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Freedom of association means Red Hen can turn away Sarah Sanders

Sarah Huckabee Sanders conducted a White House news briefing earlier this month.Alex Wong/Getty Images/File/Getty Images

In the Arguable e-mail newsletter, columnist Jeff Jacoby offers his take on everything from politics to pet peeves to the passions of the day. Sign up here.

Stephanie Wilkinson, the owner of Red Hen restaurant in Lexington, Va., refused — as a matter of moral conviction — to serve the White House press secretary, Sarah Huckabee Sanders, on Friday night.

Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Co., refused — as a matter of moral conviction — to bake a wedding cake for a same-sex couple.

For his refusal, Phillips paid a serious price: He was prosecuted and penalized by government officials, and subjected to protracted litigation that ultimately went all the way to the US Supreme Court. Should Wilkinson pay a similar price?


My view, as I've argued in the past, is that all private vendors — bakeries, restaurant, gyms, sporting-goods stores, golf clubs — should have the same freedom of association that customers have. You can decline to do business with any merchant for any reason, including moral conviction, unreasoning bias, political distaste, and personal preference. By the same token, any merchant should be allowed to turn away your patronage, on virtually any grounds, without running afoul of the law.

In a free society, by my lights, no law should compel businesses to accept customers unwillingly. Masterpiece Cakeshop should never have been hauled into court for saying no to the men who wanted that cake. Red Hen should have unfettered authority to direct Sanders and her party to leave the premises. Like freedom of speech, which doesn't depend on agreement with the message being expressed, freedom of association ought to be protected regardless of whether you sympathize with the decision to discriminate.

Writing in Arguable a few months ago, I made the case for eliminating nearly all laws against private discrimination:


The law should extend the widest possible leeway and respect to choices made in the private sector — not because people will always make enlightened and benevolent decisions, but because it's none of the state's business whom private actors choose to deal with. And because where markets are as unfettered as possible, bigotry and xenophobia tend to recede.

After all, the vast majority of vendors will always welcome business from anyone with money to spend, regardless of their religion, sex, politics, or character.

Writing in the 1730s, Voltaire famously described the London Stock Exchange as a place "where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mohammedan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts."

The only exception I would retain is the ban on discrimination on racial grounds. Because American law for so many generations mandated and entrenched racial repression, it seems to me there is a unique obligation to actively prohibit discrimination on the basis of race. But discrimination on any other basis, I wrote, should not be barred by law:

Other than race, private vendors and employers should be given the widest possible latitude to make business decisions for themselves. As long as no fraud or force is used, as long as no one is cheated, business decisions should be shaped by markets and public opinion, not by prosecutors and legislatures.


Am I saying that a hotel should be free to deny service to Jews, or a company allowed to hire only LGBT employees, or a travel agent permitted to have a no-Democrats rule? Yes. Do I think that companies ought to do those things? Not at all. But I have more confidence in the ability of a free and competitive market to stamp out invidious, indecent, or irrelevant discrimination than in the ability of the government to do so.

For what it's worth, I think Sanders has been an awful White House spokeswoman, a propagandist who regularly dissembles on behalf of a president for whom mendacity is second nature. On the other hand, I think she conducted herself with considerable dignity on Friday night, while Wilkinson and the staff at Red Hen behaved atrociously. I'm certainly not happy that America in 2018 is a country where the presidential spokeswoman routinely plays fast and loose with facts before a national TV audience. But I'm even more unhappy that America has become a country in which a woman and her friends are driven out of restaurants by owners who dislike their politics.

Unhappily, the phenomenon of "shaming and shunning of political figures while they are going about their private lives," as The Washington Post reports today, is spreading.

Pam Bondi, the Florida attorney general who often appears on Fox News and is closely aligned with President Trump, was shouted down at a movie screening in Tampa on Friday. "You are a horrible person!" one protester screamed at Bondi. The local newspaper reported that Bondi was escorted out of the theater by police.


Hecklers shouted "Shame!" at Homeland Security Secretary Kirstjen Nielsen, a public face of Trump's immigration policies, hastening her departure from a Mexican restaurant near the White House last week. Protesters even posted video of that encounter on Facebook.

Trump adviser and immigration hard-liner Stephen Miller also was confronted at a restaurant last week and called a "fascist."

Of course we can thank Donald Trump for much of the ugliness of the present moment. Like no president in living memory — like no president ever — he has used his bully pulpit to inflame public discourse, insult opponents, and demonize anyone who disagrees with him. And nastiness from the president begets even more nastiness from his foes.

Rep. Maxine Waters (D-Calif.) this weekend encouraged harassment of Trump officials in public spaces. She said on MSNBC that she had "no sympathy" for those serving in the administration. . . .

"For these members of his Cabinet who remain and try to defend [Trump], they're not going to be able to go to a restaurant, they're not going to be able to stop at a gas station, they're not going to be able to shop a department store. The people are going to turn on them, they're going to protest, they're going to absolutely harass them," Waters said.


We have come to a terrible pass in American life. God only knows how much worse it will get.

"We must not be enemies," Abraham Lincoln implored his countrymen in his first inaugural address. "Though passion may have strained, it must not break our bonds of affection." But the bonds of affection did break, and a terrible calamity ensued.

The United States today is not on the brink of civil war. But the malignance of our politics grows worse by the day, and people who love this country should be worried.

As unpleasant as things have become, however, they won't be improved with litigation. The road back to at least a modicum of mutual respect and understanding doesn't lie in prosecution. We are a badly polarized society, riven by political intolerance and tribalism. But it's better to respect each other's freedom of association than deploy the law as a weapon to take it away.

National Popular Vote blunder

Connecticut lawmakers voted last month to join the National Popular Vote Compact, a multistate plan to circumvent the Electoral College and elect presidents on the basis of the popular vote nationwide. Governor Dannel Malloy, a Democrat, signed the legislation, making Connecticut the 12th jurisdiction — after Maryland, New Jersey, Illinois, Hawaii, Washington, Massachusetts, Vermont, California, Rhode Island, New York, and the District of Columbia — to enter the compact.

Under the National Popular Vote plan, each participating state would direct its Electoral College votes to be cast for the presidential candidate who wins the nationwide, rather than the statewide, popular vote. It's designed to prevent a recurrence of the 2000 and 2016 elections, when the Democratic candidate (Al Gore and Hillary Clinton, respectively) lost the election despite receiving more popular votes. The compact is to take effect once it has been joined by enough states to dispose of 270 electoral votes, an Electoral College majority. With Connecticut's seven electoral votes, the compact is now up to 172. In theory, as few as five additional states could put the plan into force.

Americans have been arguing for generations about the indirect system set up by the Founding Fathers for choosing a president. "More than 700 proposals have been introduced in Congress to reform or eliminate the Electoral College," the National Archives website notes, and "there have been more proposals for Constitutional amendments on changing the Electoral College than on any other subject."

None of those proposals has ever been adopted, obviously. And a good thing, too: The last thing Americans should want is for the presidency to be awarded on the basis of blind majority rule. Indeed, the Constitution includes numerous mechanisms designed to prevent popular majorities from prevailing to easily over their opposition — the division of power among three co-equal branches, for example, or the Senate in which all states are equal, or the supermajority required to override a presidential veto.

One-man-one-vote is an important principle, but so is the principle of federalism — the distribution of power between the national and state governments. The Electoral College elegantly blends the two. Instead of electing presidents in a single national plebiscite, we elect them via elections in the 50 states (plus the District of Columbia). The results in each state determine that state's vote in the Electoral College, which is empowered to select the president.

Donald Trump's accession to the White House despite getting 3 million fewer votes than Clinton understandably added fuel to the anti-Electoral College fire. But the National Popular Vote end run would make American politics worse, not better. It would lead to a plethora of smaller special-interest parties, each hoping to win just enough of a plurality to top the popular vote tally. It would give candidates an incentive to run up their vote tallies in states or cities where they are strong, devoting little or no time to regions of the country where their strength is shaky. The Founders' system encourages candidates to address themselves to all parts of the nation, not merely to the strongholds that are already on their side. But do away with the Electoral College, and candidates would have little reason to campaign anywhere except in the biggest media markets.

So far, the National Popular Vote scheme has been joined only by solidly Democratic states, where resentment lingers over Trump's (and before that, Bush's) election. But those states don't need the compact to direct their electoral votes to Democrats. If the National Popular Vote compact ever takes effect, its only impact in the states that have signed on so far would be — ironically — to award their electors to the next Republican nominee who wins the popular vote. Voters in Connecticut, Massachusetts, or other deep-blue states, sore over the Gore and Clinton losses, may think presidential elections would be fairer if the popular-vote winner were guaranteed their state's electoral votes. They'll stop thinking that way mighty quick when a Republican wins the popular vote.

W.E.B. DuBois in 1918.Library of Congress

The America-hater from the Berkshires

W.E.B. DuBois was born 150 years ago in the Berkshire mountain town of Great Barrington, Mass., and trustees of the town's public library have voted to erect a life-sized statue of the famous scholar, writer, and black activist.

According to the Berkshire Edge, the idea was proposed by Daniel Klein, a local author and philosopher, who first floated the idea on Facebook. "DuBois was clearly the most celebrated resident in our history," Klein wrote. "His teachings and writings still resonate today. To honor and memorialize him seems absolutely appropriate."

But not everyone in Great Barrington loves the idea of extolling a man who was an outspoken foe of the United States. "I resent the thought of honoring a communist on town property," Marine Corps veteran Andy Moro wrote in a letter to the editor. "This is a direct insult to all veterans who served our country and community with honor."

In 2018, when even the president of the United States overflows with praise for a brutal communist dictator, it may seem hopelessly quaint to object to commissioning a statue in honor of a man who declared, in his application for membership in the Communist Party: "In the end communism will triumph. I want to help bring that day." But Moro is right. Great Barrington is a beautiful town with a thriving cultural scene; a controversial monument to DuBois will add nothing to its appeal.

DuBois is in no danger of being ignored. His books, including "The Souls of Black Folk" and "Darkwater," are widely read and studied. A major public building in Massachusetts is already named for him: the 26-story library on the University of Massachusetts Amherst campus. The US Postal Service has issued two stamps to honor Dubois. Harvard annually bestows the W.E.B. DuBois medal to recognize contributions to African American thought and achievement. DuBois is well-remembered as the first black American to earn a Ph.D. at Harvard, and one of the founders of the NAACP.

But if there were accomplishments to admire in DuBois's record, there was also much to revile.

In the years after World War II, as the United States was pouring billions of dollars into rebuilding Europe and defending its democracies, DuBois was portraying America as the planet's chief force for evil. "Of all nations of earth today," he poisonously insisted, "the United States alone wants war, prepares for war, forces other nations to fight, and asks you and me to . . . commit suicide for a world war that nobody wants but the rich Americans who profit by it."

Though it was President Harry Truman who ordered an end to racial segregation in the US military — an accomplishment, one might have thought, that would win the respect of a leader of the NAACP — DuBois seethed with loathing for the 33rd president. Harry Truman "ranks with Adolf Hitler as one of the greatest killers of our day," he seethed. Joseph Stalin, on the other hand, he eulogized as "a great man." Stalin may have been one of the bloodiest monsters of the 20th century, yet DuBois sang his praises. "Few other men of the 20th century approach his stature. He was simple, calm, courageous."

DuBois was not some dreamy, deluded fellow traveler. He visited the Soviet Union repeatedly, and was under no illusions about the viciousness of the regime he cheered. For example, far from denying the Holodomor — Stalin's intentional starvation of 7 million Ukrainians in the 1930s — he applauded it. Those modest peasants had "clung tenaciously to capitalism and were near wrecking the revolution," DuBois wrote, so "Stalin . . . drove out the rural bloodsuckers."

In his autobiography, DuBois lauded the violent suppression of religion in the Soviet Union as "the greatest gift of the Russian Revolution to the modern world" and pronounced it a "moral disaster" for parents to impart "so-called religious truth" to their children.

Late in life, DuBois renounced his American citizenship. Consumed with hatred for his native country, he emigrated to Kwame Nkrumah's Ghana. He formally joined the Communist Party, hailing communism as "the only way of human life." For his long years of devotion to the Stalinist cause, the Soviet Union awarded DuBois the Lenin Prize; for his readiness to justify every Maoist crime, Communist China once celebrated his birthday as a national holiday.

To repeat, DuBois does not lack for honors or memorials. In Great Barrington itself, there is already a national historic site to commemorate his life. But there was much in that life that was far from honorable, not the least of which was the hatred of America that came to dominate his life. If Great Barrington feels the need for a statue, surely it can find a better subject than a man who despised American democracy, severed his ties with his country, and rooted for the cruelest tyrants of the 20th century.

Site to see

Amid the internet's vast ocean of drivel, some websites are alluring islands of knowledge and discovery. Each week, in "Site to See," I call attention to one of these online treasures.

This week's site, Skeptoid [URL: https: //skeptoid.com/], is the web home of the popular science podcast of the same name, which each week reveals "the true science behind popular misinformation and urban legends."

Skeptoid takes on a variety of pseudoscientific myths, from conspiracy theories ("the moon landings were staged") to urban legends ("the Hope Diamond is cursed") to phony "alternative" medicine ("aromatherapy promotes good health") to hoaxes ("the Abominable Snowman lives in the Himalayas").

For each subject tackled, there is an audio podcast plus a transcript — and there are hundreds of episodes, dating back to 2006. Poke around at the site, and you're bound to find dozens of curiosity-piquing topics. Here's one that particularly appealed to me as a one-time youthful devourer of comic books who scrutinized the products offered in the back-of-the-book ads with intense interest (but, alas, no money to indulge that interest): "The Science of X-Ray Specs and Sea Monkeys."

An excerpt:

"AMAZING X-RAY VISION INSTANTLY!" said the ad. Let's all be honest for a minute and stop pretending that any one of us actually wanted to use X-Ray Specs for any purpose other than seeing people naked. Nobody cared about seeing the "yolk of an egg" or "the lead in a pencil" like the ad trumpeted. Could such a thing be possible with a mere set of eyeglasses? We wondered whether some lens had been developed that could filter out the wavelengths of clothing or skin or muscle or whatever, and let us actually see what lies beyond.

What you actually got did not, of course, allow you to see your friends naked or see through walls; however they did produce an interesting effect, one good for perhaps three seconds of entertainment. They were plastic glasses with solid cardboard lenses (upon which a groovy red spiral was printed, because, you know, X-rays), and in the middle of each lens was a hole, and in this hole was embedded an actual bird feather. Why? The idea was that when each eye is looking through a diffractive feather, an interesting visual pattern would be produced. And so it is — just not all that interesting, and certainly not "naked people" interesting.

Funniest thing about the ad? "Money Back Guarantee."

Recommend a website for this feature! Send me the link and a short description (jeff.jacoby@globe.com), and put "Site to See" in the subject line.


My Sunday column was about Andrew Bushell, the proprietor of the Marblehead Brewing Company, and an entrepreneur with a considerable record of business success. In years past, Bushell built a $2.5 billion investment firm, was a McKinsey management consultant, and launched a company to make gourmet salt from Atlantic seawater. Yet when he approached the Massachusetts economic development agency for a loan to expand the brewery, he was turned down. Why? Because in addition to being a businessman, he is also an Orthodox Christian monk. "The Commonwealth of Massachusetts," I wrote, "is flummoxed by a loan applicant whose business chops are everything a state development agency dreams of, but whose mission and appearance are not what it's used to."

I wrote last week about the decision of the Massachusetts Supreme Judicial Court that a proposed "millionaires tax" initiative is ineligible to appear on the state ballot this fall. "Shed no tears," I wrote. "The initiative was a cynical ploy to get voters to do something they have repeatedly rejected — replacing the state's flat-rate income tax with a system of graduated tax brackets. But nobody was fooled by the ruse, least of all the SJC."

The last line

"And Harry K. Thaw, having obtained his release from the insane asylum, marched annually at Newport in the Armistice Day parade." — E. L. Doctorow, "Ragtime" (1975)

Jeff Jacoby can be reached at jacoby@globe.com. Follow him on Twitter @jeff_jacoby.