overrides any laws prohibiting discrimination on account of sexual orientation.

This nonsense arises from the notion that some forms of voluntary transactions should enjoy legal protection and others shouldn’t. Transactions that are deemed to be exercises of religion or freedom of speech are protected while it’s OK to suppress others even when they are mutually voluntary. The courts view artistic works forms of speech, and are protected. This protection covers not just engaging in protected activities but also refraining from engaging in them. Thus if photography is art, then refraining from photographing a lesbian wedding is an exercise of free speech, protected by the first amendment.

That’s all well and good as far as it goes, but it leaves courts with the job of drawing lines delimiting religious activity or free speech activity. Example: during Prohibition, Catholics were allowed to use wine as part of their Communion sacrament. But Native Americans who want to use peyote as part of their religious ceremonies have consistently run afoul of the law. What’s the difference? Obviously, Catholics are more numerous and politically powerful than Native Americans. Since there is no objective way of delimiting either religion or art (as presently understood), court decisions about these matters are necessarily political.

Delimiting artistic expression may be even more problematic than with religion. Given that any and all kinds of garbage can be found in “Modern Art” museums, it would seem that almost any activity, spraying graffiti for example, could be construed as artistic expression.

The solution is to recognize the right of free association and its concomitant freedom of dissociation, whether in personal or business affairs. (Though not a part of the First Amendment, these rights might be found in the Ninth Amendment.) There are two qualifications. First, any transaction that infringes on the rights of third parties is illegitimate. As Ayn Rand put it, “any alleged ‘right’ of one man, which necessitates the violation of the rights of another, is not and cannot be a right.” Second, politicians and bureaucrats must not be allowed to discriminate since they are supposed to represent the entire population. Those qualifications aside, any business person must be free to turn away gays, blacks, Jews, or anybody else, with or without explanation. But woe unto anyone who tries such exclusions in today’s world. They would pay a stiff price in lost business and boycotts. Unless they found a niche market among KKK bigots, such business people would very likely lose most of their customers, including, I hasten to add, this writer.

Some time ago I posted a piece on these pages defending the right of Lester Maddox, a truly obnoxious character, to exclude blacks from his chicken restaurant, which he did in the 1960s in defiance of the Civil Rights Act. Those were different times, and he garnered enough support to get elected Governor of Georgia. That would not happen these days.

Though I got a lot of pushback, I stand by the argument that obnoxious characters like Lester Maddox constitute a vanguard that helps defend the rights of us “normal” folks. If their outrageous but non-aggressive actions are protected, our moderate actions are safe. Nobody has made this case better than Walter Block in his book “Defending the Undefendable.” He trots out and defends one seedy character after another—pimps, prostitutes, you name it—whose actions, while distasteful to almost everyone, violate no one’s rights.

Returning to the photographer in question, it should make no difference whether her refusal is informed by religion or by hatred of gays.  She should be free to turn away customers for good reasons, bad reasons, or no reason.

Incidentally, my friend Michelle Kamhi recently convinced me that photography is not art. I highly recommend her book Who Says That’s Art?, devoted primarily to demolishing modern and post-modern “art” which she calls “anti-art.” I think she’s spot on, but whether you agree or not, you will have to admire the courage and tight reasoning in her book.

The Tyranny of Majoritarianism

Where did the concept of “majority rule” come from? Why should any majority rule over any minority?

Of course the idea of protecting minority rights also exists. It is accepted in the civilized world that minority religions, ethnicities, and cultures should be respected. So evidently the global belief in majoritarianism is not absolute. But overall, the prevailing global political culture in democratic societies is majoritarian. The party which has some majority in an election gets its leaders in the government, and it is able to impose its policies on everybody.

In a voluntary club, it seems natural that the leader be elected by the majority. Everyone in the club agrees about the mission of the club. Suppose it is a hiking club. It does not matter too much who the leader is, so a majority vote seems like the best option. Also, in deciding which location to hike in, majority rules seems sensible. Majority rule provides greater utility than minority rule, and there is general agreement that making more people happy is better than if fewer are happy.

But when it comes to government, majority rule is problematic. First of all, majority rule is based on the persons who may vote, not the whole population. Young children do not vote, and foreign residents do not vote. The adult citizens own the country, so they vote.

People believe in majority rule because they think of the alternative as either dictatorship or a rule by an elite minority. Why should one man or an aristocracy rule over the others? The global political culture now rejects monarchial rule as violating equality. What is not understood is that imposed majority rule also violates equality.

If we accept human equality, that all human beings have an equal moral worth, then the logical conclusion is equal self-governance. No person has a natural right to impose his will on another, because is it morally evil to coercively harm another person. Harm means an invasion into the domain of others, including the harm of restricting the other’s peaceful and honest actions.

When a person becomes employed, or enrolls in an institution such as a university, one does not usually expect democratic governance. The company is a non-democratic hierarchy, in which there is a top boss, lower bosses, and the ordinary workers who are directed. The workers has to comply with rules he may not favor, but the arrangement is voluntary because the worker chose to enter into employment or enrollment, and he may quit.

The equality of the employment situation is the ability of the worker to enter and exit, and the ability of the employer to equally contract with the employee and to terminate the employment. Free association is the basis of equal liberty.

The governance of territory is in accord with human equality when there is freedom of association among the members. Whether a territory is ruled by one man or by a majority does not matter so long as the individuals consent to be governed, so long as they can exit at will. After all, a traveler does not expect a voice in the rules of the places he visits. Whether the location is run by one person or the local majority does not matter to the traveler, so long as he may come and go, and so long as any unusual rules are presented in advance.

We need governing structures, but these can be contractual agreements among equals. We have today voluntary contractual communities such as homeowner associations, road associations, condominiums, cooperatives, and proprietary communities. All neighborhoods could be governed this way, and then the local organizations can form greater associations for public goods with a broader scope. An occasional hermit would not disturb the governing continuum.

Just as local communities would be able to associate, they would have the freedom to disassociate. The problem with imposed majoritarianism is that individuals and communities may not secede, and so they are forced to be dominated by the majority. Minorities are subjected to the law enforcement, schooling, drug laws, civic services, and taxes favored by the majority.

The reform that would establish deep equality would be a constitutional rule that would prohibit only coercive harm to others. Government would not impose costs and restrictions on peaceful and honest action. Contractual communities would be free to have restrictive rules among their own members. Contractual governance is best implemented bottom up, with secession where feasible.

The avoidance of imposed costs implies the absence of taxes on transactions and produced goods. There would be charges for trespass and invasions, such as pollution. In the absence of taxes on labor, capital, and trade, those who hold title to land would have to pay for civic services from the yield of their land, the rent. Ideally, people would understand the logic of equal benefits from the rent generated by nature and community. The deepest equality would consist of both equal self-governance and, as Henry George put it, standing “on equal terms with reference to the bounty of nature.”