THE DEBATE RAGES over military tribunals, which President Bush has authorized for trying suspected foreign terrorists. Such trials would deny due-process protections we normally take for granted — trial by jury, strict rules of evidence, appeals — which is why many civil libertarians so strongly oppose them.
On the other hand, no tribunals have actually been impaneled, and they would not in any case be authorized to try US citizens. Neither common sense nor international law requires nations at war to presume the innocence of their enemies. If it is kosher to shoot Osama bin Laden on sight, tribunal advocates say, it is hard to see why he should be entitled to every safeguard the Constitution extends to Americans if we opt to try him instead.
Kangaroo courts? Sensible wartime forums? I can see the argument both ways. I can also see that even if military tribunals are set up, they will be only temporary arrangements posing no long-term threat to the freedom or decency of our culture.
Now for a real threat to freedom, consider a story in Monday's New York Times.
Headline: "Tired of Stereotyping, Bikers Turn to Law." Datelined Toledo, the story reports the efforts of Ohio motorcycle clubs to promote a bill banning discrimination against motorcycle riders. In Ohio as elsewhere, some restaurants and bars refuse to serve customers who show up looking like Marlon Brando in "The Wild One." There are motels where "Vacancy" signs are switched off when a herd of motorcycles swarms into the parking lot. Bikers resent the assumption that they are marauding thugs, and many think such anti-motorcycle animus should be illegal.
Accompanying the story is a picture of Carl Campbell, who "weighs just over 300 pounds without his biker boots and riding leathers." He likes to ride "a very large motorcycle," the story notes, "ideally in a thundering herd of fellow members" of his club. In the photo, the bearded Campbell glowers, beefy arms folded, eyes hidden behind sunglasses, head covered by a bandana. It is a look some people might call threatening.
Not Campbell, though. "I'm not trying to scare anybody," he insists. "That's just the way I dress." The fact that other people might in fact be scared by him — diners in a restaurant, say, or guests in a motel — does not, in his view, give a restaurant or hotel owner the right to refuse him service. So he backs the proposed law, which would slap a $500 fine on any business convicted of discriminating against people who operate motorcycles or wear motorcycle-related clothing. Similar bills are pending in other states; Minnesota enacted one in 1998.
And this, I repeat, poses more of a menace to our freedoms than Bush's military tribunals.
You might think a law guaranteeing bikers access to places of public accommodation is fanciful or you might think it long overdue, but odds are you won't find the idea shocking. It simply amounts to one more expansion of the civil rights laws we have all come to take for granted. And that's just the problem.
Civil rights laws were born of a determination to end a particular evil: the racial bigotry and segregation, often mandated by law, that for so long had abused blacks and robbed them of their rights. To remedy that gross injustice, the new laws limited Americans' liberty in one respect: They made it illegal to treat people differently on the basis of race. (The laws usually covered religion and national origin as well.) Apart from that, freedom of association would remain unabridged: People would be free to embrace or reject, to welcome or exclude, to hire or fire, to do business with or refuse to serve anyone at all for any reason at all.
And that was as it should be. In a free society, freedom includes the freedom to discriminate — to make judgments about people and act on those judgments. Ideally, no one would ever act out of bigotry. But just as freedom of speech encompasses the right to say things that are foolish or unfair, freedom of association must encompass the right to make decisions about people for foolish or unfair reasons.
But over the years, our freedom of association has been eroded. It is no longer just discrimination on the basis of race, religion, or national origin that is barred. A steady stream of laws has expanded the list to include sex, citizenship, age, marital status, physical or mental disability, sexual orientation, and veteran status. There are campaigns by fat people to make "weight discrimination" illegal, by transsexuals to prohibit "gender identity discrimination," by ex-cons to ban discrimination on the basis of having a criminal record. And now, motorcyclists.
This constant enlargement of "civil rights" exacts a price. It cheats private owners of their property rights. It replaces voluntary interaction with intimidation and force. It teaches aggrieved groups to use the law to compel changes instead of using persuasion and education to change minds. It weakens civil society, inflates government, and leaves all of us less free.
It is long past time to put an end to this hijacking of civil rights. Defeating the bikers' bill would be a good start.
(Jeff Jacoby is a columnist for The Boston Globe).
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