Sunday, April 5, 2015

Get Off Your Knees, Gov. Pence!

By Ilana Mercer

Pretend the U.S. is as free as the Founding Fathers intended it to be. In this authentically (and classically) liberal America, no one can tell free men and women what to do with their property, namely their bodies, their abodes and their businesses.

The individual living in America as it was meant to be is free to run his business as he wishes, associate with those he likes, dissociate from those he dislikes or disapproves; hire, fire, rent to or evict from, invest and disinvest, speak and misspeak at will.

This hypothetical free man is at liberty to bruise as many feelings as he likes, so long as his mitts stop at the next man’s face. So long as he harms nobody’s person or property, our mythic man may live as he wishes to live.

Americans have been propagandized for so long; they no longer grasp the basic building blocks of liberty. A crude reductio ad absurdum should help:

A retail store selling Nazi memorabilia opens its doors in my neighborhood. I enter in search of the yellow Star of David Jews were forced to wear during the Third Reich. The proprietor, decked out in Nazi insignia and regalia, says, “I’m sorry, we don’t serve Jews.” “Don’t be like that,” I say. “Where else can I find a pair of clip-on swastika earrings?” The Nazi sympathizer is polite but persistent: “Ma’am, I mean no disrespect, but back in the Old Country, Jews murdered my great grandfather’s cousin and used his blood in the leavening of the Passover matzah.” “Yeah,” I reply. “I’m familiar with that blood libel. I assure you my own mother's matzo balls were free of the blood of brats, gentile or Jewish. No matter. I can see where you’re coming from. I’m sorry for your loss. Good luck.”

There! Did that hurt?

Did I rush off to rat out my Nazi neighbor to the Civil Rights Division of the Department of Justice? Not on your life. A principled Jewish libertarian (with a sense of humor)—who believes in absolute freedom of association and the rights of private property—would doff his Kippah and walk out.

Similarly, if a restaurant refused to serve a gay family member and her partner; why would we wish to compel its sincere owners to wait on us? Why make them uncomfortable? Why not take our business where it’s wanted?

Ultimately, anti-discrimination law banning the private discrimination just described is inconsistent with freedom of association and the right of private property.

“That right to discriminate is the very essence of freedom,” remarks Roger Pilon of the Cato Institute. “That’s why people came to this country, to escape forced associations—religious, economic, political, or otherwise.”

Not all jurists have a good understanding of liberty.

While poor, hapless Governor Pence has a far better handle on freedom than legal positivist Judge Andrew Napolitano—the Judge condemned the spirit of a law that grants a defendant a legal standing to argue his case in a court of law—Pence lacks the TV persona’s bombast.

Get off your knees Gov. Pence; you’re not in a gay bathhouse (where only gays are, presumably, welcome). Muster a coherent defense of the bedrock of a free republic—and of civilization itself: the rights of private property and freedom of association.

Why do men like Mr. Pence, who understand these principles all too well, buckle before a mob of lobotomized tyrants with the intelligence of a Miley Cyrus?

I’ve read Indiana’s Religious Freedom RestorationAct. I believe the relevant section is a modest thing: “… the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity.”

This small clause came as a surprise, unaware as I was that American courts deny a manifestly religious defendant the right to mount a faith-based defense. The legal defense reclaimed by the Indiana law is thus almost pitiful. How illiberal have U.S. courts become if a defendant has no legal standing to argue his religious convictions?

Canada operates an extra-judiciary Human Rights Tribunal that, likewise, affords its victims none of the traditional defenses Canadian courts usually allows. For example, <em>mens rea</em>, or criminal intention—the absence of the intent to harm—is no defense in this Tribunal. Neither does “truth” qualify as an argument in a “court” that prosecutes thought crimes. If he denies the Holocaust, a defendant in these Canukistan courts cannot assert a sincere belief in this conspiracy.

The absence of due process in Canada's Human Rights apparatus makes it one of the most oppressive instruments at the state’s disposal. Not for nothing is it referred to as a Kangaroo Court.

And it is a Kangaroo Court that says yes to the Twinkie Defense, and no to the faith-based defense.

Contributor Ilana Mercer is a paleolibertarian writer, based in the U.S. She is a contributor toJunge Freiheit, a German weekly of excellence, and is a fellow at the Jerusalem Institute for Market Studies. Her latest book is “Into the Cannibal’s Pot: Lessons For America From Post-Apartheid South Africa.” Her website is Follow her on Twitter.“Friend” her on Facebook.


  1. IM, I agree with your sentiment and love your Nazi-store example. But do we really want judges or juries determining the level of a persons religious commitment? It appears the Indiana law could result in exactly that!! Better for the governor to challenge the Civil Rights Act of 1964. That is the truly cynical source of the destruction of free choice and the empowerment of "...a mob of lobotomized tyrants..."

  2. "Governor Pence has a far better handle on freedom than legal positivist Judge Andrew Napolitano"
    I agree with Illana there. The Judge's stance in that article illustrated a little of how he stills subscribes to some statist views..

    I have to admit that I don't read everything he writes. As soon as one of his articles starts in with "What if....", I stop reading. Someone should clue him in to the fact that an entire page of "what if" rhetorical questions is basically unenlightening because it's too tedious to read.

  3. Judge Napolitano is a Constitutionalist not a statist. His careful analyses can be tedious but in this case he was absolutely correct to point at the Civil Rights Act as the problem. Patchwork laws by statists like the one in Indiana have unseen consequences that can cause more harm than good.

  4. I would rather know who the bigots are so I can avoid them. By forcing people to serve those they don't want, they stay in the shadows and I inadvertently give them my business.