Denver 850 KOA talk show host Ross Kaminsky is like too many millions of other lamebrains who just don't grasp the reasons why it would be sheer madness to balkanize American business and allow every religious business owner to run amuck - deciding which customers they will serve or not. Writing in the Sunday, April 5th Denver Post ('Do Liberals Really Care About Rights?') this asshole shows he really has no clue what rights mean or how they exist in the context of the Constitution, and especially in the private enterprise domain..
Kaminsky spends most of the first part of his op-column bellyaching how "the American left, their media allies and the gay rights movement" don't care about genuine rights because they haven't stood up for those of the wedding baker and photographers or pizza makers, who don't wish to serve gays". But as usual, he has it all ass -backwards.
First, he mixes up free exercise of religion and freedom of association, with freedom to trade and engage in commerce. No one told or educated this dummy that the two spheres cannot be connected in one to one correspondence, as I noted before. That is, if indeed one has received a license for public commercial trade all "freedom of association" goes out the window. By the commerce laws of our land, including the commerce clause of our Constitution, the buyer is free to associate his business with any establishment BUT the establishment - as a cornerstone of business - cannot exclude buyers unless they display unbecoming conduct. As I observed in my prior post on the Indiana RFRA:
The restaurateur or trader is afforded certain privileges (via licensing) to trade or provide services (such as food) in the public domain. Hence, his so called "freedom" is limited to do whatever he wants- and hence that can't include refusal of service unless there are extenuating circumstances, i.e. the customers enter drunk and disorderly. The trader doesn't have the latitude to refuse service on the basis of skin color, the other person's own beliefs, sexual orientation, pro-choice stance or nationality.
This is also why American businesses like Apple, Starbucks have come out against this nonsense as well as the Indiana Chamber of Commerce in that state. Because they know the chaos that'd be wrought otherwise. As salon.com author Jeffrey Tayler put it recently:
"Given that RFRAs don’t specify to which religion they pertain, if they do legalize discrimination, they will do so ecumenically, offering adherents of all denominations a chance to bully both rationalists and believers of other cults. "
Which is why the door would open to balkanized chaos. Pharmacies could refuse serving people they regarded as 'sinners' - say denying birth control pills to young, single women or couples that they knew were living together but unmarried. Owners of home improvement stores could decide that they want no Jews around because after all, they "killed our Savior". Orthodox Jews could even decide they no longer wish to serve the "unorthodox" and Catholics might decide they no longer wish to serve Protestants. Private hospitals -operating as businesses - might decide that they will serve the needs of no declared atheists, or known pro-choice folks or gays on their premises either. Restaurants would feel free to bar anyone who might wish to celebrate a known pagan festival at their venues.
What's wrong with this picture? If you can't see it, there's no point me trying to clarify it for you. And if you can't understand that the model of "everyone going to his own people to conduct business" is a non-starter you have no business reading this blog. You need to stick to comic strips! As Tayler humorously put it:
"Presumably followers of the Torah, say, could deny service to those who have performed any of thirty-nine types of activity forbidden on the Sabbath. If so, beware — these include some pretty improbable things, like putting out fires, writing one’s name and erasing it, flaying a goat and separating threads.......Muslims, in turn, could deny service to Jews and Christians for having rejected the Prophet Muhammad"
Reductio ad absurdum, anyone? But you get the point - I hope. We'd have so much contretemps in trade and business practices that no uniform business basis or national -scale free enterprise would be feasible. It would be "I serve who I wish, when I wish and how". It is precisely for this reason Kaminsky ends up in a rabbit hole of unreason with no resolution because there can't be any.
But this is why a free market implies total freedom on the part of choice for the buyer - not the seller! The seller is confined and limited not only by regulations (e.g. meat sellers can't vend month old rats with rabies and pass it off as veal) but by limits on his notions of free association. The latter may be fine for his garden parties but not with whom he does business, he must be open to ALL.
Second, Kaminsky makes the error of most right wingers by harping on "negative rights", e.g.
"Ours is uniquely a system of negative rights aimed at ensuring that Americans aren't subject to the whims of others"
Well, I guess unless the whims emanate from a cartoon, tyrant deity in a magic book. But the point is that a negative right implies that there are ‘x’ things the government can’t do to you, say take away your guns or deny you property ownership, disposal. By contrast, positive rights assert there are actual positive rights to which you are entitled, say under the Bill of Rights.
Anyway, not content with his initial ignorant display he writes:
"Our constitution reiterates rights but does not grant them, rather it limits the power of government to infringe on them."
I will argue, however, that not only does a right to privacy certainly exist, but it underpins most other rights that inhere in the amendments to the Bill of Rights
For example, if the presumption to no right to privacy is valid, then the Fourth Amendment of the Bill of Rights is meaningless. To restate that Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
But note, “secure in one’s person, house, papers, effects” implies PRIVACY! These are after all MY private papers, my private effects, my house, etc. If an inherent right to privacy was a myth then by all accounts being secure in one’s person, papers, effects wouldn’t matter. This is why in a fascist dictatorship “personal effects” don’t exist. “Personal papers” has no meaning. The state has full monopoly, de facto ownership on whatever the person possesses.
As to the limits on positive rights, Kaminsky clearly doesn't know where to look. He, like other Reich nuts, needs to read Prof. Garry Wills (‘A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999). The chapter ‘Constitutional Myths’(p. 108). Wills notes that citizens alone possess rights, which neither the states nor the federal government share. Both the latter retain powers and prerogatives, but not rights. Hence, the subtext is that rights can only accrue to human individuals. And these are POSITIVE rights.
Hence, the term "state's rights" is bogus, in error. States have prerogatives, not rights, because states exist as governmental entities not a persons-individuals.
Wills goes on:
"The Ninth Amendment states that the people retain unenumerated rights”
"The people:" here refers to flesh and blood citizens, not to a bunch of contractual abstractions (states), or to corporations. .As Wills emphasizes and underscores (ibid.):
“The states have no natural rights. Their powers are artificial, not natural – they are things made by contract.”
Do we truly want to invoke specious arguments on "religious freedom" or "free association" to fracture and balkanize our economy to the extent Jews only frequent Jewish stores, Catholics go to Catholic stores, Muslims go to their own stores, and atheists to atheist stores? I would hope to hell not because, frankly - given the fragile condition our economy remains in - we can't afford that level of stupidity and short-sightedness to appease some magic man in the skies only given credence in magic books.
As Tayler aptly puts it:
"Such are the farcical dilemmas and rank absurdities with which religion threatens to swamp us if it infests our judicial system and trumps secular law, as any RFRA legalizing faith-based discrimination would do. The ghastly morass to which RFRAs will one day probably lead speaks to nothing but the ahistorical ignorance of their drafters. The Founding Fathers never meant for religion to play a role in our affairs of state. If the First Amendment isn’t proof enough of this, doubters might check out other things they wrote."