The story has made national news this week of two Oregon bakers, a husband and wife, who have been fined $135,000 for refusing to bake a cake for a lesbian wedding. From a libertarian standpoint, this is objectionable on several grounds.
Most significantly, it violates the libertarian maxim is that no person should be forced to do business with anyone else. To claim that the state should legally mandate such transactions is to implicitly deny the right to private property and, inasmuch as the right to property is a key feature of freedom, it is to undermine liberty itself.
Conservatives, too, have decried the Oregon decision, correctly pointing out that it is immoral for the government to force a citizen to do something that violates his conscience. Conservative Christians in particular are concerned about where the Supreme Court’s recent decision on gay marriage and precedents like this in Oregon will eventually lead. Given the current political and social environment, this concern is substantially warranted.
But this scenario has created another problem for conservatives, one of a logical nature. Throughout the recent rash of police brutality, conservatives have ceaselessly taken the side of law enforcement. Much of the conservative defense of the police has assumed a particularly self-righteous and condescending tone as conservatives have derided the recipients of police violence as incorrigible law-breakers. Many a time has a smug Gene Wilder appeared in my Facebook feed, asking if those offended by police behavior have tried not breaking the law.
But have the crimes committed justified the resulting violence? In the minds of conservatives, black market cigarette dealer Eric Garner was as deserving his fate as was liquor store robber Michael Brown. Freddie Gray, who’s crime of carrying a concealed weapon is the badge of honor for many conservatives, likewise received his due by the sheer fact of being arrested. The question of whether each case was a crime that deserved a violent altercation – or indeed, a crime at all – has gone unasked.
Conservatives have further engaged in the mass rationalization of the deaths of non-violent offenders. Newsmax went so far as to say that Garner’s death, rather than being the result of police officers choking him, was due to his obesity and generally poor health. One can only assume that, under this logic, it would be permissible to roll granny’s wheelchair into oncoming traffic and then blame her demise on osteoperosis – at least, as long as granny was selling untaxed cigarettes.
This treatment of the police brutality question has been predicated on conservatives’ inherent respect for law and order, which is not itself problematic. But deriving from this has been the assumption that anyone who breaks the law deserves their fate, which is a considerably less obvious conclusion. It’s not necessarily that conservatives don’t care about victims of police brutality, they just tend to think of them as criminals rather than victims.
But now, as the government moves ever closer to defining as criminal the very principles that they embrace, conservatives find themselves at a crossroads – whether they realize it or not.
What would happen, for instance, if Aaron and Melissa Klein, the bakers in Oregon, refused to pay their six-figure fine? They would be in violation of the state’s order and would be, by definition, criminals. Under this scenario, would conservatives offer their wholesale approval of any means, of any amount of force the police deemed necessary, to arrest them? If the Kleins attempted to avoid being kidnapped and extorted by the state’s officers, would conservatives heartily approve of the use of lethal force?
They would, after all, be criminals resisting arrest, not entirely unlike Garner and Gray. If the same logic used in defense of the police in those cases wouldn’t apply to the Kleins, then we must ask why not.
The objection might be made that Garner and Gray had previous criminal offenses and, therefore, their cases are different. But this is merely another rationalization. The fact that Eric Garner had a track record of arrests doesn’t mask the fact that he was killed by government agents for doing nothing more than selling cigarettes. The facts in the Garner case are so unassailably clear that it is only by employing an array of logical contortions that his death can be justified.
The point in all this is not to take conservatives to task, nor is it to paint all law enforcement as bullies. I have made the point before that broad generalizations in these cases serve only the most demagogic analyses of their causes and effects.
The point is rather to call for conservatives to reassess their responses to the problems of criminality and police violence. The truth is that as the state continues to grow, as it continues to label all sorts of peaceful activity as illegal, more and more people will become criminals, with their only crime being that of living their lives. More laws will necessarily require more enforcement, and it seems unlikely that the problem of police brutality will wane in this environment.
As conservatives have cheered the violent enforcement of laws prohibiting a wide variety of peaceful activities – including selling untaxed cigarettes and consuming drugs – the state has been planting the seeds by which their own peaceful activities – including owning firearms, purchasing health care (or not) and choosing which cakes to bake – will be criminalized.
That this criminalization has the potential to be enforced with the same brutality that conservatives have on other occasions cheered is a recipe for tragic irony. There is still time for conservatives to understand that laws that penalize peaceful activity are unjust, and that the violent enforcement of them is nothing to celebrate.
Ultimately, conservatives must understand that law and order are desirable goals, but they are meaningless in the absence of justice.