Fake Libertarians Run From Religious Freedom Restoration Act

AP Photo/Doug McSchooler
AP Photo/Doug McSchooler

The Republican Party is supposedly in the midst of a so-called libertarian moment, with more and more young conservatives supposedly embracing a smaller vision of government, including a government that does not involve itself in issues like pot and same-sex marriage.

Yet the supposed libertarian leaders within the conservative movement are not libertarians at all: over the past few days, even supposed libertarians have fled the Religious Freedom Restoration Act (RFRA), acting as though there is a right to be served by someone in the private sector – a cardinal sin according to actual libertarianism.

Libertarianism would dictate that voluntary transactions are just that: voluntary. Government compelling transactions is tyranny. But the libertarian right has fled from that obvious definition of liberty.

On Wednesday night, supposed libertarian Penn Jillette told CNN that while he had sympathy for religious freedom, “These people are not being asked to engage in gay sex…They’re being asked to sell flowers and cake to people.” This is, to put it mildly, not a libertarian position. Penn Jillette, in his magic act, will protest the Transportation Security Administration checking your shoes, but he apparently has nothing to say about the notion that the government can use force to compel anyone to do business with someone else.

Self-declared libertarian Bill Maher of HBO took a similarly tyrannical position, tweeting, “Indiana doubling down on their antigay ‘religious freedom’ law, just like Jesus planned. Your move, Alabama.” Presumably, Maher’s deep-seated hatred of religion trumps his supposed libertarian perspective, which he once described thusly:

I didn’t want big government in my bedroom, or my medicine chest, or especially not in the second drawer of the nightstand on the left side of my bed. And I still believe that…

Unless you want the government forcing a third party to serve you based on what you have in the second drawer of the nightstand.

Shades of the libertarian cave emerged years ago, when supposed libertarian leader Senator Rand Paul (R-KY) rightly defended the Civil Rights Act of 1964 as applied to the government, but questioned whether it violated primary notions of freedom to force private businesses to engage in non-voluntary transactions. He said in an interview in 2010:

I don’t like the idea of telling private business owners — I abhor racism. I think it’s a bad business decision to exclude anybody from your restaurant — but, at the same time, I do believe in private ownership. But I absolutely think there should be no discrimination in anything that gets any public funding, and that’s most of what I think the Civil Rights Act was about in my mind…In a free society, we will tolerate boorish people, who have abhorrent behavior, but if we’re civilized people, we publicly criticize that, and don’t belong to those groups, or don’t associate with those people.

He told Rachel Maddow on MSNBC that he agreed with “nine of ten” titles of the Civil Rights Act because they dealt with “public institutions,” but said that he would have opposed the provisions dealing with private institutions. Paul similarly said that the Fair Housing Act failed to discriminate between “private and public property,” and said, “Decisions concerning private property and associations should in a free society be unhindered. As a consequence, some associations will discriminate.”

This is a correct libertarian position. It was the position of Senator Barry Goldwater (R-AZ), who was famously excoriated for opposing the Civil Rights Act. Goldwater voted for the civil rights bills of 1957 and 1960. Goldwater said at the time:

I am unalterably opposed to discrimination or segregation on the basis of race, color, or creed, or on any other basis; not only my words, but more importantly my actions through the years have repeatedly demonstrated the sincerity of my feeling in this regard….The two portions of this bill to which I have constantly and consistently voiced objections, and which are of such overriding significance that they are determinative of my vote on the entire measure, are those which would embark the Federal Government on a regulatory course of action in the area of so-called “public accommodations” and in the area of employment–to be precise, Titles II and VII of the bill. I find no constitutional basis for the exercise of Federal regulatory authority in either of these areas; and I believe the attempted usurpation of such power to be a grave threat to the very essence of our basic system of government, namely, that of a constitutional government in which 50 sovereign states have reserved to themselves and to the people those powers not specifically granted to the central or Federal Government.

He concluded, “With the exception of Titles II and VII, I could wholeheartedly support this bill; but with their inclusion, not measurably improved by the compromise version we have been working on, my vote must by ‘No.’”

Paul’s position mirrored Goldwater’s, although he said that on balance, he would have voted for the Civil Rights Act. After a public backlash, however, Paul said he had “never wavered” in his support for the Civil Rights Act because of the “need for federal intervention.” Paul has remained silent on the RFRA.

No major Republican presidential candidate has spoken of the need for liberty in the private sector. Instead, they hesitatingly speak of the need to balance religious freedom with supposed discrimination, a rhetorical loss from the outset.

So much for the highly-touted modern conservative libertarianism. The definition of liberty has changed from freedom to tyranny, and those who ought to have defended it are missing in action.

Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the new book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). He is also Editor-in-Chief of TruthRevolt.org. Follow Ben Shapiro on Twitter @benshapiro.